REAVLEY, Circuit Judge:
Lawrence John Stokes, who is on parole under the custody of the State of Texas, appeals the denial of habeas corpus relief under 28 U.S.C. § 2254.
See Jones v. Cunningham,
371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). He was convicted of attempted burglary in 1973 and, because of two prior convictions, received an enhanced sentence of life imprisonment. After Stokes unsuccessfully challenged his conviction in state court, he filed this action in federal district court. The district court referred two claims — improper comment on Stokes’ post-arrest silence and ineffectiveness of counsel — to a magistrate for a hearing. After adopting his findings and conclusions, the court dismissed the cause
with prejudice, but issued a certificate of probable cause. We affirm in part and reverse in part.
I. Case History
Sheila Shumaker returned to her home in Beaumont, Texas, on the afternoon of January 6, 1973, and observed a man wearing white gloves, trying to open the patio door from the outside with what she thought was a screwdriver. She asked him what he was doing, and he ran off. Then she called the police, providing a description of the man. A neighbor of the Shumakers saw a man running on a service road behind his house.
After receiving a radio call about the incident, a police officer saw a man matching the description in the area, about seven blocks from the Shumaker residence. When asked what he was doing, the man first said that he was visiting friends, although he could not name them. He then said he was looking for a lost dog, but, when asked, could not say where he lost the dog or identify any street names in the neighborhood. The police officer then arrested Stokes, finding a pair of white gloves and a screwdriver in a pocket of his sport coat. The police officer drove to the Shumaker residence, and Sheila viewed Stokes sitting in the police car. Although she thought the man outside the house had lighter hair than the man in the car, she observed that the man in the car wore a similar jacket, was of the same race and age, and generally resembled the man she had seen earlier. The neighbor identified the man in the police car as the same man he saw running earlier.
The jury found Stokes guilty of attempted burglary with intent to commit theft. Then, in the punishment phase of trial, the prosecution introduced “pen packets” and fingerprint evidence establishing that Stokes had previously been convicted of two felonies. The jury found that the prosecution had proved beyond a reasonable doubt, as charged in the indictment, that Stokes had previously been convicted of two felonies less than capital. Accordingly, the court sentenced Stokes to life imprisonment as a habitual offender under Tex.Penal Code Ann. Article 63 (Vernon 1925) (repealed 1974) (current version at Tex.Penal Code Ann. § 12.42(d) (Vernon 1974 & Supp.1984)).
II. Receipt of Indictment
Stokes first challenges his 1973 conviction on the basis that he did not receive a copy of the indictment. He argues that the failure to provide an accused with a copy of the indictment violates Texas law,
see
Tex. Crim.Proc.Code Ann. art. 25.01 (Vernon 1966), and the Sixth Amendment. Our inquiry, however, is limited to ascertaining whether Stokes was deprived of any right guaranteed by the United States Constitution. He would be entitled to relief if he had not been informed of the nature and cause of the accusation against him or if he was unable to plead the judgment as res judicata against any attempted prosecution for the same offense.
See, e.g., Calley v. Callaway,
519 F.2d 184, 226 (5th Cir.1975) (en banc),
cert.denied,
425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976);
United States v. Strauss,
283 F.2d 155, 158-59 (5th Cir.1960).
The record contains a Precept to Serve Copy of Indictment, which shows that Stokes was served with a certified copy of the indictment on April 19, 1973, well before he was tried in August 1973. Moreover, the hearing before the magistrate revealed that Stokes’ trial counsel’s file contained a copy of the indictment. Although counsel could not specifically remember whether he obtained a copy of the indictment before trial, his normal procedure was to do so immediately after being appointed. He also testified that he discussed the charges in detail with Stokes. Stokes’ Sixth Amendment right to be informed of the charges so that he could prepare a defense was not violated.
III. Evidence of Intent to Commit Theft
Stokes argues that insufficient evidence existed upon which a rational trier of fact could conclude beyond a reasonable
doubt that he possessed the intent to commit theft, an essential element of the crime for which he was convicted.
See Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);
Greer v. State,
437 S.W.2d 558 (Tex.Crim.App.1969). We disagree. A rational trier of fact could have found, by inference from the circumstantial evidence introduced, that Stokes had the requisite intent.
See, e.g., Williams v. Maggio,
695 F.2d 119, 122 (5th Cir.),
cert. denied,
461 U.S. 917, 103 S.Ct. 1901, 77 L.Ed.2d 288 (1983);
United States v. Haldeman,
559 F.2d 31, 115-16 (D.C.Cir.1976) (en banc),
cert.denied,
431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977);
Hall v. United States,
286 F.2d 676, 677, 679 (5th Cir.1960);
Williams v. State,
537 S.W.2d 936, 938 (Tex.Crim.App.1976);
Warren v. State,
641 S.W.2d 579, 582 (Tex.App.Dallas 1982, pet. dism’d).
Sheila Shumaker testified that she observed a man wearing white gloves using a screwdriver to “jimmy open” the patio door at the rear of her house. He fled when she inquired what he was doing. A neighbor who saw a man running away testified, “His hands seemed to be white as if he had something on his hands.” The police officer arrested a man fitting the description given over the radio and supplied by Sheila. He possessed a screwdriver and lightweight white gloves and gave two explanations for his presence in the neighborhood, which he later admitted were false. The neighbor identified him as the same man he had seen running. Based on this evidence, the jury could have concluded beyond a reasonable doubt that Stokes used the screwdriver with intent to steal something from the Shumaker house and that he wore the white gloves to avoid leaving fingerprints.
IV. Prosecutorial Comments on Stokes’ Post-Arrest Silence
On direct examination at the trial the police officer related the circumstances surrounding Stokes’ arrest. He stated that he made the arrest after Stokes told him that he in fact had not lost a dog and could not produce identification. The following colloquy between the prosecutor and police officer ensued:
Q. Officer Gratzer, at the time that you took him into custody did you advise him of the reason that you were placing him in custody and also advised him of the rights that are required under the law?
A. Yes, sir, I did.
Q. And after advising him of the reason you were arresting him did he tell you anything else?
A. No, he did not.
Defense counsel made no objection to the latter question. On cross examination, Stokes’ attorney asked:
Q. Officer, have you ever talked to anyone when you were investigating an offense or an alleged offense and ordinary people — do they ever appear nervous in your presence?
A. Yes, they do.
Q. So, it isn’t unusual for someone to be hesitant in talking or not clear about what they have to say, is it? We are not talking about this individual in this case, but in performing routine investigations it is not unusual, is it, officer, to talk with someone who is hesitant or is confused about details?
A. No, sir.
On redirect, the prosecutor inquired:
Q. Did [Stokes] subsequently tell you, in fact, that there was no dog lost and that wasn’t why he was there?
A. Yes, sir.
Q. Now, what is of great importance, I think, in line with what Mr. Boudreaux asked you, his contention that people are nervous, after you told the defendant that you were placing him in your custody for attempted burglary of a house down the street from that point on, or at that very moment, from that point on he never said a word?
A. He wouldn’t answer any more questions.
Again, defense counsel failed to object. Boudreaux then examined Gratzer on recross:
Q. Officer, is it — would it be unusual if you tell someone you are arresting them for some crime for them not to make any further statement?
A. Yes, sir.
Q. That’s not unusual, is it?
A. It is unusual.
Q. It is unusual?
A. Yes, sir.
Q. Are you telling me and this jury that in the course of your duties when you arrest someone, at that point they make no further statements?
A. Normally they do make further statements.
Q. You’ve never known anyone to become afraid and keep their mouth shut, officer, and not say anything further? A. Yes, it has happened.
Q. But this is not unusual?
A. No.
Q. Officer, would you expect that whenever you walk up to someone on the street in conducting an investigation would you feel that they have a duty to talk to you?
MR. GIST: Your Honor, I object to that. That’s improper.
THE COURT: Sustained.
In
Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court stated that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”
Id.
at 468 n. 37, 86 S.Ct. at 1625 n. 371;
see United States v. Hale,
422 U.S. 171, 182-83, 95 S.Ct. 2133, 2139-40, 45 L.Ed.2d 99 (1975) (Douglas, J., and White, J., concurring). In
Doyle v. Ohio,
426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court extended this principle of
Miranda
to the cross examination context, holding that a defendant’s post-arrest silence could not be used to impeach his exculpatory story without violating due process.
Although Stokes raised the issue of improper prosecutorial comment on direct appeal, the Court of Criminal Appeals did not discuss it in the opinion affirming his conviction. The Texas courts denied Stokes’ petition for habeas relief without opinion.
The district court referred the issue of improper comment on Stokes’ post-arrest silence to the magistrate for a hearing and findings. The magistrate made alternative findings, which the district court adopted. First, because of defense counsel’s failure to object, review of the claim was barred by
Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Second, the violation was harmless beyond a reasonable doubt.
See, e.g., United States v. Shaw,
701 F.2d 367 (5th Cir.1983),
cert. denied,
— U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984);
Chapman v. United States,
547 F.2d 1240 (5th Cir.),
cert. denied,
431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977).
If defense counsel had not explored with the arresting officer possible reasons for Stokes’ post-arrest silence, we do not doubt that the prosecutor would not have emphasized the silence as extensively as he did on redirect and during final arguments.
Nevertheless, the prosecutor in his case-in-chief initiated the comment on Stokes’ silence by asking if he had said anything else after he was arrested and advised of his rights. “In numerous cases this Court has held that mention of the fact of the defendant’s silence following arrest by the prosecutor in his case-in-ehief is a violation of constitutional dimension.”
Shaw,
701 F.2d at 381.
Because the state court did not specify whether it denied habeas relief on the merits or due to procedural default, we must interpret the state court’s silence.
See O’Bryan v. Estelle,
714 F.2d 365, 383-85 (5th Cir.1983);
Preston v. Maggio,
705 F.2d 113 (5th Cir.1983). We must consider
[w]hether the court has used procedural default in similar cases to preclude review of the claim’s merits, whether the history of the case would suggest that the state court was aware of the procedural default, and whether the state court’s opinions suggest reliance upon procedural grounds or a determination of the merits.
O’Bryan,
714 F.2d at 384 (quoting
Preston
).
Our investigation into Texas cases reveals that Texas courts have consistently refused to consider the merits of claims similar to this in cases where counsel failed to object and where counsel failed to object properly. Texas courts have not reached the merits of
Miranda
violations because of the failure of counsel to object contemporaneously.
See, e.g., Moulden v. State,
576 S.W.2d 817 (Tex.Crim.App.1978);
Shumake v. State,
502 S.W.2d 758 (Tex.Crim.App.1973);
Larocca v. State,
479 S.W.2d 669 (Tex.Crim.App.1972);
Clark v. State,
470 S.W.2d 869 (Tex.Crim.App.1971). Texas courts have also construed the failure to object as waiver of a
Doyle
claim,
Greene v. State,
651 S.W.2d 948, 951-52 (Tex.App.—Dallas 1983, pet. granted) (en banc), and have held that the contemporaneous objection requirement applicable to a
Miranda
claim also applies to an allegation of a
Doyle
violation,
Wilkins v. State,
635 S.W.2d 444, 448-49 (Tex.App.— San Antonio 1982). Even before
Doyle,
the Court of Criminal Appeals had read
Miranda
to prohibit prosecutorial comment about the silence of an accused during arrest.
See Hawk v. State,
482 S.W.2d 183, 184 (Tex.Crim.App.1972). Moreover, well before
Miranda
Texas law did not permit the use of a defendant’s silence at the time of his arrest as a circumstance indicating guilt.
See, e.g., Hicks v. State,
493 S.W.2d 833, 836-37 (Tex.Crim.App.1973);
Redding v. State,
149 Tex.Cr.R. 576, 197 S.W.2d 357 (1946);
Taylor v. State,
118 Tex.Crim. 340, 42 S.W.2d 426 (1931). At the time of Stokes’ trial, the grounds for objection to prosecutorial comment on the post-arrest silence of a defendant were apparent. Thus, this case does not present an exception to the rule that failure to object constitutes waiver.
See O’Bryan,
714 F.2d at 385 n. 15;
Green v. Estelle,
706 F.2d 148 (5th Cir.);
Bass v. Estelle,
705 F.2d 121 (5th Cir.1983) (opinion denying petition for rehearing);
Parker v. State,
649 S.W.2d 46, 53-55 (Tex.Crim.App.1983) (en banc);
Cuevas v. State,
641 S.W.2d 558, 563 (Tex.Crim.App.1982).
We note that the State’s supplemental brief on direct appeal argued that the issue of comment on Stokes’ post-arrest silence was not preserved for review. Accordingly, we conclude that the state court was aware of the procedural default.
Stokes has argued only ineffective assistance of counsel as “cause” to excuse the failure to object. This is insufficient to satisfy
Sykes’
“cause” prong.
See, e.g., Weaver v. McKaskle,
733 F.2d 1103, 1106 (5th Cir.1984);
Washington v. Estelle,
648 F.2d 276, 278 (5th Cir.),
cert. denied,
454 U. S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). Because we hold that Stokes’ procedural default prevents our hearing his claim on the merits, we need not address whether the improper comment on his post-arrest silence constitutes harmless error.
V. One-Man Showup
Stokes contends that he did not receive a fair trial because of a pretrial identification
procedure that was unnecessarily suggestive and conducive to misidentification.
See, e.g., Stovall v. Denno,
388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). The two witnesses did not identify Stokes at trial, but testified that the man in the police car was or closely resembled the man with white gloves or hands who fled after being seen at the rear entrance to the Shumaker house. Stokes concedes that his counsel did not object to the identification testimony. The district court held that procedural default under
Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 549 (1977), precluded any ruling on the merits of the claim.
The state court denied habeas relief on this claim without specifying whether it was ruling on the merits or on the basis of procedural default. Thus, we must interpret the silence according to the analysis set forth in
O’Bryan v. Estelle,
714 P.2d 365, 384 (5th Cir.1983), and in
Preston v. Maggio,
705 F.2d 113, 116 (5th Cir.1983).
See supra
§ IV.
First, we note that Texas courts stringently apply the contemporaneous objection rule in the context of improper identification. Without an objection to an in-court identification or to testimony based on an impermissibly suggestive identification procedure, no error is preserved.
See, e.g., Johnson v. State,
504 S.W.2d 493, 495 (Tex.Crim.App.1974) (no objection to testimony by victims who identified defendant soon after robbery);
Pete v. State,
501 S.W.2d 683, 686-87 (Tex.Crim.App.1973),
cert. denied,
415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974);
Hall v. State,
490 S.W.2d 589, 592 (Tex.Crim.App.1973) (no objection to in-court identification by witness who had been shown only one photograph);
Phillips v. State,
488 S.W.2d 97, 99 (Tex.Crim.App.1972) (no objection to testimony by witness who had identified defendant in one-on-one confrontation). Second, the state court was aware of the procedural default. In its brief, the State argued that no error was preserved because of the lack of objection to the identification procedure. As Stokes has failed to show that we should excuse his procedural default, we hold that it bars our review of his claim on the merits.
VI. Ineffective Assistance of Counsel
Stokes parades before us a long list of failures by his counsel,
arguing that, individually or cumulatively, they deprived him of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. These allegations received a full evidentiary hearing before the magistrate, who ultimately found that Stokes’ counsel did not render ineffective assistance. The district court adopted that finding and we agree that Stokes failed to make the showing required by
Strickland v. Washington,
— U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Only one of the ineffective assistance claims — the failure of counsel to object to the questions and comments on his
post-arrest silence — warrants serious discussion. We consider briefly the other instances of alleged ineffective assistance in the margin.
We cannot engage in a presumption that Stokes’ counsel’s failure to object to the
Miranda/Doyle
violation might be considered sound trial strategy. At the ineffectiveness hearing he testified that he did not recognize a problem with the questions and comments on Stokes’ post-arrest silence. “I did not at the time of trial feel like that they were comments on the evidence, or on his refusal or failure to testify.” We will assume, without deciding, that the failure to object fell beneath an objective standard of reasonable professional assistance.
“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland v. Washington,
— U.S. -, -, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).
See Ricalday v. Procunier,
736 F.2d 203, 208 (5th Cir.1984).
We note that Stokes did not take the stand to offer an alibi, as he and counsel planned before trial. Thus, his post-arrest silence was not used to impeach an exculpatory explanation.
See United States v. Smith,
635 F.2d 411, 412-14 (5th Cir.1981) (per curiam) (Unit B);
United States v. Espinosa-Cerpa,
630 F.2d 328, 335 (5th Cir.1980). We view the mention of Stokes’ silence to be less damaging to his defense than the properly admitted testimony of the arresting officer in stating that Stokes gave one explanation for his presence, rejected it, gave a different explanation, then admitted that the explanations were false.
See United States v. Shaw,
701 F.2d 367, 383 (5th Cir.1983) (police officer’s mention of defendant’s post-arrest silence had minuscule effect “compared to the prejudicial effect [defendant] caused himself by repeatedly changing his version of the events”). In light of Stokes’ contradictory statements just before his arrest, his identification soon after the attempted burglary by two eyewitnesses, and the presence of burglary tools on his person, we conclude that the prejudicial effect of the comments on his post-arrest silence did not undermine confidence in the outcome of the trial. Stokes has not shown “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
— U.S. at-, 104 S.Ct. at 2068.
See Murray v. Maggio,
736 F.2d 279, 283 (5th Cir.1984);
Ricalday v. Procunier,
736 F.2d 203, 208-09 (5th Cir.1984).
VII. Enhanced Punishment under the Habitual Offender Statute
After the jury found Stokes guilty of attempted burglary with intent to commit theft, the trial proceeded to a second phase, in which the prosecution attempted to prove that he should be sentenced as an habitual offender, having been convicted of three felonies less than capital.
See
Tex. Penal Code Ann. § 12.42(d) (replacing Art. 63, Tex.Penal Code Ann.) The State introduced evidence showing that Stokes had been convicted of burglary with intent to commit theft in 1958 and again in 1971. The court sentenced him to life imprisonment after the jury found that he had been convicted of all three felonies.
Stokes argues that the enhanced sentence was improper because the State failed to introduce any evidence that he committed the second felony after the first felony conviction had become final. We agree.
See French v. Estelle,
692 F.2d 1021 (5th Cir.1982),
cert. denied,
461 U.S. 937, 103 S.Ct. 2108, 77 L.Ed.2d 313 (1983).
The Court of Criminal Appeals affirmed Stokes’ sentence, relying on a presumption that the offense underlying the second conviction was committed within the five-year limitations period preceding the filing of the indictment.
See Villareal v. State,
468 S.W.2d 837 (Tex.Crim.App.1971). We are not bound by this finding, but must make an independent “determination of the sufficiency of the evidence in a federal habeas corpus challenge.”
French,
692 F.2d at 1024.
See Jackson v. Virginia,
443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). Our difficulty with the presumption employed by the Texas court is that the predicate for the presumption, i.e. the limitation period and the indictment for
the 1971 conviction, were not before the jury. And under Texas law it is the jury that by its verdict must find the elements required for enhanced punishment.
Commission of the second felony after conviction for the first had become final is an essential element required for the enhanced punishment.
See Hickman v. State,
548 S.W.2d 736 (Tex.Crim.App.1977);
Wiggins v. State,
539 S.W.2d 142 (Tex.Crim.App.1976). Yet the State failed to introduce any evidence of the date Stokes committed the second felony. Since the State produced no evidence as to this essential element, it is impossible to say that a “rational trier of fact could have found beyond a reasonable doubt the facts necessary to support the life sentence.”
French,
692 F.2d at 1024. Accordingly, the double jeopardy clause bars any future use of the 1971 felony conviction to enhance punishment. Because of the lack of evidence on an essential element, we remand to the district court with directions to grant the writ of habeas corpus, relieving Stokes from his enhanced punishment. We need not discuss his other claims arising out of the punishment phase of trial.
AFFIRMED in part, REVERSED in part.