IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20493

CLAUDE HOWARD JONES,

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 Southern District of Texas (97-CV-2885)

March 1, 2000

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The district court granted Director Johnson’s motion for

summary judgment, denied Claude Howard Jones’s petition for writ of

habeas corpus, and granted a certificate of appealability. Jones

brings three issues in his appeal. His first argument rests on the

retroactivity of the State of Texas’s shift in the definition of

reasonable doubt. It presents no question of constitutional

magnitude.

Jones next urges error in the admission at trial of expert

opinion testimony by State’s witnesses which “embraced the ultimate

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. issue” of the case. Jones points, for example, to the admission

into evidence of the opinion testimony of Ranger Tommy Walker

expressing the opinion that a robbery had occurred. We find no

error of constitutional magnitude in these evidentiary rulings.

Finally, Jones argues that there is insufficient evidence to

support a conviction of capital murder. The argument focuses on

the question of whether the State offered sufficient evidence that

Jones murdered Mr. Hilzendager, the proprietor of the liquor store,

in the course of a robbery, as well as the sufficiency of the

evidence that Jones was the culprit. We find the evidence

sufficient.

There was evidence that the robbery occurred at approximately

6:00 to 6:30 p.m., nearly three hours before the scheduled closing

time. The till had been removed from the cash drawer and contained

no paper money. A part-time employee testified that it would be

unusual to have no paper money during store hours.

Finally, the evidence of identification, as well as testimony

regarding statements by the defendant that he had killed

Hilzendager, is more than sufficient to support the jury’s belief

that Jones was the culprit.

The stay of execution is VACATED, and the judgment of the

district court dismissing the petition is AFFIRMED.

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