Garcia v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10730 (Summary Calendar) __________________

REYNALDO MONTEZ GARCIA, SR.,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas (USDC No. 5:95-CV-28-C) - - - - - - - - - - April 1, 1996 Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

This is an appeal from the district court's order denying

appellant's habeas petition under 28 U.S.C. § 2254. Appellant

argues that: (1) the state court's reasonable doubt jury

instruction was not constitutionally sufficient; (2) the state

improperly introduced extraneous offenses into evidence; (3) the

state improperly referred to evidence not introduced at trial

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. during closing argument; (4) the state's introduction of the knife

violated appellant's constitutional rights; (5) the evidence was

insufficient to support his conviction; (6) the state court

improperly cumulated his setences; and (7) appellant's trial and

appellate counsel were ineffective. We have reviewed the record

and the district court's opinion and find no reversible error.

Accordingly, we affirm the district court’s judgment concerning the

above issues for essentially the reasons given by the district

court. Garcia v. Johnson, No. 5:95-CV-28-C (N.D. Tex. Aug. 3,

1995).

For the first time on appeal, appellant argues that the

cumulation of his sentence for the retaliation offense with his

sentence for the indecency offense places him in double jeopardy.

Because this purely legal issue is raised for the first time on

appeal, we review only for plain error. Robertson v. Plano City of

Texas, 70 F.3d 21, 23 (5th Cir. 1995). The district court did not

plainly err in cumulating appellant’s sentences as the sentences

were imposed for offenses which are different for double jeopardy

purposes. See United States v. Henderson, 19 F.3d 917, 926 (5th

Cir.), cert. denied, 115 S. Ct. 207 (1994).

AFFIRMED.