Opinion
No, 3:00-CV-1407-P
August 14, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is an inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural and Factual History: On August 1, 1996, the State re-indicted petitioner for "unlawfully . . . start[ing] a fire with intent to damage a vehicle knowing that said vehicle was subject to a security interest and that such vehicle was within the limits of Garland, an incorporated city and town." TR at 3-4. By identifying the charge as "Arson/3RD" and setting forth two enhancement paragraphs, the indictment also alleges that the arson charge was petitioner's third felony and that he was subject to enhanced punishment for being a habitual offender. Id. at 3-5.
The previous indictment is immaterial to the matters raised in this action. For purposes of this opinion, the Court will refer to the re-indictment as the indictment.
"TR" refers to the trial court records in F96-02333-TM.
As will be discussed in more detail later, petitioner misconstrues "Arson/3RD" as indicating a third degree arson. It appears that the shorthand "Arson/3RD" shows an arson charge that is petitioner's third felony. Such reading is consistent with petitioner's indictment and other indictments reviewed by the Court.
On August 19, 1996, the case against petitioner (Cause No. F96-02333-TM) proceeded to trial with Jane Little and Tracy Holmes representing petitioner. See Statement of Facts, Vol. II at 1 [hereinafter cited as SF-volume # at page]. Jury selection consumed most of the trial's first day and proceeded without relevant incident except for two misstatements — one by the judge and one by defense counsel. As the judge initially addressed the voir dire panel, he misstated that petitioner "is presumed to be guilty." Id. at 15. He immediately corrected the erroneous statement and, during voir dire, Ms. Holmes reiterated that petitioner is presumed to be innocent. Id. at 15, 61-62. She also indicated that petitioner would testify in the case, although he would ultimately not testify. Id. at 63; SF-III at 109.
After jury selection, the court considered a pretrial motion filed by petitioner. SF-II at 88-97. The only relevant provision of that motion concerns a request for notice of intent to offer any extraneous offenses under TEX. R. EVID. 404(b). See TR at 10. The State indicated that it had no intent to offer any extraneous offenses during the guilt/innocence stage of trial. SF-II at 92-93.
"The Texas Rules of Civil Evidence and the Texas Rules of Criminal Evidence were consolidated into the Texas Rules of Evidence, effective March 1, 1998." Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). For ease of reference, the Court will cite to current version of the evidentiary rules and note any relevant changes.
On August 20, 1996, testimony commenced. The State called Rhonda Edmonds, Stacy Hauerwas, Lorenzo Trillo, John Tiu, and Tommy Weston to testify. See SF-III at 6, 33, 51, 56, 61. Edmonds testified that, in March 1995, petitioner purchased a car for $3,400 (hereinafter referred to as the vehicle) from her business, Class A Autos. See id. 6-7, 28. Class A Autos financed the transaction and held a security interest against the vehicle. See id. at 8; Retail Installment Contract attached to page 144 of SF-HI (purchase contract between petitioner and Class A Autos admitted into evidence as State's Ex. 1 which specifies that the "Seller will have a security interest in the purchased vehicle"); Delivery and Acceptance attached to page 145 of SF-III (statement admitted into evidence as State's Ex. 2 which indicates that petitioner understands that the seller has a security interest in the vehicle). Edmonds further testified that, on April 8, 1995, petitioner demanded another car after informing her that the purchased vehicle had transmission problems. SF-III at 15-17. She testified that after she refused the demand, petitioner became agitated and threatened her. Id. She also testified that the vehicle was on fire within forty-five minutes thereafter. Id. at 17.
Hauerwas, a fourteen-year-old neighbor, testified that she did not want to testify and was only doing so to avoid being "put in juvenile." Id. at 34-37. She testified that, on April 8, 1995, as she walked past petitioner's residence, petitioner told her that something was "going down." Id. at 37-38. She saw petitioner pour gasoline on the hood of his car and unsuccessfully attempt to light the gas. Id. 39-40, 48. After the first attempt failed, she saw petitioner go to his garage, return to the vehicle with gas can in hand, and lean into the car. Id. at 41-42. She also testified about statements she had made to a police officer (State's Ex. 7). Id. at 42-46.
Because the admissibility and propriety of such testimony is at issue in this federal habeas action, additional details of such testimony will be developed as needed.
Petitioner's neighbor, Lorenzo Trillo, testified that, in October 1995, petitioner came up to him and asked whether he had "called 911 when he [(petitioner)] had set fire to the car." Id. at 51-53, 55. John Tiu, the owner of a convenience store near petitioner's residence, testified that petitioner came into his store, bought a cigarette lighter, and within five minutes of such purchase petitioner's car was ablaze. Id. at 56-59. In addition, Tommy Weston of the City of Garland Fire Department testified that he had investigated the fire and determined that the fire had been intentionally set with the gasoline. Id. at 61, 63, 65-69, 73-75. He testified that the evidence did not support a theory that the fire was accidentally caused by attempting to start the engine after pouring gasoline into the carburetor or from any electrical short. Id. at 70-73, 81-83. He further testified that the vehicle was located within the Garland city limits when it caught fire. Id. at 63, 75.
The State rested its case after two hours of testimony. Before presenting any testimony or other evidence in the case, defense counsel alerted the court that petitioner was so inebriated that he could not help in his representation. Id. at 87. Such inebriation caused the court to continue the trial to the next morning. Id. at 89-90.
When trial resumed the morning of August 21, 1996, the defense called three witnesses. See id. at 95-104. After consulting with his attorney, petitioner elected not to testify. Id. at 109. Later that day, the jury found him guilty. Id. at 131-33; TR at 8, 22.
Punishment commenced on August 22, 1996, and petitioner pled true to the two enhancement paragraphs of the indictment. See SF-IV at 18-19. A fingerprint expert testified that petitioner's prints provided at trial and reflected on State's Exhibit 20 matched the prints contained within State's Exhibits 21 and 22, which were certified copies of state records. Id. at 21-23. The State admitted into evidence a judgment of contempt that the trial court had entered due to petitioner's intoxicated state at trial. Id. at 33-34. Over objection from the defense, Dallas Police Officer Jeffrey Price testified about a misdemeanor driving while intoxicated (DWI) offense and stated that petitioner had indicated to him that the vehicle he was then driving was stolen. Id. at 35-45. In addition, the State showed the jury a video taken the night of the DWI arrest. Id. at 43-44. As the tape played, defense counsel objected that petitioner was asking for an attorney. Id. at 44. The trial court sustained the objection and ordered that the playing of the tape be halted. Id. at 45. The State rested on punishment after Price's testimony. Id. at 49. The defense presented two character witnesses and then rested on punishment. Id. at 52-57. After deliberation, the jury assessed punishment at fifty years incarceration, and the trial court sentenced him accordingly. Id. at 64-65; TR at 27, 29.
Petitioner contends that he pled "untrue" to the enhancement paragraphs. ( See Attached Writ at 63.) Such contention is unsupported by the trial record. When the punishment phase commenced, the trial court arraigned petitioner outside the presence of the jury and asked how he wanted to plead to the enhancement paragraphs. SF-IV at 3-4, 6. After indicating that he wanted to plead true, his attorney questioned him about such choice and told him that he could make the State prove the enhancement paragraphs. Id. at 4, 6. Petitioner persisted with his pleas of true. Id. at 6. The Court then inquired as to the voluntariness of the pleas. Id. After a recess in the proceedings, petitioner withdrew his pleas and indicated that he wanted to plead "not true." Id. at 9. However, when petitioner appeared before the jury to enter his formal pleas, he pled "true" to both enhancement paragraphs. See id. at 18-19. Nothing indicates that he somehow later changed his pleas again. His attorney in her closing statement on punishment concedes that he will get a minimum sentence of twenty-five years. Id. at 59-60. The prosecutor agreed that twenty-five years was the minimum in his closing argument, Id. at 60. Only the enhancement paragraphs make the minimum sentence twenty-five years. See id. at 65-66 (explanation by the trial court as to the penalty range). In its jury charge, furthermore, the trial court specifically indicated that petitioner had pled true to both enhancement paragraphs. See TR at 24.
On August 19, 1998, the court of appeals affirmed petitioner's conviction. Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *9 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd) (not designated for publication). On November 29, 1998, petitioner filed a state application for writ of habeas corpus. See S.H. Tr. at 2. On January 3, 2000, the trial court issued findings of fact and conclusions of law on the state writ. Id. at 77-81. On April 19, 2000, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000).
"S.H. Tr." denotes the state habeas records attached to Ex parte Stovall, No. 8,514-02, slip op. (Tex.Crim.App. Apr. 19, 2000).
Petitioner executed the instant federal writ of habeas corpus on June 12, 2000. (Pet. at 11.) Respondent filed an answer on October 16, 2000. ( See Answer at 1.) On November 13, 2000, petitioner filed a traverse to the answer. ( See Traverse at 1.)
D. Substantive Issues: Petitioner asserts ten "Points of Error" (including a six-part Point of Error # 2) that he contends entitles him to habeas relief. (Pet. at 7 and attached Application for Writ of Habeas Corpus 11.07 at 11-46 [hereinafter identified as Attached Writ].) The State identifies eleven substantive issues, including four specific claims of ineffective assistance of trial counsel. (Answer at 3-40 In his traverse, petitioner points out several alleged errors to which the State did not respond. ( See, generally, Traverse.)
The State did indeed fail to respond to all allegations of petitioner. Upon full review of the petition, attached writ, and traverse filed in this case, the Court determines that petitioner has raised the following claims:
(1) Defective indictment;
(2) Insufficiency of the evidence;
(3) Competency to stand trial;
(4) Prosecutorial misconduct;
(5) Trial court error;
(6) Ineffective assistance of trial counsel;
(7) Ineffective assistance of appellate counsel; and
(8) Cumulative error. E. Exhaustion: Respondent does not move for dismissal for any failure to exhaust. ( See Answer at 4.) Petitioner attaches a copy of his state writ to his federal petition and specifically refers to the state writ when identifying the claims raised in this federal action. ( See Pet. at 7 referring to Attached Writ.) Because the attached version of the state writ appears to duplicate the version presented to the Texas Court of Criminal Appeals, there can be no dispute that that court considered the claims raised in the instant federal petition.
II APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub. L 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Because petitioner filed the instant petition after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The decision by the court of appeals also constitutes an adjudication on the merits. See Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at * 1-9 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd) (considering each claim on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Section 2254(d)(2) concerns questions of fact. Moore v Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. ANALYSIS
A. Defective Indictment
Petitioner contends that the indictment against him was fundamentally defective so as to deprive the trial court of jurisdiction. (Attached Writ at 11.) Specifically, he claims that the trial court lacked jurisdiction to convict him because the State violated TEX. CODE CRIM. PROC. ANN. arts. 21.01, 21.07, 21.08, 21.09, 21.22, 27.11 and 27.12. ( Id. at 24-37.)
Article 21.01 defines indictment as "the written statement of a grand jury accusing a person therein named of some act or omission which by law, is declared to be an offense." Article 21.07 concerns how the defendant may be named in the indictment. Article 21.08 concerns how ownership of property must be alleged. Article 21.09 concerns how personal property must be described in an indictment. Article 21.22 concerns the presentation of an information based upon a complaint. Articles 27.11 and 27.12 grant defendants ten days to file written pleadings.
"The question whether a defective state indictment confers jurisdiction on the state trial court is a matter of state law." McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). "The sufficiency of a state indictment is not a matter for federal habeas corpus review unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction." Alexander v. McCotter, 775 F.2d 595, 598 (1985). Federal courts will not consider claims that a state indictment is insufficient to confer jurisdiction upon the trial court when the jurisdictional issue "was squarely presented to the highest court of the state" and it can reasonably be inferred that that court passed on the merits of the jurisdictional claim. Id. at 598-99. In a habeas proceeding, this Court does not sit in review of a state court's interpretation of its own law. Creel v. Johnson, 162 F.3d 385, 395 (5th Cir, 1998); Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995).
Petitioner raised these jurisdictional issues in his state writ. See S.H. Tr. at 22-38. The Texas Court of Criminal Appeals denied that writ. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). It implicitly found the indictment sufficient to confer jurisdiction on the trial court. Consequently, this Court will not consider the claim that the trial court lacked jurisdiction to convict petitioner due to a defective indictment filed against him in violation of state law.
B. Sufficiency of the Evidence
Petitioner claims that there is "no evidence" that shows he committed "a 3rd degree felony, as charged in the indictment." (Attached Writ at 39.) Specifically, he claims that the State failed to support the conviction with the testimony of any eyewitness. ( Id. at 13.) In addition, he argues that the failure to prove the name of the complaining witness as alleged in the indictment renders the evidence insufficient to support his conviction, ( Id. at 32.)
Petitioner further claims that there is insufficient evidence to support enhancing his punishment as an habitual offender. ( Id. at 59-60.) He asserts that the State has not shown the second alleged prior felony to be final because it has not shown when the mandate issued. ( Id. at 59.) He further argues that the state has presented "no evidence" to show the offense date of the prior convictions. ( Id. at 60.) Petitioner raised these claims in his state writ. See S.H. Tr. at 13, 37, 56-61. The Texas Court of Criminal Appeals denied that writ. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). Additionally, in his direct appeal, petitioner challenged the factual sufficiency of the evidence, and the court of appeals overruled the challenge. Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *2-3 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd).
1. Factual Sufficiency
Texas state appellate courts are imbued with the authority to conduct factual sufficiency reviews of the evidence. The authority to conduct factual sufficiency reviews derives from the Texas Constitution and statutory authority, and not from any federal constitutional right. Clewis v. State, 922 S.W.2d 126, 129-30 (Tex.Crim.App. 1996). Thus, the Texas courts' more exacting factual sufficiency standard does not implicate federal constitutional concerns. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). Neither the United States Supreme Court, nor the Fifth Circuit Court of Appeals has recognized factual insufficiency as a valid basis for habeas relief. Accordingly, petitioner's factual sufficiency claim fails because he has shown no deprivation of any federally-secured right.
2. Legal Sufficiency
By his claims that "no evidence" supports his conviction or the enhancement convictions, petitioner challenges the legal sufficiency of the evidence. See Haley v. Cockrell, 306 F.3d 257, 266-67 (5th Cir. 2002) (noting that a claim of "no evidence" is the same as a claim of insufficiency of the evidence governed by Jackson v. Virginia, 443 U.S. 307 (1979)). The standard of review enunciated in Jackson applies to the challenge to the sufficiency of the evidence to support the underlying state arson conviction as well as the challenge to the sufficiency of the evidence to support the enhancement convictions. See id. at 266; French v. Estelle, 692 F.2d 1021, 1024-25 (5th Cir. 1982). The standard also applies whether the evidence is direct or circumstantial. United States v. Scott, 159 F.3d 916, 920 (5th Cir. 1998).
In this instance, the state disposition of the insufficiency claims of petitioner appears consistent with the governing Supreme Court precedent set forth in Jackson. "A criminal defendant has a federal due process right to be convicted only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element of the offense." Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). A defendant also has a federal due process right to be sentenced as an habitual offender only upon evidence that is sufficient to prove beyond a reasonable doubt the existence of every element required by the enhancement provision. See Haley, 306 F.3d at 266-67 (applying the Jackson standard to an insufficiency claim raised against enhancement convictions).
Federal courts have extremely limited habeas review of claims based on the sufficiency of the evidence. When reviewing such claims against the underlying conviction, the relevant question "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. In the same vein, the relevant question in the context of challenging the sufficiency of the evidence with respect to enhancement convictions is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the enhancement statute.
When "faced with a record of historical facts that supports conflicting inferences [courts] must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326. Under Jackson, "the assessment of the credibility of witnesses is generally beyond the scope of review." Schlup v. Delo, 513 U.S. 298, 330 (1995). "Determining the weight and credibility of the evidence is within the sole province of the jury." United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992). Courts view "any required credibility determinations in the light most favorable to the guilty verdict." united States v. Wise, 221 F.3d 140, 154 (5th Cir. 2000). They do not "second-guess the weight or credibility given the evidence." United States v. Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).
Federal courts apply the "standard looking to the state's substantive law, giving great weight to the state court's determination." Miller v Johnson, 200 F.3d 274, 286 (5th Cir. 2000). State case law and statutes bind the courts in their determination of the elements needed to be proven. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). In challenging the sufficiency of the evidence to support the underlying conviction, " Jackson requires . . . that the review occur `with explicit reference to the substantive elements of the criminal offense as defined by state law." Bledsue v. Johnson, 188 F.3d 250, 259 (5th Cir. 1999) (quoting Jackson, 443 U.S. 324 n. 16). Similarly, in challenging the sufficiency of the evidence to support enhancement convictions Jackson requires the Court to explicitly reference the substantive elements of the enhancement statute. The federal courts must "independently analyze the governing statute, the indictment, and the jury charge to measure the constitutional sufficiency of the evidence and determine what are the essential elements required by the Jackson sufficiency inquiry." Id. at 260.
When considering a claim of insufficient evidence to support the underlying conviction on federal habeas review, this Court should only determine "whether the evidence was constitutionally sufficient to convict [petitioner] of the crime charged." Id. at 262 (quoting Brown v. Collins, 937 F.2d 175, 181 (5th Cir. 1991)). Likewise, the Court need only determine whether the evidence was constitutionally sufficient to enhance petitioner's sentence when considering an insufficiency claim against enhancement convictions.
a. Sufficiency of Evidence to Support Conviction
In this instance, the relevant indictment identifies the charge as "Arson/3RD." TR at 3. Paragraph one of the indictment specifically charges as follows:
RONNIE MARK STOVALL, defendant, on or about the 8TH day of APRIL A.D. 1995 in the County of Dallas and said State, did
unlawfully, then and there start a fire with intent to damage a vehicle knowingly that said vehicle was subject to a security interest and that said vehicle was within the limits of Garland, an incorporated city and town.
TR at 3. The jury charge parallels the indictment while also defining certain terms. Id. at 16-17.
Petitioner misconstrues "Arson/3RD" as indicating a third degree arson. There no third degree arson under Texas law. The relevant Texas statute provides that a person commits arson "if he starts a fire . . . with intent to destroy or damage . . . (2) any . . . vehicle . . . (A) knowing that it is within the limits of an incorporated city or town . . . [or] (C) knowing that it is subject to a mortgage or other security interest." See TEX. PENAL CODE ANN. § 28.02(a)(2) (Vernon 1994). "An offense under this section is a felony of the second degree, unless bodily injury or death is suffered . . . in which event it is a felony of the first degree." Id. § 28.02(d). Punishment for an unenhanced second degree felony ranges from two to twenty years imprisonment. Id. § 12.33. Here, the body of the indictment clearly alleges second degree arson in violation of TEX. PENAL CODE ANN. § 28.02(a)(2), (d). The relevant offense for purposes of petitioner's sufficiency claim is arson, not criminal mischief under § 28.03(b) as petitioner suggests.
There is no provision for third degree arson.
For arson convictions, the elements set forth in section 28.02(a) "are the elements that [the courts] must use to measure the sufficiency of the evidence." Charles v. State, 955 S.W.2d 400,405 (Tex.App. — San Antonio, 1997, no pet.). The State need not prove the name of the complaining witness to sustain a conviction for arson. Article 28.02(a)(2)(A) and (C) simply do not require proof of anyone's identity. Further, Texas law does not require eyewitness or corroborative testimony to obtain an arson conviction. The testimony in this case from one eye-witness combined with testimony from a fire marshal is sufficient to support a conviction for arson under Texas law. See Burrow v. State, 481 S.W.2d 895, 897 (Tex.Crim.App. 1972).
Petitioner has failed to carry the heavy burden imposed by 28 U.S.C. § 2254(d). A reasonable trier of fact could conclude that he intentionally started the fire with intent to destroy or damage a vehicle that was subject to a known security interest and within Garland, Texas, an incorporated city or town. The evidence presented at trial supports the verdict. This Court must view the evidence in a light most favorable to the prosecution. It presumes that the trier of fact resolved all conflicting inferences suggested by the evidence in favor of the prosecution and defers to that resolution. It presumes that the trier of fact made whatever credibility determinations were necessary to support the verdict.
The testimony elicited by the State in conjunction with State's Exhibits 1 and 2 provides legally sufficient evidence to support the conviction. Ms. Hauerwas testified that petitioner intentionally doused the vehicle with liquid from a gas can and tried to catch the vehicle on fire. See SF-III at 39-40, 48. Mr. Tiu testified that petitioner purchased a cigarette lighter moments before the fire began. See id. at 56-59. Mr. Weston testified that the fire was intentionally started and caused by lighting gasoline that had been poured on and in the car. Id. at 61, 63, 65-69, 73-75. One can reasonably infer from the testimony that petitioner started the fire with the intent to destroy or damage the vehicle.
Although not required to do so, the Court has intentionally disregarded the testimony given by Hauerwas concerning statements she made to the police. Even without such testimony, sufficient evidence supports the conviction.
Mr. Weston's testimony also shows that the fire occurred in the City of Garland, an incorporated city. Id. at 63, 75. Testimony from Ms. Edmonds, in conjunction with the "Delivery and Acceptance" statement signed by petitioner and the sales contract between her company and petitioner, shows that the vehicle was subject to a security interest. Id. at 7-9, 14-15; Retail Installment Contract attached to page 144 of SF-III; Delivery and Acceptance attached to page 145 of SF-III. One can reasonably infer that petitioner knew of such security interest as he was a party to the contract and signed it. Moreover, the fact that he signed and initialed the Delivery and Acceptance statement shows that he knew the seller retained a security interest in the vehicle. Because there is legally sufficient evidence to support petitioner's arson conviction, this claim entitles petitioner to no habeas relief.
b. Sufficiency of Evidence to Support Enhanced Sentence
The second and third paragraphs of the indictment set forth enhancement paragraphs that seek to increase petitioner's punishment for being a habitual offender. The second paragraph alleges that on September 13, 1979, in Cause No. F79-3605-JI, petitioner was convicted of unauthorized use of a motor vehicle (UUMV). TR at 5. The third paragraph alleges that on December 21, 1976, in Cause No. C74-684-QM, petitioner was convicted of delivery of heroin. Id. The jury charge on punishment parallels these enhancement paragraphs, notes that petitioner pled "true" to such paragraphs, and instructs the jury to find such paragraphs true and to assess punishment in the range of twenty-five to ninety-nine years imprisonment. Id. at 23-25 (Charge of the Court). Under Texas law, the penalties for a given offense increase to twenty-five to ninety-nine years imprisonment when "the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final." See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 1994).
Before a prior conviction may be relied on to enhance the punishment in a subsequent case such prior conviction must be final. If an appeal has been taken from a judgment of guilty in the trial court, that conviction does not become final until the judgment of the lower court has been affirmed by the appellate court.State v. Perez, 948 S.W.2d 362, 364 (Tex.App.-Eastland 1997, pet. ref'd) (quoting Arbuckle v. State, 105 S.W.2d 219 (Tex.Crim.App. 1937)); cf., Phillips v. State, 992 S.W.2d 491, 492-93 (Tex.Crim.App. 1999).
With respect to his insufficiency claim relating to the enhancement paragraphs, petitioner has again failed to carry the heavy burden imposed by 28 U.S.C. § 2254 (d). A reasonable trier of fact could conclude that he had two prior felony convictions, that such convictions were final, and that the second felony occurred after the first became final. At punishment, petitioner pled true to the two enhancement paragraphs. SF-IV at 18-19. Furthermore, the State admitted into evidence "pen packets" for the two prior convictions (Cause Nos. C74-684-QM and F79-3605-JI). See State's Exs. 21 and 22, attached to pages 77-78 of SF-IV. The Judgment for the drug conviction shows that petitioner committed the offense on November 17, 1973, and that judgment was entered on December 21, 1976. The Judgment for the UUMV conviction shows that petitioner committed that offense on April 3, 1979, and that judgment was entered on September 13, 1979. The pen packet also shows that petitioner was sentenced on the UUMV conviction on October 1, 1979, and that the court of appeals affirmed the conviction on May 7, 1982.
By his pleas of true to the enhancement paragraphs, petitioner relieved the State of its burden to put forth evidence sufficient to sustain the enhancement to his punishment. Petitioner does not challenge the voluntariness of his pleas. Further, he testified in open court that he entered such pleas "freely and voluntarily." SF-IV at 18-19. By pleading true to enhancement paragraphs, a defendant concedes that he in fact has prior convictions that can be used to enhance his sentence on the current conviction. See Holloway v. Lynaugh, 838 F.2d 792, 793 (5th Cir. 1988). He also waives any complaints about the validity of the prior convictions. Id.; Johnson v. Puckett, 930 F.2d 445, 449-50 (5th Cir. 1991); Zales v. Henderson, 433 F.2d 20, 24 (5th Cir. 1970). By entering said pleas in this case, petitioner has waived his right to demand any evidence to sustain the enhancement paragraphs. See Long v. McCotter, 792 F.2d 1338, 1341 (5th Cir. 1986) (reaffirming that "[a] plea of `true'. . . relieves the State of its burden of proof).
Moreover, the admitted pen packets provide sufficient evidence to support enhancing petitioner's sentence under TEX. PENAL CODE ANN. § 12.42(d). Although petitioner asserts that the State has not shown when the mandate issued with respect to his UUMV conviction, Texas law does not require such a showing that the conviction is final for purposes of § 12.42(d). See State v. Perez, 948 S.W.2d 362, 364 (Tex.App.-Eastland 1997, pet. ref'd) (holding that, for enhancement purposes, an appealed judgment is final when the court of appeals affirms the judgment). The State presented evidence that petitioner had appealed his UUMV conviction, and that the court of appeals had affirmed that conviction. See State's Ex. 22, attached to page 78 of SF-IV. Contrary to assertions of petitioner, the State has presented sufficient evidence to support the enhancement of his sentence.
Furthermore, when prior convictions are collaterally attacked, the judgments reflecting those convictions are presumed to be regular, and the accused bears the burden of defeating that presumption. Sones v. Hargett, 61 F.3d 410, 421 n. 19 (5th Cir. 1995) (citing Parke v. Raley, 506 U.S. 20, 29 (1992)). Petitioner has not overcome the presumption of regularity that attends final judgments. The copies of the final judgments clearly reflect that petitioner had two prior felony convictions. No facial impropriety appears from the use of the prior convictions to enhance the sentence currently under attack. At least implicitly, the Texas Court of Criminal Appeals found the prior convictions to be valid and thus sufficient to enhance petitioner's sentences. As already stated, this Court does not review a state court's interpretation of its own law. Consequently, this Court will not further consider the claim that the State used void convictions to enhance petitioner's sentence. Because petitioner pled true to the enhancement paragraphs and because the State presented sufficient evidence to support enhancing petitioner's punishment, the instant claim entitles petitioner to no habeas relief.
In summary, the decision of the state court with respect to the legal sufficiency of the evidence claims is consistent with Supreme Court precedent. The decision involved no unreasonable application of such precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Petitioner is entitled to no federal habeas relief on these claims. C. Competency to Stand Trial
Petitioner claims that he is entitled to habeas relief because he was incompetent to stand trial. (Attached Writ at 14-15, 65.) Specifically, he states that after the State rested its case, his attorney sought a continuance because he could not help in his defense. (Attached Writ at 14-15.) The trial court then held a hearing under TEX. CODE CRIM. PROC. ANN. art. 46.02, § 2(b) (Vernon Supp. 1995) and found him incompetent to stand trial. Id. He claims that his absence from the "section 2(b)" hearing violated his constitutional rights, and that he was found guilty and sentenced while incompetent in violation of the Constitution. ( Id. at 15, 65, 67.) He asserts a violation of his due process rights, his right to a fair trial by an impartial jury, and a violation of Pate v. Robinson, 383 U.S. 375(1966). ( Id. at 14, 64, 67.)
Section 2(b) of Article 46.02 provides that," [i]f during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing outside of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial."
Petitioner raised his competency claims in his state writ. See S.H. Tr. at 14-15, 62-68. The Texas Court of Criminal Appeals denied that writ. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). Thus, the court implicitly found no error with respect to the competency issues raised by petitioner and no constitutional violation.
Due process requires that a defendant be competent to stand trial. Godinez v. Moran, 509 U.S. 389, 402-03 (1993). "The State must maintain adequate procedures to insure the defendant's right to be tried while competent." Wheat v. Thigpen, 793 F.2d 621, 629 (5th Cir. 1986) (citing Pate, 383 U.S. 375). The test to determine whether a defendant is competent is whether "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960); see also, Godinez, 509 U.S. at 396. Texas has adopted this same standard for determining competence. See TEX. CODE CRIM. PROC. ANN. art. 46.02, § 1 (Vernon Supp. 1995). "The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings." Godinez, 509 U.S. at 401 n. 12.
In the instant case, the Court is presented with the unusual situation where the defendant appeared in court in such a state of inebriation that he lacked the necessary faculties to assist counsel. No one disputes that petitioner was temporarily rendered unable to proceed with trial by his self-induced drunken state. Further, after the State rested its case, defense counsel specifically indicated that she believed petitioner was "unable to effectively help" in his defense. Nevertheless, no one indicated at trial that petitioner's mental state was anything but temporary. Given sufficient time, petitioner would regain his sobriety and be able to continue with his trial In addition, the trial transcript reveals no signs of confusion, incoherence, or any other indications of intoxication that would have been readily apparent to the jury. The only outward sign of intoxication mentioned in the record was a strong odor of alcohol noticed by bailiffs. However, nothing indicates that the jury became aware of petitioner's intoxication during the guilt/innocence stage of trial.
1. Invited Error
The record is clear that petitioner was so intoxicated that he was unable to continue the trial. See SF-III at 86-90. The State argues that, because petitioner's intoxication was self-induced, the invited error doctrine precludes his claims based upon incompetency to stand trial. (Answer at 12.) The doctrine of invited error provides that "a defendant cannot complain on appeal of alleged errors invited or induced by himself, particularly where . . . it is not clear that the defendant was prejudiced thereby." United States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989) (quoting United States v. Lewis, 524 F.2d 991, 992 (5th Cir. 1975)). Similarly, "[w]hen a petitioner invites an error in the trial court, he is precluded from seeking habeas corpus relief for that error." Fields v. Bagley, 275 F.3d 478, 486 (6th Cir. 2001); see also, Parker v. Champion, 148 F.3d 1219, 1222 (10th Cir. 1998); Wilson v. Lindler, 8 F.3d 173, 175 (4th Cir. 1993) (en banc).
The doctrine is in the nature of a state procedural bar. See Tucker v. Johnson, 115 F.3d 276, 280-81 (5th Cir. 1997) (viewing claim of invited error in context of procedural default); see also, Coleman v. O'Leary, 845 F.2d 696, 699 (7th Cir. 1988) (holding that the invited error doctrine is a state procedural rule that makes claims subject to it also subject to procedural bar on federal habeas corpus review); Tillman v. Cook, 25 F. Supp.2d 1245, 1274 (D. Utah 1998) (same), aff'd, 215 F.3d 1116 (10th Cir. 2000) (finding that state did not apply the invited error doctrine and thus the claim could not be considered on the merits at the federal level); Patterson v. Dahm, 769 F. Supp. 1103, 1107 (D. Neb. 1991) (same). Federal courts do not invoke a state procedural bar unless the state court specifically invoked the bar. See Haley v. Cockrell, 306 F.3d 257, 263 (5th Cir. 2002); Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997) (concluding that the claims were resolved on the merits when "[n] either the trial court's nor the Court of Criminal Appeals's order ma[de] mention of procedural grounds for denying relief). In this instance, no Texas court invoked the invited error doctrine to deny the competency claims of petitioner. Consequently, this Court cannot apply the doctrine to bar the claims. 2. Forfeiture of Right to Participate at Trial
That the Court cannot apply the invited error doctrine does not mean that petitioner escapes his own voluntary actions at trial. In a similar case involving an intoxicated defendant who filed a federal habeas petition to contest the validity of her conviction on the basis that "she was incapacitated at the time of trial," the Southern District of Texas concluded that the petitioner had "self-induced her incompetence voluntarily and having concealed it, she forfeited her right to participate at her trial, despite her incompetence." See Johnston v. State, 750 F. Supp. 236, 237, 243 (S.D. Tex. 1990). In Johnston, as here, the defendant was voluntarily intoxicated by drugs and alcohol during trial. Id. at 237. Her attorney knew nothing of the defendant's intoxicated state. Id. at 244. The Southern District reasoned:
Since Johnston was neither retarded, crazy, nor injured, her behavior is more nearly parallel to those defendants who absent themselves from trial by flight or disruptive behavior than it is to th[o]se defendants who suffer psycho-medical impairments. Drinking in the face of anxiety is no more incompetence than are screaming insults and throwing chairs by an accused whose reaction to stress is compulsive violence. People who act like that are forfeiting their rights to participate. Illinois v. Allen, 397 US. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). True, the disruption is obvious to the court at the time, but the whole process of criminal justice cannot be held hostage to the defendant's choice between obvious and covert misbehavior.
Indeed, many accused find the process of sitting through their trial so nerve-wracking that they choose to flee. As with disruption, absence is immediately apparent to the court. Although their flight may be produced by a compulsion more powerful in their personalities than in the general population, by their voluntary, if neurotic, act, they forfeit the right to participate.
Even allowing for her compulsive nature, the current consumption of drugs seems to be more like the disruptive defendant problem than the pain and personality disorder paradigms. An accused who deliberately reduces her competence to assist and who deliberately conceals that fact from counsel and the court is a disruptive defendant, however placid she might seem at the time. Even if the factual analysis were wrong about her competence, the court concludes that, if she managed to lower her abilities beneath the constitutional minimum, her surreptitious removal of her persona from counsel table by voluntary acts is equivalent to the voluntary acts of a disruptive accused who obliges the court to remove him from the courtroom so that the proceedings may continue.750 F. Supp. at 240. Thus, the Southern District equated voluntary intoxication to an absence from the trial proceedings rather than a typical case of incompetency.
As in Johnston, petitioner voluntarily induced a state of intoxication and, at least for some period of time, counsel remained unaware that such intoxicated state impeded the defendant's ability to understand the proceedings and assist counsel Nothing of record indicates that counsel for petitioner knew he was intoxicated until after the State closed its case, and defense counsel moved for an instructed verdict. The following discussion from the trial transcript indicates that counsel was not yet aware of any problem:
COURT: Motion for instructed verdict is denied. Are you prepared to begin, Ms. Little?
MS. LITTLE: No, sir, I'm not. They didn't tell me they were going to rest this quickly. I thought they — their witness list is lengthy.
COURT: How soon will you be ready?
MS. LITTLE: I need to talk to my investigator upstairs.
COURT: 15 minutes.
MS. LITTLE: Could I have 15 minutes to see when I'm ready?
COURT: You may.
(Recess taken.)
SF-III at 85.
After the recess, defense counsel asked for a continuance and for the jury to be sent to lunch. Id. at 86. The trial court then noted: "Let the record reflect that matters have been brought to the Court's attention, outside the presence and hearing of the jury and Mr. Stovall to the extent that Mr. Stovall is not presently capable to continue the trial at this point." Id. at 86-87. It thus appears that counsel became aware of petitioner's inebriation, or at least the extent of his inebriation, during the fifteen minute recess. Other than a statement by the trial court that bailiffs had informed it "prior to testimony" that petitioner "reek[ed] strongly of an alcoholic beverage", id. at 87, nothing of record provides any hint that counsel should have earlier known petitioner's state of inebriation.
The Court recognizes that the bailiff testified at punishment that petitioner reeked of alcohol and "appeared to be intoxicated." SF-IV at 33. The bailiff provides no insight as to how petitioner "appeared" to be intoxicated other than the smell of alcohol and the Court will not so speculate.
Petitioner points to no unusual behavior that would have earlier alerted counsel to his intoxicated state. ( See Attached Writ at 64-70.) He even points out that the record contains no indication that he was sick with a hangover, violent, or engaged in "any verbal outbursts." ( Id.) In his traverse pleading, he states that he quietly sat at the defense table from 8:30 to 11:00 a.m. on the morning he was intoxicated. (Traverse at 7.) He made only two statements to defense counsel — at some point he stated "Yes that's my car" and, when Ms. Little whispered that the witness "said you poured gas on it and set it on fire", he replied that "I have been telling you for sixteen (16) months, I didn't set that car on fire." ( Id.) He specifically states that "the rest is in the writ and the transcripts." ( Id.) All of these arguments and statement of petitioner indicate that counsel had no reason to earlier know of his intoxicated state.
As in Johnston, petitioner concealed his intoxication from his attorney. As demonstrated above, nothing of record indicates that he tried to inform counsel or the trial court that he was in no condition to proceed with trial. Unlike Johnston, however, petitioner's counsel did become aware of petitioner's state of inebriation after the Stated conclusion of its two hours of testimony, and she immediately obtained a continuance until the next day. As the Johnston court found, by voluntarily intoxicating himself to such an extent that he became unable to assist counsel, petitioner forfeited his right to participate in his trial during that two hours.
"A defendant has a constitutional right to be present at all stages of his trial when his absence might frustrate the fairness of the proceedings." United States v. Stratton, 649 F.2d 1066, 1080 (5th Cir. 1981) (citing Faretta v. California, 422 U.S. 806, 819 n. 15 (1975); United States v. Brown, 571 F.2d 980 (6th Cir. 1978)). Nevertheless, "[a] voluntary absence from trial, or an absence due to defendant's persistence in disruptive conduct `after being warned by the court,' does not constitute an abridgement of the right." Id. at 1080 n. 21 (quoting Illinois v. Allen, 397 U.S. 337 (1970)). "[D]ue process does not require the presence of the petitioner when [his or] her presence would be useless or only slightly beneficial." Cross v. Johnson, 169 F. Supp.2d 603, 622 (N.D. Tex. 2001) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964)). The reasoning of the Johnston court is persuasive. Voluntarily making oneself intoxicated is conceptually no different than a voluntary absence from trial. Consequently, petitioner's voluntary "absence" during the State's two-hour presentation of his case abridges no constitutional right.
3. Harmless Error
A denial of a defendant's right to be present at trial is subject to harmless error analysis. See Rushen v. Spain, 464 U.S. 114, 117-18 n. 2 (1983); United States v. Allen, 76 F.3d 1348, 1371 (5th Cir. 1996). Absence from a competency hearing is also subject to such analysis. See United States v. Barfield, 969 F.2d 1554, 1556 (4th Cir. 1992). In this instance, any error with respect to petitioner's competency is also subject to harmless error analysis since it was merely a temporary state of incompetency, if incompetency at all, and did not pervade the entire proceeding. See Satterwhite v. Texas, 486 U.S. 249, 256 (1988) (holding that "violations that pervade the entire proceeding fall within th[e] category" of structural errors that are not subject to harmless error analysis); see also, Lowenfield v. Phelps, 817 F.2d 285, 295 (5th Cir. 1987) (applying harmless error analysis to an issue concerning competency). "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579 (1986).
The continuation of a criminal action against a defendant in his absence can prejudice the defendant in two respects: (1) "the jury might draw an adverse inference from the absence, and [(2)] the defendant might lose the opportunity to aid defense counsel in the effective advocacy of h[is] case." Allen, 76 F.3d at 1371. Nevertheless, a petitioner is entitled to federal habeas relief due to trial error, such as proceeding with trial without his presence, only if "the error `had substantial and injurious effect or influence in determining the . . . verdict.'" Breche v. Abrahamson, 507 U.S. 619, 637-38 (1993) (quoting Kotteakos v. United Stales, 328 U.S. 750, 776 (1946)); see also, Hogue v. Johnson, 131 F.3d 466, 499 (5th Cir. 1997) (holding that the Brecht harmless error analysis applies in federal habeas actions). There must be "more than a mere reasonable possibility that [the error] contributed to the verdict. It must have had a substantial effect or influence in determining the verdict." See Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)).
Petitioner's absence from trial on the morning of August 20, 1996, and at the "section 2(b) hearing" that same day is harmless error, if error at all. Nothing indicates that the jury was aware of petitioner's intoxicated state until after rendering its guilty verdict. Further, petitioner has not shown that he lost an opportunity to aid his attorney in the effective advocacy of his case during the State's two-hour presentation of evidence. Petitioner has provided nothing from which the Court can infer that he could have done or said anything that would have changed the testimony given or the damaging effect of such testimony. Further, the "section 2(b) hearing" resulted in the trial court continuing trial until petitioner became sober. There is nothing he could have added to that hearing.
The decision of the state court with respect to the competency claims is consistent with Supreme Court precedent. The decision involved no unreasonable application of such precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Petitioner is entitled to no federal habeas relief on these claims.
D. Prosecutorial Misconduct
Petitioner alleges that the prosecutor engaged in misconduct in four specific respects: (1) suppressing documents; (2) procuring testimony from witness Hauerwas; (3) violating the two-witness rule of TEX. CODE CRIM. PROC, ANN. art. 38.17; and (4) violating the ten-day notice requirement in TEX. R. EVID. 404(b) and TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g). ( See Attached Writ at 12-13, 25, 44-45, 51.) He raised these claims in his state writ. See S.H. Tr. at 12-13, 23, 42-46, 49.
The trial court reviewed the state writ and, on January 3, 2000, found no prosecutorial misconduct. Id. at 79. The Texas Court of Criminal Appeals denied the state writ on the findings of the trial court. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). The state disposition of the prosecutorial misconduct claims appears consistent with Supreme Court precedent. Additionally, it appears based upon a reasonable determination of the facts in light of the evidence presented.
"Prosecutorial misconduct implicates due process concerns." Fay v. Donnelly, 959 F.2d 1307, 1316 (5th Cir. 1992). Actions by a prosecutor may violate due process in two ways: "They may abridge a specific right conferred by the Bill of Rights, or may constitute a denial of due process generally, thus constituting a `generic substantive due process' violation." Id. (quoting Rogers v. Lynaugh, 848 F.2d 606, 608 (5th Cir. 1988)). The Court should "first determine the type or types of misconduct alleged, because `[t]he case law supplies a different test for each kind of due process violation."' Id. at 1316-17 (quoting Rogers, 848 F.2d at 608). In this case, petitioner alleges a general violation of due process.
When a petitioner asserts a generic due process violation, the Court asks whether the prosecutorial actions "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In the habeas context, the appropriate standard of review for such allegations is "the narrow one of due process, and not the broad exercise of supervisory power." Id. (quoting Donnelly 416 U.S. at 642). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
In federal habeas actions, improper action by the State does not present a claim of constitutional magnitude unless "the prosecutor's acts were so prejudicial as to render a trial fundamentally unfair in violation of the due process clause." Easter v. Estelle, 609 F.2d 756, 760 (5th Cir. 1980). To establish such prejudice, "the petitioner must demonstrate either persistent and pronounced misconduct or that the evidence was so insubstantial that (in probability) but for the [misconduct] no conviction would have occurred." Felde v. Blackburn, 795 F.2d 400, 403 (5th Cir. 1986). "A trial is fundamentally unfair if there is a reasonable probability that the verdict might have been different had the trial been properly conducted." Foy, 959 F.2d at 1317 (internal quotation marks omitted),
This is the only test necessary to apply for generic violations of due process. If the alleged misconduct rises to the level of constitutional error, the Court need not apply a harmless error test. Darden, 477 U.S. at 183 n. 15. The Fifth Circuit Court of Appeals has observed, furthermore, that application of a harmless error test would be "superfluous" after a determination that the trial was rendered fundamentally unfair, Kirkpatrick v. Blackburn, 777 F.2d 272, 280 (5th Cir. 1985).
Federal courts apply "a two-step analysis to charges of prosecutorial misconduct" United States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002). The courts first decide whether the prosecutor's actions were improper and, if so, they then determine whether the actions "prejudiced the defendant's substantive rights." Id. 1. Suppression of Documents
Petitioner claims that the prosecutor withheld two documents from him — the indictment and a statement made by witness Hauerwas. (Attached Writ at 12, 25.) During Hauerwas' testimony, the State referred to a two-page statement (State's Ex. 7) that the witness had made to police officers during the investigation of petitioner's case concerning what the witness saw and heard on the date in question. See SF-III at 42-46. See id. at 42-46. In the statement, Hauerwas confirmed that petitioner intentionally started the fire. Id. at 46. Although the State offered the exhibit into evidence, the court sustained an objection in part and the document was never formally admitted, Id. at 45-46.
As discussed above, because the state court adjudicated this claim on the merits, petitioner must show that the adjudication of his claim resulted in a decision that was (1) contrary to or involved an unreasonable application of Supreme Court precedent or (2) based upon an unreasonable determination of the facts in light of the evidence presented to the state court in order to obtain relief under AEDPA.
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a prosecutor must disclose evidence to a criminal defendant if that evidence is favorable to the defendant and material to his guilt or punishment. 373 U.S. at 87. "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "[E]vidence is `material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a `reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5 (1995).
The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict of confidence. A "reasonable probability" of a different result is accordingly shown when the governments evidentiary suppression "undermines confidence in the outcome of the trial."Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In other words, there must be "a `significant possibility* of a different result to characterize the Brady materiality standard." Strickler, 527 U.S. at 300 (Souter, J., concurring). In any event, the touchstone inquiry remains "whether the evidentiary suppression `undermines our confidence' that the factfinder would have reached the same result." Id. at 300-01.
In this instance, the allegedly withheld documents are neither exculpatory nor otherwise favorable to petitioner. The indictment identifies the charge against petitioner and sets forth two enhancement paragraphs. The witness statement supports the State's theory and provides no exculpatory or favorable evidence for petitioner. There can be no Brady violation when the documents alleged to have been suppressed are not favorable to the accused. The denial of this claim in petitioner's state writ is consistent with Brady and its progeny and involved no unreasonable application of Supreme Court precedent. The adjudication of the claim did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court. Petitioner is therefore entitled to no federal habeas relief on this claim. Prosecutors do not violate Brady when they withhold non-exculpatory documents from a defendant.
2. Procuring Testimony from Witness Hauerwas
Petitioner also contends that the prosecutor engaged in misconduct by procuring testimony from Ms. Hauerwas through threats, leading her to give hearsay testimony, and impeaching her. (Attached Writ at 12-13.) The record does not support finding prosecutorial misconduct relating to this witness.
a. Threatening Witness into Testifying
Petitioner asserts that the prosecutor threatened Hauerwas into testifying. When called to testify on the first day of trial, Hauerwas stated that she did not want to testify because of her friendship with petitioner and his sons. SF-III at 33-35. She testified that she appeared at trial only because the prosecutor informed her that she would "be put in juvenile" if she failed to appear. Id. at 35-36. She further testified that the prosecutor "told her that if [her mother] didn't respond to the subpoena by bringing [her to court her mother] would be placed in jail." Id. at 36. The prosecutor elicited this testimony about the "threats" during direct examination.
Assuming for the sake of argument that the prosecutor's actions were improper in this instance, the Court must determine whether the prosecutor's actions prejudiced a substantive right of the petitioner. There is no allegation that any threat was made in an attempt to alter the testimony to be given by the witness. Nor is there anything in the record showing that any threat or statement of the prosecutor altered the testimony given. SF-III at 36-50. Thus, this is not a case where the threats of the prosecutor discouraged a witness from testifying. Such governmental interference would present a possible violation of the due process rights of petitioner to present a defense. See, e.g., Webb v. Texas, 409 U.S. 95, 98 (1972); Washington v. Texas, 388 U.S. 14, 19 (1967); United States v. Whittington, 783 F.2d 1210, 1219 (5th Cir. 1986).
However, there is no corresponding violation of the right to present a defense when the statements or "threats" of the prosecutor encouraged, rather than discouraged, testimony from a witness. Once the witness appears, even under duress or threat, the defendant has the right to confront such witness and can highlight the fact of threat or duress that may impact the credibility of the witness. In this case, the witness was subject to cross-examination and the defendant could confront her and attack her credibility based upon the perceived threats from the prosecutor.
A review of the record before the Court does not demonstrate that the prosecutor's actions "so infected the trial with unfairness as to make the resulting conviction a denial of due process." See Darden v. Wainwright, 477 U.S. 168, 181 (1986). The prosecutor appears to have stepped beyond no constitutional boundary when he informed Hauerwas about what could happen should she not appear in response to the subpoena. Hauerwas' appearance at trial prejudiced no substantive right of petitioner.
b. Leading Witness to Give Hearsay Testimony
Petitioner also contends that the prosecutor used a leading question to elicit hearsay testimony from Hauerwas. Texas law provides that" [I]eading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness." TEX. R. EVID. 611(c). The rule further provides that interrogation by leading questions is permissible when examining an adverse party, a witness identified with an adverse party, or a witness who has been deemed hostile.
At the time of petitioner's trial, TEX. R. CRIM. EVID 610(c) applied. That rule is now found in the same form at TEX. R. EVID 611(c). See Armstead v. State, 977 S.W.2d 791, 795 n. 4 (Tex.App. — Fort Worth, 1998, pet. ref'd).
In this case, the prosecutor used a leading question on direct examination of Hauerwas. See SF'III at 46. Despite her stated reluctance to testify against petitioner, Hauerwas testified that, on April 8, 1995, she saw petitioner pour gasoline on the hood of his car and unsuccessfully attempt to light the gas. Id. 39-40, 48. She also testified that, after the first attempt failed, she saw petitioner go to his garage, return to the vehicle with gas can in hand, and lean into the car. Id. at 41-42. She then testified that she went home, and that a friend told her what happened after she left. Id. at 42. The State then elicited testimony about statements she made to police officers (State's Ex. 7) which indicated that she saw more than her trial testimony revealed. See id. at 42-46.
After the prosecutor first referred to such statements, Hauerwas testified that she "heard" that petitioner poured more gasoline on the car, threw a lit object on the car, and started the fire. Id. at 43. The State offered her prior statement to police as Exhibit 7 for admission; the trial court sustained a hearsay objection in part and permitted the State to read those portions of the statement "which [Hauerwas] might have previously made." Id. at 45-46. The prosecutor then proceeded to impeach Hauerwas as follows:
Q. Stacy, I want you to read along with me and make sure I'm reading this correctly. Isn't it true in your statement to the police that you stated, "then he tried to light it and it wouldn't catch on fire, so then he went in the house or garage and came back out and started pouring more gasoline on the car, and he threw the lit object in the car and it started on fire."
Is that what your statement says?
A. Yes.
Id. at 46. On cross-examination, she testified that that portion of her statement merely reflected what she had heard, not what she had seen. Id. at 47.
Hauerwas was neither an adverse party, a witness identified with an adverse party, nor a hostile witness. See id. at 42 (showing objection to leading question sustained and by implication showing that exception to general rule inapplicable). Nevertheless, Rule 611(c) permits leading questions when necessary to develop the testimony. The prosecutor simply elicited testimony as to whether the police report contains a specific statement previously made by the witness. The Court finds no misconduct with respect to use of a leading question.
Petitioner also complains that Hauerwas' statements to the police officers are hearsay. His attorney lodged a hearsay objection against the police report that contains the prior statements. SF' III at 45. The trial court sustained the objection in part, but let the prosecutor read that portion of the report relating to the statements "which [the witness] might have previously made." Id. at 45-46. The prosecutor then read a portion of her statement into the record without objection. Id. at 46. The Court cannot say that this was misconduct on the part of the prosecutor. The trial court found that the portion read into the record was admissible. Prosecutors do not engage in misconduct by presenting admissible evidence for consideration by the trier of fact.
The admissibility of the prior statement is addressed in the section regarding alleged errors of the trial court.
Even if the Court were to find the prosecutor's actions improper with respect to the way he elicited testimony from Hauerwas, this claim would still fail to entitle petitioner to habeas relief because petitioner has shown no prejudice from such actions. He has shown no persistent and pronounced misconduct. The evidence was not so insubstantial that but for the misconduct no conviction would have occurred. While the statement in the police report provides additional evidence against petitioner and unequivocally indicates that he started the fire, there was sufficient circumstantial evidence to convict petitioner even without putting the statements Hauerwas made to the police officers into evidence. There is no reasonable probability that the verdict might have been different had the prosecutor not read part of the witness statement into the record or elicited testimony from Hauerwas in a more "proper" manner. Neither the prosecutor's questioning of Hauerwas nor his offering her prior inconsistent statement into evidence made the trial fundamentally unfair.
c. Impeaching own Witness
Petitioner also contends that the prosecutor engaged in misconduct by impeaching his own witness. In Texas, the general rule is that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." See TEX. R. EVID. 607. Nevertheless, trial courts can refuse to allow a party to impeach its own witness with prior inconsistent statements under TEX. R. EVID. 403 where the impeachment is simply "a mere subterfuge to get before the jury evidence not otherwise admissible." Kelly v. State, 60 S.W.3d 299, 301 (Tex.App.-Dallas 2001, no pet.); see also, Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999). In this inquiry, "prior knowledge is key." Kelly, 60 S.W.3d at 302. When "there is no evidence that the state called [a particular witness] solely for impeachment purposes" and the petitioner has not directed the Court "to facts that indicate the state knew" that it would need to impeach the witness, Hughes and its progeny are "not controlling." See Willingham v. Johnson, No. CIV.A.3:98-CV-0409-L, 2001 WL 1677023, at *4 (N.D. Tex. Dec. 31, 2001).
As a general rule, it does not constitute prosecutorial misconduct to impeach one's own witness. The rules of evidence specifically provide for such action, subject of course to the balancing test of Rule 403 upon proper objection. Nothing indicates that the prosecutor put Hauerwas on the stand simply to impeach her with the statement she had previously given to police detectives. Even without the impeachment evidence, Hauerwas provided crucial testimony for the State. Nothing indicates that the prosecutor impeached her simply to place inadmissible evidence before the jury. As has already been indicated, the trial court found the statement given to the police detectives admissible to the extent it was read to the jury. The Court finds no misconduct with respect to impeaching Hauerwas.
Moreover, even if the impeachment was improper, this claim would fail for the failure of petitioner to show prejudice. The impeachment was an isolated incident, not persistent or pronounced misconduct. As already found, the evidence was sufficient to convict petitioner even without the statements made in the police report. There is no reasonable probability that the verdict might have been different had the prosecutor refrained from impeaching his own witness. The way the prosecutor questioned Hauerwas did not make the trial fundamentally unfair.
3. Violation of Two Witness Rule
Petitioner further contends that the State violated the two-witness rule codified at TEX. CODE CRIM. PROG. ANN. art. 38.17 (Vernon 1979). (Attached Writ at 13.) He claims that he was denied due process when the State convicted him without the testimony of two witnesses. ( Id.) Article 38.17 provides that "[i]n all cases where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction."
Contrary to petitioner's claim, there has been no violation of Article 38.17. Although some laws of Texas require corroborative testimony for certain crimes, nothing in Texas law requires two witnesses to obtain a conviction for arson. Consequently, Article 38.17 is simply not implicated by the facts of this case.
For instance, Article 38.07 requires corroboration of testimony given by victims of sexual offenses in certain cases. Further, Article 38.14 requires corroboration of testimony given by an accomplice. Additionally, Article 38.16 requires testimony of two witnesses to convict someone of treason in the absence of a confession in open court.
The State indicted petitioner for arson. See TR at 3 (True Bill of Indictment). It alleged that such act occurred on or about April 8, 1995. Id. A jury convicted petitioner of that offense. SF-III at 131-33. Texas law does not require two witnesses to support a conviction for arson. Petitioner was not denied due process when the State convicted him without the testimony of two eyewitnesses. The Court finds no misconduct by the prosecutor with respect to non-compliance with Article 38.17. As discussed previously, sufficient evidence supports the conviction.
4. Violation of Notice Requirement
Petitioner also contends that the State violated a "ten-day notice requirement." (Attached Writ at 51.) His arguments suggest a violation of TEX. R. EVID. 404(b), which provides that "evidence of other crimes, wrongs or acts . . . may . . . be admissible for [some] purposes . . . provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction." There has been no violation of this notice requirement because the State presented no evidence of other crimes or wrongs until the punishment phase of petitioner's trial Rule 404(b) does not apply to presentation of evidence at that phase. Consequently, there is no prosecutorial misconduct in the way the prosecutor presented evidence in the State's case-in-chief.
Petitioner's arguments could also be construed as asserting a violation of the notice requirement in TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon Supp. 1995) of the state's intent to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence. There has also been no violation of that notice requirement either. Such requirement applies "only if the defendant makes a timely request" to the prosecuting attorney for the notice. Id. The court of appeals specifically found that petitioner made no request for notice under Article 37.07. See Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *7 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd) (not designated for publication). On habeas review, this Court defers to that factual finding unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Petitioner has presented no evidence that rebuts the presumption that the factual finding of the court of appeals is correct. He merely contends that the Omnibus Pretrial Motion filed by his attorney requested the appropriate notice. (Attached Writ at 51.) However, a review of that motion reveals no request under Article 37.07, only a request under Rule 404(b). See TR at 9-12, Consequently, there is no prosecutorial misconduct in the way the prosecutor presented evidence during the punishment phase. E. Trial Court Error
Petitioner also makes numerous allegations that the trial court erred and thus deprived him of due process and the right to a fair trial by an impartial jury. Specifically, he argues that the trial court erred in the following respects:
1. by misstating to the venire panel that petitioner was presumed to be guilty, ( id. at 20);
2. by violating TEX. CODE CRIM. PROC. ANN. art. 38.05, ( id. at 21), which generally states that a judge shall not comment on the weight of the evidence;
3. by giving defense counsel less than ten days to file written pleadings after service of the indictment in violation of TEX. CODE CRIM. PROC ANN. arts. 27.11 and 27.12, ( id. at 27-28);
Petitioner's claim that the trial court erred in holding a "§ 2(b) hearing" outside petitioner's presence, (Attached Writ at 14-15, 65)was previously addressed with petitioner's competency claims.
4. by making the following evidentiary rulings
a. admitting hearsay evidence and allowing the prosecutor to read from a witness statement without submitting the statement to the jury, ( id. at 45-46);
b. allowing Trillo to testify regarding character, ( id. at 48-49);
c. admitting an extraneous DWI offense in the absence of ten days notice, ( id. at 13-14, 51, 55); and
d. allowing testimony about a non-existence theft and permitting the State to play a video relating to the DWI offense, ( id. at 14, 53);
5. by failing to send all trial exhibits to appellate court, ( id. at 15, 45, 71);
6. by failing to instruct the jury to acquit him due to lack of a corroborating witness, ( id. at 48); and
7. by failing to declare a mistrial after the jury heard testimony regarding the extraneous DWI offense, ( id. at 14, 57).
Evidentiary rulings and rulings made during a state trial regarding the instructions to be given to the jury are matters of state law that are not subject to re-examination by the federal courts. It is not "the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A petitioner is thus entitled to federal habeas relief due to trial error only if such error is not harmless within the meaning of Brecht v. Abrahamson, i.e. "the error `had substantial and injurious effect or influence in determining the . . . verdict."' 507 U.S. 619, 637-38 (citation omitted).
[U]nder Brecht, a constitutional trial error is not so harmful as to entitle a defendant to habeas relief unless there is more than a mere reasonable possibility that it contributed to the verdict. It must have had a substantial effect or influence in determining the verdict. We recognize, however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht standard, of the error, then we must conclude that it was harmful.Mayabb v. Johnson, 168 F.3d 863, 868 (5th Cir. 1999) (quoting Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996)). To be entitled to federal habeas relief due to a trial error, petitioner must show the error actually prejudiced him. Brecht, 507 U.S. at 637.
1. Comment by Trial Judge
Petitioner complains that a misstatement by the trial judge deprived him of his rights to due process and to a fair trial by impartial jury. (Attached Writ at 11, 20-22.) Petitioner suggests that the misstatement shows the trial judge's predisposition of guilt and that the statement poisoned the venire panel against from the outset, ( Id.; Traverse at 1.) As the trial judge addressed the voir dire panel the following transpired:
[COURT] Now, as we sit here, as I indicated, Mr. Stovall is presumed to be guilty —
[LITTLE] Excuse me, Your Honor.
[COURT] — presumed to be innocent. Excuse me. The evidence must be proven by the State, convince to the jury that those allegations contained in the indictment are true and correct. . . .
Now, if the State is unable to prove the allegations in the indictment beyond a reasonable doubt, the oath that the 12 jurors will take must dictate that they return a verdict of not guilty.
SF-II at 15-17.
As shown by the trial transcript, the judge immediately corrected his misstatement. See id, at 15. Defense counsel reiterated during voir dire that defendants are presumed to be innocent. Id. at 61-62. Moreover, in its jury charge, the trial court properly instructed the jury that defendants are presumed to be innocent. See TR at 19. It also instructed the jury:
You are instructed that you are not to allow yourselves to be influenced in any degree whatsoever by what you my think or surmise the opinion of the Court to be. The Court has no right by any word or any act to indicate any opinion respecting any matter of fact involved in this case, nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion upon any matter of fact in this case, and if you have observed anything which you have or may interpret as the Court's opinion upon any matter of fact in this case, you must wholly disregard it.Id.
To obtain a reversal of a conviction due to judicial bias, the defendant must demonstrate that "the error was substantial and that it prejudiced his case." United States v. Carpenter, 776 F.2d 1291, 1294 (5th Cir. 1985); Cross v. Johnson, 169 F. Supp.2d 603, 622 (N.D.Tex. 2001). "A trial judge's comments . . . are placed in the proper context by viewing the `totality of the circumstances, considering factors such as the context of the remark, the person to whom it is directed, and the presence of curative instructions'" United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998) (quoting United States v. Lance, 853 F.2d 1177, 1182 (5th Cir. 1988)).
To rise to the level of constitutional error, the district judge's actions, viewed as a whole, must amount to an intervention that could have led the jury to a predisposition of guilt by improperly confusing the functions of judge and prosecutor. The judge's intervention in the proceedings must be quantitatively and qualitatively substantial to meet this test.United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994) (citations omitted). A proper instruction to the jury is generally sufficient to cure an innocent misstatement by a trial judge to the jury. See United States v. Saenz, 134 F.3d 697, 713 (5th Cir. 1998); United States v. Buchanan, 585 F.2d 100, 102 (5th Cir. 1978). "Only when the judge's conduct strays from neutrality is the defendant thereby denied a constitutionally fair trial." Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979).
Viewing the totality of the circumstances, the statement by the trial judge appears to be an innocent misstatement that was immediately corrected. The record does not reflect that the misstatement is indicative of the judge's predetermined state of mind or that it led to a jury predisposition of guilt. Petitioner has shown no prejudice with respect to the misstatement by the trial judge.
2. Violation of Article 38.05
Petitioner also argues that the trial court violated TEX. CODE CRIM. PROC. ANN. art. 38.05 (Vernon 1979) when he made the misstatement regarding the presumption of innocence. (Attached Writ at 20-21.) Article 38.05 provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
In Texas," [a]n instruction by the trial judge to the jury to disregard any comments made by him or her is generally sufficient to cure any error arising from his or her statements." Aschbacher v. State, 61 S.W.3d 532, 539 (Tex.App.-San Antonio 2001, pet. ref'd); see also, Marks v. State, 617 S.W.2d 250, 252 (Tex.Crim.App. 1981). For the same reasons given in the preceding subsection, petitioner has shown no prejudice by any violation of Article 38.05.
3. Violation of Articles 27.11 and 27.12
Petitioner further argues that the trial court violated TEX. CODE CRIM. PROC. ANN. arts. 27.11 and 27.12 (Vernon 1989) when it failed to allow counsel ten days of trial preparation. (Attached Writ at 27-28.) Article 27.11 provides that" [i]n all cases the defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings" In this instance, petitioner was arrested on April 8, 1995. ( See Attached Writ at 17.) His case did not proceed to trial until August 1996. SF-II at 1. Clearly, petitioner had the requisite ten days provided by Article 27.11.
With regard to Article 27.12, it provides that "[i]n cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days mentioned in [Article 27.11] to file written pleadings after such service." The State re-indicted petitioner on August 1, 1996. TR at 3-4. A petitioner's "right to be served with a copy of the indictment is not affected by the fact that it was a reindictment." Johnson v. State, 567 S.W.2d 214, 215 (Tex.Crim.App. 1978). Consequently, if petitioner was entitled to be served with a copy of the re-indictment within the meaning of Article 27.12, he was also entitled to ten days of such service to file written pleadings. Under the facts of this case, however, petitioner was not entitled to be served with a copy of the re-indictment. Although Article 25.01 requires service of an indictment upon the accused when he "is in custody, or as soon as he may be arrested," Article 25.03 provides an exception to the service requirement when the accused is "on bail at the time the indictment is presented." When the State reindicted petitioner on August 1, 1996, petitioner was on bond. See SF-III at 52 (testimony of Trillo that showed petitioner was not in custody in October 1995); SF-IV at 65, 68 (trial judge explaining to jurors after trial why petitioner was out on bond and that he had been remanded to custody on August 21, 1996); TR at 7 (Trial Docket showing petitioner was out on bond). Because petitioner was on bond, he was not entitled to service of the re-indictment and thus not entitled to the ten days for written pleadings accorded by Article 27.12.
Because no definitive determination is necessary under the facts of this case, the Court need not consider that the rights under Article 27.12 may not be absolute. See Roberts v. State, 93 S.W.3d 528, 531-32 (Tex.App.-Houston [14 Dist.] 2002, pet. ref'd) (holding that rights under Articles 27.11 and 27.12 are not absolute and such statutes are "not properly invoked when the objectives of the statute have been achieved").
Petitioner's claim that he did not timely receive a copy of the reindictment is conclusory and unsupported. He relies upon the fact that his attorney asked during opening statement: "May I see the indictment, please?" See SF-III at 4. Many circumstances could prompt such inquiry. The Court will not speculate that it was because petitioner and his attorney had not received a copy. Prior events, furthermore, cast doubt upon any lack of receipt. For instance, prior to jury selection, petitioner was arraigned in open court without a similar request. See SF-II at 3. After jury selection, the State made the formal presentation of the indictment before the sworn jury — again without any request by petitioner or his attorney for a copy of the indictment. Id, at 83-84. Conclusory allegations are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Even were the Court to find some violation of Article 27.12, the claim would fail for the failure of petitioner to show any prejudice. He has shown no motion, pleading, or other paper that his attorney would have filed had the trial court accorded counsel the ten days required by the statute. In addition, although in some instances, "Texas law requires presentation of a certified copy of the indictment to the accused personally, a violation of this statute is a violation of Texas procedural law and not a cognizable violation for federal habeas purposes." Smith v. McCotter, 786 F.2d 697, 702 (5th Cir. 1986). For all of these reasons, this claim entitles petitioner to no habeas relief.
4. Evidentiary Rulings
Petitioner alleges that the trial court violated TEX. R. EVID. 401-04 by admitting hearsay evidence, allowing the prosecutor to read from a witness statement without submitting the statement to the jury, admitting evidence of an extraneous DWI offense, allowing testimony about a theft that never occurred, and allowing Mr. Trillo to testify regarding petitioner's character. (Attached Writ at 13-14, 45-50, 53, and 55.) The state court has considered these claims. Petitioner, furthermore, raised each of his alleged erroneous evidentiary rulings in his state writ. See S.H. Tr. at 13-14, 43-48, 51, and 53-54. The Texas Court of Criminal Appeals denied this writ without written order and thus adjudicated the claims on the merits.
Petitioner's claimed errors rely upon alleged erroneous, non-constitutional state court evidentiary rulings. The harmless-error analysis applies to such allegations. Cupit v. Whitley, 28 F.3d 532, 538 (5th Cir. 1994) (holding that the erroneous admission of hearsay evidence is amenable to Brecht harmless error analysis). "[A] federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling also violates a specific federal constitutional right or renders the petitioner's trial fundamentally unfair." Gochicoa v. Johnson, 118 F.3d 440, 446 (5th Cir. 46 1997). A fundamentally unfair trial violates the Fourteenth Amendment right to due process. Cupit, 28 F.3d at 536. A trial is deemed "unfair" when it has been "largely robbed of dignity due a rational process." Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir. 1985) (citation omitted). In habeas actions, federal courts "do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999). The erroneous admission of prejudicial evidence "does not justify habeas relief unless the evidence played a Crucial, critical, and highly significant' role in the jury's determination." Id. a. Admitting Hearsay Evidence and Permitting Prosecutor to Read Statement
Petitioner contends that the trial court admitted hearsay into evidence and permitted the prosecutor to read from a witness statement without submitting the statement to the jury. (Attached Writ at 45-46.) The contention centers around the statement that witness Hauerwas gave to police officers. (State's Ex. 7). Hauerwas testified that she saw certain actions by petitioner, but stopped short of saying that she actually saw him start the fire. SF-III at 36-42. For purposes of impeachment, the State referred to her previous statement after the following question and answer:
Q. And what happened next?
A. I went home and I stayed in my front yard and I walked inside and talked to my parents. We came outside, and Elena came back and told me what had happened.Id. at 42. After some preliminary identification of the previous statement, the State asked: "Do you remember making a statement to those police officers that when he came back outside from the house, he started pouring more gasoline on the car and he threw the lit object on the car and it started on fire?" Id. at 42-43. The trial court overruled defense counsel's objection to the prosecutor "testifying and leading." Id. at 43. The State then asked "Did you tell the police officers that?" and Hauerwas said, "no." Id.
At that point, the State handed the witness her previous inconsistent statement and ultimately moved to admit the statement into evidence. Id. at 43-45. Defense counsel objected to the admission of the document on grounds of hearsay. Id. at 45. The trial court sustained the objection in part, but permitted "the State to examine the witness with regard to those matters about which previous reference ha[d] been made." Id. It clarified that the State could read into the record those portions of the statement" which [Hauerwas] might have previously made." Id. at 45-46. The State then read a portion of her statement into the record without objection by defense counsel. Id. at 46.
Petitioner argues that the trial court erred in admitting the contents of Hauerwas' statement police officers because such statement was hearsay. (Attached Writ at 45.) Such an out-of-court statement is hearsay under Texas law if it is offered "to prove the matter asserted." TEX. R. EVID. 801(d) (Vernon 1994). That the statement is a prior inconsistent statement of Hauerwas does not make it non-hearsay under Rule 801(e)(1) because she did not make the statement "under oath subject to the penalty of perjury at a trial, hearing, or other proceeding." Under Texas law, "[hearsay is not admissible except as provided by statute of these rules or by other rules prescribed pursuant to statutory authority." TEX. R. EVID. 802.
However, in this instance, the State offered the statement for purposes of impeachment. The witness testified that she observed petitioner's action only up to a certain point whereas her statement suggests that she saw more than she was stating on the witness stand. Although prior inconsistent statements of a witness that do not meet the requirements of TEX. R. EVID. 801(e)(1)(A) or otherwise fall within a hearsay exception are inadmissible as substantive evidence due to the hearsay doctrine, they are nevertheless admissible for purposes of impeachment unless excluded under TEX. R. EVID. 403. See Hughes v. State, 4 S.W.3d 1, 4-6 (Tex.Crim.App. 1999); Miranda v. State, 813 S.W.2d 724, 735 (Tex.App. — San Antonio 1991, pet. ref'd); TEX. R. EVID. 613(a). Rule 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."
At the time of petitioner's trial, TEX. R. CRIM. EVID 612(a) applied. That rule is now found in the same form at TEX. R. EVID 613(a). See Armstead v. State, 977 S.W.2d 791, 795 n. 4 (Tex.App. — Fort Worth, 1998, pet. ref'd).
Further, there was no objection on the basis of Rule 403. The trial court thus had no reason to engage in the balancing test required by that rule. See Santellan v. State, 939 S.W.2d 155, 173 (Tex.Crim.App. 1997) (holding that trial court does not engage in Rule 403 balancing test sua sponte); Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991) (same).
The court also did not err in admitting the previous statement under Rule 613(a). That rule specifically provides that "[i]f the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted." Hauerwas unequivocally stated that she made the prior statement. SF-III at 46. There is thus no error in not sending the statement to the jury in documentary form.
In addition, the admission of the out-of-court statement did not render petitioner's trial fundamentally unfair. The evidentiary ruling was not so extreme as to result in an unfair proceeding. The evidence does not appear to have played a crucial, critical, or highly significant role in the outcome of the trial. Sufficient evidence supports the conviction, even disregarding the out-of-court statement in its entirety. A de novo review of the entire record reveals no prejudice from the admission of the out-of-court statement.
To the extent petitioner's hearsay argument can be construed as asserting a violation of the Confrontation Clause of the United States Constitution, his claim still fails. "The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: `In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Idaho v. Wright, 497 U.S. 805, 813 (1990). It is well-settled that "the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause." Id. Courts may allow "the admission of statements falling within a firmly rooted hearsay exception" without violating the Confrontation Clause. Lilly v. Virginia, 527 U.S. 116, 125 (1999). In addition, "the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." California v. Green, 399 U.S. 149, 158 (1970). In this instance, the declarant, Ms. Hauerwas, testified as a witness at trial and was available for full and effective cross-examination. In such instances, the admission of her out-of-court statement does not violate the Confrontation Clause. Further, a violation of the Confrontation Clause is itself subject to the harmless-error analysis. See Cupit v. Whitley, 28 F.3d at 537 (holding that, for the admission of hearsay evidence to violate the Confrontation Clause, the improperly admitted evidence must have been not only inadmissible but also material, i.e., "a crucial, critical, or highly significant factor in the framework of the entire trial"). The Court has already found the admission of the out-of-court statement to be harmless.
In his state petition, petitioner claimed the trial court erred in admitting the hearsay evidence. S.H. Tr. at 43-44. The Texas Court of Criminal Appeals denied the state petition without written order on the findings of the trial court without a hearing. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). It thus implicitly found no error in the admission of the prior statement. In view of the denial of the state petition for writ of habeas corpus, this Court will defer to the state court's determination of Texas law. Furthermore, the Court is unable to find petitioner's trial rendered fundamentally unfair by the state court's evidentiary ruling. The state court decision does not appear inconsistent with, or involve unreasonable application of, precedent of the United States Supreme Court. The decision appears based upon a reasonable determination of the facts in light of the evidence presented. Accordingly, under 28 U.S.C. § 2254(d), as amended by the AEDPA, petitioner may obtain no habeas relief on this claim.
b. Allowing Trillo's Testimony
Petitioner further contends that the trial court erred when it permitted the State to call witness Trillo during the guilt/innocence stage of trial, because all the witness provided was character testimony regarding petitioner. ( See Attached Writ at 48.) Contrary to the characterization by petitioner, witness Trillo did not testify with respect to petitioner's character. See SF-III at 51-55. He testified about a conversation he had had with petitioner "several months" after petitioner's arson arrest. Id. at 52. He specifically testified that petitioner asked him whether he had "called 911 when he [(petitioner)] set fire to the car." Id. at 55. Under Texas law, this is an "admission of a party-opponent" and thus not hearsay. See TEX. R. EVID. 801(e)(2)(A). The trial court did not err in admitting petitioner's own statement against him. This claim entitles petitioner to no habeas relief.
c. Admitting DWI Offense
Petitioner argues that the trial court erred in allowing the State to present an extraneous misdemeanor DWI during punishment. (Attached Writ at 13.) He specifically contends that such admission violates an unspecified ten-day notice provision. ( Id.) He later identifies TEX. R. EVID. 404(b) as the source of such notice requirement. ( Id. at 50, 54.)
The trial court indeed permitted the presentation of the DWI offense at punishment over petitioner's objection. SF-IV at 35-45. However, as discussed previously, there was no prosecutorial misconduct in violation of the notice requirement of Rule 404(b), or for that matter, TEX. CODE CRIM. PROG. ANN. art. 37.07, § 3(g). Consequently, the trial court did not err in admitting the extraneous offense in violation of any ten-day notice provision. This claim entitles petitioner to no habeas relief.
d. Allowing Testimony about Theft and Introduction of DWI Video
Petitioner further complains about the admission of testimony regarding a theft that never occurred and the introduction of the DWI video. (Attached Writ at 14, 53.) He raised these claims in his state writ. S.H. Tr. at 14, 51. The Texas Court of Criminal Appeals implicitly found no error when it denied that writ. See Ex parte Stovall, No. 8,514-02, slip op. at 1 (Tex.Crim.App. Apr. 19, 2000). Additionally, in his direct appeal, petitioner claimed that the trial court erred in admitting the statement regarding the theft. Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *8 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd). The Texas Court of Criminal Appeals found no error in its admission. Id. at *8-9.
It is not the role of this Court to review the admissibility of evidence under Texas law. Although it may review Texas law to show that no error has occurred, it may proceed directly to determining whether the trial ruling was "so extreme as to result in a denial of a constitutionally fair proceeding." See Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999). In other words, it must determine whether the admission of the evidence "played a `crucial, critical, and highly significant* role in the jury's determination." Id.
Neither the admission of the testimony regarding a potential theft offense, the introduction of the DWI video, nor even the admission of the extraneous DWI offense itself, appears to have played a crucial, critical, or highly significant role in the punishment meted out by the jury. The possible theft, as well as the DWI video and offense are relatively minor when compared to the two enhancement paragraphs to which petitioner pled true — unauthorized use of a motor vehicle and delivery of heroin. See SF-IV at 18-19; TR at 5. Exhibits admitted into evidence during punishment show two unlawful deliveries of heroin in 1973; a 1979 conviction for unauthorized use of a motor vehicle; two 1979 guilty pleas to attempted unauthorized use of a vehicle; a 1983 guilty plea to intentionally damaging and destroying tangible property worth less than $200; and a judgment of contempt for petitioner's behavior at trial. See State's Exs. 21-22, 25-28 attached to pages 77-83 of SF-IV. In addition, during testimony, it was made clear to the jury that the car petitioner claimed to have stolen may or may not have been stolen. SF-IV at 39.
Petitioner's plea of true to two enhancement paragraphs increased the punishment range for his arson offense to twenty-five to ninety-nine years. The jury assessed a punishment of fifty years incarceration. SF-IV at 64; TR at 27. The testimony regarding the potential theft offense, the introduction of the DWI video, and the admission of the extraneous DWI offense would have made no significant difference in the assessed punishment. Consequently, admission of these matters at punishment did not make petitioner's sentence fundamentally unfair. 5. Failure to Send All Exhibits to Appellate Court
Petitioner also argues that the trial court erred by failing to send all trial exhibits to the appellate court. (Attached Writ at 15, 45, 71-72.) He complains that the trial court failed to send photographs admitted into evidence, the DWI video, and Hauerwas' statement to the police. ( Id. at 71.) He asserts that the pictures would show that he "is telling the truth" and that the State's theory of what happened is not supported by the pictures. (Id. at 72.) He further asserts that Hauerwas' statement would show that the State "read false stories" and hearsay into the record. ( Id.)
Because Hauerwas' statement was not formally admitted into evidence, the trial court did not err in not sending it to the court of appeals. Nevertheless, a number of photographs were not sent to the court of appeals due to their large size. See SF-III at 148-56. In addition, the DWI video was retained by the "Physical Evidence Clerk of Dallas County." See SF-IV at 84. To the extent it was error for the trial court not to send the photographs and video tape to the court of appeals, the Court finds such error harmless.
Petitioner raised four claims on appeal: (1) factual insufficiency of the evidence; (2) ineffective assistance of counsel with respect to (a) not objecting to trial judge's misstatement regarding presumption of innocence and (b) mentioning in opening statement that petitioner would testify when he in fact did not testify; (3) erroneous admission of extraneous DWI offense at punishment due to lack of notice to petitioner; and (4) erroneous admission of statement Stovall made to police officer during arrest process in DWI case. See Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *1, 5-8 (Tex.App.-Dallas Aug. 19, 1998, pet ref'd). The omitted exhibits do not relate to the second, third or fourth claims raised on appeal. There appears to be no reasonable probability that the omitted exhibits would have made a difference to the appellate court's decision to affirm petitioner's conviction on these grounds.
Although the omitted exhibits could theoretically impact the appellate decision on the factual sufficiency of the evidence, federal courts are limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States on habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The factual sufficiency claim does not impact the constitutionality of petitioner's conviction. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002). As already determined, legally sufficient evidence supports petitioner's arson conviction even without the photographic and video evidence omitted from the appellate record.
The record before this Court likewise lacks the photographic and video evidence. Such evidence, however, was unnecessary to resolution of the issues raised in the federal petition.
For all of these reasons, the Court finds the omission of the identified exhibits from the appellate record harmless error.
6. Failure to Instruct Jury to Acquit
Petitioner also argues that the trial court erred when it failed to instruct the jury to acquit him due to lack of a corroborating witness. (Attached Writ at 48.) As discussed in the prosecutorial misconduct section, there is no need for a corroborating witness to validly obtain an arson conviction. Consequently, the court did not err in failing to give an acquittal instruction.
7. Failure to Declare Mistrial
Lastly, petitioner argues that the trial court erred when it failed to declare a mistrial after the jury heard testimony regarding the extraneous DWI offense. ( Id. at 14.) Near the end of punishment, the trial court allowed the State to show the jury a video taken the night of the DWI arrest over petitioner's objection. SF-IV at 43-44. As the tape played, defense counsel objected that petitioner was asking for an attorney. Id. at 44. The trial court sustained the objection and ordered the State to stop playing the tape. Id. at 45. There was no request for mistrial.
As shown by his claim that counsel rendered ineffective assistance by failing to seek a mistrial, (Attached Writ at 57), petitioner concedes that no request was made.
In Texas, a "[m]istrial is an appropriate remedy when . . . the objectionable event is so inflammatory that a curative instruction is not likely to prevent a jury from being unfairly prejudiced against a defendant." Thompson v. State, 89 S.W.3d 843, 851 (Tex.App. — Houston [1st Dist.] 2002, pet. ref'd). Nevertheless, "[a] criminal defendant possesses a Valued right to have his trial completed by a particular tribunal." United States v. Palmer, 122 F.3d 215, 218 (5th Cir. 1997) (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)). Thus, "a trial court cannot retry a defendant after declaring a mistrial sua sponte, unless the mistrial is justified by `manifest necessity.'" Id. (quoting United States v. Jorn, 400 U.S. 470 (1971); United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824)). By the same token, a trial court will not generally enter a sua sponte mistrial unless necessitated by manifest injustice.
In this instance, the DWI videotape created no manifest injustice. The Court has already found the admission of the DWI tape as well as the testimony regarding that offense to be harmless error, if error at all. Moreover, the denial of a request for mistrial is "clearly within the discretion of the trial judge and does not present a question of constitutional dimension." Vessels v. Estelle, 376 F. Supp. 1303, 1307 (S.D. Tex. 1973), aff'd, 494 F.2d 1295 (5th Cir. 1974). For these reasons, the failure of the trial court to declare a mistrial entitles petitioner to no habeas relief. F. Ineffective Assistance of Trial Counsel
Petitioner raises numerous claims of ineffective assistance of trial counsel To successfully state a claim of ineffective assistance of counsel under Supreme Court precedent, petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland, 466 U.S. at 689. Further, "[t] he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691.
To establish prejudice, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Petitioners must "affirmatively prove prejudice." Id. at 693. To establish prejudice, they must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
1. Failure to Object to Misstated Presumption
Petitioner claims that his trial attorney rendered ineffective assistance when she failed to object and to ask for a new jury panel when the trial court misstated the presumption of innocence. (Attached Writ at 11.) There is no deficiency in this regard. Petitioner concedes that his attorney "may have gotten the only relief she was entitled to" when the trial court corrected the misstatement. (Traverse at 1.) Failing to assert a meritless or futile objection "cannot be grounds for a finding of deficient performance." Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). Attorneys, furthermore, are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
In this instance, the trial court had already corrected its misstatement. It correctly instructed the jury at the close of evidence on the presumption of innocence. Neither the failure to object to the misstatement nor the failure to make a motion for a new jury panel constitutes deficient performance on the facts of this case. Further, petitioner has not shown how he was prejudiced by the alleged deficiencies of counsel. He is entitled to no habeas relief on this ground. 2. Unpreparedness
Petitioner further claims that his trial attorney rendered ineffective assistance by inadequately attempting to subpoena medical records and not discussing case with petitioner. ( See Attached Writ at 11-12, 41-42.) These two claims of ineffective assistance of counsel are conclusory and without support. Petitioner has made no attempt to show how additional preparation by counsel would have helped his case. He has not shown that further discussion of the case or a better attempt to subpoena his medical records would have added to the trial record in such a manner to alter the outcome of trial. "[C]onclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Petitioner, moreover, has demonstrated no prejudice from the alleged deficiencies of counsel. He has not shown a reasonable probability that, but for the alleged deficiencies of counsel, the outcome of his trial would have been different.
3. Absence from Voir Dire
Petitioner also claims that his lead counsel was ineffective by not appearing for jury selection. ( See Attached Writ at 11-12, 41-42.) There is no deficiency with respect to counsel Little being absent from voir dire. First, it is not entirely clear from the record how much voir dire Ms. Little missed. She was present at petitioner's arraignment, which occurred just prior to voir dire. See SF-II at 3. While questioning the voir dire panel about whether they knew any of the attorneys of record, the trial court indicated that petitioner's "lead counsel once the jury has been selected" will be "Ms. Jane Little." Id. at 12. However, the record also indicates that Ms. Little stated, "Excuse me, Your Honor," when the trial judge misstated the presumption of innocence. Id. at 15. In any event, petitioner's second trial attorney, Tracy Holmes, conducted voir dire on his behalf. Id. at 57. An attorney does not render deficient performance by missing part or all of voir dire, when the client is ably represented by other counsel during that stage of trial. Petitioner, furthermore, has demonstrated no prejudice from Ms. Little's absence from the voir dire process. Without a showing of prejudice, a claim of ineffective assistance of counsel must fail.
4. Failure to Object to No Instruction on Lesser Included Offense
Petitioner contends that counsel should have requested an instruction on criminal mischief as that offense is set out in TEX. PENAL CODE ANN. § 28.03. ( See Attached Writ at 11-12, 41-42.) However, in Texas, a defendant is entitled to a charge on a lesser included offense if evidence exists "in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). As previously discussed, a rational jury could convict petitioner of arson as alleged in the indictment. Such a jury thus could not find that, if petitioner is guilty, he is guilty only of criminal mischief. In addition, under Texas law, criminal mischief is not a lesser included offense of arson. See Prejean v. State, 704 S.W.2d 119, 123 (Tex.App.-Houston [1st Dist.] 1986, no pet.). When the evidence does not support the giving of lesser included instructions, counsel is "not ineffective in failing to request them." Boyd v. Ward, 179 F.3d 904, 917 (10th Cir. 1999). Because criminal mischief is not a lesser included offense of arson, petitioner was not charged with criminal mischief, and a rational jury could convict petitioner of arson as charged, counsel was not deficient in failing to request an instruction on criminal mischief.
Additionally, the Fifth Circuit has repeatedly held that there is no federal constitutional right to an instruction on a lesser included offense in a noncapital state trial. See, e.g., Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998); Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988). By denying the state writ, the Texas Court of Criminal Appeals apparently concluded that the evidence did not support an instruction on criminal mischief. "Absent a violation of the Constitution, we defer to the state court interpretation of its law for whether a lesser-included-offense instruction is warranted." Creel, 162 F.3d at 390-91. This claim provides no basis for federal habeas relief.
5. Convincing Petitioner Not to Testify
Petitioner contends that counsel was ineffective by convincing him not to testify. ( See Attached Writ at 41.) Upon questioning under oath and outside the presence of the jury, petitioner indicated that he wished to testify despite advice of counsel not to do so. SF-III at 106-07. He then inquired as to whether the State could "bring up [his] past record" and the court indicated that the State could inquire about certain prior convictions. Id. at 107-09. The following then transpired:
COURT: Does that make sense to you now, a little bit more?
DEFENDANT: Yes, sir.
COURT: Do you want to testify or do you not want to testify or do you want to confer with Ms. Little?
MS. LITTLE: Id like to — Yd like to confer with him again and I'd also like to — these — these enhancement paragraphs alleged in the indictment are back in the 70's. Let me confer with him again.Id. at 109. Petitioner thereafter elected not to testify on the record. Id.
The record thus shows that petitioner had an initial intent to testify in his trial. It was only after petitioner himself asked about the admissibility of his criminal history and the trial court's explanation in that regard did petitioner decide not to testify. He, of course, did that upon conferring with his attorney. However, that does not mean that counsel coerced him into not testifying or that counsel made the decision for him. Petitioner's argument is quite the contrary — "counsel went on the record to talk [him] out of taking the witness stand," (Attached Writ at 41.) From the record, it is clear that counsel advised him not to testify, but petitioner retained the choice. Petitioner has not shown that such advice is anything but reasonable trial strategy. Petitioner has not overcome the presumption that the actions of counsel fall within the wide range of reasonable assistance. The Court finds no deficiency in the advice not to testify.
Such intent explains counsel's statement during voir dire that petitioner would testify in the case. To the extent petitioner claims this misstatement constitutes ineffective assistance of counsel, the Court finds no deficiency. Attorneys cannot predict with certainty every turn of events at trial. If there is an initial intent to testify by the defendant, it falls within the realm of sound trial strategy to discuss the defense theory during voir dire. That the defendant may later change his mind does not transform the strategy into deficient representation.
Petitioner, furthermore, has shown no prejudice from his failure to testify. He has not shown that his testimony would have made a difference in the outcome of the trial or reduced the imposed sentence. He wanted to present a theory that the fire was accidentally caused when he tried to start the vehicle by pouring gasoline in the carburetor. (Attached Writ at 17-18.) Hauerwas testified that the hood was down and that she saw petitioner pour gasoline on and in the car. SF-III at 39-42, 48. The fire expert, Mr. Weston, testified that the evidence was inconsistent with an accidental fire. Id. at 66-69, 73. He testified that the evidence did not support the theory that petitioner would have presented to the jury. Id. at 70-73. In light of such testimony, petitioner has shown no reasonable probability that his testimony would have altered the verdict or the sentence imposed.
6. Failure to Object to Indictment
Petitioner further contends that his attorney rendered ineffective assistance by failing to object to the defective indictment against him. (Attached Writ at 29-32.) He specifically contends that the indictment violates TEX. CODE CRIM. PROC. ANN. arts. 21.07 and 21.22 (Vernon 1989). (Attached Writ at 29-30.)
Article 21.07 provides:
In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.
(emphasis added).
Petitioner claims that the indictment should have named Rhonda Edmonds or himself as complainant, and that the fire investigator, T.M. Weston, is not a statutorily allowed complainant. ( Id.) Petitioner provides no support for the suggestion that Mr. Weston is an improper complainant. Moreover, to obtain a conviction for arson, the indictment need not specify a complainant. See TEX. PENAL CODE ANN. § 28.02(a)(2) (Vernon 1994) (showing no element of the offense that requires proof of who owned the vehicle). The body of petitioner's arson indictment identifies no complainant. For these reasons, defense counsel had no viable objection under Article 21.07. Counsel was not deficient for failing to object to the indictment's failure to name him or Ms. Edmonds as complainant.
The heading area of the indictment identifies the complainant as "T.M. Weston", but that portion of the indictment is informational only. The State must only prove those matters asserted in the body of the indictment.
Counsel was likewise not deficient in not objecting to the indictment for an alleged violation of Article 21.22. That article governs "Information based upon complaint." TEX. CODE CRIM. PROC. ANN. art. 21.22 (Vernon 1989).
There are three types of charging instruments — indictments, informations and complaints. Indictments and informations are provided for and defined in the Texas Constitution. They are also defined in the Code of Criminal Procedure. Complaints are not addressed in the Constitution, but are provided for in the Code of Criminal Procedure in a variety of contexts. A complaint is a sworn affidavit charging the commission of an offense and serves as the basis for an arrest warrant.Huynh v. State, 901 S.W.2d 480, 482 n. 3 (Tex.Crim.App. 1995) (citations omitted). Statutes that govern indictments and those that govern informations and complaints often differ. See Wynn v. State, 864 S.W.2d 539, 540 (Tex.Crim.App. 1993). In this instance, petitioner was charged by indictment. Article 21.22 is thus immaterial and counsel properly made no objection based upon it.
7. Permitting Petitioner to be Tried while Incompetent
Petitioner further contends that his attorney rendered ineffective assistance when she permitted him to be tried although he was incompetent to stand trial (Attached Writ at 14-15, 64.) The Court finds no evidence of record to support this contention. Nothing of record indicates that counsel realized the extent of petitioner's drunkenness until after the State rested its case-in-chief. Without knowledge of petitioner's intoxicated state, defense counsel simply had no reason to halt the proceedings earlier. In the absence of such knowledge, counsel does not render deficient representation by appearing and proceeding with trial as scheduled.
Furthermore, the Court has already analogized petitioner's inability to proceed with trial to an absence from trial rather than a strict incompetency issue. Petitioner cannot voluntarily make himself so intoxicated that he cannot proceed with trial and then complain of ineffective assistance when his attorney, unaware of the level of intoxication, proceeds with the scheduled trial. As stated before, he forfeited his right to participate in trial when he voluntarily intoxicated himself.
Such forfeiture, of course, does not mean that he forfeits the right to effective assistance of counsel. To the contrary, petitioner was entitled to effective assistance of counsel although he himself had voluntarily chosen to mentally exempt himself from the trial However, the Court has found that any error resulting from petitioner's intoxicated state was harmless error. Petitioner has shown no prejudice from proceeding with trial despite his voluntary intoxication. He has shown no prejudice from any failure of his attorney to take action sooner to stop the proceedings. Petitioner has not shown that his "absence" affected the verdict. He has shown no reasonable likelihood that the outcome of the trial would have differed in the absence of the alleged deficiency of counsel.
8. Failure to Object to Enhancement Paragraphs
Petitioner also claims that his attorney provided deficient representation by failing to "vigorously" object to the enhancement paragraphs. (Attached Writ at 14, 58.) He claims that the second enhancement paragraph was void because the first prior conviction was not a final conviction. ( Id. at 14.) He specifically complains about his attorney stuttering at one point when discussing the enhancement paragraphs. ( Id. at 58.)
Counsel did stutter when she and the trial court were questioning petitioner outside the presence of the jury about whether he wanted to testify. See SF-III at 109 ("Id like to — I'd like to confer with him again and I'd also like to — these — these enhancement paragraphs alleged in the indictment are back in the 70's. Let me confer with him again." However, stuttering does not make an attorney ineffective. At that point in the trial, there was no need to object to the enhancement paragraphs. They were neither being offered by the State nor otherwise submitted to the jury for consideration. Furthermore, to the extent petitioner has a more widespread complaint about the lack of objection to the enhancement paragraphs, he has not overcome the presumption that the failure to object falls within the wide range of reasonable assistance. As the Court has already found, sufficient evidence supports the enhancement paragraphs. Even if the Court were to find counsel rendered deficient representation by not objecting, petitioner has demonstrated no prejudice from such deficiency. He has not shown that any objection to the enhancement paragraphs would have been sustained. He has shown neither of the two prior felony convictions to be void.
9. Failure to Request Mistrial
Petitioner claims his attorney rendered ineffective assistance when she failed to request a mistrial on the grounds that the property was improperly identified in the indictment. (Attached Writ at 38.) She also claims ineffective assistance when his attorney failed to request a mistrial after the jury heard testimony regarding the extraneous DWI offense. ( Id. at 57.)
With respect to the identification of the vehicle in the indictment, the Court finds no deficiency of counsel by failing to request a mistrial. In Texas, it is sufficient to describe a vehicle generically in an indictment. See Inman v. State, 650 S.W.2d 417, 420-21 n. 3 (Tex.Crim.App. 1983) (finding no error in denying a motion to quash an information which alleged attempted theft of `an automobile'); Wood v. State, 632 S.W.2d 734, 736-38 (Tex.Crim.App. 1982); Caro v. State, 771 S.W.2d 610, 616 (Tex.App.-Dallas, 1989, no pet.). The State need not provide particulars in the indictment such as a description of the make, model year, or license number. Queen v. State, 701 S.W.2d 314, 315 (Tex.App.-Austin 1985, pet. ref'd). The identification of the vehicle in this case thus provided counsel no valid basis to move for a mistrial under Texas law. Attorneys do not render deficient representation when they fail to make a frivolous request for a mistrial.
With respect to the failure of counsel to request a mistrial based upon the testimony given at punishment regarding the extraneous DWI offense, the Court finds that petitioner has not shown any prejudice. Nothing of record shows that the trial court would have granted the request had counsel made it. Petitioner must affirmatively show prejudice. To do that in the context of a failure to request mistrial, he must show a reasonable probability that the trial court would have granted the request had it been made. Because he has not made that showing, his claim of ineffective assistance fails.
10. Other Alleged Deficiencies
Petitioner contends that his trial attorney rendered ineffective assistance by lodging no objection to the fact that the trial court failed to accord defense counsel the ten days required by TEX. CODE CRIM. PROG. ANN. arts. 27.11 and 27.12 to file written pleadings after service of the indictment. (Attached Writ at 27-28.) He further contends that his attorney rendered ineffective assistance by failing to object that the indictment charges "Arson as a 3rd degree felony"; to the prosecutor impeaching own witness; to the prosecutor's use of leading questions; to the admission of hearsay; and to the fact that his conviction was not supported by the testimony of two witnesses. (Attached Writ at 12, 14, 39, 44, 47, 58.)
The Court has already found no violation of the ten-day provision of Articles 27.11 and 27.12. It has found that the indictment does not charge third degree arson as suggested by petitioner. It found no misconduct by the prosecutor in using leading questions or impeaching witness Hauerwas — the State's own witness. It has found no error in the admission of the alleged hearsay evidence. It has found that Texas law does not require an arson conviction to be supported by the testimony of two witnesses. In view of these findings, there was no occasion to raise the desired objections to those matters. Attorneys do not render deficient performance when they fail to assert meritless objections. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). These claims of ineffective assistance of counsel fail.
In addition, even were the Court to find counsel deficient with respect to one or more of these alleged deficiencies, these claims would fail for the failure of petitioner to show prejudice from counsel's failure to object on these grounds.
Petitioner raised his ineffective assistance of counsel claims in his state writ. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. Petitioner also raised some claims of ineffective assistance on appeal that were found unsuccessful on the merits. See Stovall v. State, No. 05-96-01371-CR, 1998 WL 484624, at *3-6 (Tex.App.-Dallas Aug. 19, 1998, pet. ref'd) (not designated for publication). The decisions of the state courts with respect to petitioner's ineffective assistance claims is consistent with Strickland, the applicable Supreme Court precedent. The decisions involved no unreasonable application of such precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
Petitioner presents nothing to undermine confidence in his conviction. He has demonstrated no reasonable probability that he would have been acquitted or received a lesser sentence in the absence of the alleged deficiencies of counsel. He presents nothing that indicates the result of his trial is unreliable or that the proceeding was fundamentally unfair. Under Strickland and the AEDPA standards, petitioner is entitled to no habeas relief on these claims of ineffective assistance of counsel.
G. Ineffective Assistance of Appellate Counsel
Petitioner also claims that he received ineffective assistance from his appellate attorney, Hal Turley. (Attached Writ at 12, 16, 45, 73-74.) He contends that Mr. Turley failed to raise on appeal the prosecutorial misconduct and ineffective assistance claims that relate to the impeachment of Ms. Hauerwas, the admission of hearsay, the use of leading questions, and the withholding of documents from the defense. ( Id. at 12.) He further contends that his appellate attorney failed to object to the omission of Hauerwas' statement from the appellate record. ( Id. at 45.) He claims that his attorney pointed out errors "that he knew would not get results" while "intentionally overlook[ing] more prominent errors because they were more complicated and time consuming." ( Id. at 16.) He asserts that counsel should have asked for oral argument "to explain these other more complex issues." ( Id.) Lastly, he contends that his appellate attorney did not properly argue the issues raised on appeal and failed to request oral argument on those issues. ( Id. at 74.)
The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const., art. VI. Criminal defendants have a constitutional right to effective assistance of counsel in their first appeal. Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Douglas v. California, 372 U.S. 353, 356-57 (1963). "A claim of ineffective assistance based on the failure to argue an issue on appeal is governed by the familiar two-part Strickland test." United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000). To successfully state a claim of ineffective assistance of appellate counsel under Strickland, one must demonstrate a deficiency of appellate counsel and prejudice to petitioner's appeal by that deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
To render effective assistance of counsel, appellate counsel need not raise every non-frivolous issue on appeal. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). "Instead, to be deficient, the decision not to raise an issue must fall `below an objective standard of reasonableness.'" United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting Strickland, 466 U.S. at 688). "[A] reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention," Williamson, 183 F.3d at 462-63 (footnote and citations omitted). To determine whether appellate counsel was deficient, the Court thus must consider whether the omitted challenge "would have been sufficiently meritorious such that [the attorney] should have raised it on appeal." Phillips, 210 F.3d at 348.
As should be clear from these findings and recommendation, the matters which petitioner complains were omitted from his appeal are not of such merit that counsel should have raised them. This Court has found no prosecutorial misconduct or ineffective assistance related to the testimony of Ms. Hauerwas. It has found no error in the admission of hearsay, the use of leading questions, or the withholding of documents from the defense. Appellate attorneys do not render ineffective assistance by failing to raise claims that will ultimately fail on appeal.
Further, the Court has found that Hauerwas' statement was properly omitted from the appellate record because it was not admitted as an exhibit. Counsel thus had no reason to object to such omission and did not render ineffective assistance by failing to so object.
Petitioner provides no specifics with respect to his contention that counsel presented claims that could not succeed on appeal while omitting claims that had merit. He has not shown that counsel failed to make an argument that would have created a reasonable probability of success on appeal. He has not shown any solid, meritorious argument based upon directly controlling precedent that was not brought to the appellate court's attention. Appellate attorneys do not generally render ineffective assistance by raising points of error that do not succeed on appeal. Nor has petitioner shown any prejudice arising from points of error raised by appellate counsel. Likewise, petitioner provides no support for his subjective belief that oral argument would have made a difference on appeal. He has thus shown no ineffective assistance of appellate counsel
In his state writ, petitioner claimed his appellate attorney rendered ineffective assistance. The Texas Court of Criminal Appeals denied that writ and thus adjudicated the claims on the merits. Such adjudication is consistent with and involved no unreasonable application of Strickland, the applicable Supreme Court precedent. The adjudication of the claims did not result in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented to the state court.
H. Cumulative Error
Although not phrased as cumulative error, petitioner also contends that the aggregation of errors in his trial resulted in an unfair and impartial trial. ( See Attached Writ at 25.) "The Sixth Amendment guarantees a fair trial and an impartial jury." Morgan v. Illinois, 504 U.S. 719, 726-27 (1992). It is well settled that `"[a] fair trial in a fair tribunal is a basic requirement of due process.'" Id. at 727 (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The Fifth Circuit, furthermore, has recognized the concept of cumulative error. See Derden v. McNeel, 978 F.2d 1453, 1456 (5th Cir. 1992). Nevertheless, it held that
federal habeas corpus relief may only be granted for cumulative errors in the conduct of a state trial where (1) the individual errors involved matters of constitutional dimension rather than mere violations of state law; (2) the errors were not procedurally defaulted for habeas purposes; and (3) the errors "so infected the entire trial that the resulting conviction violates due process."Id. at 1454 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
In this instance, although petitioner makes numerous allegations of error, many of his allegations dealt with mere violations of state law. In addition, many of the alleged errors were found not to be error at all. To the extent the individual errors were of constitutional dimension, they did not so infect the trial that petitioner's conviction violates due process. Consequently, petitioner is entitled to no habeas relief on his claim of cumulative error.
IV. EVIDENTIARY HEARING
Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
V. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).