Wednesday, October 22, 2014
Media Advisory: Miguel Angel Paredes scheduled for execution

AUSTIN – Pursuant to a court order by the 399th District Court of Bexar County, Miguel Angel Paredes is scheduled for execution after 6 p.m. on October 28, 2014. In 2001, a Bexar County jury found Paredes guilty of murdering Adrian Torres, Nelly Bravo, and Shawn Cain in the same criminal transaction.

FACTS OF THE CRIME

The U.S. Court of Appeals for the Fifth Circuit described the facts surrounding Paredes’s murder of Adrian Torres, Nelly Bravo, and Shawn Cain as follows: In 2000, Paredes, John Saenz, and Greg Alvarado – all members of the […] gang – fatally shot rival gang members Adrian Torres, Nelly Bravo, and Shawn Cain inside Saenz’s house. Paredes and several [gang] members then disposed of the bodies and removed other physical evidence. Paredes was indicted on three counts of capital murder.

Several witnesses testified for the prosecution. John Saenz’s brother, Eric Saenz, provided testimony concerning phone calls with John and a face-to-face conversation with John in Paredes’s presence, both of which incriminated Paredes. First, Eric testified that on the morning of the killings, John Saenz telephoned and asked him to come over with a gun, because John was expecting trouble from Torres. John also indicated he would seek help from Paredes. Eric said he would try to come over but never appeared. Later in the day, John called again, saying Paredes and Alvarado had arrived with weapons.

John called a third time that day, saying they had “taken care of the problem” with Torres; communicated that John, Paredes, and Alvarado were at the house; and asked Eric to recruit [gang] members to remove the bodies. Given the context and the request to remove bodies, Eric understood John’s statement that they had “taken care of the problem” to mean that they had killed Torres, Bravo, and Cain. Eric also testified regarding a face-to-face conversation with his brother later that night. Around midnight, Paredes, John, and John’s acquaintance, Tomas Ayala, drove to Eric’s house. In Paredes’s presence, John gave Eric a detailed account of the day’s events, including that Paredes, John, and Alvarado had taken part in the killings and that Paredes had shot Bravo and Cain. Paredes did not dispute John’s details of the murders and cleanup and said that Eric “should have been there” and that he “would have had some fun.”

Ayala testified for the prosecution, mirroring Eric Saenz’s description of the conversation that took place at Eric’s house. Ayala testified that John related the details of the murders to Eric – including that Paredes had shot Cain and Bravo. According to Ayala, Paredes never interrupted to dispute the story. The prosecution also offered testimony from Paul Alden, a neighbor of John Saenz’s, who testified that he saw the victims arrive at the Saenz house and heard a barrage of gunshots a few minutes after the victims entered. Shortly thereafter, John Saenz exited the house without a shirt. He looked nervous, took note of several neighbors nearby, went back inside, then came outside and briefly conversed with a neighbor. Alden did not see any of the victims exit the house but did see several vehicles arrive at the house, one vehicle back into the garage, and a three-vehicle caravan leave the premises. In the days after the gunfire, he saw people cleaning the house, hosing down the bed of a pickup truck, and laying new tile. The jury also learned during the guilt-innocence phase of trial that Paredes and others attempted to dispose of the victims’ bodies by setting the bodies on fire in a remote area.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Paredes’s trial, jurors learned that Paredes committed a previous murder and was a participant in another murder; was previously involved in a drive-by shooting and another shooting in which two victims were shot with an assault rifle; had been arrested for driving while intoxicated and aggravated kidnapping; and had been convicted of criminal trespass and unlawfully carrying a firearm. The jury also learned that Paredes had previously attempted to dispose of the body of a drug overdose victim by burning the victim’s body.

PROCEDURAL HISTORY

On Dec. 13, 2000, a Bexar County grand jury indicted Paredes for murdering Adrian Torres, Nelly Bravo, and Shawn Cain in the same criminal transaction.

On Oct. 19, 2001, a Bexar County jury convicted Paredes of capital murder. On Oct. 25, 2001, after a separate punishment proceeding, the same jury sentenced Paredes to death.

On Jan. 14, 2004, Paredes’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals on direct appeal. Paredes did not appeal the state court’s decision to the U.S. Supreme Court.

Paredes filed an application for habeas corpus relief, which was denied by the Court of Criminal Appeals on Aug. 31, 2005.

On July 10, 2006, Paredes filed a petition for a writ of habeas corpus in a San Antonio U.S. district court. The federal court denied Paredes’s petition on March 8, 2007.

On Aug. 24, 2010, the United States Court of Appeals for the Fifth Circuit rejected Paredes’s appeal and affirmed the district court’s denial of habeas corpus relief.

On Nov. 19, 2010, Paredes filed a petition for a writ of certiorari in the U.S. Supreme Court. On Jan. 24, 2011, the high court denied certiorari review.

On May 12, 2014, the 399th state district court issued an order setting Paredes’s execution date for Oct. 28, 2014.

Texas Execution Information Center by David Carson.

Miguel Angel Paredes, 32, was executed by lethal injection on 28 October 2014 in Huntsville, Texas for the gang and drug-related murder of three people.

John Anthony Saenz ("Anthony") and his brother, Eric, were members of a Texas prison gang called the Hermanos Pistoleros Latinos (Brotherhood of Latino Gunmen), or HPL. According to prosecutors, Anthony was the leader of the gang in San Antonio. Adrian Torres was a member of a rival gang, the Mexican Mafia, or "Eme." Torres and Anthony's wife, Priscilla, were childhood friends, so Anthony and Torres were friendly with each other, despite being in rival gangs.

On 14 September 2000, Torres "fronted" Anthony Saenz two ounces of cocaine to sell for him, letting Anthony keep a share of the profit. The next day, Priscilla caught her husband using the cocaine instead of selling it. Torres then came over to Anthony and Priscilla's home, looking for his drugs. Priscilla told Torres that Anthony was using the drugs. Hearing this, Torres became angry. On Saturday, 16 September, Anthony and Priscilla left their children with Priscilla's mother and checked into a motel, to avoid Torres. They used some more of Torres' cocaine while Torres came to their home. Anthony's niece, Jackie, answered the door, with her boyfriend, Omar, standing next to her. Jackie told Torres he did not know where Anthony was. Torres told Jackie that her uncle owed him "some stuff." He also said, "Look, Jackie, you know I'm Eme, you know Anthony's Pistolero. If that's the way he's going to handle it, I'm going to come tomorrow." When Jackie repeated to Anthony what Torres said to her, Anthony became mad. According to a written statement he gave later, "when she told me about it ... I wanted to kill [Torres] right then."

Anthony, 28, went home Sunday morning to prepare for Torres. As he was expecting trouble and for Torres to have people with him, he called his brother, Eric, and asked him to come over. Eric either told Anthony he could not come over, or told him he would, but then did not show, so Anthony called two other gang members, Miguel "Fatboy" Paredes, then 18, and Greg "Mac 11" Alvarado, 21. Paredes and Alvarado arrived with two shotguns and a handgun. Paredes waited in the garage for Torres to arrive, while Alvarado waited in the master bedroom. Jackie and Omar were in another bedroom. Anthony instructed them to stay in their room if they heard arguing.

Torres, 27, arrived at Anthony's house at about 1:00 p.m. His friend, Shawn Cain, 32, was driving the car. Torres' girlfriend, Nelly Bravo, 23, was in the back seat. Anthony let Torres into the house while the other two waited in the car. Anthony told Torres that he did not have all of the drugs, but his brother would be coming over with the money. He told Torres that he should invite his friends inside while they waited for Eric. Nelly and Shawn then came inside and sat on sofas in the living room. Torres told Saenz he was not leaving until he got all of his money or drugs and he better not think about "burning" him because he was Mexican Mafia.

According to Anthony, he tried to call Eric again, but could not reach him. Torres then told him to give him whatever he had. Anthony handed Torres a tied plastic bag with the cocaine in it. Torres usually bit open the bag, but this time, he grabbed a knife to open it. Anthony stated that Torres then looked at Nelly Bravo and gave her some type of signal. On the pretext of getting a syringe for Torres, Anthony quickly excused himself to go to the garage, where Paredes was hiding. He grabbed a shotgun, came back to the kitchen, where Torres was sitting at the kitchen table, and shot him in the neck. Paredes and Alvarado then emerged from their positions and killed Bravo and Cain.

Jackie Saenz, who was in one of the bedrooms, stated that she heard gunshots, then heard a woman say, "No, Anthony, No," and then heard more gunshots. Eric Saenz testified at Paredes' trial that he and Anthony were members of the HPL gang and that he knew Anthony owed money to Adrian Torres and was having problems with him. On the morning of the killings, Anthony telephoned him to say that Torres was coming over to his house. He asked Eric to come over and bring a weapon, because he was expecting trouble. Eric answered that he could not come over because there was no one else to take care of his children. Anthony then said that he would ask some other friends to come over, including Paredes. Anthony called Eric later and told him that Paredes and Alvarado were with him and that they had guns. After 1:00 p.m., Anthony called Eric a third time. He said "they had taken care of what was going to happen" and that he wanted him to come over and help dispose of the bodies." Eric asked Anthony why he needed more people to help him than were already there, and he did not go. Later that night, Anthony, Paredes, and Thomas Ayala arrived at his house. They all got out of a van and Anthony began telling him what happened.

Eric testified that Anthony told him when he went in the garage, he grabbed a gun and told Paredes "something's going to go down." He shot Torres in the neck in the kitchen while he was using some cocaine. Alvarado then shot Shawn Cain in the living room while Parades walked over to Nelly Bravo. Bravo, on her knees, pleaded for her life, promising that she would not say anything. Paredes shot her with a handgun aimed at her head, but the shot was not fatal. Bravo continued pleading for her life. Anthony then told Paredes to finish her off, and he did, with a shotgun blast to her chest. Paredes and Alvarado then began beating Torres' body. Anthony went over to Torres, took the drugs, and said, "That's what you get for [expletive] threatening me." Anthony also told Eric about how they had cleaned up and disposed of the bodies. They took the bodies to a rural area in nearby Frio County, dumped them, and set them on fire. Anthony said that they were going to start "going hard with the Mexican Mafia" and that they "were going to start taking them out." Eric testified that while Anthony was speaking, Parades added that Eric "should have been there" because he "would have had some fun."

Thomas Ayala testified that on the evening of the murders, Anthony phoned and asked him to come over to his house "as a favor." Ayala stated that he knew Anthony as a friend, but was not a member of the gang. When he arrived at the house, he saw Anthony, Paredes, and Alvarado standing in the garage. Anthony told him they "had to take care of some business" and showed him some rugs rolled up in the back of a pickup truck parked in the garage. Ayala realized there were bodies inside the rugs.

After thoroughly cleaning the house and installing new paint, carpet, and tile, the group left to dispose of the bodies. Anthony rode in Ayala's van, giving directions to him about where to go. Another gang member, Julio Gonzalez, drove the pickup truck containing the bodies, following the van. Paredes and one or two other men followed the pickup in a third vehicle. About two hours from town, according to Ayala, they stopped on a dirt road. Ayala said he never got out of his van, but he saw the bodies being removed from the pickup, then flames. They then returned to San Antonio and washed out the vehicles. Anthony and Paredes then got in Ayala's van and they drove to Eric's house. Ayala testified that along the way, Anthony described the murders to him. He said that he shot a man in the neck, that Parades shot the woman and a second man, and that Alvarado shot and stabbed the second man. According to Ayala, Paredes did not contradict anything Anthony said. A farmer investigating a grass fire found the burned remains of the victims. Investigators discovered a piece of paper with Anthony Saenz's name inside one of the carpet rolls.

At age 18, Paredes had no prior felony convictions as an adult, but according to the Texas Attorney General's office, the jury heard testimony during his punishment hearing that he had previously executed another gang member, ordered another killing, had been involved in two shootings where four people were wounded, and had arrests for aggravated kidnapping and driving while intoxicated. He also had a misdemeanor conviction for evading detention. He joined the HPL while in a juvenile detention facility and was described as Anthony Saenz's right-hand man. Defense attorneys, appealing to the jury to not pass a death sentence, said that Paredes grew up in a tough neighborhood where the only way to survive was to join a gang. Prosecutors countered by pointing out that Parades was the youngest of 20 siblings who grew up together, and he was the only one who turned to crime.

A jury found Paredes guilty of capital murder in October 2001 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2004. John Anthony Saenz was convicted of capital murder and sentenced to three concurrent terms of life imprisonment. Gregorio Alvarado, according to the San Antonio Express-News, "took a plea deal."

In an interview from death row the week before his execution, Paredes expressed remorse for the killings and for his involvement in a gang. "All that gang life folklore, the romanticism - it's crap," he said. "As long as one kid sees beyond all that crap because of my situation, that's fine." He said that he planned to address the families of his victims from the execution chamber, "to tell them that if I could, I'd take this away from them and feel it myself." Paredes also lamented that his loved ones were affected by his death sentence. "The reality of the death penalty," he said, is that it affects "people that are invisible, like my son, my loved ones, my family. They're the ones really carrying that burden."

Paredes' execution was delayed for a few minutes because prison officials took longer than usual two insert the two IV lines called for by procedure. As four of his friends entered a viewing room adjacent to the death chamber, Paredes smiled, mouthed kisses to them, and told them he loved them. No friends or relatives of the victims attended the execution.

In his last statement, Paredes said he hoped his victims' family members would "let go of all the hate because of all of my actions." "I came in as a lion and I come as peaceful as a lamb," he continued. "I'm at peace. I hope society sees who else they are hurting with this." The lethal injection was then started. He was pronounced dead at 6:54 p.m.

Paredes was the 10th prisoner executed in Texas in 2014. He was the 278th prisoner executed during the 14-year tenure of Governor Rick Perry, who will leave office on 20 January 2015. Two more executions are currently scheduled for the first half of January.

Houston Chronicle

"Texas executes ex-gang member for deaths of 3," by Michael Graczyk. (AP October 28, 2014)

HUNTSVILLE, Texas (AP) — A former gang member was put to death Tuesday evening for the fatal shootings of three rivals 14 years ago in San Antonio. Miguel Paredes, 32, was convicted along with two other men in the September 2000 slayings of three people with ties to the Mexican Mafia. The victims' bodies were rolled up in a carpet, driven about 50 miles southwest, dumped and set on fire. A farmer investigating a grass fire found the remains.

Paredes was pronounced dead at 6:54 p.m. CDT, 22 minutes after being injected with a lethal dose of the sedative pentobarbital. The execution was delayed slightly to ensure the IV lines were functioning properly, said Department of Criminal Justice spokesman Jason Clark. The procedure calls for two working lines. Normally needles are placed in the crease of an inmate's arms near the elbows, but in Paredes' case, prison officials inserted IV lines into his hands.

As witnesses entered the death chamber in Huntsville, Paredes smiled and mouthed several kisses to four friends watching through a window and repeatedly told them he loved them. He told everyone gathered that he hoped his victims' family members would "let go of all of the hate because of all my actions." "I came in as a lion and I come as peaceful as a lamb," Paredes said. "I'm at peace. I hope society sees who else they are hurting with this." As the drugs began taking effect, he took several deep breaths while praying. He started to snore and eventually stopped.

The execution was carried out after the U.S. Supreme Court turned down a last-day appeal from attorneys who contended Paredes was mentally impaired and his previous lawyers were deficient for not investigating his mental history. His was the 10th lethal injection this year in Texas, the nation's most active death-penalty state. One other Texas inmate is set to die in December and at least nine are scheduled for execution in early 2015, including four in January.

Prosecutors said Paredes was the most aggressive shooter when Nelly Bravo and Shawn Michael Cain, both 23, and Adrian Torres, 27, showed up to collect drug money at the home of John Anthony Saenz, a leader in Paredes' gang. Defense attorneys argued that Paredes, who turned 18 six weeks before the slayings, grew up in a neighborhood where the only way to survive was to join a gang.

No friends or relatives of the victims attended Paredes' execution. Cain's family said in a statement afterward that Cain was "no longer with us for no other reason than being in the wrong place at the wrong time." "Our family has waited 14 years for justice to finally be served," the statement said. Paperwork carrying Saenz's name was found in the debris with the victims' bodies and helped police solve the case. Saenz, 32, claimed self-defense and avoided the death penalty when jurors sentenced him to life. The third man convicted in the killings, Greg Alvarado, 35, pleaded guilty and also is serving life in prison.

ProDeathPenalty.Com

Miguel Paredes, John Saenz, and Greg Alvarado, who were all members of the Hermanos Pistoleros Latinos gang, anticipated a confrontation regarding an illegal drug transaction and allegedly armed themselves, lay in wait, then shot and killed rival gang members Adrian Torres, Nelly Bravo, and Shawn Cain inside Saenz's home. The victims were slain within seconds of one another.

Paredes was charged with murdering more than one person during the same criminal transaction under the Texas capital murder statute. The State of Texas alleged alternatively that Paredes should be held responsible for the deaths of more than one of the three decedents under Texas's law of parties, which permits a defendant to be held criminally responsible for an offense committed by another if “with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”

At trial, a witness testified that Paredes admitted to shooting Bravo, and other witnesses testified that Paredes remained silent when, in Paredes's presence, John Saenz recounted that Paredes had shot both Bravo and Cain. One witness, Eric Saenz, the brother of John Saenz, testified that after John Saenz, in Paredes's presence, had described in some detail how he, John Saenz, shot Torres, how Paredes shot Bravo in the head, and how Paredes then shot Cain, Paredes stated to Eric Saenz that Eric “should have been there, that Eric would have had some fun.”

Medical evidence was consistent with testimony that Paredes was the shooter in the deaths of Bravo and Cain but not Torres. There was direct evidence that Paredes was in John Saenz's home at the time of the killings and assisted in cleaning blood off the floor and walls of the home and in disposing of the bodies afterwards. There was also strong circumstantial evidence that Paredes was present during the killing of each of the three decedents, and that at a minimum, he aided or attempted to aid Saenz in carrying out the plan to kill these individuals.

In a general charge, the trial judge instructed the jury that it could convict Paredes of capital murder if it found that he killed (1) Torres and either Bravo or Cain; or (2) Bravo and either Torres or Cain; or (3) Cain and either Torres or Bravo. The jury was also permitted to find that Paredes had committed capital murder under the law of parties. The jury was not required to specify which of the alternative grounds it found to be true, and Paredes's lawyer did not object to the instructions. The jury returned a general verdict finding “Paredes guilty of Capital Murder as charged in the indictment,” and Paredes was subsequently sentenced to death at the conclusion of the penalty phase of his trial.

UPDATE: In a final statement, Paredes said he hoped the victims' family would "let go of all of the hate because of all my actions. I came in as a lion and I come as peaceful as a lamb. I'm at peace. I hope society sees who else they are hurting with this." There were no friends or relatives of the victims who witnessed the execution. Shawn Cain's family said in a statement that he was "no longer with us for no other reason than being in the wrong place at the wrong time. Our family has waited 14 years for justice to finally be served."

Daily Mail Online

• Gang member who shot dead three rivals blows kisses to his family and declares 'I'm at peace'
• Miguel Paredes, 32, convicted in September 2000 slayings of three people with ties to Mexican Mafia
• The victims' bodies were rolled up in a carpet, dumped and set on fire
• Paredes was pronounced dead at 6:54 p.m., 22 minutes after being injected with sedative pentobarbital
• His was the 10th lethal injection this year in Texas

By Associated Press Reporter and MailOnline Reporter, Published: 20:57 EST, 28 October 2014

A former gang member blew kisses to his friends and family members and declared 'I'm at peace' before he was put to death Tuesday evening for the fatal shootings of three rivals 14 years ago in San Antonio. Miguel Paredes, 32, was convicted along with two other men in the September 2000 slayings of three people with ties to the Mexican Mafia. The victims' bodies were rolled up in a carpet, driven about 50 miles southwest, dumped and set on fire. A farmer investigating a grass fire found the remains.

As Paredes entered the execution chamber, he blew kisses to his supporters. 'To the victim's family, I want you to know that I hope you let go of all the hate because of my actions,' he said. 'The lion came here as a lamb.'

Paredes was pronounced dead at 6.54pm CDT, 22 minutes after being injected with a lethal dose of the sedative pentobarbital. The execution was delayed slightly to ensure the IV lines were functioning properly, said Department of Criminal Justice spokesman Jason Clark. The procedure calls for two working lines. Normally needles are placed in the crease of an inmate's arms near the elbows, but in Paredes' case, prison officials inserted IV lines into his hands.

Huntsville Item

"Ex-gang member executed for fatal shootings, by Cody Stark. (Wednesday, October 29, 2014 12:00 am)

A condemned inmate was put to death Tuesday evening for the gang-related slayings of three people in Bexar County 14 years ago. Miguel Paredes, 32, was sentenced to death for the fatal shootings of Nelly Bravo, 23, Adrian Torres, 27, and Shawn Michael Cain, 23, in September 2000. The victims reportedly had ties to the Mexican Mafia.

Before his execution, which had a short delay as the lethal injection team made sure both IVs were functioning properly, Paredes said that he “came in as a lion,” but now he was “at peace.” “To the victim’s family, I want you to know that I hope you let go of all the hate because of all my actions,” the former gang member said. Paredes also told his family goodbye and said that he was “sorry” and was “always going to be with” them.

He was pronounced dead at 6:54 p.m., 22 minutes after the lethal dose began. Paredes’ execution was the 10th in Texas this year and it was carried out after the U.S. Supreme Court denied his final appeal Tuesday afternoon. Paredes and two other men were convicted for the murders of Cain, Bravo and Torres which took place in San Antonio. The victims’ bodies were dumped 50 miles away in Frio County and set on fire.

Prosecutors said Paredes, who turned 18 six weeks before the slayings, was the most aggressive shooter when the three victims showed up to collect drug money at the home of John Anthony Saenz, a leader in Paredes’ gang. They told jurors at his capital murder trial in 2001 that Paredes was suspected in several other crimes, including other killings and drive-by shootings. Defense attorneys argued that he grew up in a gang-infested neighborhood, and the only way to survive was to join a gang.

Cain’s family released a statement Tuesday that said he was “an amazing person” and that his death was a result of “being in the wrong place at the wrong time.” “Our family has waited 14 years for justice to finally be served,” the statement read. “The carrying out of this punishment is the final step for closure in his senseless murder.” Police got a break in the case when paperwork carrying Saenz’s name was found in the debris with the three burning bodies.

Saenz, 32, claimed self-defense at his trial and avoided the death penalty when jurors sentenced him to life. The third suspect, Greg Alvarado, 35, pleaded guilty and also is serving life in prison.

San Antonio Express

"Death row inmate from San Antonio ready to die for triple slaying," by Michelle Casady. (October 25, 2014)

LIVINGSTON — To escape the gang violence that was gripping Chicago in the late 1980s, Miguel Angel Paredes' family decided to move to Mexico, and soon thereafter to San Antonio, chasing better opportunities. But about a decade later, Paredes — the youngest of 20 siblings all born to the same parents — had been jailed as a juvenile, joined the ranks of the Texas prison gang Hermanos de Pistoleros Latinos (Brotherhood of Latin Gunmen) and began doing their bidding. He had already executed a fellow gang member, ordered the killing of another man, committed an aggravated robbery of a good Samaritan and wounded four people in two separate drive-bys.

And on Tuesday he's set to be executed by lethal injection for another crime — the murders in 2000 of three people in Bexar County. Their burning bodies, found rolled up in carpet, had been tossed in a rural Frio County field near a peanut farm. “For me, it's like I try to tell people, I'm not the important one here because I did commit the crimes. I've accepted the death penalty,” he said Wednesday from behind soundproof glass in a caged booth at Texas' death row. “People can say whatever they want to say — paint me bad or paint me good,” he added. “For me, what matters is that people really get to see the reality of the death penalty, that it's affecting people that are invisible, like my son, my loved ones, my family. They're the ones really carrying that burden.”

Paredes' co-defendants are serving life terms. John Anthony “Chino” Saenz, described by prosecutors as the gang's sergeant and the highest-ranking member of HPL in San Antonio, was sentenced by jurors. Greg Alvarado took a plea deal.

The killings

The triple slaying that resulted in Paredes' death sentence did not remain a mystery for long. Thanks to a Western Union credit card application bearing Saenz's name that investigators found in the folds of the burning carpet, police were able to identify all three suspects before dental records were analyzed to confirm the identities of the three victims.

Paredes, then 18, along with Alvarado, then 21, went to 28-year-old Saenz's home armed and ready in September 2000 after Saenz informed them Adrian Torres — a member of the Texas Mexican Mafia — would be coming. Prosecutors have alleged the meeting was to settle a drug debt, but Paredes maintains the meeting was to discuss a disagreement over threats Torres had been making. “When I went to the house, I went to it to die, basically,” Paredes said. “Anybody that has common sense is going to know that if you threaten the leader of another gang he's not going to be alone, and you're going to have to go there willing to kill them.”

Nelly Esmerelda Bravo, 23, her boyfriend Torres, 27, and Shawn Michael Cain, 32, who gave the couple a ride to Saenz's home, were ambushed once they arrived, police said. Paredes leveled a handgun to the head of Bravo as she begged for her life, then he opened fire, according to witness testimony at his trial. But the shot wasn't fatal, and to finish the job he fired a shotgun at her chest. Meanwhile, Alvarado shot Cain in the stomach before grabbing a knife to repeatedly stab the man. Saenz confessed to shooting Torres.

The cleanup effort at the home in the wake of the slayings, as described during his trial, was massive. The walls were repainted, carpet was ripped out and new tile was laid down in its place. The men used Cain's car to carry the bodies to the Frio County dump site. Attempts to reach the victims' families for this report were unsuccessful.

The prosecution

Paredes' trial began in October 2001 in state District Judge Juanita Vasquez-Gardner's courtroom. Jurors deliberated for three hours before convicting him of capital murder. “He was particularly violent, especially given his young age,” lead prosecutor Mary Green recently recalled of Paredes. “And I don't believe that all of those violent acts were necessarily associated with him being a gang member. I think he was just a violent young man on the streets.”

During the punishment phase of the trial, Green told jurors of his lengthy and violent past, describing the list as his “resume.” They deliberated another three hours before sentencing him to death by lethal injection. At the time, jurors in Texas did not have the option of life without parole. Their two options were a life sentence with the possibility of parole after 40 years or execution. Despite multiple efforts, prosecutors in Bexar County have not persuaded a jury to assess a death sentence in over five years — a likely result, officials have said, of the life without parole option.

Jurors learned during the trial that Paredes was the only one of his 20 siblings with a criminal history. “Of course we used that in our argument,” Green said. “Nobody else in that family has gotten into the kind of trouble that he's gotten into, despite the background.”

In May, Paredes was given his execution date. He detailed his feelings in a letter posted online at minutesbeforesix.com, which publishes letters, poetry and artwork from offenders nationwide. “I stayed there in bed, wishing again and again to be able to take their pain away, but it was not up to me,” he wrote. “Now I have heard from my loved ones, and seen the signs of sleepless nights and sorrow in their face, and have heard so much of the pain they feel, that I wish none of this was real, not for me, but for them.”

The site also displays his detailed drawings, done mostly with No. 2 pencils from the prison commissary, that range from realistic depictions of a lion or a puppy to haunting prison imagery. One sketch shows a man on the gurney — arms outstretched, the IV line in place, with an angel in one witness box and the devil in the other. Another, titled “All That Is Left of Me,” shows a man with his face buried in his hands sitting on a bed in an empty cell, while the three walls around him, depicted as having menacing faces, laugh at snarl at him.

Remorse, redemption

It took time for Paredes to accept his fate and responsibility for the crimes, he said. “For me, I thought that if it's between criminals, we knew what we get into,” he explained. “But when I started seeing my son was suffering because I was in here, that my mom was suffering because I was in here, it did not stop at me being able to handle the consequences. And I also saw that my victims, regardless of what they were into, they also had family members who loved them the same way that my son and mom love me. I saw that it was a bigger picture than just me in a box.”

Throughout the interview, Paredes was calm, soft-spoken and dry-eyed. He said he does regret the murders and other violent acts that he committed, but “to shed tears here and make a show” of his remorse wouldn't benefit anyone. He plans to address the families of his victims from the execution chamber gurney — “to tell them that if I could, I'd take this away from them and feel it myself,” he said. “They can blame it on me, they can feel the hate if they want to, but I hope they don't because that just hurts them.”

He pointed to his efforts warning others, including his 16-year-old son, about the “raw realities” of gang life as a way he's tried to seek redemption. “All that gang life folklore, the romanticism, it's crap,” he said. “As long as one kid sees beyond all that crap because of my situation, that's fine.”

On Tuesday, when he's set to be strapped to the gurney in Huntsville's execution chamber, he hopes his family will observe his request to not be present, though two close friends, he said, will be witnesses. He's given some thought to his final words but said he's decided to deliver the remarks off-the-cuff. “Focus on the people that are really affected by this. This is not painless. It's hurting the people that are law-abiding, that pay their taxes, that don't hurt nobody,” he said. “Their only crime is to love somebody.”

Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004). (Direct Appeal)

Background: Defendant was convicted in the 399th District Court, Bexar County, Juanita Vasquez-Gardner, J., of capital murder and sentenced to death.

Holdings: On direct appeal, the Court of Criminal Appeals, Meyers, J., held that: (1) witness's testimony concerning statements codefendant made to witness describing the killing of victims was admissible as an adoptive admission; (2) witness was not an accomplice witness as a matter of law,; and (3) probative value of photographs of victims prior to autopsy that displayed the autopsy number assigned to victims outweighed its prejudicial value to be admissible. Affirmed.

MEYERS, J., delivered the opinion of the Court in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.

Appellant was convicted in October 2001 of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises twenty-nine points of error. We affirm. FN1. Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

Appellant was indicted for killing more than one person in the same criminal transaction. State's witnesses Eric Saenz (hereinafter “Eric”) and Thomas Ayala both testified to statements made to them by co-defendant John Anthony Saenz (hereinafter “John”) implicating appellant in the murders. Appellant's defense was that he was merely present after the murders, but did not participate in the murders. In his first eleven points of error, appellant objects to Eric's and Ayala's testimony.

In points of error one, three, five, and seven, appellant claims that the trial court erred in allowing Eric's testimony about statements made by John as: a statement against interest under Rule 803(24), as a statement of his then-existing state of mind under Rule 803(3), as a statement by a co-conspirator under Rule 801(e)(2)(E), or as an adopted admission by a party-opponent under Rule 801(e)(2)(B).

At trial, the State called Eric as a witness. Eric testified that he had learned that his brother, John, was having problems with an individual named Adrian Torres. Eric testified that John owed Torres money for drugs. On the morning of September 17, 2000, Eric received a phone call from John. John told Eric that Torres was coming over to his house, and he asked Eric to come over and bring a weapon because he was expecting trouble. Eric told John that he could not come because there was no one available to stay with his children. John told Eric he would recruit some other friends to come over, including appellant. Eric testified that he, John, and appellant were all members of the Pistoleros gang, also called the HPL, and he had previously met appellant at a gang meeting. John called Eric again later and told him that appellant and Gregorio Alvarado were there and had guns. Alvarado was also a gang member. John called Eric again after 1:00 p.m. and said that “they had taken care of what was going to happen, that the murder[s] had already happened and that he wanted [Eric] to go over and help dispose of the bodies.” Eric asked John why he would need more than the people who were already there to help. Eric also testified that he knew from what John had told him that there were three bodies to dispose of—Torres, Torres' girlfriend, and a third person. Eric did not go to John's house, but later that night John, appellant, and someone named Thomas arrived at Eric's house. They all got out of the van and began telling Eric what had happened.

Appellant had not asserted any hearsay objections up to this point. When the State asked Eric to repeat what John told him, appellant objected: [Prosecutor]: I want you to tell the jury to the best of your recollection what it was John told you. [Defense attorney]: Excuse me. Your Honor, we're going to renew our previous objection to the hearsay statements of John Anthony.[ FN2]

FN2. In a pretrial hearing, the State raised the issue of the admissibility of a written statement by Eric which the State anticipated would be controverted. Appellant objected to portions of Eric's statement as hearsay. Appellant also claimed that admission of the statement would violate his right to confrontation. The trial court ruled the statement admissible under several different theories relating to different portions of the statement, including statement against interest, statement of then existing state of mind, admission of a party opponent, and adoptive admission. Only the admissibility of Eric's written statement was discussed at the hearing. The State also raised the issue of a written statement by Thomas Ayala, discussed later in this opinion.

Although the parties discussed the admissibility of the written statements, and the trial court ruled certain portions of the statements admissible under various theories, the trial court also granted, on the same day, appellant's “Motion to Prohibit the State from Attempting to Introduce Written Statements or Reports of State's Witnesses.” This order at least suggests that the written statements discussed in the hearing were not to be introduced at trial.

The trial court's ruling at the pretrial hearing on the admissibility of the written statements did not excuse appellant from objecting to trial testimony by the same witnesses. Tex.R.App. Proc. 33.1. A written statement is different evidence altogether from trial testimony. Appellant objected only once to Eric's testimony, with a reference to appellant's “previous objection to the hearsay statements of John Anthony.” We will assume that by this reference, appellant was attempting to apply to this portion of the trial testimony all of his previous hearsay objections made to the written statement at the pretrial hearing. THE COURT: That's overruled.

Eric then testified to the details of the murders as described by John, stating that John told him that he shot Torres, that appellant shot Torres' girlfriend, Nelly, and that Alvarado also shot Nelly and the third victim, “Shawn.” Eric described what John told him about cleaning up and disposing of the bodies. Eric affirmed that appellant stood by as John told Eric the details about what had happened. Appellant's only comment to John's description of the events was that Eric “should have been there, [he] would have had some fun.” Eric described appellant's demeanor during this time as unfazed by what had happened. He also testified on re-direct that after John described the events of the night, appellant told Eric that they were going to start “going hard with the Mexican Mafia,” that “[t]hey were going to start taking them out.” Evidence indicated that Torres was a member of the Mexican Mafia.

Appellant complains in his brief about three portions of Eric's testimony that he maintains are inadmissible hearsay: (1) Eric's testimony about the telephone conversations with John before the murders; (2) Eric's testimony about the telephone conversations with John after the murders; and, (3) Eric's testimony about the face-to-face conversation with John after the murders. We will address only the third category because that is the only category to which appellant objected at trial. Tex.R.App. P. 33.1. Rule of Evidence 801(e) identifies circumstances in which certain statements are not hearsay. A statement offered against a party which is “a statement of which the party has manifested an adoption or belief in its truth” is not hearsay. Tex.R. Evid. 801(e)(2)(B).

Eric recounted statements that were made in appellant's presence. When appellant stood by and listened to John's description of the murders and the surrounding events without disputing them, pointing out that Eric “should have been there” because he “would have had some fun,” he manifested his agreement with the statements. Thus, the complained-of testimony was admissible as an adoptive admission and was not hearsay. See Cantu v. State, 939 S.W.2d 627, 634–35 (Tex.Crim.App.1997)(statements made by co-conspirators in defendant's presence were admissible as adoptive admissions where defendant, by his actions and responses, showed agreement with the statements).

Appellant argues that because John was “the boss” and was such an intimidating figure in the gang, none of the other gang members would reasonably have felt free to contradict anything he said. Under these circumstances, appellant argues, his silence cannot be viewed as an adoptive admission. Appellant cross-examined Eric about this theory, and Eric testified that John was “one of” the leaders in the gang but that there was another gang member above him. He did, however, state that when John told you to do something, you did it. On re-direct, Eric testified that the gang member over John gave the orders. Moreover, the evidence reflects that Eric was not so intimidated that he did whatever John asked him to do. For example, twice when John sought help from Eric on the night of the offense, Eric told him no. Plus, it is significant that appellant was not simply silent in light of John's narrative of the events. He expressly indicated his agreement with what John said by telling Eric that he “should have been there” and that he “would have had some fun.” And he reaffirmed the killings by stating that there would be more dead members of the Mexican Mafia.

The trial court acted within the zone of reasonable disagreement in allowing the testimony as an adoptive admission under Rule 801(e)(2)(B). Accordingly, we need not address appellant's arguments concerning admissions of the statements under other hearsay exceptions. Points of error one, three, five, and seven are overruled.

Appellant claims in points of error two, four, six, and eight, that admission of Eric's aforementioned testimony about statements made by John violated appellant's right to confront witnesses against him under the Sixth Amendment to the United States Constitution. Although appellant objected at the pretrial hearing to the admission of Eric's written statement on Confrontation Clause grounds, he did not assert that objection to Eric's testimony at trial. His trial objection referenced only previous “hearsay” objections. Appellant failed to preserve error on Confrontation Clause grounds at trial. Tex.R.App. Proc. 33.1. Points of error two, four, six, and eight are overruled.

In points of error nine and eleven, appellant claims that testimony by Thomas Ayala as to statements made by John was hearsay and not admissible as either statements against interest or adoptive admissions by a party-opponent.

Ayala testified at trial for the State, describing his participation in disposing of the victims' bodies after the murders.FN3 Appellant asserted a hearsay objection when Ayala was asked to describe a conversation he had with John in which John told Ayala about the murders. The trial court overruled the objection. Ayala testified that John told him that he shot one of the male victims in the neck, that appellant shot a male victim and a female victim, and that Alvarado shot and stabbed one of the male victims. Although appellant was present and listening to John's retelling of what happened, he did not interrupt or object to John's version of the story. Ayala testified that when they later went to Eric's house, John again described the events to Eric in appellant's presence, and again appellant did not comment.

FN3. During the same pretrial hearing in which the admissibility of Eric's written statement was discussed, the State raised the issue of admissibility of portions of a written statement by Ayala. Only the admissibility of Ayala's written statement was debated at the hearing.

For the reasons stated in connection with points of error one, three, five, and seven, we conclude that the trial court did not abuse its discretion in admitting the statements as adoptive admissions by a party opponent. Again appellant argues that because John was such an intimidating figure in the gang, no one would have felt free to contradict anything he said. However, other evidence previously admitted suggested that appellant did not simply remain silent in the face of John's version of events, but verbally articulated his agreement. Eric testified that after listening to John's version, appellant told him that he “should have been there” and that he “would have had some fun.” And appellant warned that there would be more deaths among members of the Mexican Mafia. In light of the context of the statements, the trial court did not abuse its discretion in concluding that they were admissible as adoptive admissions. Moreover, whether or not appellant would have been afraid to disagree with John's narrative is a factor that bears on the credibility and weight of the statement, not its admissibility as an adoptive admission. Tucker v. State, 771 S.W.2d 523, 535–536 n. 5 (Tex.Crim.App.1988). By his silence and later embellishments, appellant indicated his adoption of the statements. Because we hold the statements admissible as adoptive admissions, we need not address appellant's claim that the statements were not admissible as statements against interest. Points of error nine and eleven are overruled.

In points of error ten and twelve, appellant claims that Ayala's testimony violated the Confrontation Clause. Appellant did not assert an objection based on the Confrontation Clause at trial. At the pretrial hearing, the trial court ruled on the admissibility of Ayala's written statement. The trial court's pretrial ruling as to the written statement did not excuse appellant from objecting to Ayala's trial testimony. The constitutional issue was not preserved. Tex.R.App. Proc. 33.1. Points of error ten and twelve are overruled.

In points of error thirteen through eighteen, appellant claims that the trial court erred in denying his requests for jury instructions that Ayala, Priscilla Saenz (hereinafter, “Priscilla”), and Julio Gonzalez were accomplices as a matter of law or as a matter of fact. In point of error nineteen, appellant claims that the trial court erred in denying his request for a jury instruction that John was an accomplice as a matter of law.

An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state.FN4 Kutzner v. State, 994 S.W.2d 180, 187 (Tex.Crim.App.1999)(citing McFarland v. State, 928 S.W.2d 482, 514 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997)). The participation must involve an affirmative act that promoted the commission of the offense with which the accused is charged. Id. An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense. Id.; Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App.1998). The trial court is under no duty to instruct the jury unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law. Id. If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term “accomplice.” Blake, 971 S.W.2d at 455. We will address the status of each witness separately.

FN4. See Section 7.02(a) of the Texas Penal Code regarding criminal responsibility for conduct of another: (a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; ...

Ayala

Ayala testified that he received a phone call from John on the evening of September 17, 2000, in which John asked him to come over to his house “as a favor.” Ayala stated that he knew John as a friend, but that Ayala was not a gang member. When he arrived at John's house, Ayala saw appellant, John, and Alvarado standing in the garage. John told Ayala that they “had to take care of some business” and showed him some rugs rolled up in the back of a pick-up truck parked in the garage. Ayala realized a few minutes later that the rugs contained bodies. Ayala was asked to help jump-start the truck loaded with the bodies, and after that, appellant and Ayala went to get some gas. When they returned to John's house, John said they were going to dispose of the bodies. Ayala was instructed to go first in his van. John and someone named Rex rode with Ayala. The truck with the bodies was next, followed by a third vehicle. They left the city and drove about two hours. John gave directions. The drivers of the three vehicles pulled off on a dirt road. The bodies were removed from the truck and Ayala saw flames. Ayala never got out of the van. When they got back to San Antonio, they washed out all three vehicles. Then they all went to Eric's house. Ayala testified that John described the murders to him during the drive and repeated the story at Eric's house. Appellant's requests for a charge that Ayala was an accomplice as a matter of law or a matter of fact were denied.

Appellant was charged with the murder of more than one person in the same criminal transaction. When Ayala arrived at John's house, the multiple murders had been committed. There is no evidence that the victims were still alive at that point or that Ayala was in any way involved in the planning of the murders. Ayala was not susceptible to prosecution for capital murder or a lesser included offense. Although Ayala assisted after the fact in the disposal of the bodies, he is not an accomplice as a matter of law because he is not susceptible to prosecution for capital murder. The trial court was under no duty to leave the question of Ayala's participation as an accomplice as a matter of fact to the jury because there is no conflicting evidence or doubt on the question of his complicity in the murders.

Priscilla Saenz

Priscilla was married to John. Priscilla testified that in early September 2000, she learned that Adrian Torres had given John $800 worth of cocaine. In the days prior to the murders, Torres phoned John's house several times seeking payment for or return of the drugs. On September 17, 2000, John told Priscilla that she needed to leave because Torres was coming over and he was “going to take care of business.” Appellant and Alvarado were also there. Priscilla left the house around 11 a.m. When she returned home at 6 p.m., the “whole house was torn apart.” John, appellant, Alvarado, and several others were there. John told her he was remodeling the house. Priscilla asked him where his truck was, and he told her it was in the garage. Priscilla saw the carpets in the back of the truck and learned that they contained the bodies of Torres and two others. Priscilla later went to the store at John's request and purchased some gas and cigarettes. After she returned, John and the others left with the bodies. Appellant's requests for a charge that Priscilla was an accomplice as a matter of law or a matter of fact were denied.

For the same reasons that Ayala was not an accomplice as a matter of law or fact, neither was Priscilla. Priscilla arrived home after the murders had been committed. There is no evidence that Priscilla was in any way involved in the planning of the murders. Although she may have suspected that foul play would occur when Torres arrived at her house, there is no evidence suggesting that she assisted in the preparation for or planning of the murders. Priscilla was not susceptible to prosecution for capital murder or a lesser included offense. There is no conflicting evidence or doubt on the question of Priscilla's complicity in the murders. The trial court did not abuse its discretion in denying appellant's requests for accomplice witness instructions.

Julio Gonzalez

Julio Gonzalez testified that he was a member of the HPL gang. He stated that John was the leader at the time of the offense and that appellant was his “right-hand man.” Gonzalez was summoned to John's house at around noon on the day of the offense to work on “construction” such as painting and putting down tile. Gonzalez and two others, Jaime Acevedo and Jason Villarreal, were driven to John's in a car sent for them by John. When they arrived, John, appellant, and Alvarado were there. The carpet in the house had been cut and rolled up and John told Gonzalez to look inside the carpet. When he unrolled the carpet, Gonzalez observed the bloody bodies of three people. John instructed Gonzalez and his two associates to put the bodies in the truck and they complied. They all spent the remainder of the afternoon drinking and cleaning up the blood in the house. At nightfall, Gonzalez drove the truck containing the bodies out into the country, following a van in which John was riding. Appellant and Acevedo or Villarreal followed the truck. When the three vehicles pulled off the road, Gonzalez stayed in the truck and observed some of the others set fire to the bodies. They returned to town and Gonzalez helped wash out the vehicles. Appellant's requests for a charge that Gonzalez was an accomplice as a matter of law or a matter of fact were denied.

For the same reasons Ayala and Priscilla were not accomplices as a matter of law or fact, neither was Gonzalez. Gonzalez could not have been charged with capital murder or a lesser included offense and there is nothing to support a theory that the evidence was conflicting on Gonzalez's complicity in the murders.

John

John did not testify at trial. Appellant requested and was denied an instruction that he was an accomplice as a matter of law or, in the alternative, as a matter of fact. Appellant concedes the existence of controlling authority holding that an accomplice witness instruction is applicable only to accomplices who are witnesses, but urges the Court to reconsider such authority. See Bingham v. State, 913 S.W.2d 208 (Tex.Crim.App.1995)(op. on reh'g). He wants this Court to adopt the plurality opinion on original submission in Bingham, which held that the court of appeals did not err by interpreting Article 38.14 to require corroboration of a hearsay statement of a non-testifying accomplice before the statement could be considered by the jury in its deliberations at the guilt or innocence phase. Id. at 209. This appellant has presented no persuasive reasons for us to revisit this issue. Penal Code § 7.02(b)

The trial court's instructions included an instruction on the law of conspiracy under Penal Code § 7.02(b). Appellant argues that Ayala, Gonzalez, and Priscilla were accomplices under the meaning of Section 7.02(b) and therefore, he was entitled to the charge on accomplice witnesses. Section 7.02(b) provides: If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Appellant does not explain how this section would apply to Ayala, Priscilla, and Gonzalez. To be applicable, there would still need to be evidence that Ayala, Priscilla, and Gonzalez were conspirators in carrying out one felony when another was committed. There is no evidence that the three conspired or attempted to carry out the murders. Points of error thirteen through nineteen are overruled. In points of error twenty through twenty-six, appellant complains of the admission of allegedly inflammatory photographs of the three victims. Appellant claims that State's Exhibits 36A, 37A, and 38A were irrelevant and offered solely to inflame the minds of the jury. He concedes that State's Exhibits 143, 144, 145, and 146 were relevant but argues that their prejudicial effect outweighed their probative value.

Medical Examiner Dr. Jan Garavaglia testified at the guilt or innocence phase. He testified to the general condition of Torres' charred body and his various wounds. After describing Torres' fatal gunshot wounds, the State offered State's Exhibit 143, a color photo depicting the wounds. Appellant objected that the photo showed nothing that was not already contained in the autopsy report and that it was offered solely to inflame the minds of the jury. His objections were overruled and the photo was admitted. Garavaglia testified that Torres' body was positively identified by his dental records. Garavaglia also agreed that particularly in the case of charred remains, where a visual identification cannot be made, a photograph of the burned victim is taken and marked with the unique case number. The State then offered State's Exhibit 37A, a photograph of the burned face of Torres. Appellant objected to the admission of Exhibit 37A, arguing that the photo was not necessary for identification purposes and served no purpose except to inflame the minds of the jury. The photo was admitted.

Garavaglia identified a second victim as Shawn Cain and testified about various wounds and the condition of Cain's charred body. The State offered State's Exhibit 144, a photo of Cain's gunshot wound and State's Exhibit 36A, the identifying autopsy photo of Cain's face with his assigned case number. Appellant again objected that the photos added nothing to the evidence and were offered solely to inflame the jury. The photos were admitted. Garavaglia identified the third victim as Nelly Bravo and testified to the condition of Bravo's charred body and various wounds. The State offered State's Exhibit 145, a photo depicting a gunshot wound to the head, and State's Exhibit 146, a photo depicting a gunshot wound to the chest. Appellant objected that the photos had no probative value and were offered merely for the purpose of inflaming the jury. The State also offered State's Exhibit 38A, the identification picture reflecting the assigned autopsy number. Appellant objected on the ground that the photo did not contribute to Bravo's identification and was offered for inflammatory purposes alone. The photos were admitted.

The admissibility of a photograph is within the sound discretion of the trial judge. Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App.1997). A photograph is generally admissible if verbal testimony about the matters depicted in the photograph is also admissible. Id. Exhibits 36A, 37A, and 38A were described and referred to by Garavaglio as autopsy identification photos. The photos depicted the victim before autopsy and displayed the autopsy number assigned to that victim. A photo of the victim displaying the autopsy number ensures that the autopsy report will correspond to the photos of the correct victim. Thus, even though the victims' identifications were based on their dental records, the medical examiner's office still utilized photos for purposes of tying the victims to their assigned case number. For this reason, the autopsy identification photos were relevant. And, while the photos are indeed prejudicial, they depict the condition of the victims' bodies when recovered. The photos were not so prejudicial as to outweigh their probative value. Tex.R. Evid. 403. Similarly, Exhibits 143, 144, 145, and 146 merely depicted the gunshot wounds as they appeared on the charred bodies. Appellant argues that the victims were all dead at the time their bodies were burned and therefore photos of their charred remains were not necessary to prove a contested issue. Nonetheless, the photos are probative of the efforts taken to cover up the crime, which bears on the issue of guilt. Although the photographs are gruesome, they depict nothing more than the reality of the brutal crime committed:

Appellant must realize that it is precisely the quality which we describe as “powerful” which gives rise to his arguments that the photographs are prejudicially inflammatory. But when the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence. A trial court does not err merely because it admits into evidence photographs which are gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App.1995). The trial court did not abuse its discretion in allowing the photographs. Points of error twenty through twenty-six are overruled.

In his twenty-seventh point of error, appellant claims that the death-penalty statute is unconstitutional because it violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. Appellant argues that the risk of executing innocent persons and the long delays in uncovering evidence of innocence, often only possible with the benefit of newly developed scientific techniques such as DNA testing, compels a conclusion that our death-penalty statute violates due process. Appellant refers to reports, case studies, and court cases documenting the exoneration of actually innocent death row inmates.

While execution of an innocent person would violate due process, the risk that another person who may be innocent will be executed does not violate appellant's due process rights. Appellant does not claim that he is innocent, and therefore fails to demonstrate that his rights under the Due Process Clause have been violated by application of our death-penalty statute. See Cantu, 939 S.W.2d at 639 (challenge to constitutionality of Article 37.071 which did not state how operation of statute was unconstitutional as applied to defendant in his particular situation was without merit). Point of error twenty-seven is overruled.

In point of error twenty-eight, appellant claims that allowing the jury to consider any evidence “the court deems relevant to sentence” under Article 37.071 violates the Due Process Clause and the Sixth Amendment to the United States Constitution. He specifically complains of evidence presented at the punishment phase of his trial regarding unadjudicated offenses to which he claims he was tenuously linked. In order for unadjudicated offenses to be admissible in the punishment phase of a capital murder trial, the State must present evidence which links the defendant to the crime. Allridge v. State, 762 S.W.2d 146, 162 (Tex.Crim.App.1988). Appellant claims that allowing such evidence does not withstand the heightened reliability and procedural safeguards required in capital cases.

The admission of unadjudicated extraneous offenses at the punishment phase of a capital case does not violate due process. See Cantu, 939 S.W.2d at 648; Harris v. State, 827 S.W.2d 949, 961–62 (Tex.Crim.App.1992). As we have noted, “[p]lainly, such evidence cannot be relevant to sentence ... unless the State also presents evidence that, if believed, establishes that the defendant himself committed the extraneous misconduct.” Harris, 827 S.W.2d at 961. The admission of such evidence does not violate the notion of heightened reliability in capital cases. Point of error twenty-eight is overruled.

In his twenty-ninth point of error, appellant claims that his Sixth Amendment right to a trial by jury was violated at the punishment phase of his trial by the return of a jury verdict that was not based upon a requirement that the State prove the absence of mitigating evidence beyond a reasonable doubt. Appellant relies on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have rejected the contention that Apprendi requires the State to bear the burden to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative. Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003). Nor does Ring support appellant's argument. Ring, like Apprendi, refers to an increase in penalty over the statutory maximum. In Texas, the statutory maximum for a capital offense is death. The mitigation issue does not increase the statutory maximum. To the contrary, the mitigation issue is designed to allow for the imposition of a life sentence, which is less than the statutory maximum. Point of error twenty-nine is overruled.

The judgment of the trial court is affirmed. WOMACK, J., concurred.

Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010). (Habeas)

Background: Following affirmance on direct appeal of petitioner's state court conviction for capital murder, and his death sentence, 129 S.W.3d 530, he filed petition for writ of habeas corpus. The United States District Court for the Western District of Texas, Samuel Fred Biery, Jr., J., 2007 WL 760230, denied petition. Petitioner appealed and sought certificate of appealability (COA) with respect to other issues. The Court of Appeals, 574 F.3d 281, affirmed the denial of habeas relief on Confrontation Clause issue, denied COAs on four issues, and granted a COA on question of whether jury instructions violated petitioner's constitutional rights.

Holdings: The Court of Appeals, Owen, Circuit Judge, held that: (1) Texas courts did not unreasonably apply clearly established federal law; (2) any error was not prejudicial; and (3) defense counsel was not ineffective. Affirmed.

OWEN, Circuit Judge:

Petitioner Miguel Paredes, convicted of capital murder in Texas and sentenced to death, appeals the federal district court's denial of his petition for writ of habeas corpus. We consider whether Paredes is entitled to relief based on his contentions that (1) the state trial court violated Paredes's constitutional rights by failing to require a unanimous verdict as to which two or more of three decedents Paredes murdered; and (2) he was denied effective assistance of counsel because at trial, his attorney failed to object to the jury instructions in this regard. We affirm.

I

We have previously considered other grounds on which Paredes seeks habeas relief in Paredes v. Quarterman ( Paredes I).FN1 In our earlier opinion, we described the events leading to Paredes's conviction and death sentence. We recount in this opinion only the facts essential to the disposition of the issues presently before us. FN1. 574 F.3d 281 (5th Cir.2009).

Paredes, John Saenz, and Greg Alvarado, who were all members of the Hermanos Pistoleros Latinos gang, anticipated a confrontation regarding an illegal drug transaction and allegedly armed themselves, lay in wait, then shot and killed rival gang members Adrian Torres, Nelly Bravo, and Shawn Cain inside Saenz's home. The victims were slain within seconds of one another. Paredes was charged with murdering more than one person during the same criminal transaction under the Texas capital murder statute.FN2 The State of Texas alleged alternatively that Paredes should be held responsible for the deaths of more than one of the three decedents under Texas's law of parties, which permits a defendant to be held criminally responsible for an offense committed by another if “with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”FN3

FN2. See Tex. Penal Code § 19.03(a)(7)(A) (“A person commits [capital murder] if he commits murder as defined under Section 19.02(b)(1) and ... the person murders more than one person ... during the same criminal transaction.”). FN3. Tex. Penal Code § 7.02(a)(2); see also Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App.1992) (“proof beyond a reasonable doubt that appellant actually fired the fatal shot is not necessary for a capital murder conviction where the jury is charged on the law of parties”).

At trial, a witness testified that Paredes admitted to shooting Bravo, and other witnesses testified that Paredes remained silent when, in Paredes's presence, John Saenz recounted that Paredes had shot both Bravo and Cain. One witness, Eric Saenz, the brother of John Saenz, testified that after John Saenz, in Paredes's presence, had described in some detail how he, John Saenz, shot Torres, how Paredes shot Bravo in the head, and how Paredes then shot Cain, Paredes stated to Eric Saenz that Eric “should have been there, that [Eric] would have had some fun.” Medical evidence was consistent with testimony that Paredes was the shooter in the deaths of Bravo and Cain but not Torres. There was direct evidence that Paredes was in John Saenz's home at the time of the killings and assisted in cleaning blood off the floor and walls of the home and in disposing of the bodies afterwards. There was also strong circumstantial evidence that Paredes was present during the killing of each of the three decedents, and that at a minimum, he aided or attempted to aid Saenz in carrying out the plan to kill these individuals.

In a general charge, the trial judge instructed the jury that it could convict Paredes of capital murder if it found that he killed (1) Torres and either Bravo or Cain; or (2) Bravo and either Torres or Cain; or (3) Cain and either Torres or Bravo. The jury was also permitted to find that Paredes had committed capital murder under the law of parties. The jury was not required to specify which of the alternative grounds it found to be true, and Paredes's lawyer did not object to the instructions. The jury returned a general verdict finding “Paredes guilty of Capital Murder as charged in the indictment,” and Paredes was subsequently sentenced to death at the conclusion of the penalty phase of his trial.

Paredes appealed his conviction and sentence, and the Texas Court of Criminal Appeals affirmed.FN4 He then filed a habeas application in state court but was denied relief. In its unpublished opinion denying habeas relief, the Texas Court of Criminal Appeals did not discuss Paredes's contentions regarding jury unanimity, but the court did adopt the findings and conclusion of the state trial court with regard to the habeas petition. FN5 The state trial court's conclusions as to the jury charge issue were brief, stating only that it “did not violate the holding of Schad,” referring to the Supreme Court's decision in Schad v. Arizona.FN6 In Schad, four members of the Court in a plurality opinion,FN7 and one Justice in a concurring opinion,FN8 held that a conviction based on an instruction that did not require jury unanimity as to whether the murder was premeditated or alternatively was a felony murder did not violate the petitioner's right to due process.

FN4. Paredes v. State, 129 S.W.3d 530 (Tex.Crim.App.2004). FN5. Ex parte Paredes, No. WR-61,939-01, (Tex.Crim.App. August 31, 2005), available athttp:// www. cca. courts. state. tx. us/ opinions/ HTMLOpinion Info. asp? Opinion ID= 13182. FN6. 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). FN7. Id. at 630, 111 S.Ct. 2491. FN8. Id. at 649, 111 S.Ct. 2491 (Scalia, J., concurring).

Paredes filed the instant federal habeas petition and requested an evidentiary hearing. The district court denied habeas relief and the request for a hearing, but granted a Certificate of Appealability (COA) on the issue of whether trial counsel rendered ineffective assistance by failing to raise Confrontation Clause objections to the testimony of two trial witnesses. Paredes appealed and requested a COA on six additional issues. We affirmed the denial of habeas relief on the Confrontation Clause issue and denied COAs on four issues.FN9 We granted a COA on the two related questions that we now address: (1) whether the jury instructions violated Paredes's constitutional rights by not requiring the jury to agree unanimously on which two of the victims he killed; and (2) whether Paredes's attorney was constitutionally ineffective for failing to object to those instructions. FN10

FN9. Paredes I, 574 F.3d at 286-94. FN10. Id. at 292-93.

II

We review Paredes's habeas petition under the “ ‘highly deferential standard for evaluating state-court rulings' ”FN11 set forth in the Anti-Terrorism and Effective Death Penalty Act (AEDPA).FN12 The question before us is not whether the state trial court should have instructed the jury as it did but instead whether the determination of the Texas Court of Criminal Appeals that there was no violation of Paredes's constitutional rights “was ‘an unreasonable application of ... clearly established federal law’ ”FN13 “ ‘as determined by the Supreme Court of the United States.’ ” FN14 The Supreme Court has repeatedly admonished that “ ‘an unreasonable application of federal law is different from an incorrect application of federal law.’ ”FN15 “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.”FN16 Instead, the application must be “ ‘objectively unreasonable.’ ”FN17 This standard of review “creates a ‘substantially higher threshold’ for obtaining relief than de novo review.” FN18

FN11. Renico v. Lett, --- U.S. ----, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). FN12. 28 U.S.C. § 2254(d). FN13. Renico, 130 S.Ct. at 1862 (quoting 28 U.S.C. § 2254(d)(1)). FN14. Berghuis v. Thompkins, --- U.S. ----, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010) (quoting 28 U.S.C. § 2254(d)(1)). FN15. Renico, 130 S.Ct. at 1862 (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). FN16. Williams, 529 U.S. at 411, 120 S.Ct. 1495. FN17. Renico, 130 S.Ct. at 1862 (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495). FN18. Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)).

But even if a state court's determination was an unreasonable application of clearly established federal law, that is not the end of the inquiry. Generally, on collateral review, “petitioners ... are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ”FN19 An error is prejudicial if it “had substantial and injurious effect or influence in determining the jury's verdict.”FN20 The Supreme Court has recently confirmed that jury charge error in a case in which a jury rendering a general verdict had been instructed on alternative theories of guilt and may have relied on an invalid theory is not “structural” error and is subject to harmless-error analysis “so long as the error at issue does not categorically ‘vitiat[e] all the jury's findings.’ ”FN21

FN19. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). FN20. Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). FN21. Hedgpeth v. Pulido, --- U.S. ----, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008) (alterations in original) (quoting Neder v. United States, 527 U.S. 1, 11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

III

To determine whether the Texas court's determinations relating to the jury instruction at issue in the case before us constituted an unreasonable application of clearly established federal law as determined by the Supreme Court, we must attempt to ascertain what the Supreme Court has held regarding the requirement of unanimity in jury instructions in criminal cases. The most recent guidance is found in the four-Justice plurality opinion in Schad v. ArizonaFN22 and Justice Scalia's concurring opinion in that case. FN23 There, the plurality and Justice Scalia concluded that a first-degree murder conviction based on “jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder”FN24 was not unconstitutional. But in arriving at that decision, the Court did not, as we shall discuss below, set forth an analytical framework that can be applied to determine readily whether process has been due when facts such as those in the instant case are presented.

FN22. 501 U.S. 624, 630-45, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). FN23. Id. at 648-52, 111 S.Ct. 2491 (Scalia, J., concurring). FN24. Id. at 627, 111 S.Ct. 2491.

A

In Schad, the Arizona Supreme Court had “authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime,” and the question was whether Arizona's choice was unconstitutional.FN25 In the present case, it is not clear that the Texas Court of Criminal Appeals has authoritatively determined what elements the Texas legislature has prescribed for the crime of murdering more than one person during the same criminal transaction.FN26

FN25. Id. at 636-37, 111 S.Ct. 2491. FN26. See Tex. Penal Code § 19.03(a)(7)(A).

The State argues that the single offense of murdering more than one person during the same criminal transaction may be proven by alternative means, such as showing that the defendant killed A and either B or C, B and either A or C, or C and either A or B, and that the jury does not have to agree as to which two of the victims the defendant murdered. The State argues that the murder of the same decedent does not have to be the predicate for each alternative means of committing the crime of multiple murder when alternative means of committing multiple murder under this statute are alleged. The State acknowledges, however, that there is no case law in Texas that addresses this precise question.

The decision of the Texas Court of Criminal Appeals that comes closest to answering how the Texas statute should be construed arose out of the conviction of John Saenz,FN27 one of Paredes's cohorts in the killings of Torres, Bravo, and Cain, for Saenz's participation in the same criminal transaction leading to Paredes's conviction. The Court of Criminal Appeals' opinion in Saenz reflects that “[e]ach count alleged the murder of a different victim, and each count alleged the murder of the two other victims as aggravating circumstances.”FN28 Saenz was convicted “of three counts of capital murder.”FN29 Under each count, the jury found that Saenz would not be a future danger, and life imprisonment was imposed for each count.FN30 The only issue that the Texas court decided was whether Saenz “had been subjected to multiple punishments for the same offense in violation of the Double Jeopardy clause, when separate judgments for the offense of capital murder were entered for each victim of a multiple murder committed in the same criminal transaction.”FN31 After surveying the legislative history of section 19.03(a)(7)(A), the Texas court held that the Double Jeopardy clause had been violated and ruled that Saenz could receive only one life sentence for his crime of multiple murder.FN32

FN27. See Saenz v. State, 166 S.W.3d 270 (Tex.Crim.App.2005). FN28. Id. at 271. FN29. Id. FN30. Id. FN31. Id. at 271-72. FN32. Id. at 272-74.

In construing section 19.03(a)(7)(A), the Texas court concluded in Saenz that “the statute reflects that the killing of at least two persons allows the State to charge a single count of capital murder.”FN33 The court recounted that the impetus behind the enactment of section 19.03(a)(7)(A) was the “State's inability to seek the death penalty as punishment for the concomitant murders of six Dallas nightclub patrons by [an individual],”FN34 and that the Texas legislature's goal was not to create a means to seek multiple death penalties but to “mak[e] it possible for the State to execute mass murderers.”FN35 In the concluding paragraph of its opinion in Saenz, the court held that “[t]he most reasonable interpretation of the statute and its legislative intent is that, under the circumstances presented here [Saenz's case], the statute allows only a single capital murder conviction.”FN36 The court held that the Double Jeopardy clause had been violated “when the State charged appellant with three separate counts of capital murder under Section 19.03(a)(7)(A) because the charges rely on the same three murders for each charge.”FN37

FN33. Id. at 273. FN34. Id. FN35. Id. FN36. Id. at 274. FN37. Id.

It is not clear from the Saenz opinion whether Saenz was charged in precisely the same manner as Paredes was charged in the present case, and we do not know from the Saenz opinion how the jury instruction was worded in that case. We can discern, however, that the holdings in Saenz do not directly answer the question of whether the Texas legislature intended to permit a capital murder conviction under section 19.03(a)(7)(A) to be established by alternative means such as that the defendant murdered A and either B or C, B and either A or C, or C and either A or B. The opinion in Saenz does at least hint that the Texas Court of Criminal Appeals does not think that such a charge would be proper, but instead is of the view that a single predicate murder must be alleged together with an allegation that one or more additional murders was committed. In discussing the allowable unit of prosecution under section 19.03(a)(7)(A), the Texas court said “a predicate to charging capital murder” is “that a defendant commit murder as defined under Section 19.02(b)(1).”FN38 The Texas court reasoned that the “aggravating circumstance for a capital murder prosecution under Section 19.03(a)(7)(A) ... is the murder of ‘more than one person during the same criminal transaction.’ ”FN39 The Texas court continued, “[t]he commission of at least one murder, then, which is in addition to the predicate murder, is the aggravating circumstance required by Section 19.03(a)(7)(A).” FN40 This would seem consistent with the requirement in section 19.03(a)(7)(A) that a person commit a knowing or intentional murder of one individual under section 19.02(b)(1). The Texas Court of Criminal Appeals has long held that under section 19.02(b)(1), the murder of only one specific individual may be charged.FN41 The unit of prosecution under section 19.02(b)(1) is a single, named individual.FN42

FN38. Id. at 272; see also Tex. Penal Code. § 19.02(b)(1) (“A person commits an offense if he ... intentionally or knowingly causes the death of an individual.”). FN39. Saenz v. State, 166 S.W.3d 270, 273 (Tex.Crim.App.2005). FN40. Id. (emphasis added). FN41. See, e. g., Graham v. State, 19 S.W.3d 851, 854 (Tex.Crim.App.2000) (striking down an indictment that alleged that the defendant had committed a single capital murder by (1) causing the death of Hurtado and Giraldo during the same criminal transaction; (2) causing the death of Hurtado while in the course of robbing him; or (3) causing the death of Jesus Garcia-Castro while in the course of robbing him. The court determined that, because “two of the three paragraphs allege[d] different murders as the basis for the capital charge,” the indictment actually “alleged two distinct capital offenses.”). FN42. See Saenz, 166 S.W.3d at 272 (confirming that “the allowable unit of prosecution is each individual victim” under section 19.02(b)(1)).

We nevertheless do not have a definitive construction of section 19.03(a)(7)(A) from the Texas Court of Criminal Appeals as to whether it is proper in a jury charge to permit the crime of multiple murder to be established by alternate means of varying combinations of more than one murder. However, the trial court's charge to the jury that convicted Paredes allowed such varying combinations. The jury instructions did not require all jurors to agree on whether Paredes killed Bravo and Cain or Torres, Cain and Bravo or Torres, or Torres and Cain or Bravo. In reviewing the trial court's charge in this case, the Texas courts have held that this did not violate Paredes's due process rights, and we will therefore consider whether United States Supreme Court decisions have clearly established that this jury charge was beyond constitutional limits on how a state may define the elements of an offense. FN43. See Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); see also id. at 649, 111 S.Ct. 2491 (Scalia, J., concurring).

B

We conclude that the Texas courts did not unreasonably apply clearly established federal law as determined by the United States Supreme Court because whether the jury charge at issue went beyond the limits of how a state may define a single offense of multiple murder is not clearly established. Indeed, the means by which we are to determine if the process accorded Paredes in submitting the question of his guilt to the jury was due is not clearly established.

As discussed above, in Schad, Arizona law permitted a murder conviction to rest on proof that a defendant “murdered either with premeditation or in the course of committing a robbery.”FN44 The plurality opinion in Schad reasoned that “the petitioner's real challenge is to Arizona's characterization of first-degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative.”FN45 The petitioner had contended “that premeditated murder and felony murder [were] separate crimes as to which the jury must return separate verdicts.”FN46 According to the plurality, the issue “then, is one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions, not one of jury unanimity.”FN47

FN44. Id. at 630, 111 S.Ct. 2491. FN45. Id. at 630-31, 111 S.Ct. 2491. FN46. Id. at 631, 111 S.Ct. 2491. FN47. Id.

The disagreement between the plurality and concurring opinions in Schad concerned the reasoning leading to their shared conclusion that the jury instruction was not unconstitutional. While both opinions acknowledged that the ultimate question to be resolved was whether the process that was received was due, the two opinions diverged beyond that point, with no resulting majority view. In answering whether the Due Process Clause was violated, the plurality opinion began with the understanding that there are “limits on a State's capacity to define different courses of conduct ... as merely alternative means of committing a single offense, thereby permitting a defendant's conviction without jury agreement as to which course [of conduct] actually occurred.” FN48 The plurality reasoned that the “practical consequence” of the “axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning” is “that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge against him.”FN49 The plurality further reasoned that “no person may be punished criminally save upon proof of some specific illegal conduct.”FN50 This “simply [raises] the problem of describing the point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses.”FN51

FN48. Id. at 632, 111 S.Ct. 2491. FN49. Id. at 632-33, 111 S.Ct. 2491. FN50. Id. at 633, 111 S.Ct. 2491. FN51. Id.

The plurality opinion in Schad concluded that in order to determine whether a State has exceeded constitutional bounds in prescribing the alternative means of committing a single crime, it would be impractical to “try[ ] to derive any single test for the level of definitional and verdict specificity permitted by the Constitution.”FN52 The plurality opinion set forth the following parameters for ascertaining “fundamental fairness” and “rationality,” reminding us that there is “a threshold presumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime”FN53:

FN52. Id. at 637, 111 S.Ct. 2491. FN53. Id. 637-38, 111 S.Ct. 2491.

[W]e think that instead of such a [single] test our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness and for the rationality that is an essential component of that fairness. In translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold presumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime. FN54. Id. at 637, 111 S.Ct. 2491 (citation omitted).

The plurality opinion in Schad then reiterated its “inability to lay down any bright-line test,” noting “the difficulty of deciding, as an abstract matter, what elements an offense must comprise.”FN55 The plurality “stressed that ... the state legislature's definition of the elements of the offense is usually dispositive,” although “there are obviously constitutional limits beyond which the States may not go.”FN56

FN55. Id. at 639, 111 S.Ct. 2491. FN56. Id. (alteration in original).

In his concurring opinion, Justice Scalia concluded, as had the plurality, that “it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” FN57 He also observed, as had the plurality, “that one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.”FN58 Justice Scalia, however, took issue with the plurality's use of a fundamental fairness assessment of the procedural or “so-called ‘substantive’ ” due process components when testing “an American tradition that is deep and broad and continuing.”FN59 He reasoned, “[i]t is precisely the historical practices that define what is ‘due,’ ” although he recognized that a “ ‘[f]undamental fairness' analysis may appropriately be applied to departures from traditional American conceptions of due process.”FN60

FN57. Id. at 649, 111 S.Ct. 2491 (Scalia, J., concurring). FN58. Id. at 650, 111 S.Ct. 2491. FN59. Id. FN60. Id.

Justice Scalia then addressed the plurality's discussion of moral equivalency, pointing out that the petitioner in Schad was not complaining about the lack of moral equivalency between premeditated murder and killing in the course of a robbery.FN61 The petitioner's objection was that “as far as we know, only six jurors believed he was participating in a robbery, and only six believed he intended to kill.”FN62 Justice Scalia posited that “[p]erhaps moral equivalency is a necessary condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is sufficient.”FN63 It was in this context that Justice Scalia hypothesized, “[w]e would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the ‘moral equivalence’ of those two acts.”FN64 In our prior opinion granting a COA on the issues presently under consideration, we quoted this passage from the concurring opinion in Schad.FN65 We observed that this example “informs Paredes's case,”FN66 but we did not decide whether the jury charge in Paredes's case violated his right to due process. We noted the Schad plurality's due process concerns about the “fluid conceptual boundary between calling two things different crimes and calling them different methods of committing the same crime,” and also noted that this “is an area with no well-defined definitions.”FN67

FN61. Id. at 651, 111 S.Ct. 2491. FN62. Id. FN63. Id. FN64. Id. FN65. Paredes I, 574 F.3d 281, 293 (5th Cir.2009). FN66. Id. FN67. Id.

After considering additional briefing and hearing oral arguments on the merits of this habeas issue, we can now conclude that the Texas courts did not unreasonably apply clearly established federal law as determined by the Supreme Court with regard to the jury charge given in Paredes's case. Were we to undertake the fundamental fairness analysis adopted by the plurality in Schad, with its various components, the outcome would be far from clear. There are many variables and considerable room for differing viewpoints in such an analysis, and the Supreme Court's determinations have not thus far given the guidance necessary to apply the fundamental fairness test fashioned by the plurality to the present circumstances with any confidence that the outcome would be derived from “clearly established” law.

Nor can we with any confidence discern where the jury charge in the present case lies on the continuum discussed in Justice Scalia's concurring opinion or what the outcome would be when the principles set forth in that opinion are applied. Hypotheses similar to those set forth in the concurring opinion and similar to the facts before us raise difficult questions. Does due process require a jury to agree on precisely which defendant killed which individuals when it is proven that two defendants each threw two grenades into a crowded area, ten individuals were killed, but forensics cannot determine which of the grenades was the cause of any particular individual's death? In the case presently before us, it may be that the Texas multiple murder law, as applied by the Texas trial court, is a departure from traditional American conceptions of due process but that a fundamental fairness test would result in a determination that the process given was due. On the other hand, the principles articulated in Justice Scalia's concurring opinion in Schad might lead to the conclusion that all jurors must believe that a defendant killed at least two specifically identified individuals to establish multiple murder.

We do not undertake the fundamental fairness analysis described by the plurality opinion or the analyses the concurring opinion discusses in Schad because were we to do so, we would be applying principles to circumstances that the Supreme Court has yet to address. We would not be “merely [ ] illuminat [ing]” existing Supreme Court precedent.FN68 We would be extending the application of Supreme Court precedent, which we are not permitted to do under AEDPA. FN68. Renico v. Lett, --- U.S. ----, 130 S.Ct. 1855, 1866, 176 L.Ed.2d 678 (2010) (holding that a decision of the court of appeals could not “be understood merely to ‘illuminat[e]’ ” the Supreme Court's decision in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), which had considered the breadth of a trial court's discretion in granting a mistrial).

C

The fundamental fairness test embraced by the plurality in Schad and recognized by the concurring opinion in Schad as appropriate in some circumstances presents fairly broad, fluid parameters, as we have noted. In another context, the Supreme Court has recently explained that a “general standard triggers another consideration under AEDPA”: “When assessing whether a state court's application of federal law is unreasonable, ‘the range of reasonable judgment can depend in part on the nature of the relevant rule’ that the state court must apply.”FN69 The Renico decision emphasized that “[b]ecause AEDPA authorizes federal courts to grant relief only when state courts act unreasonably, it follows that ‘[t]he more general the rule’ at issue-and thus the greater the potential for reasoned disagreement among fair-minded judges-‘the more leeway [state] courts have in reaching outcomes in case-by-case determinations.’ ”FN70 While the due process analyses set forth in the plurality and concurring opinions in Schad differ in many respects from a trial court's broad discretion in deciding whether a jury is deadlocked and therefore whether to grant a new trial, which was the applicable legal standard in Renico, the due process analyses in Schad have considerable “potential for reasoned disagreement among fair-minded judges” as to whether the jury charge in the present case met due process requirements. Accordingly, it cannot be said that the Texas court unreasonably applied federal law even if the due process parameters to be applied in the present context were clear.

FN69. Id. at 1864. Renico also held that the legal standard to be applied in determining whether a trial court erred in granting a mistrial due to jury deadlock was “whether there was an abuse of the ‘broad discretion’ reserved to the trial judge.” Id. at 1865. FN70. Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)) (alterations in original).

Because the Texas court did not unreasonably apply clearly established federal law as determined by the Supreme Court, Paredes is not entitled to habeas relief with regard to the fact that the jury instructions did not require all jurors to agree on the identity of at least two of the three victims allegedly killed by Paredes.

IV

Our denial of habeas relief with regard to the jury instruction issue is based on an additional, independent ground. Paredes cannot establish prejudice from the disjunctive jury charge because the jury was also permitted to conclude that he was criminally responsible for the murders under Texas's law of parties even if he did not personally shoot any of the victims.

Paredes does not contend that permitting the jury to convict him of capital murder based on an alternative allegation of his responsibility for the action of others violated his due process rights to a unanimous verdict. Nor does he contend that any error in submitting three other alternative means of committing capital murder (namely, that Paredes either murdered Torres and Bravo or Cain, Cain and Bravo or Torres, or Bravo and Cain or Torres) vitiates all of the jury's findings.FN71 The jury's finding regarding the law of parties would not be vitiated by any such error, so there is no structural error, and Paredes does not contend that there is structural error.FN72

FN71. See Hedgpeth v. Pulido, --- U.S. ----, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008) (concluding that harmless-error analysis applied to the jury charge error at issue “so long as the error at issue does not categorically ‘vitiat[e] all the jury's findings' ” (quoting Neder v. United States, 527 U.S. 1, 11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999))). FN72. See Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (distinguishing “structural defects” in the trial, “which defy analysis by ‘harmless-error standards,’ ” from trial errors, which are subject to harmless-error analysis (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991))).

The evidence is overwhelming that Paredes was guilty of capital murder under Texas's law of parties. Based on the record before us, we conclude that any error in submitting alternative theories of who Paredes shot did not have a substantial and injurious effect or influence in determining the jury's verdict. Any error in failing to require all jurors to agree which of two or more victims that Paredes killed was harmless in light of the general charge that included the law of parties, a general verdict of guilty, and the virtually unchallenged evidence of Paredes's responsibility under the law of parties.

V

Paredes next argues that he received ineffective assistance of counsel because his lawyer failed to object to the disjunctive jury charge regarding the identity of the victims shot by Paredes. To obtain relief on this claim, Paredes must show that (1) he received constitutionally ineffective assistance, and (2) the state court's ruling that he did not receive ineffective assistance is contrary to, or an unreasonable application of, clearly established federal law.FN73 To demonstrate ineffective assistance of counsel, Paredes must show that his attorney's performance fell “below an objective standard of reasonableness” and prejudiced his defense.FN74

FN73. Carty v. Thaler, 583 F.3d 244, 258-59 (5th Cir.2009). FN74. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Even if we assume that, by failing to object to the jury instructions, the performance of Paredes's attorney fell below an objective standard of reasonableness, Paredes suffered no prejudice. As noted, supra, if the jury had been required to agree on the identity of at least two of Paredes's victims and failed to agree, Paredes would have been convicted of capital murder because of the overwhelming evidence that Paredes was criminally responsible for the killings under Texas's law of parties. Accordingly, Paredes is not entitled to habeas relief on his ineffective assistance claim.

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