Dolph v. Stephens, Director TDCJ-CID

Filing 33

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION for 29 Report and Recommendations. Signed by District Judge Rodney Gilstrap on 11/3/2017. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
MARK ANTHONY DOLPH

§

VS.

§

DIRECTOR, TDCJ-CID

§

CIVIL ACTION NO. 5:14cv163

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Mark Anthony Dolph, proceeding pro se, filed the above-styled petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a conviction for unlawful possession of
a firearm by a felon.
The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate
Judge, for consideration pursuant to 28 U.S.C. § 636 and applicable orders of this court. The
Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge
recommending the petition be denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and
Recommendation. The Court must therefore conduct a de novo review of the objections in light of
the record and the applicable law.
Petitioner asserted the following grounds for review: (1) there was insufficient evidence he
knowingly, intelligently and voluntarily waived his right to counsel; (2) the trial court erred in
concluding his Miranda rights were not violated; (3) his indictment was defective; (4) his indictment
contained an improper enhancement paragraph; (5) he received ineffective assistance of counsel at
trial because counsel: (a) failed to object to the jury charge and (b) failed to investigate an improper
enhancement paragraph in the indictment; and (6) he received ineffective assistance of counsel on
appeal because appellate counsel failed to argue there was insufficient evidence to support the
verdict. Petitioner only objects to the Magistrate Judge’s conclusion regarding his first, second,
fourth, fifth and sixth grounds for review.

Ground for Review 1
Petitioner contends there was insufficient evidence that he knowingly, intelligently and
voluntarily waived his right to counsel. He asserts the trial court failed to admonish him regarding
the nature of the charge against him, the statutory offense included within it, the range of allowable
punishment, the possible defenses to the charge and any mitigating circumstances.
Petitioner raised this ground for review on direct appeal. The intermediate appellate court
stated that Derric McFarland, a public defender, was appointed to represent petitioner. However, on
the day of jury selection, petitioner informed the court he wished to represent himself. In allowing
Dolph to represent himself, the trial court determined petitioner’s level of education and his mental
competency and warned him that he would be required to comply with the applicable rules of
evidence and procedure. In rejecting this ground for review, the intermediate appellate court stated:
We find that the record contains proper admonishments concerning pro se
representation and all necessary inquiries to enable the trial court to assess Dolph’s
knowing exercise of the right to defend himself. Dolph’s persistence in asserting his
right of self-representation despite the court’s admonishments was all that was
required in order for the court to determine that the assertion was made purposefully.
Dolph’s only complaint, then, is that there is “insufficient evidence that Appellant
knowingly, intelligently, and voluntarily waived his right to counsel.” He asserts that
“the admonishments that were crucial to Appellant’s case were those related to the
range of punishment, possible defenses to the statutory offense, and any mitigating
circumstances.”
Dolph complains that “the admonishments that were crucial to [his] case were those
related to the range of punishment, possible defenses to the statutory offense, and any
mitigating circumstances.” To assess whether a waiver [of the right to counsel] is
effective, courts consider the totality of the circumstances. This means that courts
must examine “the particular facts and circumstances surrounding the case, including
the background, experience, and conduct of the accused.”
At a pretrial hearing, the trial court instructed Dolph that he was “charged by
indictment . . . with the unlawful possession of a firearm by a felon, with two prior
felony convictions.” At the time, Dolph, represented by counsel, expressly waived the
reading of the entire indictment. The State explained the range of punishment Dolph
would face at trial:
For the record, Your Honor, the State made an offer to drop Mr. Dolph’s
enhancement paragraphs. He is double enhanced as an habitual offender,
making his punishment range a minimum of 25 years to 99 or life. The State
offered to drop those two enhancement paragraphs and plead Mr. Dolph to
eight years. That offer expired last Friday. The State now makes an offer to
2

plead him to 10 years today. Otherwise, his minimum will be 25 at trial.
McFarland asked Dolph if he understood the statement and the court asked if he
understood the offer. Dolph responded affirmatively. Thus, the record shows that
Dolph was aware of the charges against him as well as the range of punishment.
Although Dolph complains that the trial court failed to admonish him about possible
defenses to the charges and circumstances in mitigation thereof, there is no argument
or evidence that any viable defense or mitigating circumstance existed or that the trial
court had any information regarding possible defenses or mitigating circumstances.
Waiver of counsel is valid only if the defendant has a broad understanding of the
entire matter. Dolph had full knowledge of the proceeding and waived counsel after
extensive warnings informed him of the possible consequences of his choice.
Dolph v. State, 440 S.W.3d 898, 902-06 (Tex.App.–Texarkana 2013).
The Magistrate Judge stated that while a defendant may forego the assistance of counsel and
represent himself, such a choice must be made “knowingly and intelligently.” Faretta v. California,
422 U.S. 806, 835 (1975). The Magistrate Judge found that the trial court: (1) thoroughly reviewed
the issue of self-representation with petitioner; (2) determined why petitioner wanted to represent
himself; (3) found petitioner had a GED and was literate and mentally competent; and (4) explained
that petitioner would have to abide by the applicable rules of procedure and evidence. The Magistrate
Judge also found the intermediate appellate court correctly stated that the trial court informed
petitioner of the charge against him and that the prosecutor informed him of the range of punishment.
She also agreed that the record did not reveal any defenses petitioner might have to the charge against
him or any mitigating circumstances. Accordingly, the Magistrate Judge concluded that the record
demonstrated petitioner knowingly, intelligently and voluntarily chose to represent himself and that
the rejection by the state courts of this ground for review was not contrary to, or an unreasonable
application of, clearly established federal law.
Pursuant to 28 U.S.C. § 2254(d), a federal habeas court may not grant relief with respect to
a ground for review that was adjudicated in state court proceedings unless the adjudication: (1)
resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law or (2) resulted in a decision based on an unreasonable determination of the
facts in light of the evidence presented in state court. An application of clearly established federal
3

law is unreasonable if the state court identified the correct governing legal principle, but unreasonably
applied that principle to the facts. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). In his
objections, petitioner acknowledges the intermediate appellate court identified the correct governing
legal principle with respect to this ground for review. However, he asserts the court unreasonably
applied that principle to the facts of his case.
The Court disagrees. As described in the Magistrate Judge’s Report and Recommendation
and the opinion of the intermediate appellate court, the trial court went to great lengths to ensure that
petitioner’s waiver of his right to counsel was knowing and intelligent, as required by the Supreme
Court. The court determined petitioner was literate and mentally competent. Petitioner was made
aware he would be bound by the rules of evidence and procedure applicable to attorneys and was
warned of the possible dangers of self-representation. He was also made aware of the nature of the
charge against him and the range of punishment to which he was exposed. As a result, the Court is
unable to conclude that the rejection by the state courts of this ground for review was contrary to, or
an unreasonable application of, clearly established federal law.
Ground for Review 2
Officer Kelly Dial testified against petitioner at trial. He stated he observed a vehicle pull into
the parking lot of a store at night. One of the occupants of the vehicle made a hand-to-hand
transaction with a person in the parking lot. The vehicle then left the parking lot without any of the
occupants entering the store. Suspecting drug activity, Officer Dial noticed the vehicle had an expired
tag and made a traffic stop. Petitioner was a passenger in the rear of the vehicle. Officer Dial
testified the driver of the vehicle consented to a search and said there might be some crack cocaine
in a towel in the back seat. After being asked to exit the vehicle, petitioner told Officer Dial there was
a pistol on the back seat that petitioner was holding for a friend.
As his second ground for review, petitioner argues Officer Dial’s testimony concerning his
statement should have been excluded because Officer Dial had not informed him of his rights in
accordance with Miranda v. Arizona, 384 U.S. 436, 444 (1966). The trial court denied petitioner’s
4

request to have the statement excluded because, as a videotape of the traffic stop had already been
shown to the jury, any argument for exclusion based on Miranda had been waived. Petitioner states
this ruling was erroneous because the videotape did not contain his statement about holding the gun
for a friend.
The Magistrate Judge observed that the videotape of the traffic stop was not in the record
before this Court. The Magistrate Judge concluded that even if the trial court erred in concluding that
petitioner’s objection based on Miranda had been waived, the error was harmless. The Magistrate
Judge found that as: (1) Miranda warnings are not required to conduct a traffic stop or detain a person
briefly to investigate circumstances that raise suspicion regarding criminal activity; (2) petitioner was
only placed in handcuffs because there were more suspects at the scene than there were officers and
(3) petitioner was told he was not under arrest, Officer Dial’s questioning of petitioner did not
constitute custodial interrogation. As no Miranda warnings would therefore have been required, there
would have been no basis to exclude Officer Dial’s testimony concerning petitioner’s statement.
In his objections, petitioner argues the trial court erred in finding he had waived any objection
based on Miranda. However, even if this is conceded, the Court agrees with the Magistrate Judge’s
conclusion that such an error was harmless. Miranda only requires that warnings be given before a
a custodial interrogation. Id. Based on the facts of this case, the Magistrate Judge correctly found
petitioner was not in custody when he made the statement described by Officer Dial. Petitioner’s
objections on this point are therefore without merit.1
Ground for Review 4
Petitioner also contends the first enhancement paragraph of his indictment was void because
it did not provide the correct conviction date for the offense described in the paragraph. He states the

1

Petitioner also maintains the trial court failed to comply with certain state statutes and
rules when considering this issue. However, such a claim is not cognizable in this proceeding
because federal courts will not review a state court’s interpretation of its own law in a federal
habeas proceeding. Dickerson v. Guste, 932 F.2d 1142, 1145 (5th Cir. 1991). A federal court
does not “sit as a super state supreme court in [a federal habeas] proceeding to review errors
under state law.” Id.
5

date used in the paragraph, December 18, 1996, was the date on which an order of probation was
entered and that an order of probation is not a final conviction.
The Magistrate Judge concluded this ground for review did not provide petitioner with a basis
for relief. She stated the sufficiency of a state indictment was not a matter for federal habeas reivew
unless the indictment was so defective that the convicting court lacked jurisdiction. She also stated
a federal court need not address the issue if the state courts had held that the indictment was sufficient
under state law. As the Texas Court of Criminal Appeals had denied petitioner’s state application for
writ of habeas corpus, and therefore held that the trial court had jurisdiction, the Magistrate Judge
found the sufficiency of the indictment was not a matter for federal habeas review.
In his objections, petitioner maintains the date set forth in the first enhancement paragraph was
incorrect. As described below, this assertion is correct. However, the Magistrate Judge correctly
concluded that where, as here, the Court of Criminal Appeals had determined the indictment was
sufficient to provide the trial court with jurisdiction, the sufficiency of the indictment is not a matter
for federal habeas review. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994); Yohey v. Collins,
985 F.2d 222, 229 (5th Cir. 1993).
Ground for Review 5(a)
As stated above, petitioner was convicted of possessing a firearm after having been convicted
of a felony. He states counsel should have objected to the lack of a definition for the word “possess”
in the court’s charge to the jury and asked the court to instruct the jury that in order to have possessed
the firearm, he would have had to exercise care, control, custody or management of the firearm.
The Magistrate Judge observed that under Texas law, the prosecution must prove a defendant
exercised actual care, custody, control or management of an object in order to prove a defendant
possessed the object. This standards requires the prosecution to affirmatively link the defendant to
the object.
The jury was told it should find petitioner guilty if it found beyond a reasonable doubt that
petitioner intentionally or knowingly possessed the firearm. The Magistrate Judge found that Officer
6

Dial’s testimony about petitioner confessing to possessing the firearm and holding it for a friend
affirmatively linked petitioner to the firearm and demonstrated he had custody of the firearm. Noting
this was a straightforward case tried on a theory of actual rather than constructive possession, the
Magistrate Judge concluded there was not a reasonable probability the jury would have been confused
by the lack of a definition for the word “possess” or a reasonable probability petitioner would have
been acquitted if the court had defined the word “possess” to mean “actual care, custody, control or
management.” As a result, petitioner did not suffer prejudice because counsel failed to object to the
lack of a definition of the word “possess.”2
Petitioner disagrees. He contends the jury instructions failed to define the main element to
be proved and that there is a reasonable probability the result of the proceeding would have been
different if the term “possess” had been defined as he describes. As a result, he believes counsel was
ineffective for failing to ask the court to define the term “possess” in its instructions.
As described above, Officer Dial testified petitioner admitted he was holding the weapon for
a friend. There was no evidence contradicting this testimony. The jury would have been free to either
believe this testimony and find petitioner guilty or disbelieve this testimony and acquit him. In light
of the straightforward nature of the testimony and the prosecution’s theory of the case, it is almost
impossible to conclude the jury could have believed Officer Dial’s testimony, but nevertheless would
have acquitted petitioner if it had been provided with a definition of the term “possess.” Accordingly,
there is not a reasonable probability the result of the proceeding would have been different if an
explanation had been provided.

2

To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate:
(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s
deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 (1984).
To demonstrate he suffered prejudice, a petitioner must show there is a reasonable probability
that, but for counsel’s deficient performance, there is a reasonable probability the result of the
proceeding would have been different. Day v. Quarterman, 566 F.3d 527, 536 (5th Cir. 2009).
7

Ground for Review 5(b)
As described above, the first enhancement paragraph of petitioner’s indictment stated the
conviction described in the paragraph occurred on January 18, 1996. Petitioner contends this was
actually the date an order of probation was entered, rather than the date of final conviction. Petitioner
maintains counsel was ineffective for failing to conduct an investigation to discover this and bring
it to the court’s attention.
The first enhancement paragraph alleged petitioner was convicted of burglary of a habitation
on January 18, 1996. The respondent concedes this date is incorrect and that petitioner was not finally
convicted of this offense until August 25, 1998.
Despite this concession, the Magistrate Judge concluded counsel’s failure to discover this
error and bring it to the court’s attention did not constitute ineffective assistance of counsel. First,
the Magistrate Judge found that under Texas law, the date of the prior convictions did not need to be
pled in the indictment at all. As a result, counsel’s failure to object to the incorrect date in the
indictment did not constitute deficient performance. Second, the Magistrate Judge observed that
under § 12.42(d) of the Texas Penal Code, a defendant would be classified as a repeat offender and
subject to increased punishment so long as the prosecution demonstrated the defendant had been
previously convicted of two felony offenses and that the second offense occurred after the date on
which the conviction for the first offense became final. The conviction described in the second
enhancement paragraph was based on an offense that occurred on October 26, 2001. This date was
later than the date the conviction described in the first paragraph actually became final, August 25,
1998. As a result, the requirement regarding petitioner’s prior convictions being sequential was
satisfied. The Magistrate Judge therefore found petitioner suffered no prejudice as a result of
counsel’s failure to object to the incorrect date in the first enhancement paragraph.
In his objections, petitioner notes the respondent’s concession that the date in the first
enhancement paragraph was incorrect. He states counsel’s failure to discover the date was incorrect
and call this fact to the court’s attention constituted ineffective assistance of counsel and subjected
8

him to an increased range of punishment.
The Court disagrees.

The Magistrate Judge correctly observed that Texas law does not

require the date of the prior convictions to be set forth in the indictment. Moreover, as the Magistrate
Judge explained, the correct date on which petitioner’s first prior conviction became final satisfies
the sequential requirement set forth in § 12.42(d) because it was earlier than the date on which
petitioner committed his second offense. Counsel’s failure to discover that the date in the first
enhancement paragraph was incorrect and call this to the court’s attention therefore did not constitute
deficient performance and did not cause petitioner to suffer prejudice.
Ground for Review 6
Finally, petitioner asserts appellate counsel was ineffective because he failed to argue there
was insufficient evidence to support the verdict. He contends there was no evidence that he: (a)
exercised actual care, control, or custody of the firearm; (b) was conscious of his connection with it
and (c) possessed the firearm knowingly or intentionally.
Section 46.04(a)(1) of the Texas Penal Code provides that a person commits an offense under
that section if “he possesses a firearm . . . after conviction and before the fifth anniversary of the
person’s release from confinement following conviction of the felony . . . .” The Magistrate Judge
observed that Officer Dial provided the following testimony: (1) petitioner was the only person sitting
in the rear of the vehicle; (2) after being asked whether there was anything illegal in the rear of the
vehicle, petitioner stated there was a pistol in the back seat that he was holding for a friend; (3)
petitioner stated the pistol was next to a towel and that he had previously been convicted of a felony
and (4) a criminal history search revealed petitioner had been convicted of forgery less then five years
prior to the date on which the firearm was discovered. In addition, Officer Alan Scott Eudy testified
that: (1) petitioner was sitting next to a towel in the back seat of the vehicle; (2) a search revealed that
a weapon was under the towel; (3) petitioner stated he was holding the weapon for a friend and
admitted he was a convicted felon and (4) neither of the other passengers claimed ownership of the
weapon. Based on this testimony, the Magistrate Judge concluded there was sufficient evidence to
9

permit a trier of fact to find the elements of the offense beyond a reasonable doubt3 and that counsel’s
failure to raise this ground for review on appeal therefore did not constitute deficient performance and
did not cause petitioner to suffer prejudice.
In his objections, petitioner contends counsel should have asserted the testimony of Officers
Dial and Eudy that petitioner was holding the firearm for a friend was never proven. However, as the
Magistrate Judge stated, credibility choices are for the jury and are to be resolved in favor of the
verdict. Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 1995). The testimony of Officers Dial and
Eudy, in and of itself, constituted sufficient evidence to enable a rational jury to conclude petitioner
admitted he was holding the weapon for a friend and was therefore in possession of the firearm. An
assertion by counsel to the contrary on appeal would have been found to be without merit. The Court
therefore agrees with the Magistrate Judge’s conclusion that counsel’s failure to assert this ground
for review on appeal did not constitute ineffective assistance of counsel.
ORDER
Accordingly, petitioner’s objections are OVERRULED. The findings of fact and conclusions
of law of the Magistrate Judge are correct and the Report of the Magistrate Judge is ADOPTED as
the opinion of the Court. A final judgment shall be entered in accordance with the recommendation
of the Magistrate Judge.
In addition, petitioner is not entitled to a certificate of appealability. An appeal from a
judgment denying federal habeas relief may not proceed unless a certificate of appealability is issued.
See U.S.C. § 2253. The standard for a certificate of appealability requires the petitioner to make a
substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S.
473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial
showing, the petitioner need not demonstrate he would prevail on the merits. Rather, he must

3

A verdict will be upheld on appeal so long as, viewing the evidence in the light most
favorable to the jury’s verdict, any rational trial of fact could have found the essential elements of
the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
10

demonstrate the issues are subject to debate among jurists of reason, that a court could resolve the
issues in a different manner, or that the questions raised are worthy of encouragement to proceed
further. See Slack, 529 U.S. at 483-84. Any doubt regarding the issuance of a certificate of
appealability should be resolved in favor of the petitioner, and the severity of the penalty may be
considered. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
Petitioner has not shown that the issue of whether his claims are meritorious is subject to
debate among jurists of reason. The factual and legal questions raised by petitioner have been
consistently resolved adversely to his position and the questions presented are not worthy of
encouragement to proceed further. As a result, a certificate of appealability shall not issue in this
matter.

So Ordered this
Nov 3, 2017

11