Sprouse v. Stephens (748 F.3d 609, 2014)

JERRY E. SMITH, Circuit Judge:

A jury found Kent Sprouse guilty of the capital murder of a police officer, and he was sentenced to death. Among many other issues raised on direct appeal and on state habeas corpus review, Sprouse challenged the jury instructions given during the punishment phase of his trial. He claimed that the instructions, in violation of the Eighth Amendment, effectively precluded the jury from considering voluntary intoxication as mitigating evidence. The Texas Court of Criminal Appeals (“TCCA”) rejected that argument. On federal habeas review, Sprouse contends that the state court unreasonably applied Penry v. Lynaugh (“Penry I”), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), and Penry v. Johnson (“Penry II”), 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). We disagree and affirm the denial of the habeas petition. We also decline to grant a certificate of appealability (“COA”) on any of the additional issues Sprouse raises.

I.

In 2002, Sprouse entered a convenience store with a shotgun hung over his shoulder and, after returning to his vehicle, fired his weapon in the direction of two men. Then another customer saw Sprouse working on his vehicle and Pedro Moreno, yet another customer, filling his truck with gas. The customer noticed Sprouse attempting to speak to Moreno, who did not respond. Sprouse then reached into his vehicle, pulled out a gun, and shot and killed Moreno.

Officer Harry Steinfeldt, dressed in uniform and driving a police vehicle, responded to the shooting. When he arrived, before turning toward Sprouse’s car, he noticed Moreno on the ground. As he turned, Sprouse shot him twice. Steinfeldt returned fire but died from his injuries. A second officer arrived and took Sprouse into custody. Sprouse was transported to a nearby hospital, where a doctor thought he was under the influence of drugs. Testing revealed he had consumed amphetamines, methamphetamines, and cannabis within the past forty-eight hours.

Sprouse was indicted for capital murder of a police officer. His lawyer filed notice of intent to present an insanity defense. The issue of intoxication — both as an affirmative defense and as mitigating evidence — was raised with several potential jurors during voir dire. Specifically, the prosecutor questioned two jurors who were chosen — Ruby Martinez and Kathy Wilson — on that issue. Sprouse, however, did not object to that questioning. Defense counsel discussed the issue of intoxication with Martinez but not Wilson.

At the close of the guilt phase, the jury was instructed on insanity but rejected that defense and convicted Sprouse of capital murder. At the punishment phase, Sprouse put forward no new evidence, instead relying on all the testimony and evidence that had been presented during the guilt phase.

At the close of the punishment phase, the jury was given three general instruc-

tions regarding mitigating evidence. First, it was instructed on what constitutes “mitigating evidence,” Second — the focus of this appeal — the jury was instructed on the issue of intoxication: