Cruz v. Director - Texas Department of Criminal Justice, Correctional Institutions Division

Filing 26

MEMORANDUM OPINION regarding petitioner's petition. A certificate of appealability shall not issue in this matter. Signed by Judge Thad Heartfield on 5/11/2015. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
ROBERT WAYNE CRUZ

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 1:13cv79

MEMORANDUM OPINION
Petitioner Robert Wayne Cruz, an inmate confined in the Texas
Department of Criminal Justice, Correctional Institutions Division,
proceeding pro se, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
Factual Background
In 2010, following a jury trial, petitioner was convicted of
aggravated sexual assault in the 260th District Court of Orange
County, Texas.
DO80048-R.

The State of Texas v. Robert Wayne Cruz, case no.

He was sentenced to 20 years imprisonment.

The

conviction was affirmed by the Texas Court of Appeals for the
Fourteenth District. Cruz v. State, No. 14-10-00686-CR. The Texas
Court of Criminal Appeals refused a petition for discretionary
review.

Cruz v. State, PDR No. 1048-11.

Petitioner previously filed two state applications for writ of
habeas corpus.

The Court of Criminal Appeals dismissed the first

application because petitioner’s direct appeal was still pending.
The Court of Criminal Appeals denied the second application without
written order on the findings of the trial court without a hearing.

Grounds for Review
Petitioner asserts the following grounds for review:

(1)

there was a material variance between the indictment and the
evidence at trial; (2) there was insufficient evidence to support
the verdict; (3) the prosecution failed to disclose exculpatory
evidence and (4) petitioner received ineffective assistance of
counsel.
Evidendce at Trial
The intermediate appellate court summarized the evidence at
trial as follows:
Appellant and M.B. had been in a relationship and had a
seven-year-old daughter together. M.B. and her daughter
lived together in a one-bedroom home, and appellant was
visiting one night in October 2008. Around midnight, with
their daughter in the next room, appellant initiated a
twelve-hour session of violent sexual abuse. He began
punching M.B. and pulling her hair. He ripped off her
clothes and repeatedly jabbed his thumb in her anus.
He attempted to have anal sex with M.B., and when that
did not work, he repeatedly put his penis inside her
vagina and mouth. M.B. told him that she did not want to
have sex; she told him to stop and said, “No.” During
the assault, appellant also strangled and bit M.B. When
M.B. told appellant that she was pregnant, appellant
punched her repeatedly in the stomach and said he would
kill the baby.
The following afternoon, M.B. escaped and was brought to
a hospital. Her medical records and a number of pictures
of her injuries were admitted at trial. A nurse who conducted a physical examination of M.B. also testified,
explaining that there was a tear in M.B.’s anus but no injury to her vagina.
Standard of Review
Title

28

U.S.C.

§

2254

authorizes

a

district

court

to

entertain a petition for writ of habeas corpus on behalf of a
person in custody pursuant to a state court judgment if the
2

prisoner is in custody in violation of the Constitution or laws or
treaties of the United States.

28 U.S.C. § 2254(a).

The court may

not grant relief on any claim that was adjudicated in state court
proceedings unless the adjudication: (1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law, or resulted in a decision based on
an unreasonable determination of the facts in light of the evidence
presented in state court.

28 U.S.C. § 2254(d).

A decision is

contrary to clearly established federal law if the state court
reaches a conclusion opposite to a decision reached by the Supreme
Court on a question of law or if the state court decides a case
differently

than

the

Supreme

indistinguishable set of facts.
412-13 (2000).

Court

has

on

a

materially

Williams v. Taylor, 529 U.S. 362,

An application of clearly established federal law

is unreasonable if the state court identifies the correct governing
legal principle, but unreasonably applies that principle to the
facts.
factual

Id.

In addition, this court must accept as correct any

determination

made

by

the

state

courts

unless

the

petitioner rebuts the presumption of correctness by clear and
convincing evidence.

28 U.S.C. § 2254(e).
Analysis

Material Variance
Petitioner states that the indictment alleged he penetrated
the victim’s female sexual organ with his penis.
evidence

at

Accordingly,

trial

showed

petitioner

only

states

penetration

there
3

was

a

He states the
of

the

material

anus.

variance

between the evidence at trial and the allegation in the indictment.
Under Texas law, an indictment must allege all the facts and
circumstances necessary to establish all material elements of the
offense charged in plain and intelligible language.
State, 981 S.W.2d 683, 685 (Tex.Crim.App. 1998).

Garcia v.

To be valid, an

indictment must allege on its face facts necessary to (a) show an
offense was committed, (b) bar a subsequent prosecution for the
same offense and (3) give a defendant notice of precisely what
offense he is charged with committing.
848, 852 (Tex.Crim.App. 1971).
statutory

language

is

prosecution

is

not

evidentiary

in

nature.

An indictment which tracks the

normally

required

Terry v. State, 471 S.W.2d

to

State

considered
allege
v.

facts

Mays,

967

sufficient.
that

are

S.W.2d

The
merely

404,

406

(Tex.Crim.App. 1998).
A variance between the wording of an indictment and the
evidence presented at trial is fatal only if “it is material and
prejudices ... [the defendant’s] substantial rights.”
States v. Mikolojczyk, 137 F.2d 237, 243 (5th Cir. 1998).

United
When

reviewing an alleged variance, a court must determine whether the
indictment, as written, informed the defendant of the charge
against him sufficiently to allow him to prepare an adequate
defense at trial.

United States v. Massey, 827 F.2d 995, 1003 (5th

Cir. 1987).
Petitioner’s indictment alleged facts necessary both to show
an offense was committed and to bar a subsequent prosecution for
the same offense.

The indictment, which accused petitioner of
4

penetrating the female sexual organ of victim with his penis, also
gave petitioner notice of the precise offense he was accused of
committing and permitted him to prepare an adequate defense. While
evidence was also introduced of anal penetration, petitioner was
charged

with

vaginal

penetration

and

demonstrating vaginal penetration.

evidence

was

introduced

As a result, the indictment

provided petitioner sufficient notice of the charge against him.
Insufficient Evidence
Petitioner asserts there was insufficient evidence to support
the conviction because the evidence did not show he penetrated
M.B.’s sexual organ with his penis.
In

determining

whether

there

was

sufficient

evidence

to

support a conviction, a court must decide whether, when viewing all
of 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.”
U.S. 307, 308-19 (1979).

Jackson v. Virginia, 443

In conducting such review, a federal

habeas court may not substitute its view of the evidence for that
of the fact finder, but must consider all of the evidence in the
light most favorable to the verdict.
1050, 1061 (5th Cir. 1995).

See Weeks v. Scott, 55 F.3d

Where, as here, a state appellate

court has reviewed the sufficiency of the evidence to support the
conviction, the state court’s determination is entitled to great
weight in federal habeas review.
461, 467 (5th Cir. 1987).

5

Porretto v. Stalder, 834 F.2d

Petitioner asserted this ground for review on direct appeal.
In considering this ground for review, the intermediate appellate
court stated as follows:
At trial, M.B. answered in the affirmative to the following question: “Did he insert his penis inside your
female sexual organ?” Further, a statement contained
in M.B.’s medical records admitted into evidence includes
M.B.’s assertion that “he stuck his penis in my vagina.”
Although appellant testified that he did not have sex
with M.B., and a nurse who conducted M.B.’s medical examination testified that M.B.’s vagina was not injured
the jury was free to resolve conflicts in the evidence.
From M.B.’s testimony and the statement, a rational jury
could conclude beyond a reasonable doubt that appellant
penetrated her sexual organ with his penis. See, e.g.,
Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978)
(“[The victim’s] testimony, standing alone, is sufficient
evidence of penetration.”); Tinker v. State, 148 S.W.3d
666, 669 (Tex.App.–Houston [14th Dist.] 2004,no pet.)
(“[T]he complainant’s testimony alone is sufficient to
support the jury’s finding that sexual contact or penetration did in fact ccur.”); Sandoval v. State, 52 S.W.
3d 851, 854 n. 1 (Tex.App.–Houston [1st Dist.] 2001, pet.
ref’d) (noting that the uncorroborated testimony of a
sexual assault victim is alone sufficient to support a
conviction).
The victim’s testimony and prior statement were sufficient to
permit a rational finder of fact to conclude beyond a reasonable
doubt that petitioner penetrated the victim’s sexual organ.
result, the

state

court’s

resolution

of

this

matter

was

As a
not

contrary to, and did not involve an unreasonable application of,
clearly established federal law.
Failure to Disclose Exculpatory Evidence
Petitioner asserts the prosecution failed to provide him with
exculpatory evidence. He states the prosecution failed to disclose
evidence that the victim had sex with someone else within 48 hours
of the assault and failed to disclose vaginal and anal swabs and
6

vaginal and anal smears.
In connection with petitioner’s second state application for
writ of habeas corpus, petitioner’s trial counsel submitted an
affidavit.

Counsel stated she had reviewed the victim’s medical

records and was aware that the victim had sex with another man 2-3
days before the assault.

With respect to the swabs and smears,

counsel stated she was aware that additional DNA evidence had been
obtained.

She stated she had discussed the matter with petitioner

and that he had agreed it would not be in his best interest to have
the DNA examined.1
a

match

to

Counsel thought the DNA would have likely been

petitioner,

which

would

have

only

helped

the

prosecution’s case.
The prosecutor also submitted an affidavit which stated, in
part, as follows:
The state was aware of the evidence collected during the
sexual assault examination.
That information was shared with defense counsel. When
the trial was first set for trial, on April 14, the original defense attorney ... requested a motion for continuance so that DNA analysis could be performed. That
motion was granted.
The DNA results returned in May, 2009. It was discovered
that the DNA of the defendant had not been obtained, so I
got the detective to get a buccal swab from defendant
for comparison analysis.
The buccal swab was sent off to the Crime Lab and in November, 2009, the results showed that some of the evidence,
including a sperm cell fraction from the bed sheet of
the victim, returned to a scientific certainty to defendant.

1
Counsel stated that the medical records indicated that the other man
with whom the victim had sex had worn a condom.

7

The results showed that several other items, including
epithelial cells and the cigarette butt, were consistent
with a mixture of the victim and the defendant, but not to
a scientific certainty. Defendant could not be excluded
as a contributor from any of the evidence.
The defendant admitted that he had sex with the victim one
or two days before the alleged incident. The only
question was whether he had sex with her on the night
of the incident. He did not request further analysis
and comparison with DNA from the vaginal and anal swabs
and smears. Additional testing would have resulted in a
further delay in trial. Defendant was in jail at the time
of the trial, and wanted to go forward with the trial.
Since the order from the Court of Criminal Appeals [in
2012], I have contacted the Jefferson County Crime Lab,
and requested that the vaginal and anal swabs and smears
be sent to the DPS Crime lab and further analyzed
for comparison to defendant’s DNA. I anticipate that
obtaining those results from the lab may take an additional
6 months or more.
In connection with petitioner’s state application for writ of
habeas corpus, the trial court made the following findings of fact
and conclusions of law:
According to the affidavit of trial counsel, she reviewed
the SANE report and the other medical reports. She had
full knowledge that the complainant had sex with another
man 2-3 days prior to the assault. Applicant discussed
this with trial counsel and said this was the reason for
the physical assault.
The vaginal swabs, vaginal smear, and anal swabs were not
sent by the police to the crime lab for DNA testing.
Certain items were forwarded to the crime lab and were
tested. A report from the crime lab was provided by the
state to trial counsel.
Trial counsel was aware that the vaginal swabs, vaginal
smear, and anal swabs had not been submitted for testing.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme
Court held that “the suppression by the prosecution of evidence
favorable to an accused ... violates due process where the evidence
8

is material either to guilt or punishment, irrespective of the good
faith or bad faith of the prosecution.”

To establish that Brady

was violated, a habeas petitioner must demonstrate that (1) the
prosecution suppressed evidence, (2) the evidence was favorable to
the petitioner and (3) the evidence was material. United States v.
Ellender, 947 F.2d 748, 756 (5th Cir. 1991).

“[E]vidence is

material only if there is a reasonable probability that, had the
evidence

been

disclosed

to

the

defense,

proceeding would have been different.”
473

U.S.

667,

682

(1985).

“A

the

result

of

the

United States v. Bagley,

reasonable

probability

is

a

probability sufficient to undermine confidence in the outcome.”
Id.
Petitioner has not established that Brady was violated in this
case.

While petitioner asserts the prosecution did not disclose

that the victim had sex with another man 48 hours before the
incident and did not disclosure the existence vaginal and anal
swabs and vaginal and anal smears, the state courts determined that
defense counsel was aware of this information and evidence.

Based

on the record before the state courts, it cannot be concluded that
this factual finding was an unreasonable determination of the
facts.

Further, in light of this finding, it cannot be concluded

that the conclusion by the state courts that there was no Brady
violation was contrary to or involved an unreasonable application
of clearly established federal law.

As a result, this ground for

review does not provide petitioner with a basis for relief in this
proceeding.
9

Ineffective Assistance of Counsel
A.

Legal Standard

A claim of ineffective assistance of counsel is reviewed under
the standards announced by the Supreme Court in Strickland v.
Washington,

466

U.S.

668

(1984).

"First,

a

defendant

must

demonstrate that 'counsel's representation fell below an objective
standard of reasonableness,' with reasonableness being judged under
professional

norms

prevailing

at

the

time

assistance."

Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992)

(quoting Strickland, 466 U.S. at 688).

counsel

rendered

Merely alleging that

counsel’s performance was deficient is not enough.

To be entitled

to relief, a petitioner must show that counsel’s peformance fell
beyond the bounds of prevailing, objective, professional standards.
Strickland, 466 U.S. at 688.
counsel

provided

adequate

There is a strong presumption that

assistance

and

that

conduct was the product of a reasoned strategy.

the

challenged

Id. at 689.

Second, if counsel was ineffective, "[t]he defendant 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." Strickland, 466 U.S. at 694.
A claim of ineffective assistance of counsel will only merit habeas
relief when a petitioner satisfies both prongs of the Strickland
test.

See Strickland, 466 U.S. at 687-97.

10

B.

Application

Petitioner

asserts

he

received

ineffective

assistance

of

counsel because counsel failed to object to the introduction of
evidence

regarding

anal

penetration.

He

contends

that

such

evidence was not relevant because the indictment only alleged
vaginal penetration.
In Walker v. State, 2009 WL 5103274 (Tex.App.-Dallas Dec. 29,
2009), the defendant was convicted of aggravated assault.

The

defendant was charged with vaginal and oral penetration.

Over

objections from defense counsel, the victim testified that there
was also anal penetration.
The intermediate appellate court began by stating that under
Texas Rule of Evidence 401, evidence is relevant if it has any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would have been without the evidence.

The court then

concluded that testimony regarding anal penetration would have been
relevant to demonstrate the victim’s lack of consent and the
defendant’s intent to commit the offense with which he was charged.
In addition, the court stated the testimony was relevant as same
transaction contextual evidence to show the events in question were
closely interwoven and to assist the jury in understanding the
context in which the events occurred.
For the reasons set forth by the court in Walker, the victim’s
testimony regarding anal penetration, as well as medical evidence
regarding anal penetration, which showed there was a tear in the
11

victim’s anus, was relevant to petitioner’s case.

The testimony

and evidence would have indicated the victim’s lack of consent and
the petitioner’s intent to commit the offense with which he was
charged.

Further, the testimony regarding anal penetration in

particular was necessary to enable the jury to understand the
context in which the incident occurred.

The testimony regarding

anal penetration was so interwoven with the testimony concerning
vaginal penetration that it is difficult to conceive how the jury
could have understood the

victim’s testimony as a whole without

the testimony regarding anal penetration.
For the reasons set forth above, the testimony and evidence
regarding

anal

penetration

was

relevant.

As

a

result,

any

objection by counsel to the testimony and evidence would have been
overruled.
did

not

Counsel’s failure to make such an objection therefore

fall

below

an

objective

standard

of

reasonableness.

Moreover, as any objection would have been overruled, there is not
a reasonable probability that the result of the proceeding would
have been different if an objection had been made.

As a result,

petitioner has failed to demonstrate counsel was ineffective.
Conclusion
For the reasons set forth above, this petition for writ of
habeas corpus is without merit and is therefore denied.

An

appropriate final judgment shall be entered.
In addition, the court is of the opinion petitioner is not
entitled to a certificate of appealability.

An appeal from a

judgment denying federal habeas relief may not proceed unless a
12

certificate of appealability is issued.

See 28 U.S.C. § 2253.

The

standard for a certificate of appealability requires the petitioner
to

make

a

substantial

constitutional right.

showing

of

the

denial

of

a

federal

See Slack v. McDaniel, 529 U.S. 473 (2000);

Elizalde v. Dretke, 362 F.3d 323 (5th Cir. 2004).

To make a

substantial showing, the petitioner need not establish that he
would prevail on the merits.

Rather, he must demonstrate that the

issues raised are subject to debate among jurists of reason, that
a court could resolve the issued in a different manner, or that the
questions presented are worthy of encouragement to proceed further.
See Slack, 529 U.S. at 483-84.

Any doubts regarding whether to

grant a certificate of appealability should be resolved in favor of
the petitioner.

See Miller v. Johnson, 200 F.3d 272 (5th Cir.

2000).
In this case, the petitioner has not shown that any of the
issues he raised are subject to debate among jurists of reason.
The factual and legal issues asserted by petitioner are not novel
and have been consistently resolved adversely to his position.

In

addition, the issues raised are not worthy of encouragement to
proceed further. As a result, a certificate of appealability shall
not issue in this matter.
SIGNED this the 11 day of May, 2015.

____________________________
Thad Heartfield
United States District Judge

13