Galbraith v. Director TDCJ-CID

Filing 36

MEMORANDUM OPINION and ORDER. ORDERED that the petition for a writ of habeas corpus is DENIED and Petitioners case is DISMISSED with prejudice. It is further ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Amos L. Mazzant, III on 4/1/2015. (pad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOHN PAUL GALBRAITH, #1473442
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:11cv756

MEMORANDUM OPINION AND ORDER
Petitioner John Paul Galbraith, an inmate confined in the Texas prison system, filed a pro
se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

He challenges the

constitutionality of his convictions, alleging violations concerning the jury, prosecutorial
misconduct, trial court errors, ineffective assistance of counsel, cruel and unusual punishment, and
double jeopardy.
I. BACKGROUND
Petitioner is complaining about his Denton County convictions for two counts of indecency
with a child, and two counts of aggravated sexual assault of a child – each concerning MG. Cause
No. F-2007-01390C. The grand jury also returned a separate indictment alleging that Petitioner had
sexually assaulted another child under the age of fourteen, TP. Cause No. F-2007-1541-C. The
State consolidated the cases for trial. Although trial counsel moved to sever the two cases, the trial
court denied the motion. The jury acquitted Petitioner in the allegations concerning TP. As to the
two counts each of aggravated sexual assault and indecency with a child against MG, the jury found
Petitioner guilty as charged. It then sentenced him to two life sentences on the aggravated sexual

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assault charges and two 20-year sentences on the indecency with a child charges, to be served
consecutively.
The Second Court of Appeals affirmed his convictions on November 6, 2008. Galbraith v.
State, No. 02-08-00024-CR. The Texas Court of Criminal Appeals (CCA) then refused his petition
for discretionary review (PDR) on September 16, 2009, In re Galbraith, PD-0272-09. The CCA
denied his application for state writ of habeas corpus without written order based on the findings of
the trial court on October 26, 2011. Ex parte Galbraith, Application No. 75,459 at cover.
Petitioner filed the present petition, alleging 24 grounds of relief:
1.

He was denied the right to an impartial jury when a biased juror was seated;

2.

He was denied the right to the jury of his choice when the State struck a juror for
cause;

3.

The State withheld exculpatory evidence;

4.

The trial court erred in allowing the outcry testimony;

5.

The State violated his Fifth Amendment Rights by seizing a letter he had written in
jail;

6.

The trial court allowed the State’s expert witness to bolster the credibility of MG;

7.

Trial counsel was ineffective in failing to object to the State’s seizure of the letter
that Petitioner wrote while in jail - on the basis that the letter was seized without
probable cause or a search warrant;

8.

The use of the disjunctive in the court’s charge deprived Petitioner of a fair trial;

9.

Trial counsel was ineffective for failing to object when the Prosecutor called
Petitioner a “child molester” and referred to his failure to testify in closing;
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10.

Trial counsel was ineffective for failing to protect Petitioner’s due process rights
when the Prosecution introduced an audio recording of a conversation that he had
with his girlfriend engaging in phone sex while he was in jail;

11.

The trial court constructively amended the indictment five days prior to trial without
giving Petitioner the opportunity to object to the amendment;

12.

The trial court erred in allowing the State to introduce two separate video outcry
statements;

13.

Trial counsel was ineffective for failing to argue that Petitioner would be prejudiced
by the joinder of the separate indictments;

14.

The State knowingly used perjured testimony;

15.

Appellate counsel was ineffective for failing to raise a factual insufficiency error on
direct appeal;

16.

Appellate counsel was ineffective for failing to raise a legal insufficiency error on
direct appeal;

17.

Trial counsel was ineffective for failing to interview witnessers and for failing to call
the witnesses with whom he had interviewed to testify at trial;

18.

Trial counsel was ineffective for loudly chastising Petitioner within earshot of the
jury for having phone sex with his girlfriend while he was confined in county jail;

19.

Appellate counsel was ineffective for failing to raise nonfrivolous points of error on
appeal, i.e., the biased-juror error;

20.

Petitioner’s consecutive sentences are cruel and unusual;

21.

Trial counsel was ineffective for failing to interview MG and the State’s expert
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witnesses.
22.

Trial counsel was ineffective for failing to challenge the State’s medical evidence.

23.

Trial counsel was ineffective for failing to introduce evidence showing that the
grandmother coerced MG into making false allegations and giving false testimony
because Petitioner was planning on moving the children; and

24.

Petitioner’s conviction violates double jeopardy.

Respondent provided a Response, asserting that Petitioner’s claims are without merit to which
Petitioner filed a Reply.
II. STATEMENT OF FACTS
As noted above, Petitioner was tried for sexual offenses against TP and MG in one trial. The
jury found Petitioner “not guilty” of the offense against TP, but found Petitioner “guilty” of the
offenses against MG in Cause No. F-2007-01390C.
At trial, 11-year-old TP testified that, when she was 8 years old, she spent the night at her
friend, BG’s apartment. BG lived in an apartment with her father (Petitioner), MG (her younger
sister) and BGG (her brother). TP and BG decided to take a bath. While in the bathtub, Petitioner
came into the bathroom and said that he would wash their hair. TP was shocked that a man would
be in the bathroom with girls. Petitioner washed BG’s hair first while TP tried to move as far away
from Petitioner as possible. But then Petitioner washed TP’s hair. He then left the bathroom.
After the two girls finished with their bath, they got ready for bed, climbed onto the top bunk
of BG’s bunk beds, and went to sleep. TP was awakened when Petitioner picked her up and carried
her to the living room. Even though she told him to put her down, he placed her on the couch.
Petitioner turned on a movie, sat down beside TP and began rubbing her back with his hand under
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her shirt. Petitioner told TP that he did that to MG and BG all the time. He then pulled TP’s shorts
and panties down and threw them onto the floor. TP pulled her knees up and held her knees together
tightly. She told Petitioner that she was hungry. Petitioner told TP to put her legs down or he would
not get her anything to eat. TP slowly put her legs down, they were spread open, and Petitioner
licked her “private,” or where she urinated from for approximately 5 seconds before she stopped him
by pulling her knees back up. She told him, again, that she was hungry, and Petitioner went to the
kitchen and brought her crackers. TP put her shorts back on as Petitioner told her, “Don’t tell
anybody.” TP said that she thought to herself, “I’m going to tell somebody all right.” Transcript of
Trial vol. 3 at 37-53, Galbraith.
Two weeks later, TP told her friend, Christina, and her grandmother what Petitioner had
done. TP’s grandmother told TP’s mother, who called the police. Transcript of Trial vol. 3 at 54-55,
57-58, 63, Galbraith. TP eventually told BG what had happened, but BG did not believe her and
the two girls stopped being best friends. Transcript of Trial vol. 4 at 56, Galbraith. Detective Shane
Kizer testified at trial that, although TP’s case was investigated in 2004, it was closed because they
did not believe there was enough evidence to prove the case at that point. Transcript of Trial vol.
4 at 27-28, Galbraith.
Eleven-year-old BG testified that, around December 20, 2006, she saw Petitioner and MG
playing on the computer in her father’s room through a partially open door. BG saw her father rub
MG on her bottom. BG thought it was nasty and that it was unusual, as her sister was 10 and
Petitioner was 40. BG watched for about five minutes before Petitioner closed the bedroom door.
BG knocked on the door and said that her brother, BGG had to go to the bathroom, but Petitioner
just told her, “Take [BGG] out.” Transcript of Trial vol. 3 at 118, Galbraith. BG then heard the
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bathtub water running. Prior to this, BG said she would see MG go into Petitioner’s room
frequently, and the door would always be closed. She would hear water flowing every once in a
while. When MG came out of Petitioner’s room, BG pretended to be asleep.
The next morning, BG asked MG if “it has been happening,” and MG said, “yes, but don’t
tell anybody.” Transcript of Trial vol. 3 at 87-88, 119, 120-21, Galbraith. BG testified that what MG
told her was nasty and bad because what Petitioner had done to her was like what he should do to
a wife. BG was worried that MG was hurt down inside her. The next day, BG told someone at her
school about it and the two sisters spoke with a teacher, Ms. Boone, and the school counselor, Ms.
Tanos. BG told her grandmother that MG had been “sexing with Daddy.” Transcript of Trial vol.
3 at 122, Galbraith.
Ten-year-old MG testified that Petitioner was her father and that she thought her mother had
died when she was 2 years old. She said that, on December 20, 2006, she was in Petitioner’s room
on the computer when he began touching her “private, [her] butt” with his hand, and then started
sticking his “wiener” in her butt. She said that Petitioner had done this many times before. She said
that on December 20th, after Petitioner finished with her, she took a bath, as she usually did. The
next morning, she told her sister about it, but asked BG not to tell anybody because she was afraid
she might get sent to an orphanage. MG said that Petitioner had not touched her before TP had
come to visit in 2004, but that since then, he had been doing things to her, such as sticking his
“wiener in her butt.” MG said he had touched her approximately 20 times, that he had put her mouth
on his penis about 20 times, that he had put his penis in her private “a couple of times” or “[a]lmost
between every day” since TP’s visit. She said that Petitioner did the “wiener part” most, that he
would put baby oil on his “thing” and that she had seen “white stuff” come out of his penis.
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Transcript of Trial vol. 3 at 73-107, Galbraith.
Nurse Patricia Sedge testified that there was no evidence of physical injury on MG’s vaginal
or anal regions. MG’s SANE results were classified as “normal.” No semen was found on MG’s
clothing. Transcript of Trial vol. 3 at 8 at 209-29, Galbraith.
III. FEDERAL HABEAS CORPUS RELIEF
The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody
is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a
federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th Cir. 1993). Federal habeas
corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law,
unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 47980, 116 L. Ed.2d 385 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the course
of reviewing state proceedings, a federal court does not sit as a super state appellate court. Dillard
v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
The prospect of federal courts granting habeas corpus relief to state prisoners has been further
limited by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The provisions of
Section 2254(d) provide that an application for a writ of habeas corpus “shall not be granted 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.” See Williams v. Taylor, 529 U.S. 362,
402-03, 120 S. Ct. 1495, 1517-18, 146 L. Ed.2d 389 (2000); Childress v. Johnson, 103 F.3d 1221,
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1224-25 (5th Cir. 1997). The statutory provision requires federal courts to be deferential to habeas
corpus decisions on the merits by state courts. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
A decision by a state court is “contrary to” the Supreme Court’s clearly established law if it
“applies a rule that contradicts the law set forth in” the Supreme Court’s cases. Williams, 529 U.S.
at 405-06, 120 S. Ct. at 1519-20. A federal court’s review of a decision based on the “unreasonable
application” test should only review the “state court’s ‘decision’ and not the written opinion
explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc). “Under §
2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas corpus court may not issue the
writ simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Williams, 529 U.S. at
411, 120 S. Ct. 1522-23. Rather, that application must be objectively unreasonable. Id. 529 U.S.
at 409, 120 S. Ct. at 1521. The standard is satisfied only if “reasonable jurists considering the
question would be of one view that the state court ruling was incorrect.” Davis v. Johnson, 158 F.3d
806, 812 (5th Cir 1998) (internal quotation marks and citations omitted).
The trial court’s factual findings are entitled to a presumption of correctness unless the
petitioner can rebut the presumption with clear and convincing evidence to the contrary. Valdez v.
Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). A federal district court must be deferential to state
court findings supported by the record. See Pondexter v. Dretke, 346 F.3d 142, 149-152 (5th Cir.
2003). The AEDPA has modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas “retrials” and to ensure that state court convictions
are given effect to the extent possible under law. Beel v. Cone, 535 U.S. 685, 693, 122 S. Ct. 1843,
1849, 152 L. Ed.2d 914 (2002); see Williams, 529 U.S. at 404, 120 S. Ct. at 1519.
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A state application that is denied without written order by the Texas Court of Criminal
Appeals, as in the present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381,
384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (holding a
“denial” signifies an adjudication on the merits while a “dismissal” means the claim was declined
on grounds other than the merits). Additionally, federal habeas relief is foreclosed if a claim (1) is
procedurally barred as a consequence of a failure to comply with state procedural rules, Coleman v.
Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed.2d 640 (1991); (2) seeks retroactive
application of a new rule of law to a conviction that was final before the rule was announced, Teague
v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed.2d 334 (1989); or (3) asserts trial error that,
although of constitutional magnitude, did not have a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722,
123 L. Ed.2d 353 (1993).
In the context of § 2254(d), the deferential standard that must be accorded to counsel’s
representation must also be considered in tandem with the deference that must be accorded state
court decisions, which has been referred to as “doubly” deferential. Harrington v. Richter, 562 U.S.
86, 105, 131 S. Ct. 770, 788, 178 L. Ed.2d 624 (2011). “When § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. “If the standard is difficult
to meet, that is because it was meant to be.” Id. at 786. Section 2254(d), as amended by AEDPA,
“stops short of imposing a complete bar on federal court relitigation of claims already rejected in
state proceedings. It preserves authority to issue the writ in cases where there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with this court’s precedents.
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It goes no farther.” Id. “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Id.; see also Morales v. Thaler, 714 F.3d 295, 302 (5th Cir. 2013). “As
a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. 98, 131 S. Ct. at 784.
AEDPA also states that the state court’s factual findings “shall be presumed to be correct”
unless the petitioner carries “the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254( e)(1). This presumption of correctness also applies to
unarticulated findings that are necessary to the state court’s conclusions of mixed law and fact.
Valdez, 274 F.3d at 948 n. 11. This presumption is especially strong where, as in this case, the trial
judge and the state habeas judge are the same. Miller-El v. Johnson, 261 F.3d 445, 449 (5th Cir.
2001) (citing Clark v. Johnson, 202 F.3d 760, 764, 766 (5th Cir. 2000), cert. denied, 531 U.S. 831,
121 S. Ct. 84, 148 L. Ed.2d 46 (2000)).
Further, the evidence upon which a petitioner would challenge a state court fact finding must
have been presented to the state court, except for the narrow exceptions contained in § 2254(e)(2).
Because a federal habeas court is prohibited from granting relief unless a decision was based on “an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding, “ it follows that demonstrating the incorrectness of a state court fact finding based upon
evidence not presented to the state court would not be helpful to a federal habeas petitioner. 28
U.S.C. § 2254(d); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). If a habeas petitioner failed
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to fully develop the factual bases of his claims in state court, he is precluded from further factual
development in federal court unless (1) his claims rely on a new rule of constitutional law or a
factual predicate previously undiscoverable through the exercise of due diligence; and (2) he
establishes by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found him guilty. 28 U.S.C. § 2254(e)(2). Failing to meet this standard of
diligence will bar a federal evidentiary hearing in the absence of a convincing claim of actual
innocence that can only be established by newly discovered evidence. Williams, 529 U.S. at 436,
120 S. Ct. at 1490. Even if a petitioner can meet the foregoing standard, it is within this court’s
discretion to deny a hearing if sufficient facts exist to make an informed decision on the merits.
Clark v. Johnson, 227 F.3d 273, 284-85 (5th Cir. 2000).
IV. FAILURE TO EXHAUST AND PROCEDURAL DEFAULT
Petitioner makes several claims that are unexhausted and procedurally barred. In issues 1
and 2, Petitioner complains about challenges to the makeup of the jury. Issue 6 concerns a challenge
to the testimony of a state expert witness. In Issue 11, Petitioner complains about an amendment to
the indictment made five days before trial. He complains about the introduction of outcry statements
in issue 12. In issue 14, Petitioner complains of the prosecution’s failure to correct misleading
testimony. However, he failed to raise these issue on direct appeal. The Fifth Circuit has explained
that a petitioner who fails to present his claims on direct appeal cannot seek federal habeas relief
until the claims have been raised and adjudicated in a state habeas proceeding.

Ames v.

Middlebrooks, 369 F.2d 113, 115 (5th Cir. 1966). Texas law requires a petitioner to raise recordsbased claims on direct appeal or forfeit review of the claims. Ex parte Cruzata, 220 S.W.3d 518,
520 (Tex. Crim. App. 2007). The Fifth Circuit recognizes that “this rule is an ‘adequate state ground
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capable of barring federal habeas review.’” Scheanette v. Quarterman, 482 F.3d 815, 827 (5th Cir.
2007) (quoting Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004). Petitioner procedurally defaulted
these claims by not raising them on direct appeal. Id.
When a petitioner procedurally defaults a claim in state court, federal habeas review is
available only if he can show cause and prejudice. Coleman, 501 U.S. at 749-50, 111 S. Ct. at 256465. The procedural bar may be overcome by demonstrating either cause and prejudice for the default
or that a fundamental miscarriage of justice would result from the court’s refusal to consider the
claim. Id.; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001). The state habeas court considered
Petitioner’s procedural default in the state habeas proceedings:

1.

As to Applicant’s Grounds One, Two, Five, Six, Eight, Twelve, and
Fourteen, because these Grounds were not raised on direct appeal, they are
not now cognizable on Application for Writ of Habeas Corpus and should be
denied. Ex parte Cruzata, 220 S.W.3d 518 (Tex. Crim. App. 2007); Ex parte
Twyman, 716 S.W.2d 951, 952-53 (Tex. Crim. App. 1986).

2.

As to Applicant’s Grounds One, Two, Five, Six, Eight, Twelve, and
Fourteen, Applicant makes bare, conclusory assertions in his Memorandum,
without argument or raising them as actual grounds for review in his
Application. Also, Applicant makes bare claims as to errors [rendering] his
counsel ineffective, without supporting argument or evidence of prejudice;
blanket claims that counsel was ineffective will not support relief on habeas
corpus, and these claims should also be denied on that basis. Ex parte
Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App. 1985).

3.

As to Applicant’s Grounds One, Two, Five, Six, Eight, Twelve, and
Fourteen, even if construed as ineffective assistance claims, Applicant has not
demonstrated ineffective assistance of counsel and his claims should also be
denied on that basis. Strickland 466 U.S. at 687; Bone, 77 S.W.3d at 833;
Martinez, 195 S.W.3d at 721.

4.

Each of Applicant’s Grounds alleges multiple, multifarious bases for relief
in violation of Texas Rule of Appellate Procedure 73.1 and thus should be
denied on that basis. Tex. R. App. P. 73.1; Ex parte Blacklock, 191 S.W.3d
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718 (Tex. Crim. App. 2006).

Ex parte Galbraith, Application No. 75,459 at 582-83.
It could be construed that Petitioner attempts to show cause for his default as it concerns his
first issue concerning the makeup of the jury. Although not clear, he may be arguing that the default
in issue 1 was due to ineffective assistance of counsel.
A review of the record shows that he states, “Applicant argues his 6th and 14th amendment
rights, judicial error, ineffective counsel, and ineffective appellate counsel.” Ex parte Galbraith,
Application No. 75,459 at 6. It is well-settled, however, that habeas petitioners may not raise
multiple grounds for relief under one heading. The state habeas trial court concluded that, because
Petitioner alleged “multiple, multifarious bases for relief,” his writ should be denied on that basis.
Ex parte Galbraith, Application No. 75,459 at 583. Texas Rule of Appellate Procedure 73.1 requires
applicants to use “the form prescribed by the Court of Criminal Appeals,” which requires each
ground to be set out separately. Tex. R. App. Proc. 73.1. Petitioner’s failure to follow Rule 73.1
deprived the State the opportunity to develop and consider the claim in his state habeas proceedings.
Again, the state habeas trial court concluded, “ even if construed as ineffective assistance claims,
Applicant has not demonstrated ineffective assistance of counsel and his claims should also be
denied on that basis. Strickland 466 U.S. at 687; Bone, 77 S.W.3d at 833; Martinez, 195 S.W.3d at
721.” Ex parte Galbraith, Application No. 75,459 at 582-83.
Petitioner has not excused the default by showing cause for the default and prejudice, or by
showing a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50, 111 S. Ct. at 2564-65;
Finley, 243 F.3d at 220. Furthermore, he has not shown that he is actually innocent. Schlup v. Delo,

13

513 U.S. 298, 324, 115 S. Ct. 851, 865-66. He has failed to rebut the presumption of correctness to
which the state findings are entitled. Valdez, 274 F.3d at 947. He has also failed to show that the
state court proceedings 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 that the decision was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 151718; Childress, 103 F.3d at 1224-25. He has failed to show that there was no reasonable basis for
the state court to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
Petitioner also failed to properly raise issues 19 - 24 in state habeas proceedings. Petitioner’s
original petition for state habeas raised 18 grounds for relief, filed on August 19, 2010. Two months
later, he filed an amended application, but added no new grounds for relief. On November 29, 2010,
however he added issue 19. He added issue 20 on February 14, 2011, issues 21-23 on March 31,
2011, and issue 24 on October 24, 2011. The record shows that the state habeas court did not
consider these later-filed claims because they were not brought in either Petitioner’s original or
amended application. He also failed to serve the amendments on the Denton County District
Attorney.
The record shows that the prosecuting attorney and the state habeas court met the mandatory
deadlines established by Article 11.07 of the Code of Criminal Procedure (clerk must forward
application to the prosecuting attorney upon receipt of the state habeas application, and prosecuting
attorney must respond within 15 days of receiving the application; the state habeas court then has
35 days in which to appropriately respond). The prosecuting attorney received Petitioner’s original
application on August 23, 2010, and responded on September 7, 2010 - within the 15-day deadline.
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The state habeas trial court then entered its order designating issues on September 10, 2010 - well
within the 35-day deadline. Ex parte Galbraith, Application No. 75,459 at 169-70. Petitioner’s
attempts to add grounds 19 - 24 were never acknowledged by the State. Article 11.07 does not
contemplate adding new grounds after the state habeas trial court issues its order designating issues.
Furthermore, Petitioner failed to properly serve the new grounds on the prosecuting attorney and the
state habeas trial court. The district clerk is not responsible for serving pleadings on the parties.
Tex. Rule Civ. Proc. 21, 21(a).
Petitioner filed his amended grounds after the order designating issues was issued. He failed
to alert the state habeas trial court or the prosecuting attorney. Thus, grounds 19 - 24 in his state writ
were waived. The same grounds are now unexhausted and procedurally defaulted. In the instant
federal writ. Section 2254 does not allow a petitioner to file a petition for writ of habeas corpus
unless he is “in custody” and has exhausted his available state remedies. 28 U.S.C. § 2254(b)(1).
A state prisoner must exhaust all remedies available in state court before proceeding in federal
court unless circumstances exist that render the state corrective process ineffective to protect the
prisoner's rights. 28 U.S.C. § 2254(b), ( c). In order to exhaust properly, he must “fairly present”
all of his claims to the state court. Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L.
Ed.2d 438 (1971). In Texas, all claims must be presented to and ruled on by the Court of Criminal
Appeals of Texas (CCA). Richardson v. Procunier, 762 F.2d 429, 430-31 (5th Cir. 1985); Deters
v. Collins, 985 F.2d 789 (5th Cir. 1993). This exhaustion doctrine was judicially crafted on
federalism grounds to protect the state courts’ opportunity to confront and resolve initially any
constitutional issues arising within their jurisdiction and also to limit federal interference in the state
adjudicatory process. See id. at 225. Finally, if one or more of the petitioner’s claims is exhausted
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and one or more of the claims is unexhausted, it is a “mixed” petition, and the entire petition may
be dismissed for failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 510, 192 S. Ct.
1198, 71 L. Ed.2d 379 (1982).
In the present case, Petitioner failed to properly raise these issues in his state habeas
proceedings. He has presented, for the first time, issues to the federal courts before the state court
has had the appropriate opportunity to review it, and if necessary, correct any constitutional errors.
Thus, the claims are unexhausted.
The claims are also procedurally barred. “A procedural default . . . occurs when a prisoner
fails to exhaust available state remedies and ‘the court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.’” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), citing Coleman, 501
U.S. at 735 n.1, 111 S. Ct. at 2557 n.1. If Petitioner presented the claims at this time to the Court
of Criminal Appeals in another state writ application, the court would find the claims to be
procedurally barred under the Texas abuse of the writ doctrine. Tex. Code Crim. Proc. Ann. art.
11.07 § 4 (Vernon Supp. 2004); Ex parte Whiteside, 12 S.W.3d 819, 821 (Tex. Crim. App. 2000).
Thus, Petitioner’s claims would be barred from federal habeas review under the federal procedural
default doctrine. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995), cert. denied, 515 U.S. 1153
(1995) (the Texas abuse of the writ doctrine is an adequate procedural bar for purposes of federal
habeas review). The procedural bar may be overcome by demonstrating either cause and prejudice
for the default or that a fundamental miscarriage of justice would result from the court’s refusal to
consider the claim. Id.; Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001).
Petitioner has failed to overcome the procedural bar by demonstrating either cause and
16

prejudice for the defaults or that a fundamental miscarriage of justice would result from the court’s
refusal to consider the claims. Fearance, 56 F.3d at 642; Finley, 243 F.3d at 200. Accordingly, the
claims are procedurally barred from federal habeas review.
In sum, Petitioner defaulted issues 1, 2, 6, 11, 12, and 14 because they are all records-based
claims that are barred if not raised on direct appeal. Petitioner failed to exhaust and procedurally
defaulted issues 19 - 24 because he failed to raise them properly in state court proceedings.
V. BRADY CLAIM
Petitioner asserts that the State failed to disclose material evidence that was favorable to his
defense. Specifically, he claims that the prosecutor withheld the recordings of two phone calls that
Petitioner made while he was in prison that would have explained the letter that he sent to his aunt.
In the letter to his aunt, Petitioner said, “no witness, no case.” The State introduced the letter as an
admission of guilt. He asserts that had the two phone conversations been turned over to defense and
used at trial, they would have shown that Petitioner was not admitting guilt, but simply repeating
what his attorney had said to him. The letter introduced at trial was a redacted version of Petitioner’s
jailhouse letter to his aunt Marilyn:
Thank you for your call. . . I hope what [MG] said is true, that Glenda [(Petitioner’s
mother-in-law and MG’s grandmother)] doesn’t want me to go to prison. I would
even strike a deal with her if I could just walk away from this. If Glenda said she felt
I didn’t do this, it may help. Not allowing [MG] to testify will totally drop this case.
No witness, no case. I would give up my parental rights to her if she just drop[s] it.
. . . I wish she would just drop it and prevent [MG] from testifying. Said it was a
mistake and it didn’t happen. I would honestly walk away and rebuild my life living in Europe. . . . I would be willing to talk to Glenda if she’s will[ing] to visit we could set terms to agree on. . . . I really hope Glenda will make a deal with me
if she truly feels what I’m led to believe.

Ex parte Galbraith, Application No. 75,459 at 253. Petitioner wholly fails to discuss which
17

information in the phone calls would contradict or explain the letter that he wrote to his aunt. In his
affidavit, Petitioner’s trial counsel discussed this allegation:
A typical example of Galbraith’s attempts to manipulate the system was his “no
witness, no case” mantra. During one of our conversations, when I told him that his
letters were being construed as attempts to tamper with a witness by the State,
Galbraith told me that his daughter (the victim) was simply confused and didn’t want
to testify against her daddy, and that he was simply trying to spare his daughter from
having to testify against him when she didn’t want to. Of course, the victim was in
fairly constant contact with the State, who conveyed to me that the victim was neither
confused nor unwilling to testify. During this conversation, Galbraith asked me if it
was true that if the victim didn’t testify or wasn’t available, if that would mean the
prosecution couldn’t continue. I told him that was possible, but not certain, to which
he responded something to the effect of, “ok, no witness, no case.” My response was
that was not exactly true. Over the course of the rest of my representation, the State
provided me letters written by Galbraith to various witnesses stating that I had told
him “no witness, no case” and that I had told him to tell the witnesses to find ways
to convince the victim not to testify. During trial, Galbraith asked me if I remember
that “no witness, no case” had been my idea, and that he couldn’t be accused of
witness tampering because he was simply relying on my advice. I pointed out that,
unlike Galbraith’s family members, I was not the type of person that would allow
him, because he was smarter than me, to convince me that something had been my
idea when, in fact, that was not true. This was a common theme in my
representation.
Ex parte Galbraith, Application No. 75,459 at 253. The state habeas court also considered this
issue (citations to the record omitted):
As to Applicant’s Ground Three, Applicant sent a letter and made phone calls from
the jail that could be described as attempts to tamper with witnesses, in particular, the
victim, into not testifying through his belief that, without a witness, the State would
not have a case. Further, Applicant knew that his phone calls from the jail could be
recorded and used by the State. . . . The complained-of evidence in Applicant’s
Ground Three was not exculpatory and therefore, not subject to Brady v. Maryland
requirements.

Ex parte Galbraith, Application No. 75,459 at 574, 583. These findings were adopted by the CCA
when it denied Petitioner’s state habeas application. The findings are entitled to a presumption of

18

correctness, which must be rebutted by clear and convincing evidence. Neal, 239 F.3d at 696.
In Brady v. Maryland, the Supreme Court held “that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment.” 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed.2d 215 (1963).
The prosecution “need not disgorge every piece of evidence in its possession . . . [but] has an
affirmative duty to disclose to the defense evidence that is favorable to the accused and material to
guilt.” Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). In addressing a Brady claim, the Fifth
Circuit has explained that a defendant must prove:
(1) the prosecution suppressed evidence;
(2) the suppressed evidence was favorable to the defense; and
(3) the suppressed evidence was material to the defense.
Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991). The test for materiality is whether there is a
“reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. The materiality of the evidence is evaluated in light of
the entire record. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997). The Fifth
Circuit also requires that a petitioner show that “discovery of the allegedly favorable evidence was
not the result of a lack of due diligence. Rector,120 F.3d at 558. The state does not have a duty to
disclose information that is available from other sources. Id. at 559. Additionally, the mere
possibility that a piece of information might have helped the defense does not establish materiality
in the constitutional sense. Id. at 562.
Petitioner has failed to show the substance of the phone calls. Thus, he has not shown that
the evidence was exculpatory. He has failed to identify evidence that was material and favorable to
19

his defense that was suppressed. He has failed to establish the Brady requirements, presenting
nothing other than his conclusory allegation, which is insufficient for habeas relief. Ross v. Estelle,
694 F.2d 1008, 1012 (5th Cir. 1983) (“absent evidence in the record, a court cannot consider a
habeas petitioner’s bald assertions on a critical issue in his pro se petition (in state and federal court),
unsupported and unsupportable by anything else contained in the record, to be of probative
evidentiary value”); United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard,
691 F.2d 796, 799 (5th Cir. 1982).

Moreover, the state habeas court considered this claim and

found that no Brady violation occurred. Petitioner has failed to meet the Brady requirements
showing that the State erred in withholding favorable evidence. Derden, 938 F.2d at 617.
When the CCA denied Petitioner’s state habeas application, it rejected this claim. The
findings are entitled to a presumption of correctness, which must be rebutted by clear and convincing
evidence. Neal, 239 F.3d at 696. He has failed to rebut the presumption of correctness to which the
state findings are entitled. Valdez, 274 F.3d at 947. Petitioner has not shown that the state court
proceedings 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 that the
decision was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103
F.3d at 1224-25. He has not shown that there was no reasonable basis for the state court to deny
relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
VI. ADMISSION OF EVIDENCE
Petitioner alleges that the trial court erred in allowing the introduction of two outcry witness
videos without first establishing the unavailability of the outcry witnesses. However, admission of
20

evidence is a state issue and this court should not review the state court’s interpretation of its own
law. Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995). To obtain relief on a state evidentiary
issue, petitioner must show that the alleged error rendered the trial as a whole fundamentally unfair.
Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir. 1984). To determine whether a trial court error
rendered the trial fundamentally unfair, the test is whether there is a reasonable probability that the
verdict would have been different had the trial been conducted “properly.” Rogers v. Lynaugh, 848
F.2d 606, 609 (5th Cir. 1988). Applying a federal harmless error standard on federal habeas review,
the trial court must have “had substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710, 1722, 123 L. Ed.2d 353
(1993). Under this standard, Petitioner is not entitled to federal habeas relief based on trial error
unless he can establish that the error resulted in actual prejudice. Id., 507 U.S. at 637, 113 S. Ct. at
1722.
The record shows that Julie Kahn, a forensic interviewer with the Children’s Advocacy
Center, said that she interviewed MG. Exhibits 25 and 26 from the State were recordings from MG’s
interview with Kahn. Trial counsel for Petitioner argued that, since MG had already testified,
admitting the videos was the State’s attempt to “bolster” MG’s testimony, in violation of Article
38.072. The State argued that MG’s taped interview was admissible as prior consistent statements.
It was the contention of the State that Petitioner’s cross-examination of MG caused the jury to
believe that MG had changed her story as a result of her conversations with Kahn and law
enforcement. Petitioner’s trial counsel then argued that MG’s statement should not come in as the
outcry statement under 38.072. The trial court overruled Petitioner’s objections.
In the instant petition, Petitioner asserts that the trial court erred in failing to first determine
21

whether MG was unavailable under Rule 38.071 of the Code of Criminal Procedure. However, the
trial court rulings refer to Rule 38.072, which allows the hearsay statements of a child victim to be
introduced at trial, provided the child is available to testify and is tendered without restriction for
cross-examination. See Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim. App. 1990). There are
no references to rule 38.071, which allows a child to testify via videotape or closed-circuit television,
provided the opponent is given the opportunity to conduct cross-examination. Hightower v. State,
822 S.W.2d 48, 53 (Tex. Crim. App. 199). Since MG testified, Rule 38.071 is inapplicable.
Petitioner has failed to show the trial court erred. Even if it had erred, state evidentiary
rulings become matters for federal habeas corpus review only when they are of such magnitude as
to constitute a denial of fundamental fairness under the due process clause. Evans v. Thigpen, 809
F.2d 239, 242 (5th Cir. 1987). Petitioner has failed to show a violation of his due process rights that
rendered the trial “fundamentally unfair.” Bailey, 744 F.2d at 1168. He has failed to show a
violation of his constitutional rights. The state habeas court found that “Applicant’s Ground Four
is a purely statutory claim and is not cognizable on Application for Writ of Habeas Corpus. Ex parte
Pruett, 207 S.W.3d 767 (Tex. Crim. App. 2005).” Ex parte Galbraith, Application No. 75,459 at
575, 583.
When the CCA denied Petitioner’s state habeas application, it rejected this claim. The
findings are entitled to a presumption of correctness, which must be rebutted by clear and convincing
evidence. Neal, 239 F.3d at 696. Petitioner has failed to rebut the presumption of correctness to
which the state findings are entitled. Valdez, 274 F.3d at 947. Petitioner is also not entitled to
relief because he has not shown that the state court proceedings resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
22

determined by the Supreme Court of the United States, or that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
He has failed to show that there was no reasonable basis for the state court to deny relief. Richter,
562 U.S. at 98, 131 S. Ct. at 784.
VII. SEIZURE OF PETITIONER’S LETTER
Petitioner claims that the State violated his Fifth Amendment rights when it seized the letter
that he had written to his aunt while he was incarcerated. The record shows that Billy Cordell, who
is in charge of the inmate mail at Denton County Jail, seized Petitioner’s letter because he thought
that Petitioner was attempting to coerce or tamper with the victim MG. A petitioner’s Fifth
Amendment right attaches to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86
S. Ct. 1602, 1612 (1966). Petitioner’s letter was voluntarily written, without any allegations that law
enforcement made him write it. The state habeas court also considered this issue (citations to the
record omitted):
11.

As to Applicant’s Ground Five, Applicant wrote a letter from jail in which
he attempted to keep the victim witness from testifying. Applicant wrote this
letter on his own, without prompting from law enforcement, and not in
response to any law enforcement question.
***

11.

The admission of the complained-of evidence in Applicant’s Ground Five did
not violate Applicant’s Fifth Amendment rights. Miranda v. Arizona, 384
U.S. 436, 442-57 (1966).

12

No search warrant or probable cause was required to confiscate the letter
Applicant mailed from the jail. Hightower, 629 S.W.2d at 920.

13.

The confiscation of the letter related to a reasonable security purpose in the
23

jail in which Applicant was incarcerated. Id.; Martinez v. U.S., 416 U.S. 396,
412-13 (1979).
14.

No Fourth Amendment seizure took place when the letter was forwarded to
the District Attorney, because the letter was voluntarily written by Applicant,
no threat or coercion was used to obtain it, and it was taken pursuant to
reasonable regulations designed to promote the discipline of the incarcerating
institution. See Stroud v. U.S., 251 U.S. 15, 21-22 (1919).

Ex parte Galbraith, Application No. 75,459 at 575, 583-84. When the CCA denied Petitioner’s
state habeas application, it rejected this claim. The findings are entitled to a presumption of
correctness, which must be rebutted by clear and convincing evidence. Neal, 239 F.3d at 696.
Petitioner has failed to rebut the presumption of correctness to which the state findings are entitled.
Valdez, 274 F.3d at 947. Petitioner is also not entitled to relief because he has not shown that the
state court proceedings 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 that the decision was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 151718; Childress, 103 F.3d at 1224-25. He has failed to show that there was no reasonable basis for
the state court to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
VIII. COURT’S CHARGE
Petitioner complains that the court’s charge allowed a conviction based upon a disjunctive
finding between two separate offenses. He claims that the court’s charge to Count I gave the jury
the option to convict if it found either “genital to genital” contact or “genital to anus” contact.
However, Petitioner is mistaken. The charge read:
Now, if you find from the evidence beyond a reasonable doubt that on or about the
24

1st day of December, 2006, in Denton County, Texas, the Defendant, JOHN PAUL
GALBRAITH, did then and there intentionally or knowingly cause the sexual organ
of said [MG], a child younger than 14 years of age who was not the spouse of said
defendant, to contact the sexual organ of the defendant; then you will find the
defendant guilty of Aggravated Sexual Assault, as charged in Count I of the
indictment.
Clerk’s Record at 112. Count I says nothing about anal contact. The state habeas court considered
this issue (citations to the record omitted):
14.

As to Applicant’s Ground Eight, both the original indictment and the
amended indictment charged Applicant with two counts of aggravated sexual
assault and two counts of indecency with a child. Contrary to Applicant’s
claim, the application paragraphs of the jury charge allowed the jury to reach
a finding of guilt only if the jury found that Applicant contacted the “sexual
organ” of his victim, and not the anus. The jury could not have found
Appellant guilty if they believed Applicant had contacted his victim’s anus,
and not her sexual organ.
***

18.

There was no variance between the pleading and the proof required for a
finding of guilt and there was no possibility for a less-than-unanimous
verdict.

Ex parte Galbraith, Application No. 75,459 at 576, 584. When the CCA denied Petitioner’s state
habeas application, it rejected this claim. The findings are entitled to a presumption of correctness,
which must be rebutted by clear and convincing evidence. Neal, 239 F.3d at 696. Petitioner has
failed to rebut the presumption of correctness to which the state findings are entitled. Valdez, 274
F.3d at 947. Petitioner is also not entitled to relief because he has not shown that the state court
proceedings 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 that the
decision was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103
25

F.3d at 1224-25. He has failed to show that there was no reasonable basis for the state court to deny
relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
IX. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner claims, in numerous grounds for relief, that his trial counsel was ineffective.
Legal Standard
A petitioner who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
F.3d 662, 667 (5th Cir. 1995). In order to succeed on a claim of ineffective assistance of counsel,
a petitioner must show that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
rendered assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L.
Ed.2d 864 (1984). The standard requires the reviewing court to give great deference to counsel’s
performance, strongly presuming counsel exercised reasonable professional judgment. Id., 466 U.S.
at 690, 104 S. Ct. at 2066.

The right to counsel does not require errorless counsel; instead, a

criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389
(5th Cir. 1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio,
736 F.2d 279 (5th Cir. 1984). Secondly, the 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Petitioner must “affirmatively prove,”
not just allege, prejudice. Id., 466 U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice
component, the court need not address the question of counsel's performance. Id., 466 U.S. at 697,
26

104 S. Ct. 2052.
Failure to Object
Trial counsel’s failure to object does not constitute deficient representation unless a sound
basis exists for objection. See Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or
meritless objection cannot be grounds for a finding of deficient performance). Even with such a
basis, however, an attorney may render effective assistance despite a failure to object when the
failure is a matter of trial strategy. See Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993) (noting
that a failure to object may be a matter of trial strategy as to which courts will not second guess
counsel). To succeed on such a claim, a petitioner must show that the trial court would have
sustained the objection and that it would have actually changed the result of his trial. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068. Failure to make frivolous objections does not cause counsel’s
performance to fall below an objective level of reasonableness. See Green v. Johnson, 160 F.3d
1029, 1037 (5th Cir. 1998). On habeas review, federal courts do not second-guess an attorney’s
decision through the distorting lens of hindsight, but rather, the courts presume that counsel’s
conduct falls within the wide range of reasonable professional assistance and, under the
circumstances, that the challenged action might be considered sound trial strategy. Strickland, 466
U.S. at 689, 104 S. Ct. at 2065.
Failure to Object to the State’s Seizure of Petitioner’s Letter Written to his Aunt
Petitioner alleges that his trial counsel was ineffective for failing to object to the admission
of the letter that he wrote to his aunt in which he said, “no witness, no case.” Counsel objected to
the letter on the grounds that it had been improperly authenticated. The trial court overruled his
objection.
27

The seizure of jailhouse letters does not violate the Fourth Amendment, Busby v. Dretke, 359
F.3d 708, 715-16 (5th Cir. 2004), nor does it violate state law, Hightower v. State, 629 S.W.2d 920,
925 (Tex. Crim. App. 1981). Furthermore, this is another complaint concerning a state law error as
to the admission of evidence, which does not implicate constitutional rights. McGuire, 502 U.S.
at 67-68, 112 S. Ct. 480. The state habeas court considered this issue (citations to the record
omitted):
13.

As to Applicant’s Ground Seven, the sponsoring witness to the personal letter
that Applicant mailed from jail testified that as part of the jail’s monitoring
of inmate mail, which is routinely done with all mail, he saw Applicant’s
letter, which caused him to become concerned about witness tampering. The
letter was forwarded to the district attorney. No threats or coercion were used
to obtain the letter. The Denton County Jail has reasonable regulations
regarding the reading of outgoing inmate mail that are designed to promote
the discipline of that institution.
***

17.

Applicant has not demonstrated by a preponderance of the evidence on any
of his ineffective assistance claims that counsel’s conduct fell below an
objective standard of reasonableness or that this incompetence caused the
defendant prejudice. Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim.
App. 2006).

Ex parte Galbraith, Application No. 75,459 at 576, 584. Petitioner has failed to show that the trial
court would have sustained the objection and that it would have actually changed the result of his
trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

He has also failed to show deficient

performance, or that there is a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. He has has failed to rebut the presumption of correctness to which the state findings are
entitled. Valdez, 274 F.3d at 947. Petitioner is not entitled to relief for the additional reason that

28

he has not shown that the state court proceedings 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 that the decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at
402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.

He has failed to show that there

was no reasonable basis for the state court to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
Failure to Object to Prosecutor’s Comments
Petitioner claims that trial counsel was ineffective when he failed to object when the
prosecutor called him a “child molester,” and when he referred to Petitioner’s failure to testify. A
review of the record shows that the prosecutor asked the venire whether they could give Petitioner
probation after a finding of guilt. Specifically, he said, “Is everybody sitting there thinking, whoa,
I’m not going to give probation to a child molester?” Transcript of Trial vol. 2 at 70, Galbraith.
Petitioner fails to identify a particular comment concerning his failure to testify. Conclusory claims
are insufficient to entitle a habeas corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691
F.2d at 799. This issue was considered in Petitioner’s state habeas proceedings (citations to the
record omitted):
15.

As to Applicant’s Ground Nine, the transcript of voir dire does not show that
the State’s counsel referred to Applicant as a “child molester.” Rather, in the
one instance in which the prosecutor used that term, it was in a global fashion
not directed at Applicant, asking the members of the venire panel whether
they could consider the full range of punishment in the case. The trial court
did not find the tone or substance of the prosecutor’s objectionable and would
have corrected the problem had the tone of the prosecutor been such that she
was referring to Applicant himself. Further, the trial court has known the
prosecutor, Karen Anders, professionally for several years and knows her to
be a consummate professional who does not resort to such tactics as
Applicant alleges. Thus, the trial court does find Applicant’s contentions in
29

Ground Nine lacking in credibility.
16.

Also in regard to Applicant’s Ground Nine, the record does not reveal any
instance in which the State referred to Applicant’s failure to testify during
closing argument or at any other point in the trial. In fact, the record
demonstrates that during the time at which the allegedly improper referral to
Applicant’s failure to testify was made, State’s counsel was rebutting
Applicant’s closing arguments and making clear that Applicant had engaged
in manipulation of his victim in an attempt to prevent her from testifying, not
referring to Applicant’s failure to testify.

Ex parte Galbraith, Application No. 75,459 at 576-77. In his affidavit filed in the state habeas
proceedings, trial counsel stated, “I did not object to the comments made on voir dire because I did
not find them objectionable and, in fact, would have used the same language to gauge the jury’s
ability to consider the full range of punishment.” Id. at 258. Petitioner has failed to show that the
trial court would have sustained the objection and that it would have actually changed the result of
his trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

He has failed to overcome the

presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Petitioner has failed to show deficient
performance, or that there is a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. He has also has failed to rebut the presumption of correctness to which the state findings
are entitled.

Valdez, 274 F.3d at 947.

Finally, Petitioner has not shown that there was no

reasonable basis for the state court to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
Failure to Object to Introduction of Audio Recording of Jailhouse Phone Sex
Petitioner complains that trial counsel failed to protect his rights to due process. Specifically,
he argues that counsel failed to properly object when the prosecution introduced the tape of

30

Petitioner and his girlfriend engaging in phone sex while Petitioner was being held in the Denton
County Jail. He asserts that the tape was not properly authenticated and was admitted to bolster the
credibility of witnesses.
Again, this is another complaint concerning a state law error of evidence admissibility, and
does not implicate constitutional rights. McGuire, 502 U.S. at 67-68, 112 S. Ct. at 480. The state
habeas court considered this issue (citations to the record omitted):
17.

As to Applicant’s Ground Ten, the sponsoring witness to the telephone call,
Kimberly McDaniel, was a previous victim of sexual assault at the hands of
Applicant and was very familiar with him. McDaniel testified that she was
familiar with Applicant’s voice, had listened to the recording prior to
testifying, and believed the voice on the recording to be Applicant’s voice.
The jury could reasonably believe that she was familiar with Applicant’s
voice given the entire force of her testimony.
***

20.

The audio recording of Applicant’s phone call from jail to his fiancé was
properly authenticated because the sponsoring witness properly identified his
voice and the jury reasonably could believe that the evidence had been
properly authenticated. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim.
App. 2007).

Ex parte Galbraith, Application No. 75,459 at 577, 585. The record shows that the recordings were
properly authenticated by one who was familiar with Petitioner’s voice. Further, Deputy Davis
testified that it was Petitioner on the recordings with a girl named, “Inga.” Transcript of Trial vol.
7 at 24-25, Galbraith. Petitioner has failed to show deficient performance.
Furthermore, Petitioner fails to identify the witnesses to whom he is referring when he claims
that the State was allowed to “bolster the credibility of its witness and taint the jury” with recordings
that are not criminal in nature. Federal courts do not “consider a habeas petitioner’s bald assertions
on a critical issue in his pro se petition . . . mere conclusory allegations do not raise a constitutional
31

issue in a habeas proceeding.” Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (quoting
Ross, 694 F.2d at 1011-12. (5th Cir. 1983)). Conclusory claims are insufficient to entitle a habeas
corpus petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. The prosecution has
great latitude during punishment as to what it can introduce. Tex. Code Crim. Proc. art. 37.07 § 3.
Petitioner has failed to show a constitutional violation based on the playing of the tape.
Petitioner has failed to overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065. He has failed to show deficient performance, or that there is a reasonable probability that,
but for counsel’s alleged unprofessional errors, the result of the proceeding would have been
different.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has also has failed to rebut the

presumption of correctness to which the state findings are entitled. Valdez, 274 F.3d at 947. He
has failed to show that there was no reasonable basis for the state court to deny relief. Richter, 562
U.S. at 98, 131 S. Ct. at 784.
Failure to Effectively Argue for Severance
In Issue 13, Petitioner claims that trial counsel failed to argue how Petitioner would be
prejudiced by the joinder of the cases. A review of the record shows that the trial court granted the
state’s motion to consolidate the cases concerning TP and MG. Trial counsel filed a motion to sever,
arguing that the cases were “not factually related,” and happened in two different places, done in
“different manner and means.” Transcript of Trial vol. 2 at 10-11, Galbraith. The trial court denied
the motion.
This issue was raised on direct appeal. The appellate court concluded that the allegations in
the related case were admissible to refute the theory that the victims’ stories were influenced by other
32

people. The appellate court also noted that the consolidation did not interfere with trial counsel’s
ability to defend Petitioner against MG’s allegations.
Because the appellate court found the consolidation of cases to be proper, Petitioner cannot
show that trial counsel’s representation was deficient. He also cannot show prejudice since he was
found “not guilty” of the charges involving TP. The state habeas court also considered this issue and
found (citations to record omitted):
20.

As to Applicant’s Ground Thirteen, Applicant’s main defense at trial, which
he instructed his trial counsel to proceed with, was that MG, his daughter,
was not credible as a witness and victim and was lying about what happened
to her. The trial court finds credible Applicant’s trial counsel’s testimony
that Applicant directed counsel to pursue this defense, and in fact, each
defensive theory and action pursued. Applicant has not presented any
credible evidence that he was prevented from further developing his defense.
Further, during the hearing on Applicant’s Motion to Sever, the trial court
understood Appellant’s counsel to be” making the argument that joinder of
the cases would be unfairly prejudicial, regardless of whether trial counsel
used the words, “unfairly prejudicial.”
***

24.

Applicant’s counsel was not ineffective for failing to argue how joinder
would have been prejudicial, because such an argument would have been
futile due to the meritlessness of the underlying clam that joinder was
prejudicial. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833; Ex parte
Martinez, 195 S.W.3d at 721.

Ex parte Galbraith, Application No. 75,459 at 578, 585. Petitioner has failed to show that the trial
court would have sustained the objection and that it would have actually changed the result of his
trial. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has failed to show deficient performance,
or that there is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He
has also has failed to rebut the presumption of correctness to which the state findings are entitled.
33

Valdez, 274 F.3d at 947. In each of his failure-to-object issues, Petitioner is not entitled to relief
for the additional reason that he has not shown that the state court proceedings 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 that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
He has failed to show that there was no reasonable basis for the state court to deny relief. Richter,
562 U.S. at 98, 131 S. Ct. at 784.
Failure to Interview Defense Witnesses
Petitioner claims that his trial counsel failed to interview defense witnesses. He submitted
affidavits from the following: Carolyn Galbraith, his mother; James Robert Galbraith, his brother;
Diane Davis-Tarvin, a friend of the family; Thomas Sean Martin, a friendly of the family; Cheryl
Ann Bryant, the children’s babysitter; and Marilyn Gibson, Petitioner’s aunt who received the
jailhouse letter. Each affidavit was presented to the state habeas court except for the one from his
brother, James Robert Galbraith. The court notes that the affidavit from James Galbraith is
unsigned, and it is new evidence not presented to the state habeas court; thus, it cannot be considered
in this action. Pinholster, — U.S. —, 131 S. Ct. at 1398.
As it concerns the other affidavits, most of their testimony was going to be that Petitioner had
a bad relationship with his mother-in-law, Glenda David. Trial counsel noted that “the only
information our witnesses could provide were stories of the many times in the past the grandmother
had let people know she didn’t like Galbraith.” Ex parte Galbraith, Application No. 75,459 at 284.
“We couldn’t even find a witness that could give an objective opinion that this grandmother was of
34

a character anywhere close to the type that would coach a child to make such a horrible accusation
against an innocent man.” Id. Trial counsel investigated the witnesses Petitioner asked him to, and
determined that their testimony would not be helpful to defense.
“[C]omplaints of uncalled witnesses are not favored, because the presentation of testimonial
evidence is a matter of trial strategy and because allegations of what a witness would have testified
are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). Further, the
presentation of witness testimony is essentially strategy and, thus, within the trial counsel’s domain.
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.1985). A petitioner must overcome a strong
presumption that his counsel’s decision in not calling a particular witness was a strategic one.
Murray v. Maggio, Jr., 736 F.2d 279, 282 (5th Cir. 1984). Where “the only evidence of a missing
witness's testimony is from the defendant,” claims of ineffective assistance are viewed with great
caution. United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.1983), cert. denied, 467 U.S. 1251,
104 S. Ct. 3534, 82 L. Ed.2d 839 (1984).
The fact that Petitioner had a poor relationship with MG’s grandmother does not establish
that the grandmother convinced MG to lie. Trial counsel made a conscious and strategic decision
not to pursue this particular trial strategy. On habeas review, federal courts do not second-guess an
attorney’s decision through the distorting lens of hindsight, but rather, the courts presume that
counsel’s conduct falls within the wide range of reasonable professional assistance and, under the
circumstances, that the challenged action might be considered sound trial strategy. Strickland, 466
U.S. at 689, 104 S. Ct. 2065. Trial counsel’s strategic choices are virtually unchallengeable after a
thorough investigation into the law and relevant facts are made. Strickland, 466 U.S. at 690, 104 S.
Ct. at 2066. Petitioner has failed to overcome the presumption that, under the circumstances, the
35

challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065.

He has also failed to prove that there is a reasonable probability that, but for counsel’s

alleged unprofessional errors, the result of the proceeding would have been different. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.
Petitioner raised this issue in his state habeas proceedings. In response to his allegations, trial
counsel filed an affidavit addressing his complaints. The state habeas court considered the issue
(citations to the record omitted):
22.

As to Applicant’s Ground Seventeen, the court finds credible the affidavit of
Applicant’s trial counsel, Derek Adame, and further finds the affidavits
presented by Applicant not credible. The court finds that given the evidence
in the record showing that Applicant attempted to manipulate witness
testimony, the affidavits produced in his Application for Writ of Habeas
Corpus lack credibility and do not comport with the credible facts relayed by
defense counsel in his affidavit. Applicant attempted to manipulate witnesses
into not testifying and even asked trial counsel to admit that he was
ineffective. When told by trial counsel that his phone calls from the jail were
being recorded, Applicant’s response was to actually escalate his
manipulative behaviors.

23.

Further, in regard to Applicant’s Ground Seventeen, the Court finds that
defense counsel met with many potential witnesses and thoroughly
investigated Applicant’s case. However, none of these potential witnesses
could testify to any personal knowledge of the sexual assault, because the acts
were alleged to have occurred in a locked bedroom where only Applicant and
his daughter were present. None of the names on the list of potential
witnesses provided by Applicant’s family were people who could testify that
the allegations were untrue.

24.

Further, in regard to Applicant’s Ground Seventeen, the Court finds that at
trial, Applicant instructed trial counsel in how to conduct his crossexaminations and in which witnesses to call. Each and every one of these
decisions was vetted through Applicant. Before passing witnesses, trial
counsel would ask Applicant if he wanted counsel to ask any other questions.
Trial counsel asked Applicant which ones he wanted counsel to call to testify,
and Applicant instructed counsel which ones to call and which ones not to
call.
36

25.

Applicant has not presented any credible evidence of what other witnesses
would have testified to that would have resulted in a different verdict or
punishment. Although Applicant argues that these witnesses would have
been able to testify that Applicant’s daughter had been manipulated and
coerced into making her allegations of sexual abuse, there is no credible
evidence that this is true. Trial counsel met with Applicant’s potential
witnesses, diligently, and discovered as part of trial strategy that they would
not have been favorable witnesses for Appellant.

26.

The Court has known Applicant’s trial counsel, Derek Adame, professionally
for many years now and finds him to be a highly competent and thorough
attorney. The Court finds that none of Applicant’s allegations of failure to
investigate or call witnesses are credible. The Court further finds that the
overall performance of trial counsel and appellate counsel’s representation of
Applicant was thorough, competent, and of high quality.

Ex parte Galbraith, Application No. 75,459 at 579-581. Petitioner has failed to overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. He has not shown deficient performance,
or that there is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He
has also has failed to rebut the presumption of correctness to which the state findings are entitled.
Valdez, 274 F.3d at 947. Petitioner has failed to show that there was no reasonable basis for the
state court to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
“Belittling” of Petitioner
Petitioner claims in his 18th issue that trial counsel yelled at, cursed at, and belittled him in
the presence of the jury during a recess. This event happened after the prosecution played the
recording of his phone sex sessions with his fiancé while he was in the Denton County Jail.
However, he has offered nothing other than conclusory allegations and bald assertions, which are

37

insufficient to support a petition for a writ of habeas corpus. Woods, 870 F.2d at 288; Schlang, 691
F.2d at 799.
In response to this issue being raised in the state habeas proceedings, trial counsel addressed
it in his affidavit:
As to the allegation . . . that I berated him within earshot of the jury, this is once
again a complete falsehood. . . . During the punishment portion of the trial, the State
offered a taped phone conversation Galbraith had from the jail with his fiancé, which,
if memory serves, had occurred only days before possibly during the trial itself.
What occurred on that phone call can only be described as “phone sex.” . . . I can
safely say that in my sixteen years of trying criminal jury trials, I have never had an
experience like the one I had watching the jury’s collective reaction as they listened
to this tape. When the tape was over, the judge excused the jury from the courtroom
for a break, and I followed Galbraith into the holding cell. This is apparently where
I am alleged to have screamed at him in front of the jury. . . . Galbraith asked me
what I thought, I told him I thought the trial was over. I told him that judging by the
jury’s reaction to the tape, we would be lucky to end up with anything other than a
life sentence. I did not lose my temper with him; there wasn’t any point. I did tell
him that what he had done had been colossally stupid, especially since he knew all
his calls were being recorded. . . . I left the holding cell . . . to speak to Galbraith’s
family. They were visibly upset by both what they had heard on the tape and by the
obvious effect it had on the jury. . . . I told them something to the effect that I had “let
him have it” for doing something that stupid. No one was present in or near the
holding cell to hear our conversation, and the only reason Galbraith’s family knew
that we had discussed the issue is because I told them. The assertion that this
conversation happened in earshot of the jury, or anyone else for that matter, is a
complete fabrication.
Ex parte Galbraith, Application No. 75,459 at 256-58. The state habeas court considered the issue
(citations to record are omitted):
27.

As to Applicant’s Ground Eighteen, during the punishment phase of the trial,
the State offered a recorded telephone “phone sex” conversation Applicant
had from the jail with his fiancé that had occurred only days before, which
was later admitted into evidence. After the recording was played for the jury,
the Court excused the jury from the courtroom for a break, and trial counsel
and Applicant went in to the holding cell adjacent to the courtroom.

28.

At one end of the courtroom, next to the jury box, is a door that leads back
38

to the jury room. On the other side of the courtroom, next to defense
counsel’s table, is a door leading to the holding cell. When people are in the
jury room and the holding cell, they are separated by approximately 30 yards
of courtroom, offices, elevator shafts, hallways, and walls made of brick and
concrete. When people are in the holding cells and the courtroom gallery,
they are separated by a solid metal door, bulletproof glass, a hallway, and a
heavy wooden door leading to the courtroom. Thus, it is impossible to hear
conversations between the jury room and the holding cells. It is very difficult
to hear even muffled conversations if two people are speaking in loud tones
when each of the two doors to the holding cell are cracked.
29.

It is standard practice in Denton County never to move a defendant on trial
between the holding cell and the courtroom if the jury is in the jury box. This
procedure was adhered to in Applicant’s trial.

30.

After the jury was taken out for their break, and the courtroom was cleared,
trial counsel followed Applicant into the holding cell and the doors were
closed behind them. None of the conversation between Applicant and his
attorney was able to be heard by the jury, as the jury had already been led out
of the courtroom. This Court finds Applicant’s assertions that trial counsel
was yelling and belittling him are false.

Ex parte Galbraith, Application No. 75,459 at 581-582. Petitioner has offered nothing to overcome
the state habeas court’s findings of fact that “it is impossible to hear conversations between the jury
room and the holding cells,” and that “[n]one of the conversation between Applicant and his attorney
was able to be heard by the jury.” Ex parte Galbraith, Application No. 75,459 at 582.
Petitioner has failed to show deficient performance, or that there is a reasonable probability
that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has also has failed to rebut the
presumption of correctness to which the state findings are entitled.

Valdez, 274 F.3d at 947.

Petitioner is not entitled to relief for the additional reason that he has not shown that the state court
proceedings 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 that the
39

decision was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103
F.3d at 1224-25. He has failed to show that there was no reasonable basis for the state court to deny
relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
Claims of Ineffective Assistance of Counsel on Appeal
Petitioner also claims that his appellate counsel was ineffective in several instances. The
Fifth Circuit has held that to prevail on a claim of ineffective assistance of counsel on appeal, the
petitioner must make a showing that had counsel performed differently, there would have been
revealed issues and arguments of merit on the appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir.
1991), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065, 80 L. Ed.2d 864
(1984). In a counseled appeal after conviction, the key is whether the failure to raise an issue worked
to the prejudice of the defendant. Sharp, 930 F.2d at 453. This standard has been affirmed by the
Supreme Court. See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed.2d 756
(2000) (holding that the petitioner must first show that his appellate attorney was objectively
unreasonable in failing to find arguable issues to appeal, and also a reasonable probability that, but
for his counsel’s unreasonable failure to file a merits brief raising these issues, he would have
prevailed on his appeal). See also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed.2d
389 (2000); Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
Furthermore, an appellate counsel’s failure to raise certain issues on appeal does not deprive
an appellant of effective assistance of counsel where the petitioner did not show trial errors with
arguable merit. Hooks v. Roberts, 480 F.2d 1196, 1198 (5th Cir. 1973). Appellate counsel is not
required to consult with his client concerning the legal issues to be presented on appeal. Id. at 1197.
40

An appellate attorney’s duty is to choose among potential issues, using professional judgment as to
their merits – every conceivable issue need not be raised on appeal. Jones v. Barnes, 463 U.S. 745,
749, 103 S. Ct. 3308, 3311-12, 77 L. Ed.2d 987 (1983).
Failure to Raise Factual Sufficiency on Appeal
Petitioner asserts that his appellate counsel was ineffective for failing to argue that the
evidence was factually insufficient to support the conviction. Specifically, he claims that MG’s
testimony was inconsistent, and there was no physical evidence of abuse.
A federal habeas corpus court reviewing a petition under 28 U.S.C. § 2254 asks only whether
a constitutional violation infected the petitioner’s state trial. See Estelle v. McGuire, 502 U.S. 62,
67-68, 112 S. Ct. 475, 480, 116 L. Ed.2d 385 (1991); Pemberton v. Collins, 991 F.2d 1218, 1233
(5th Cir. 1993). The Texas factual-sufficiency standard of review is based on state law. See Clewis
v. State, 922 S.W.2d 126, 131-34 (Tex. Crim. App. 1996). A federal habeas court does not sit as a
super state supreme court for review of issues decided by state courts on state law grounds. Smith
v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986). On federal habeas corpus review, the evidentiary
sufficiency of a state court conviction is governed by the legal-sufficiency analysis set forth in
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979), which reflects the federal
constitutional due process standard. See Woods v. Cockrell, 307 F.3d 353, 358 (5th Cir. 2002); West
v. Johnson, 92 F.3d 1385, 1394 (5th Cir. 1996)(explaining that, “in challenges to state convictions
under 28 U.S.C. § 2254, only Jackson need be satisfied, even if state law would impose a more
demanding standard of proof”) (quotation and citations omitted). Because a challenge to the factual
sufficiency of the evidence does not implicate a constitutional issue, federal habeas corpus review
is unavailable for this claim.
41

Failure to Raise Legal Sufficiency on Appeal and Issues of Merit
Next, Petitioner claims that appellate counsel was ineffective for failing to argue that the
evidence was legally insufficient. He also faults appellate counsel for failing to raise meritorious
issues. According to Petitioner, appellate counsel could have argued that BG lied on the witness
stand. He contends that appellate counsel could also have argued that the trial court abused its
discretion in allowing inadmissible testimony – MG’s testimony – to be introduced through another
witness without first determining whether MG was available to testify. He complains that the
prosecutor used leading questions, and that the State’s expert witness testified to unreliable scientific
theories and bolstered MG’s testimony. He also thought appellate counsel could have argued that
his letter was seized without probable cause, the State withheld exculpatory evidence, there was no
physical evidence of abuse, and the testimony was inconsistent.
As noted above, Jackson is used for evaluating the legal sufficiency of the evidence. Under
Jackson, the reviewing court determines “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, 99 S. Ct. at 2789. In conducting that
review, a federal habeas corpus 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. See Weeks
v. Scott, 55 F.3d 1059, 106 (5th Cir. 1995).
The State was required to establish that Petitioner intentionally or knowingly caused MG’s
sexual organ to contact with Petitioner’s sexual organ when MG was under the age of 14 to prove
Petitioner’s guilt of Count I. Tex. Penal Code Ann §22.021(a)(1)(B)(iii), (a)(2)(B) (West 2006).
To prove Count II, the State was required to establish that Petitioner intentionally or knowingly
42

caused MG’s mouth to contact Petitioner’s sexual organ when she was under the age of 14. Id.
§ 22.021(a)(1)(B)(v), (a)(2)(B). The State was required to establish that Petitioner intentionally and
knowingly engaged in sexual contact with MG, a child younger than 17, by causing MG to touch his
genitals to prove Petitioner’s guilt of Count III. Id. § 21.11(a)(1), (c). To prove Count IV, the State
had to establish that Petitioner intentionally and knowingly engaged in sexual contact with MG, a
child younger than 117, by touching MG’s genitals. Id. § 22.11(a)(1), (c). The requisite mental
state for indecency with a child may be inferred from the defendant’s conduct, remarks, and all
surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981).
A review of the record shows that MG, who was 10 years old at the time of trial, testified that
Petitioner touched her “privates” with his hand, he “put his penis” in her front part, and made her
put her mouth on his “thing.” Transcript of Trial vol. 3 at 73-107, Galbraith. This testimony
establishes the proof necessary. Thus, any argument appellate counsel would have advanced in this
vein would have been frivolous. Counsel cannot be held to be ineffective for failing to argue
frivolous claims. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Moreover, the state habeas
court considered this issue and found, “Applicant has failed to show by a preponderance of the
evidence that appellate counsel was ineffective for failing to raise factual and legal insufficiency
points of error; bare assertions and conflicting evidence are not enough to prevail on insufficiency
claims. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000); Jackson v. Virginia, 443 U.S. 307,
326 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).” Ex parte Galbraith,
Application No. 75,459 at 586.
Petitioner has failed to show that his appellate attorney was objectively unreasonable in
failing to find arguable issues to appeal. He has also failed to show a reasonable probability that, but
43

for his counsel’s alleged unreasonable failure to file a merits brief raising these issues, he would have
prevailed on his appeal. Robbins, 528 U.S. at 285, 120 S. Ct. at 764. He has failed to show deficient
performance, or that there is a reasonable probability that, but for counsel’s alleged unprofessional
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. Petitioner has also failed to show that there was no reasonable basis for the state court
to deny relief. Richter, 562 U.S. at 98, 131 S. Ct. at 784.
X. CONCLUSION
Petitioner failed to exhaust several claims and they are now barred from federal habeas
review. He has not shown that the State failed to disclose exculpatory evidence or that the trial court
erred in admitting evidence. He has failed to show that alleged trial court errors “had substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637-38, 113
S. Ct. 1721-22. Petitioner failed to show that his letter was seized in violation of his constitutional
rights or that the court’s charge was improper. He has failed to prove that there is a reasonable
probability that, but for trial and/or appellate counsel’s alleged unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has
also failed to overcome the presumption that, under the circumstances, the challenged actions of his
trial counsel might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065.
Further, in each of his claims, Petitioner has failed to rebut the presumption of correctness owed to
the trial court’s factual findings with clear and convincing evidence to the contrary. Valdez, 274 F.3d
at 947.
In sum, Petitioner has not shown that the state court proceedings resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established federal law, as
44

determined by the Supreme Court of the United States, or that the decision was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. Williams, 529 U.S. at 402-03, 120 S. Ct. at 1517-18; Childress, 103 F.3d at 1224-25.
He has failed to show that there was no reasonable basis for the state court to deny relief. Richter,
562 U.S. at 98, 131 S. Ct. at 784. Accordingly, his petition should be denied and his case dismissed.
.

It is therefore
ORDERED that the petition for a writ of habeas corpus is DENIED and Petitioner’s case
is DISMISSED with prejudice. It is further
ORDERED that all motions not previously ruled on are hereby DENIED.
SIGNED this 1st day of April, 2015.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

45