Full opinion text
MEMORANDUM OPINION AND ORDER DENYING RELIEF BIERY, District Judge. Petitioner Vincent Gutierrez filed this federal habeas corpus action pursuant to Section 2254 of Title 28 United States Code challenging his Bexar County conviction for capital murder and sentence of death. For the reasons set forth at length below, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court. I. Statement of the Case A. Factual Background 1. The Offense and Aftermath There is no genuine dispute about the operative facts surrounding Vincent Gutierrez and Randy Arroyo’s capital offense. On the evening of March 10, 1997, Randy Arroyo, Vincent Gutierrez, and several other persons met at the residence of Christopher Suaste to discuss Arroyo’s desire to steal a Mazda RX-7 automobile for the purpose of obtaining parts for a similar vehicle Arroyo had recently acquired. The following morning, Suaste drove Arroyo and Gutierrez to the residence of Miguel Riojas, Arroyo’s cousin. Riojas conversed briefly with Arroyo. Arroyo then returned to Suaste’s car and directed Suaste to drive to a nearby apartment complex where a red Mazda RX-7 owned by Air Force Captain Jose Cobo was parked. Arroyo directed Suaste to park his vehicle a short distance from Cobo’s red Mazda. As soon as Suaste did so, Gutierrez exited the vehicle and ran to the driver’s side of the red Mazda. Arroyo followed closely behind Gutierrez. Suaste watched as first Gutierrez, then Arroyo, entered the driver’s side of the red Mazda, and then watched the Mazda drive out of the apartment complex’s parking lot. Suaste drove his vehicle back to his home. Along the way, Suaste saw Captain Cobo lying on the shoulder of the highway with blood stains on his shirt. Several hours later, Suaste received a pair of telephone calls, first from Arroyo and then from Gutierrez, asking Suaste to come to a location in South San Antonio to pick them up. Suaste and Sean Lowe drove to the location in question and picked up Arroyo and Gutierrez. When Lowe and Suaste arrived, Gutierrez was wearing a brown tee shirt, a pair of black gym shorts bearing the USAF logo, but the same boots he had worn when Suaste dropped off Arroyo and Gutierrez at Captain Cobo’s apartment earlier that day. When Suaste criticized Gutierrez’s strange apparel, Gutierrez explained his clothes had blood on them and he had obtained the clothes he then had on from the back of the red Mazda they had stolen earlier that day. When Lowe and Suaste questioned Arroyo and Gutierrez about what had happened, Gutierrez laughingly explained: (1) he had forced Cobo at gunpoint to move to the passenger seat of the red Mazda and then climbed into the rear of the vehicle, (2) Arroyo drove the vehicle from the apartment complex, (3) when Cobo begged for his life and offered his wallet, Gutierrez reassured Cobo he would be released, (4) nonetheless, Cobo attempted to exit the vehicle but was restrained by a seat belt, (5) at that point, Gutierrez grabbed Cobo to prevent him from leaping from the moving vehicle, (6) Arroyo yelled “Shoot him. Shoot him. He’s trying to escape,” (7) Gutierrez fired his pistol twice, striking Cobo in the back, (8) Cobo began choking and coughing up blood, (9) as the robbers drove on, Gutierrez informed Arroyo he did not want to drive around with a “dead man” in the car with them, (10) Gutierrez directed Arroyo to slow the vehicle and, (11) when Arroyo did so, Gutierrez opened the passenger door, grabbed Cobo, and shoved Cobo out of the moving vehicle onto the shoulder of the highway. Gutierrez also displayed two spent shell casings he identified as having come from the fatal shots. Later that evening, when a television news report about Cobo’s murder was broadcast on the local news, Gutierrez again described his fatal shooting of Cobo and laughingly told others at Suaste’s apartment that Cobo got what he deserved for trying to escape. Later still that same evening, Arroyo voluntarily confessed his involvement in Cobo’s murder and led police to the .357 caliber handgun Gutierrez had used to kill Cobo, as well as the .25 caliber handgun Arroyo had carried during Cobo’s robbery and kidnaping. On May 28, 1997, a Bexar County grand jury indicted Arroyo, Gutierrez, and Suaste on charges of capital murder arising from Captain Cobo’s murder. 2. Pretrial Proceedings At a hearing December 1, 1997, the prosecution announced it had reached an agreement to sever the case against Suaste from that of Arroyo and Gutierrez. Arroyo and Gutierrez both moved for severance of their joint capital murder trial. During the course of that hearing, the prosecution expressly and specifically represented it had no intention of presenting any testimony at a joint trial establishing that either of the remaining two co-defendants had made any oral statements implicating the other defendant unless the trial court first authorized the admission of such testimony at a hearing outside the jury’s presence. Based on those representations, the state trial court denied both motions for severance. At a hearing held January 16,1998, both defendants re-urged their motions for severance and the state trial court denied same but admonished the prosecution that it would not admit any oral statements made by either of the co-defendants which implicated the other defendant in Cobo’s murder. 3. Guilt-Innocence Phase of Trial The guilt-innocence phase of Arroyo’s and Gutierrez’s joint capital murder trial commenced on February 23, 1998. In addition to Suaste’s testimony, summarized above, the jury heard testimony from Sean Lowe substantially corroborating Suaste’s account of Gutierrez’s purported narrative of Cobo’s robbery, kidnaping, and murder. The medical examiner testified Cobo died from two gun shot wounds to the back, either of which would have independently proven fatal. The prosecution introduced testimony from law enforcement officers and others regarding the recovery of Cobo’s abandoned vehicle and Gutierrez’s blood-stained clothing, both from locations near where Suaste and Lowe had picked np Gutierrez and Arroyo shortly after the murder. Several other prosecution witnesses testified they had observed either Cobo’s struggle to exit the red Mazda or Cobo’s limp body being pushed from the moving vehicle during morning rush hour traffic. A prosecution ballistics expert testified the .357 handgun to which Arroyo led police on the evening of the murder had fired both a bullet that fell out of Captain Cobo’s chest when an Air Force flight surgeon attempted cardiopulmonary resuscitation at the scene where Cobo’s body had been thrown and another bullet recovered from the floorboard of Cobo’s red Mazda. A prosecution DNA expert testified that the blood found on Gutierrez’s clothing in a dumpster matched that of Captain Cobo. Another prosecution witness identified the black USAF gym shorts and brown tee shirt worn by Gutierrez when Suaste and Lowe picked up Arroyo and Gutierrez shortly after the murder as similar to exercise clothing Captain Cobo kept in his vehicle. While Arroyo offered no evidence at the guilt-innocence phase of trial, Gutierrez presented a single alibi witness and argued that Sean Lowe was the person who actually shot Cobo. On March 2, 1998, the jury returned its verdicts, finding both Arroyo and Gutierrez guilty of capital murder. 4. Punishment Phase of Trial After Arroyo and Gutierrez unsuccessfully moved for severance of the punishment phase of the joint trial, the trial continued on March 3, 1998. The prosecution’s punishment phase witnesses testified regarding (1) an incident on July 15, 1996, in which Arroyo grabbed a 13-year-old boy in a headlock and repeatedly punched the boy in the mouth, causing the boy extensive injuries, (2) Arroyo’s association with a violent gang, (3) Arroyo’s persistently violent behavior and threatening conduct during pretrial detention, (4) an incident on September 23, 1995, in which Arroyo was a passenger in a car from which Miguel Riojas fired numerous shots into the home of rival gang members, (5) an incident in November, 1994, in which Arroyo and several other youths stole a car and drove it to a fast-food restaurant, (6) an incident in which Arroyo and others fired shots at a pair of vehicles in which members of a rival gang were riding, (7) an incident on June 16, 1996, in which Arroyo fired a gun just outside a pool hall after an altercation inside the establishment involving Arroyo’s father, (8) an incident on March 6, 1997, in which Arroyo held a gun to the head of a 13-year-old girl and demanded she engage in sex with him, Gutierrez, Suaste, and Lowe, (9) numerous instances of violent, threatening conduct by Arroyo at school, and (10) numerous incidents of violent conduct by Arroyo at the apartment complex where he lived with his alcoholic father. The prosecution also presented testimony (1) from several witnesses regarding a string of burglaries to which Gutierrez pleaded guilty, (2) concerning Gutierrez’s leadership role in the Puro Mexican Kings gang, (3) regarding an incident on November 9, 1997, in which Gutierrez fought another jail inmate, (4) about numerous instances of misbehavior by Gutierrez at school, including an incident on November 17, 1992, in which Gutierrez allegedly attempted to procure a pistol on campus, culminating in Gutierrez’s expulsion, and (5) regarding an essay Gutierrez wrote as an eighth-grader only days before he attempted to obtain a handgun on campus in which Gutierrez fantasized about shooting a person with a rifle and fleeing to Mexico. Arroyo’s trial counsel presented testimony at the punishment phase of trial: (1) from several of Arroyo’s former teachers, school counselors, and an attorney who had previously represented Arroyo that Arroyo had always been polite to them and had never threatened them and (2) from a long-time family friend that Arroyo was “a fine young man” whose world came to an end when Arroyo’s mother died. Gutierrez’s trial counsel presented testimony from (1) numerous persons who knew Gutierrez through their church regarding Gutierrez’s quiet demeanor and participation in church camps and service projects, (2) family members and family friends concerning Gutierrez’s non-violent, non-threatening character, (3) many persons who expressed disbelief or surprise that Gutierrez had been convicted of such a violent offense, (4) jail guards concerning Gutierrez’s non-violent behavior throughout his pretrial detention, and (5) Gutierrez’s mother concerning his father’s negative impact on Gutierrez’s upbringing, as well as Gutierrez’s childhood health problems, academic successes in elementary school, and good character. On March 6, 1998, the jury returned its verdicts at the punishment phase of trial and, based on the jury’s answers to the capital sentencing special issues, the trial court sentenced both defendants to death. 5. Direct Appeal On October 15, 1999, Gutierrez filed his appellant’s brief, asserting only two points of error arguing: (1) the state trial court erred in denying Gutierrez’s requested jury instruction that Sean Lowe was an accomplice as a matter of law and (2) the death penalty violates the Eighth Amendment. In an unpublished opinion issued April 12, 2000, the Texas Court of Criminal Appeals affirmed Gutierrez’s conviction and sentence. Gutierrez did not file a petition for writ of certiorari seeking review of his conviction by the United States Supreme Court. 6. State Habeas Corpus Proceeding On June 15, 2000, Gutierrez filed an application for state habeas corpus relief. The state habeas trial court held an evi-dentiary hearing on March 27-29, 2001. On July 17, 2001, the state habeas trial court issued a 60-page Order containing its findings of fact, conclusions of law, and recommendation that Gutierrez’s state ha-beas application be denied. In an unpublished Order issued October 10, 2001, the Texas Court of Criminal Appeals adopted the state trial court’s findings and conclusions and denied state habeas relief. B. Federal Procedural History Gutierrez filed his federal habeas corpus petition in this Court on April 30, 2002, asserting therein fourteen claims for relief. On September 30, 2002, respondent filed an answer and motion for summary judgment, arguing in part that petitioner had procedurally defaulted on several of his claims herein by failing to exhaust available state remedies on those same claims. On December 31, 2002, Gutierrez filed his reply to respondent’s motion for summary judgment. II. AEDPA Standard of Review Because Gutierrez filed his federal habe-as corpus action after the effective date of the AEDPA, this Court’s review of petitioner’s claims for federal habeas corpus relief is governed by the AEDPA. Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). Under the AEDPA standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000); 28 U.S.C. § 2254(d). The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003)(“A state court’s decision is ‘contrary to’ our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases’ or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’ ”). A state court’s failure to cite governing Supreme Court authority does not, per se establish that the state court’s decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents; ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.’ ” Mitchell v. Esparza, 540 U.S. at 16, 124 S.Ct. at 10. Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Wiggins v. Smith, 539 U.S. at 520-21, 123 S.Ct. at 2535. The focus of this inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable and an “unreasonable” application is different from a merely incorrect one. Wiggins v. Smith, 539 U.S. at 520, 123 S.Ct. at 2535; Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 1853, 155 L.Ed.2d 877 (2003)(“it is the habeas applicant’s burden to show the state court applied that case to the facts of his case in an objectively unreasonable manner.”) Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, -, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.’ ”); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003). The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings, requiring a petitioner challenging state court factual findings establish by clear and convincing evidence that the state court’s findings were erroneous. See Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir.2004) (“The AEDPA requires that we presume correct the state court’s findings of fact unless the petitioner ‘rebuts the presumption of correctness by clear and convincing evidence.’ ”), cert. denied, — U.S. -, 125 S.Ct. 421, 160 L.Ed.2d 325 (2004); Pondexter v. Dretke, 346 F.3d 142, 146, 149 (5th Cir.2003) (holding that, pursuant to § 2254(e)(1), state court findings of fact are presumed correct and the petitioner has the burden of rebutting that presumption by clear and convincing evidence), cert. denied, 541 U.S. 1045, 124 S.Ct. 2160, 158 L.Ed.2d 736 (2004); Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.2003) (holding the same), cert. denied, 540 U.S. 1163, 124 S.Ct. 1170, 157 L.Ed.2d 1208 (2004); 28 U.S.C. § 2254(e)(1). III. Witherspoon Claim A. The Claim In his first claim for federal habeas relief, petitioner argues the state trial court erroneously granted the prosecution’s challenge for cause to venire member Gerald Becker based on Becker’s personal religious objections to the death penalty. B. State Court Disposition During his voir dire examination, venire member Gerald Becker repeatedly testified he would find it extremely difficult, if not impossible, to vote to impose the death penalty because of his strong religious antipathy toward the death penalty. Becker testified further that while there might be a hypothetical circumstance in which there was a complete and total absence of any mitigating evidence, which would permit him to vote to impose the death penalty, he could not conceive of what such a situation would involve. Eventually, the state trial court sustained the prosecution’s challenge for cause. Petitioner presented no complaint on direct appeal concerning Becker’s exclusion. The state habeas trial court concluded: (1) petitioner procedurally defaulted on his Witherspoon claim by failing to assert it on direct appeal and (2) the state trial court properly excluded Becker for cause based on Becker’s testimony he could not perform his duties as an impartial juror. C.Procedural Default on the Wither-spoon Claim The Texas Court of Criminal Appeals expressly adopted the state habeas trial court’s findings and conclusions, including the conclusion that Gutierrez procedurally defaulted on his Witherspoon claim by failing to present same on direct appeal. Procedural default occurs where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). In either instance, the petitioner is deemed to have forfeited his federal habe-as claim. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999). However, such procedural defaults only bar federal habeas review when the state procedural rule that forms the basis for the procedural default was “firmly established and regularly followed” by the time it was applied to preclude state judicial review of the merits of a federal constitutional claim. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). Gutierrez alleges no facts, and cites this Court to no Texas case law, showing the foregoing principle of state procedural default has been inconsistently followed by the state appellate courts in similar contexts. More specifically, Gutierrez identifies no instances in which the Texas Court of Criminal Appeals has entertained the merits of a Witherspoon claim when raised for the first time in a state habeas corpus application. More importantly, the Fifth Circuit has recognized the same procedural default rule relied upon by respondent in connection with the procedural default of Gutierrez’s first claim herein was “firmly established” for federal procedural default purposes long before the date Gutierrez filed his brief on direct appeal. See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir.) (holding the Texas Court of Criminal Appeals’ opinion in Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996) modified on motion for rehearing on February 4, 1998, furnishes the foundation for this new state procedural rule); Finley v. Johnson, 243 F.3d 215, 219 (5th Cir.2001) (holding a federal habeas petitioner procedurally defaulted on an unexhausted newly discovered evidence theory supporting a Brady claim by failing to raise same on direct appeal); Soria v. Johnson, 207 F.3d 232, 249 (5th Cir.) (holding a federal habe-as petitioner procedurally defaulted on a fair-cross-section complaint by failing to raise it in a direct appeal that became final in 1997), cert. denied, 530 U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000). At the time petitioner filed his appellant’s brief, in October of 1999, the law in Texas as established on rehearing in Ex parte Gardner required a convicted criminal defendant to present any and all claims then available as points of error on direct appeal. For unknown reasons, petitioner’s appellate counsel failed to assert petitioner’s Wither-spoon claim on direct appeal. Thus, Gutierrez has procedurally defaulted on his Witherspoon claim. The Supreme Court has recognized exceptions to the doctrine of procedural default where a federal habeas corpus petitioner can show “cause and actual prejudice” for his default or that failure to address the merits of his procedurally defaulted claim will work a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). To establish “cause,” a petitioner must show either that some objective external factor impeded the defense counsel’s ability to comply with the state’s procedural rules or that Gutierrez’s trial or appellate counsel rendered ineffective assistance. Coleman v. Thompson, 501 U.S. at 753, 111 S.Ct. at 2566; Murray v. Canier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (holding that proof of ineffective assistance by counsel satisfies the “cause” prong of the exception to the procedural default doctrine). While a showing of ineffective assistance can satisfy the “cause” prong of the “cause and actual prejudice” exception to the procedural default doctrine, as explained hereinafter Gutierrez’s complaint regarding his appellate counsel’s failure to assert a Witherspoon claim on direct appeal does not satisfy either prong of the Strickland v. Washington test for ineffective assistance. In order to satisfy the “miscarriage of justice” test, the petitioner must supplement his constitutional claim with a color-able showing of factual innocence. Sawyer v. Whitley, 505 U.S. 333, 335-36, 112 S.Ct. 2514, 2519, 120 L.Ed.2d 269 (1992). To satisfy the “factual innocence” standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant’s guilt. See Sawyer v. Whitley, 505 U.S. at 335-40, 112 S.Ct. at 2517-19 (holding that to show “actual innocence” in the context of a capital sentencing scheme, one must show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state statute and that “factual innocence” means a fair probability that, in light of all the evidence, the trier of the facts would have entertained a reasonable doubt as to the defendant’s guilt). In other words, to satisfy the “factual innocence” standard, a petitioner must establish a fair probability that, considering all of the evidence now available, the trier of fact would have entertained a reasonable doubt as to the defendant’s guilt. Id. The “factual innocence” test, therefore, requires the Court to give consideration to the all of the evidence now available to the Court on the issue of the petitioner’s guilt or innocence. The defendant must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). Gutierrez has alleged no specific facts satisfying this “factual innocence” standard. Because Gutierrez has failed to satisfy the “actual innocence” test, he is not entitled to relief from his procedural defaults under the fundamental miscarriage of justice exception to the procedural default doctrine. D. No Merits on the Underlying Wither-spoon Claim Having independently reviewed the vacillating voir dire examination of venire member Gerald Becker, this Court concludes the state habeas court’s alternative holding (that Gutierrez’s Witherspoon claim was without merit) is reasonable under clearly established federal law. In Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776 (1968), the Supreme Court held prospective jurors may not be excused from sitting on a capital jury simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Rather, the Supreme Court held as follows: The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty regardless of the facts and circumstances that might emerge in the course of the proceedings. Witherspoon v. Illinois, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21. In Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Supreme Court emphasized the limitations Witherspoon imposed on the ability of the State to exclude members of a jury venire from service on a petit capital jury and directly addressed jury selection in Texas capital murder trials: a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court. Adams v. Texas, 448 U.S. at 45, 100 S.Ct. at 2526. The Supreme Court went on in Adams to discuss the many practical consequences of its Witherspoon holding: If the juror is to obey his oath and follow the law of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias. The State does not violate the Witherspoon doctrine when it excludes prospective jurors who are unable or unwilling to address the penalty questions with this degree of impartiality. ... [A] Texas juror’s views about the death penalty might influence the manner in which he performs his role but without exceeding the “guided jury discretion” permitted him under Texas law. In such circumstances, he could not be excluded consistently with Witherspoon. ... The State could, consistently with Witherspoon, use § 12.31(b) to exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths. But the use of § 12.31(b) to exclude jurors on broader grounds based on their opinions concerning the death penalty is impermissible. ... [NJeither nervousness, emotional involvement, nor inability to deny or confirm any effect whatsoever is equivalent to an unwillingness or an inability on the part of the jurors to follow the court’s instructions and obey their oaths, regardless of their feelings about the death penalty .... Nor in our view would the Constitution permit the exclusion of jurors from the penalty phase of a Texas murder trial if they aver that they will honestly find the facts and answer the questions in the affirmative if they are convinced beyond a reasonable doubt, but not otherwise, yet who frankly concede that the prospects of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.... ... [T]he State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths. Adams v. Texas, 448 U.S. at 46-50, 100 S.Ct. at 2527-29 (citations omitted). In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court further clarified its holdings in Witherspoon and Adams holding the proper inquiry when faced with a venire member who expresses personal, conscientious, or religious views on capital punishment is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 469 U.S. at 424, 105 S.Ct. at 852. In Wainwright, the Supreme Court also emphasized that considerable deference is to be given the trial court’s first-hand evaluation of the potential juror’s demeanor and that no particular magical incantation or word choice need necessarily be followed in interrogating the potential juror in this regard. Id. at 430-35, 105 S.Ct. at 855-58. The Supreme Court subsequently held the erroneous dismissal of a potential juror in violation of Witherspoon is not subject to harmless error analysis. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987). Both parties have quoted extensively from the voir dire examination of Gerald Becker in their pleadings in this cause. Becker represents the quintessential vacillating juror who appears intent on conscientiously asserting his personal views regarding the death penalty while tacitly acknowledging his responsibility as a citizen to serve on a criminal jury, even if those duties contravene his own personal views. In such cases, the Supreme Court has emphasized the importance of deferring to the state trial judge’s determination of a potential juror’s bias based on the trial court’s firsthand examination of the potential juror’s demeanor. Wainwright, 469 U.S. at 430-35, 105 S.Ct. at 855-58. Mr. Becker consistently made clear he believed his personal views on the death penalty would interfere with his ability to serve on Mr. Gutierrez’s jury. He repeatedly admitted he could not envision a situation in which he could vote to impose the death penalty, although he could not rule out the possibility he might be able to do so in a purely hypothetical case. At no point during his voir dire examination did Mr. Becker testify he would be able to put aside his personal beliefs regarding the death penalty and answer the capital sentencing special issues based solely on the evidence and the trial court’s instructions. Thus, the state trial court’s factual determination of bias was a reasonable determination of the facts based on the evidence then before that court in the form of Mr. Becker’s testimony and demeanor. See Patton v. Yount, 467 U.S. 1025, 1036-37 & n. 12, 104 S.Ct. 2885, 2891 & n. 12, 81 L.Ed.2d 847 (1984) (recognizing that, while the question of a venire member’s disqualification is a mixed question of law and fact, a trial judge’s determination regarding a venire member’s bias is essentially a factual determination entitled to deference on collateral review); Beazley v. Johnson, 242 F.3d 248, 262 (5th Cir.2001) (recognizing a trial judge’s finding of bias during voir dire is a determination of fact subject to a presumption of correctness on collateral review), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). Petitioner Gutierrez presented the state habe-as court with no “clear and convincing” evidence establishing the trial court’s factual determination regarding Becker’s bias was erroneous. There is no “clear and convincing” evidence now before this Court establishing the state trial court’s implicit credibility determination regarding Gerald Becker’s ability to set aside his personal views and follow the trial court’s instructions regarding the death penalty was erroneous. Under such circumstances, the state ha-beas court’s rejection on the merits of Gutierrez’s Witherspoon claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, nor an unreasonable determination of the facts in light of the evidence presented in Gutierrez’s state ha-beas corpus proceeding. E. Conclusions Petitioner Gutierrez proeedurally defaulted on his Witherspoon claim. The Texas Court of Criminal Appeals’ alternative conclusion that petitioner’s Wither-spoon claim was without merit was a reasonable application of the Supreme Court’s holdings in WainwHght, Adams, and Witherspoon. Mr. Gutierrez’s first claim herein does not warrant federal habeas relief IV. Denial of Motions for Severance A. The Claim In his third claim herein, petitioner complains the trial court erred when it denied his motions for severance, particularly his motion requesting severance made immediately prior to the start of the punishment phase of his and Mr. Arroyo’s joint capital murder trial. B. State Court Disposition The state habeas trial court concluded: (1) petitioner procedurally defaulted on this complaint by failing to raise same on direct appeal, (2) petitioner also procedurally defaulted on his complaints about the denials of his motions to sever by failing to present the trial court with any evidence supporting petitioner’s claims that prejudicial evidence would be admitted against him absent a severance, (3) the trial court’s instruction to the jury at the punishment phase of trial to consider the evidence introduced during that phase only with regard to the defendant against whom it was introduced was effective to prevent any prejudicial impact on Gutierrez arising from the evidence of Arroyo’s criminal background, and (5) the denial of Gutierrez’s motions for severance did not deprive him of the individualized sentencing process mandated by the Eighth Amendment. C. Procedural Defaults on Complaints Re Denial of Severance Only those state procedural rules that were firmly established and regularly followed at the time of a claim’s dismissal for procedural default bar subsequent federal habeas review of that claim. See Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991) (holding that application of state procedural default rules bars federal habeas merits review of a claim only when the state procedural default rule is firmly established and regularly followed). The state habeas court’s determination that petitioner procedurally defaulted on his complaints regarding the denial of his motions for severance by failing to present those same, record-based, claims on direct appeal represents precisely such a “firmly established and regularly followed” state procedural rule. See Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004) (holding the Texas Court of Criminal Appeals’ opinion in Ex parte Gardner, modified on motion for rehearing on February 2, 1998, furnishes the foundation for this new state procedural rule), cert. denied, 541 U.S. 1087, 124 S.Ct. 2812, 159 L.Ed.2d 249 (2004). Petitioner filed his appellant’s brief in October, 1999, long after the Texas Court of Criminal Appeals issued its landmark ruling in Gardner. Likewise, petitioner procedurally defaulted by failing to present the trial court with any evidence showing precisely what “prejudicial evidence” would be admitted against petitioner absent a severance. Petitioner identifies no instance in which Texas appellate courts have addressed the merits of a complaint regarding the denial of a motion to sever absent some evidence in the record establishing the trial court was aware at the time it was requested to rule on such a motion of exactly what allegedly prejudicial evidence would be admitted against a criminal defendant absent the severance. In this Circuit, the burden is ordinarily on the petitioner to establish that a state procedural barrier has not been regularly followed; to avoid the impact of a finding of state procedural default, the petitioner must show the state procedural rule furnishing the basis for the default finding was not faithfully applied by the state courts in an evenhanded manner in the vast majority of similar cases. See Johnson v. Cain, 215 F.3d 489, 494 (5th Cir.2000) (holding there is a presumption a state procedural ground is adequate and independent, i.e., regularly followed, and the burden is on the petitioner to show otherwise); Hughes v. Johnson, 191 F.3d 607, 614 & n. 5 (5th Cir.1999) (holding the same), cert. denied, 528 U.S. 1145, 120 S.Ct. 1003, 145 L.Ed.2d 945 (2000). As is explained hereinafter, petitioner’s assertions regarding his appellate counsel’s failure to present a point of error on direct appeal complaining about the denial of his motions for severance does not satisfy either prong of the Strickland test for ineffective assistance. D. No Merits to Complaints Re Denial of Severance The Supreme Court’s holding in Zafiro v. United States controls the disposition of petitioner’s complaints about the trial court’s failure to sever his capital murder trial from of Mr. Arroyo. In Zafiro, the Supreme Court held a federal district court is only required to sever properly-joined defendants if there is a serious risk a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence. Severance of the guilt-innocence phase of Gutierrez’s capital murder trial from the same phase of Arroyo’s capital murder trial would have had absolutely no effect on the quantity or quality of the evidence the prosecution could have admitted against Gutierrez. Petitioner Gutierrez’s highly inculpatory admissions to Sean Lowe, Christopher Suaste, and others regarding the graphic details of his and Arroyo’s murder of Captain Cobo would have been admissible against Gutierrez regardless of whether Arroyo had been tried with Gutierrez. Arroyo’s written confession was not admitted into evidence at petitioner’s joint trial with Arroyo. Petitioner identifies no other “prejudicial” evidence which would have been rendered inadmissible at the guilt-innocence phase of his capital murder trial had Arroyo’s trial been severed from petitioner’s. Petitioner does not seriously contend otherwise. Instead, the focus of his third claim lies on the punishment phase of his joint capital murder trial and the potential prejudice Gutierrez claims he suffered through guilt by association and by virtue of the punishment-phase testimony the jury heard which established Arroyo’s hot-headed nature and clear propensity for violent conduct. Petitioner argues there was substantially greater evidence of Arroyo’s violent criminal record and propensity for future violence introduced at the punishment phase of their joint capital murder trial than his own. However, it is well-settled in this Circuit that disparity in the amount of evidence presented against co-defendants does not justify severance in the absence of a showing of prejudice. See United States v. Dale, 374 F.3d 321, 325 (5th Cir.), cert. denied, sub nom. Spencer v. United States, — U.S. -, 125 S.Ct. 513, 160 L.Ed.2d 383 (2004) (holding a general claim of prejudice arising from “spill-over effect” of a joint trial does not outweigh the prosecution’s interest in judicial economy); United States v. Simmons, 374 F.3d 313, 318 (5th Cir.2004) (holding the mere presence of spillover effect does not warrant severance); United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002), cert. denied, 538 U.S. 1014, 123 S.Ct. 1956, 155 L.Ed.2d 851 (2003) (holding spillover, by itself, is an insufficient predicate for a severance). Moreover, the Supreme Court noted in Zafiro that, ordinarily, proper jury instructions can suffice to prevent any possibility of prejudice. See Zafiro v. United States, 506 U.S. at 540-41, 113 S.Ct. at 939 (recognizing juries are presumed to follow their instructions). In the jury charge at the punishment phase of petitioner’s joint capital murder trial with Arroyo, the state trial court specifically instructed the jury to consider evidence separately whenever it was admitted against one defendant but not the other. The prosecution’s evidence introduced during the punishment phase of petitioner’s joint trial with Arroyo was readily amenable to logical compartmentalization by the jury, in accordance with the trial court’s instruction. A number of prosecution witnesses testified regarding incidents in which Arroyo engaged in criminal conduct, violent behavior during pretrial detention, or both. Only one of those prosecution witnesses made any mention of petitioner and that witness, Kriehelle Ri-card, testified petitioner had acted to protect her. More specifically Ms. Ricard testified that after Arroyo demanded at gunpoint she have intercourse with him, petitioner and others, all the men except Gutierrez left and Gutierrez thereafter offered to tell the others they had engaged in intercourse even though they had not done so. While the prosecution presented numerous witness who testified regarding petitioner’s criminal acts and an episode of violence during petitioner’s pretrial detention, none of those incidents were linked in any way to Arroyo. Thus, there does not appear to have been any logical reason why, during its punishment-phase deliberations, petitioner’s jury could not have kept the evidence then before it relating to petitioner’s misdeeds separate and distinct from similar but distinct punishment-phase evidence it had heard regarding Arroyo’s misdeeds. See United States v. Ramirez, 145 F.3d 345, 355 (5th Cir.) (if the jury can keep separate the evidence that is relevant to each defendant, even if that task is difficult, and render a fair and impartial verdict as to each defendant, a severance should not be granted), cert. denied, 525 U.S. 1046, 119 S.Ct. 602, 142 L.Ed.2d 543 (1998). Furthermore, petitioner alleges no facts showing that any of the testimony of Arroyo’s six punishment-phase witnesses prejudiced petitioner at that phase of trial. All of Arroyo’s punishment-phase witnesses focused their testimony on either the circumstances of Arroyo’s difficult childhood or on Arroyo’s redeeming personal qualities. Likewise, while petitioner presented sixteen witnesses during the punishment phase of trial, all of these witnesses testified solely with regard to Gutierrez’s own difficult childhood and redeeming qualities. Finally, by the conclusion of the punishment phase of petitioner’s joint capital murder trial with Arroyo, there was no longer any genuine dispute as to which of the defendants had actually shot Captain Cobo or any of the other circumstances of Captain Cobo’s murder. Neither defendant offered the jury any evidence at the punishment phase of trial, or presented any jury arguments, which tended to diminish his responsibility for Captain Cobo’s murder or which attempted to enhance the jury’s perception of his co-defendant’s comparative role in that offense. This was not a case in which multiple criminal defendants presented conflicting evidence or argument at the punishment phase of a joint capital murder trial in an attempt to create the impression that their own criminal responsibility was less than that of their co-defendants’. Under such circumstances, the trial court’s instruction should have been sufficient to avoid any prejudice to Gutierrez arising from his joint punishment-phase trial with Arroyo. See United States v. Bernard, 299 F.3d 467 (5th Cir.2002) (holding a federal district court was not required to sua sponte sever the punishment phase trials of multiple capital murder defendants where the court instructed the jury to consider each defendant’s punishment separately and there was an insufficient showing the defendants’ punishment phase evidence was either mutually antagonistic or irreconcilable), cert. denied, 539 U.S. 928, 123 S.Ct. 2572, 156 L.Ed.2d 607 (2003). Under such circumstances, the trial court’s denial of Gutierrez’s motion for severance at the punishment phase of trial did not deprive Gutierrez of a fair trial or deprive Gutierrez of the individualized sentencing determination required by the Eighth Amendment. The Texas Court of Criminal Appeals’ alternative denial of this same claim on the merits during petitioner’s state habeas corpus proceeding was the product of a reasonable application of clearly established federal law. E. Teague Foreclosure Insofar as petitioner argues the Eighth Amendment compels a state trial court to hold a separate trial on punishment for every capital murder defendant found guilty with other defendants of participating in the same capital murder, respondent correctly points out that this Court is foreclosed from recognizing such a new rule in this habeas corpus proceeding by the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). A “new rule” for Teague purposes is one which was not dictated by precedent existing at the time the defendant’s conviction became final. See O’Dell v. Netherland, 521 U.S. 151, 156, 117 S.Ct. 1969, 1973, 138 L.Ed.2d 351 (1997) (holding a “new rule” either “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or was not “dictated by precedent existing at the time the defendant’s conviction became final”). Under this doctrine, unless reasonable jurists hearing the defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Id. The holding in Teague is applied in three steps: first, the court must determine when the petitioner’s conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the non-retroactivity principle. See Caspari v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953. The only two exceptions to the Teague non-retroactivity doctrine are reserved for: (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) “watershed” rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O’Dell v. Netherland, 521 U.S. at 157, 117 S.Ct. at 1973. A conviction becomes final for Teague purposes when either the United States Supreme Court denies a certiorari petition on the defendant’s direct appeal or the time period for filing a certiorari petition expires. Caspan v. Bohlen, 510 U.S. at 390, 114 S.Ct. at 953. Petitioner’s conviction became final for Teague purposes on July 12, 2000, i.e., 91 days after the date the Texas Court of Criminal Appeals issued its opinion affirming petitioner’s conviction on direct appeal and the date petitioner’s deadline for filing a petition for writ of certiorari with the United States Supreme Court expired. Beard v. Banks, 542 U.S. 406, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (recognizing a state criminal conviction ordinarily becomes final for Teague purposes when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely filed petition for certiorari has been denied); 28 U.S.C. § 2101(d) (the deadline for filing a certiorari petition from a state criminal conviction shall be established by Supreme Court rule); SUP. CT. R. 13.1. Teague remains applicable after the passage of the AEDPA. See Horn v. Banks, 536 U.S. 266, 268-72, 122 S.Ct. 2147, 2148-51, 153 L.Ed.2d 301 (2002) (applying Teague in an AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.) (recognizing the continued vitality of the Teague non-retroactivity doctrine under the AEDPA), cert. denied, 539 U.S. 979, 124 S.Ct. 28, 156 L.Ed.2d 691 (2003). Admittedly, the Supreme Court has recognized that individualized sentencing is an important goal in the capital sentencing process. See Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 2098, 144 L.Ed.2d 370 (1999) (recognizing that, at the selection phase, capital sentencing decisions must rest upon an individualized inquiry, which allows broad inquiry into the constitutionally relevant mitigating evidence); Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998) (recognizing that, in the selection phase of a capital sentencing proceeding, there is a need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination); Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994) (holding “what is important at the selection phase is an individualized determination on the basis of the character of the individual and the circumstances of the crime”, (quoting Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983))). However, the Supreme Court has never held this consideration mandates that a separate punishment-phase trial be held for each capital murder defendant convicted jointly with other defendants under the Texas law of parties or similar theories of joint criminal responsibility. The rule advocated by petitioner in his third claim herein was most certainly not mandated by existing Supreme Court precedent as of the date petitioner’s conviction became final. Thus, Teague forbids this Court from adopting such a new rule in the context of this federal habeas corpus proceeding. F. Conclusions Petitioner procedurally defaulted on his complaints about the state trial court’s denials of his motions for severance by failing to present the trial court with any evidence supporting his assertions that he would be prejudiced absent a severance and by petitioner’s failure to present similar complaints on direct appeal. Furthermore, petitioner’s complaints lack merit and amount to little more than a request for adoption of a new rule of constitutional criminal procedure which is prohibited in this federal habeas corpus proceeding by the Teague non-retroactivity doctrine. Therefore, petitioner’s third claim herein does not warrant federal habeas corpus relief. V. Voir Dire Testimony of Rosemary Harrell A. The Claim In his fifth claim herein, petitioner complains venire member Rosemary Harrell testified falsely regarding her criminal history and her qualifications to serve as a juror and thereby managed to serve as a juror despite being unqualified to do so under state law, depriving petitioner of a fair trial. B. State Court Disposition Venire member Rosemary Harrell filled out a juror information questionnaire in which she.indicated, in part: (1) she had never been charged with theft or shoplifting but (2) she had been convicted of DWI. During her voir dire examination, however, Rosemary Harrell testified: (1) in 1979, she had been charged with theft of under five dollars but that charge was totally dismissed, (2) she never paid any fine and never appeared in court in connection with that charge, (3) she did not recall being arrested in connection with the 1979 theft charge, but (4) she was certain she never went to court in connection with that charge. Neither party made any challenge for cause to Mrs. Harrell, and she served on petitioner’s jury. In the course of his state habeas corpus proceeding, petitioner argued that, contrary to her voir dire testimony, Mrs. Harrell had been convicted of theft of less than five dollars in connection with her 1979 arrest and, therefore, under applicable state law, was ineligible to serve on petitioner’s jury. At the evidentiary hearing held in petitioner’s state habeas corpus proceeding, petitioner presented the state habeas trial court with a computer printout and another document (Gutierrez Exhibit no. 1) purporting to show Mrs. Harrell had been convicted of such an offense. The document in question consisted of a single-page letter from the San Antonio Municipal Court Clerk stating only: (1) a charge of theft of less than five dollars, a Class C misdemeanor, had been filed against Rosemary Harrell on January 8, 1979, (2) a forty-dollar cash bond was forfeited in connection with this charge on January 15, 1979, and (3) “the case was paid” on January 17, 1979. The January 20, 1998 computer printout of Mrs. Harrell’s criminal record included an ambiguous reference to an event on January 6, 1979, but no clear indication that she had been convicted of any offense in connection with that matter. Petitioner’s co-counsel at trial, attorney William Berchelmann, testified during petitioner’s state habeas corpus proceeding: (1) in his opinion, nothing in the ambiguous documents presented by petitioner established Rosemary Harrell had, in fact, been convicted of a criminal offense in 1979, (2) he relied on her voir dire testimony to satisfy himself she was qualified to serve as a juror at petitioner’s trial, (3) there was no formal judgment of conviction on a charge of theft for Rosemary Harrell in any of the documents then before the court, and (4) she was acceptable to him as a juror because she was Catholic, had no military ties, expressed reluctance with regard to imposing the death penalty, and had unpleasant experiences with law enforcement. Petitioner’s other co-counsel at trial, attorney Lisa Jarrett, testified during the same proceeding: (1) she was not concerned about Mrs. Harrell’s questionnaire answers after hearing her voir dire testimony, (2) she was satisfied with Mrs. Harrell’s answers to the prosecution’s voir dire questions regarding Mrs. Harrell’s criminal record, and (3) Mrs. Harrell was acceptable to both her and Mr. Ber-chelmann. Mr. Arroyo’s co-counsel at trial, attorney Michael Granados, testified during the joint evidentiary hearing held in petitioner’s and Arroyo’s state habeas corpus proceeding: (1) nothing in the documents then before the court convinced him Mrs. Harrell had a final shoplifting conviction on her criminal record, (2) the fact there was no arrest warrant pending for Mrs. Harrell as of the date of voir dire in petitioner’s trial convinced him that no theft charge was then outstanding against her, (3) he was satisfied by Mrs. Harrell’s voir dire testimony she was qualified to serve as a juror, (4) in his experience in the San Antonio Municipal Court, it was common for a misdemeanor charge to be disposed of without a final judgment of conviction being entered simply by the court treating the charge as a failure to appear and forfeiting the bond, and (5) none of the documents then before the court led him to believe Mrs. Harrell had testified falsely during her voir dire examination. Arroyo’s other trial counsel, attorney Gus Wilcox, testified: (1) after talking with Mrs. Harrell during voir dire, he wanted her on the jury because she had bad experiences with law enforcement, (2) nothing in the documents then before the court led him to believe Mrs. Harrell had been convicted of theft, and (3) while he had experience as a former prosecutor with San Antonio Municipal Court documents, he could not tell the nature of the disposition of Mrs. Harrell’s theft charge from the documents then before the court. Former prosecutor Bert Richardson testified: (1) it was hard to tell from the documents then available whether Mrs. Harrell had been convicted in 1979, (2) he contacted the San Antonio Municipal Court to verify the processing of Mrs. Harrell’s case and was informed by an unidentified municipal court employee Mrs. Harrell did not have a conviction, there was no active case pending against her, and there was no warrant outstanding against her, (3) Mrs. Harrell appeared older than her listed age and had only a vague recollection of what had happened to her almost twenty years before, (4) the same, unidentified, municipal court employee advised him that at the time of Harrell’s 1979 charge, the city often disposed of such cases by keeping the bond but entering no judgment of conviction, (5) while Mrs. Harrell’s testimony she had never been arrested in connection with her theft charge was apparently erroneous, he did not believe she had committed perjury when she so testified, (6) he believed Harrell had clarified the disposition of her theft charge during her voir dire testimony, and- (7) based upon his review of the documents then before the court, he believed that at the time of petitioner’s trial, Mrs. Harrell had no final conviction for theft, no theft charge pending against her, and no active warrant outstanding against her. A municipal court employee who first began working for the San Antonio Municipal Court more than a year after the disposition of Mrs. Harrell’s theft charge testified: (1) the booking number on Mrs. Harrell’s San Antonio Municipal Court documents indicated she had been arrested on a theft charge and the bond on that charge was forfeited on January 15, 1979, (2) the municipal court jacket on Mrs. Harrell’s case had been destroyed, (3) bond forfeiture money is applied in the same manner as a fine but, in such instances, the defendant does not enter a plea and the court simply closes the case administratively, (4) during her employment with the municipal court, bond forfeitures had been treated as pleas of nolo contendere and convictions, but (5) no judgment of conviction had ever been entered against Mrs. Harrell in connection with the 1979 theft charge. At the conclusion of petitioner’s state habeas corpus hearing, the state habeas trial court found: (1) there was no evidence Mrs. Harrell had ever entered any plea in connection with the 1979 theft charge, (2) no judgment of conviction nor abstract of judgment for the 1979 theft charge was presented, and (3) during her voir dire, Mrs. Harrell answered all questions concerning her 1979 theft charge truthfully, to the best of her knowledge, and any mistakes she might have made i