Sprouse v. Thaler, Director TDCJ-CID

Filing 54

MEMORANDUM OPINION AND ORDER GRANTING 45 MOTION FOR SUMMARY JUDGMENT AND DENYING 16 APPLICATION FOR WRIT OF HABEAS CORPUS. The Court GRANTS a certificate of appealability as to Issue 6. In the event Sprouse files a notice of appeal, the Court notes that he may proceed in forma pauperis on appeal. (Ordered by Judge Jorge A Solis on 3/29/2013) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

KENT WILLIAM SPROUSE,
Petitioner,
V.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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No. 3:10-CV-00317-P
(death-penalty case)

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
AND DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
Petitioner Kent William Sprouse was convicted of capital murder and sentenced to death in
Ellis County, Texas. State v. Sprouse, No. 26,824 (40th Jud. Dist. Ct., Feb. 26, 2004). The
conviction and sentence were affirmed on appeal. Sprouse v. State, No. AP-74,933, 2007 WL
283152 (Tex. Crim. App. Jan. 31, 2007). Sprouse then filed an application for writ of habeas corpus
in state court which, after being twice remanded for factual development, was denied. Ex parte
Sprouse, No. WR-66950-01, 2010 WL 374959 (Tex. Crim. App. Feb. 3, 2010) (denying relief) (per
curiam); Ex parte Sprouse, No. WR-66950-01, 2009 WL 335449 (Tex. Crim. App. Feb. 11,
2009)(second remand order); Ex parte Sprouse, No. WR-66950-01, 2007 WL 1839481 (Tex. Crim.
App. June 27, 2007) (first remand order).
Pursuant to 28 U.S.C. § 2254, Sprouse has filed a petition for writ of habeas corpus (doc. 16)
and supporting memorandum (doc. 17) (“petition”) alleging the following grounds for relief:

1.

Trial counsel provided ineffective assistance at the guilt phase of trial by:
a.
b.
c.

failing to retain and present testimony of an addiction expert,
failing to retain and present testimony of a neuropsychologist and
conduct a brain scan, and
failing to investigate and present testimony regarding
Sprouse’s birth parents and childhood acquaintances.

2.

Trial counsel provided ineffective assistance at the guilt phase of trial by failing to
request an instruction on insanity caused by long-term drug use.

3.

Trial counsel provided ineffective assistance at the sentencing phase of trial by:
a.
b.
c.
d.

lodging a “knee-jerk” objection to the prosecution’s videotape
recording of Sprouse’s psychological interview,
failing to investigate and present testimony regarding
Sprouse’s birth parents and childhood acquaintances,
failing to retain and present testimony of a neuropsychologist
and conduct a brain scan, and
failing to retain and present testimony of an addiction expert.

4.

The evidence is legally insufficient to establish future dangerousness.

5.

Trial counsel provided ineffective assistance by failing to object when the competency jury was informed of the facts of the offense.

6.

The jury instruction on intoxication during the punishment phase violated the Eighth
Amendment, and counsel’s failure to object or preserve it constituted ineffective
assistance of trial counsel and/or appellate counsel.

7.

Trial counsel provided ineffective assistance by failing to challenge the constitutionality of the Texas death penalty statute on the ground that it does not provide for
meaningful appellate review.

8.

Trial counsel provided ineffective assistance by failing to challenge the statutory
definition of “mitigating evidence” as unconstitutionally narrow.

9.

Trial counsel provided ineffective assistance by failing to challenge the Texas death
penalty statute on the grounds that the aggravating factors are vague and do not
properly channel the jury’s discretion.

2

10.

Trial counsel provided ineffective assistance by failing to challenge the Texas death
penalty statute on the ground that it prohibits informing the jury of the consequences
of a “hold out” juror.

11.

Trial counsel provided ineffective assistance by failing to challenge the Texas death
penalty statute on the ground that it does not allocate to the State the burden of
proving a lack of mitigating evidence.

Respondent Rick Thaler filed an answer and motion for summary judgment (doc. 45), and
Sprouse filed a reply (doc. 51). The Court grants the motion for summary judgment, denies habeas
relief, and grants a certificate of appealability as to Issue 6.
I. BACKGROUND FACTS
The Texas Court of Criminal Appeals (“CCA”) summarized the facts of this offense as
follows:
On October 6, 2002, [Sprouse] stopped at a gas station and food mart in
Ferris, Texas. When he entered the store to make his purchases he had a shotgun
hanging from his shoulder. A short time after returning to his vehicle, [Sprouse]
fired his weapon in the direction of two men at a pay telephone on the premises.
Startled by the shot, another customer, Brad Carroll, asked [Sprouse] if he was
“okay.” [Sprouse] responded that the gun was not real and asked Carroll if he would
help him get his car started. Carroll agreed and pulled his truck in front of
[Sprouse]’s car to use booster cables. While [Sprouse] was working on his car,
Carroll noticed several boxes of buckshot in [Sprouse]’s vehicle, determined that the
gun was real, and decided to leave. As Carroll drove away, he heard another gun
shot. When he turned to look, he saw a bleeding man lying on the ground, and
[Sprouse] was pointing his shotgun in the man’s direction. Just after he left the
property, Carroll saw a police officer’s car pull into the station. He then heard two
more shotgun blasts and pistol fire.
While waiting to get diesel gasoline, Brandon O’Neill saw [Sprouse] working
on his vehicle and Pedro Moreno filling his truck with gas. O’Neill noticed that
[Sprouse] appeared to speak to Moreno, but Moreno did not respond. [Sprouse] then
reached into his vehicle, pulled out a gun, and shot Moreno.
In response to a 911 call, Officer Harry Marvin Steinfeldt, III, dressed in a
police uniform and driving a police vehicle, responded to the shooting at the gas
station. When he arrived at the station, Steinfeldt first noticed Moreno on the ground
3

and then turned toward [Sprouse]’s car, at which time [Sprouse] shot Steinfeldt
twice. Steinfeldt returned fire after he hit the ground. After Steinfeldt collapsed,
[Sprouse] walked to the side of the food mart. As [Sprouse] was walking, a second
officer, Brad Lindsey, arrived on the scene and managed to take him into custody
without further incident.
Moreno and Steinfeldt both died from their injuries. Several witnesses stated
that [Sprouse] showed no emotion and was rather nonchalant throughout the incident.
In the ambulance on the way to the hospital to receive treatment for the wounds he
suffered in the exchange of gunfire, [Sprouse] gave his name and address to the
officer accompanying him. [Sprouse] then stated several times without prompting
that he had killed an undercover officer at the gas pumps and had shot a second
officer in uniform.
The doctor who treated [Sprouse] thought that he was under the influence of
drugs when he was admitted, and subsequent testing revealed that [Sprouse] had
ingested methamphetamines within the forty-eight hours preceding his arrival at the
hospital. A trauma nurse who attended to [Sprouse] at the hospital stated that
[Sprouse] was belligerent, swearing, and uncooperative regarding the medical care
he was receiving. She also stated that [Sprouse] repeated that “two cops got
whacked.”
In response to the State’s case on guilt, [Sprouse] called several witnesses
who testified to his non-violent nature, but who also opined that [Sprouse] was
mentally ill. One witness, who claimed to know [Sprouse] “pretty well,” testified
that he never acted in a violent manner. However, some things that [Sprouse] had
told her made her suspect that he was mentally ill long before the instant offense
occurred. She stated that [Sprouse] had been hospitalized at one point and had told
her that he saw dead people. She also often saw [Sprouse] talking to himself.
Another witness, who had known [Sprouse]’s family for forty years and had spent a
couple of weeks with them every year around Easter, stated that [Sprouse] behaved
very differently from normal during Easter 2002--he had bursts of anger, saw things
that did not exist, heard voices giving him commands, and said that everyone was out
to get him.
[Sprouse]’s mother testified that [Sprouse]’s behavior began to change around
Christmas 2001. She stated that he was frightened and upset, thought that people
were talking to him through the television, and thought that the CIA and FBI wanted
to kill him. [Sprouse]’s mother was so concerned that, around April or May 2002,
she had [Sprouse] committed to a mental hospital when he refused to see a doctor on
his own, but he was back out on the street after seventy-two hours. She noted that
[Sprouse]’s condition only worsened after that time.

4

Dr. Jaye Douglas Crowder, a psychiatrist appointed to examine [Sprouse],
testified that he interviewed [Sprouse] several times, as well as [Sprouse]’s friends
and family members. Crowder testified that [Sprouse] was psychotic each time he
was interviewed. He also stated that [Sprouse] had an extensive history of psychotic
behavior and delusional thinking. Crowder opined that, on the day of the offense,
[Sprouse] was psychotic, paranoid, believed people were persecuting him, and did
not understand the wrongfulness of his conduct.
The State called several witnesses to rebut [Sprouse]’s case. Dr. Chris Bell,
a surgery resident who treated [Sprouse] at the hospital on October 6, 2002, testified
that [Sprouse] admitted using cocaine and amphetamines, and subsequent testing
confirmed that amphetamines, methamphetamines, and cannabis were in [Sprouse]’s
system. Bell also testified that, while he felt [Sprouse] was under the influence of
drugs when he was admitted to the hospital, he did not have the same impression
when he talked to [Sprouse] later that week.
Dr. Lisa Clayton, a psychiatrist, testified that she interviewed [Sprouse] and
that he exhibited no signs of psychotic behavior during the interview. In fact,
[Sprouse] told her that he was not really paranoid. She ultimately concluded that
[Sprouse] was not insane at the time of the murders. Clayton did not talk with
[Sprouse]’s friends or family members.
Two detention officers at Ellis County Jail testified that they had regular
contact with [Sprouse] during his incarceration, and they never saw him agitated,
pacing, or talking to himself. The nurse at the jail testified that [Sprouse] received
antibiotics and pain medication, and just prior to trial, he received an antidepressant
and sleep aid. She also testified that there was a period of time during which
[Sprouse] was prescribed a drug that she thought was an anti-psychotic medication;
however, she never saw [Sprouse] agitated, pacing, or muttering to himself.
Finally, Dr. Richard Rogers, a forensic psychologist who had written a book
about conducting insanity evaluations, testified that he spent approximately eleven
hours with [Sprouse] while evaluating him. Rogers testified that the most likely
diagnosis for [Sprouse] at the time of the murders was a substance-induced psychotic
disorder with paranoid delusions, and he opined that [Sprouse] understood the
wrongfulness of his acts on October 6, 2002. Rogers admitted that he had not talked
to [Sprouse]’s friends or family members and admitted that he was not aware that
[Sprouse] behaved strangely in the days before the murders. Nonetheless, he opined
that, despite [Sprouse]’s mental illness, his psychosis did not manifest itself on the
day of the murders and, therefore, did not prevent [Sprouse] from understanding that
his conduct was wrong.

5

At punishment, the State called former Ellis County Deputy Sheriff Adam
Irwinsky who testified that he and his trainee were called out to [Sprouse]’s home on
July 22, 2002, with regard to a “disturbance with possibly a gun involved.” When
Irwinsky asked [Sprouse] to step outside, [Sprouse] responded that he would not
come out because they would jump on him. Irwinsky assured [Sprouse] that they
would not jump on him, and [Sprouse] laid down a .357 magnum handgun he was
holding and came out. [Sprouse] told the officers that he and his parents were having
an argument that day. No arrests were made, no guns were seized, and [Sprouse] did
leave the premises with a friend.
Sprouse, 2007 WL 283152 at *1-3.
Sprouse, who is adopted, raises claims related to his mental condition at the time of the
offense and whether it was caused by a primary mental illness (schizophrenia) or was the result of
brain damage due to his long-term drug abuse. Since trial, six experts have contributed their
opinions to this matter.1
Dr. Kelly Goodness was the consulting psychologist and mitigation expert for the defense.
She believed that Sprouse’s history warranted a diagnosis of schizophrenia and amphetamine
dependence in institutional remission. (2 SHR 292, 304, 309).2 She also reported that it was
impossible to ferret out how much, if any, of Sprouse’s psychosis was the result of methamphetamine abuse and that this determination would require presumptions of fact that are best left
to the triers of fact. (2 SHR 298). Dr. Crowder, the court-appointed psychiatrist who testified in
support of Sprouse’s insanity defense, stated that Sprouse has a long-standing psychotic disorder due
to schizophrenia. (9 RR 10; 26 RR 147, 137). Dr. Crowder readily agreed, however, that Sprouse’s

1

A seventh expert, psychiatrist Daryl Matthews, testified for the State at Sprouse’s competency trial only, which
was held about five months before the capital murder trial. (9 RR 54). Dr. Matthews made a provisional diagnosis that
included schizophrenia. (9 RR 89-90).
2

“RR refers to the trial court reporter’s record, preceded by volume number and followed by page number.
Likewise, “CR” refers to the trial court clerk’s record. “SHR” refers to the state habeas record, which consists of
volumes 1-3 and supplemental volumes 1, 2, 3, 4, 5, 6A, 6B, and 7.

6

psychosis could have been caused by–and was “certainly worsened” by–Sprouse’s methamphetamine
abuse during the preceding decade. (26 RR 137-40, 147, 158).
Dr. Clayton, a psychiatrist who testified for the State at trial that she observed no psychosis
when she evaluated Sprouse, believed Sprouse was intoxicated on methamphetamine at the time of
the offense. (27 RR 29, 33, 36, 71). The prosecution’s second expert, psychologist Dr. Rogers,
believed the most likely diagnosis at the time of the homicide was substance-induced psychotic
disorder with paranoid delusions, that is, psychosis brought on by brain damage due to Sprouse’s
chronic methamphetamine abuse, not schizophrenia. (9 RR 119; 27 RR 132, 146). Dr. Rogers did
not believe Sprouse was experiencing delusions at the time of the offense; he believed Sprouse was
simply “high on drugs.” (27 RR 132-36). This testimony is significant to Sprouse’s issues before
the Court because voluntary intoxication, even if it causes temporary insanity, is not a defense to the
commission of a crime. See Tex. Penal Code Ann. § 8.04 (West 2012) (effective Sept. 1, 1994).
As Sprouse aptly noted in his original state writ application, “[N]one of the experts at trial
was able to state unequivocably that Mr. Sprouse’s problems were not solely due to his drug use.”
(1 SHR 72) (emphasis added). Consequently, state habeas counsel sought and received funding to
hire an addiction specialist, Terry Rustin, to mitigate the evidence of Sprouse’s drug addiction. (3
SHR 357-61; Supp. 6A SHR 30). Dr. Rustin agreed with the prosecution’s second expert (Dr.
Rogers), that Sprouse has substance (amphetamine)-induced psychotic disorder with delusions.
Attachment D at 10. State habeas counsel also sought and received funds to hire a mitigation
specialist, Toni Knox, to investigate the medical and psychological history of Sprouse’s birth parents
and to conduct a general mitigation investigation. (3 SHR 372-80; Supp. 6A SHR 30). Knox

7

learned that Sprouse’s birth mother had a cousin with bipolar disorder and a drug problem. (Supp.
6B SHR 123).
In this proceeding, Sprouse received funding to continue the investigation of his birth parents,
which he concedes has not produced favorable results. Reply at 2 n.1. Sprouse also received funds
to retain a neuropsychologist, Dr. Shawanda Anderson, whose report has been filed with the Court.
Exhibit B to Reply (doc. 51-3). As with Dr. Rogers and Dr. Rustin before her, Dr. Anderson
concluded that Sprouse’s mental problems are related to his chronic drug abuse. Ex. B at 6.
II. GENERAL STANDARDS OF REVIEW
A. AEDPA
Sprouse asserts that the standard of federal habeas review required by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) interferes with the Court’s duty to interpret the
law and violates the separation of powers doctrine. He asks the Court to conduct a de novo review
for constitutional error in this case. Petition at 20-27. Sprouse acknowledges, however, that the
Fifth Circuit has rejected this contention. Petition at 20 n.3; see Rivas v. Thaler, 432 Fed. App’x
395, 407 (5th Cir.), cert. denied, 132 S. Ct. 850 (2011) (citing Dufrene v. Brazoria Cnty. Dist.
Attorney, 146 F. App’x 715, 717 (5th Cir. 2005), Hughes v. Johnson, 191 F.3d 607, 612 (5th Cir.
1999), and Corwin v. Johnson, 150 F.3d 467, 472 (5th Cir. 1998)). Accordingly, the heightened
standards of review set out in the AEDPA govern this petition. See 28 U.S.C. § 2254.
B. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be
rendered if the record demonstrates that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This rule applies with
8

equal force in the context of habeas corpus cases to the extent it is not inconsistent with any statutory
provision or the Rules Governing Section 2254 Cases. See R. 12 of the Rules Governing § 2254
Cases in the United States District Court; Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). In
ordinary civil cases, a district court considering a motion for summary judgment must believe the
nonmovant’s evidence and draw all justifiable inferences in his favor. See Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). Where, however, a state prisoner’s factual allegations have been
resolved against him by express or implicit findings of the state courts, and the prisoner fails to
demonstrate by clear and convincing evidence that the presumption of correctness established by 28
U.S.C. § 2254(e)(1) should not apply, it is inappropriate, if not unauthorized, for the facts of a case
to be resolved in his favor. See Emery v. Johnson, 940 F. Supp. 1046, 1051 (S.D. Tex. 1996), aff’d
139 F.3d 191 (5th Cir. 1997) (applying former habeas statute and citing Marshall v. Lonberger, 459
U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S. 539, 547 (1981)); see also Jennings v. Thaler, No.
H-09-219, 2012 WL 1440387, *2 (S.D. Tex. April 23, 2012).
III. UNEXHAUSTED CLAIMS
The parties dispute whether Issue 2 and parts of Issues 1 and 3 are unexhausted and
procedurally barred under Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). See Answer at 17;
Reply at 2 n.2, 8, 11 n.9.
A. Applicable Law
Under the exhaustion requirement, a federal court may not grant habeas relief on any claim
that the state prisoner has not first attempted to present in state court.

9

See 28 U.S.C. §

2254(b)(1)(A); Harrington v. Richter, 131 S. Ct. 770, 787 (2011).3 A habeas petitioner has not
exhausted the remedies available in state court if he has the right under the law of the state to raise,
by any available procedure, the question presented. See § 2254(c). Unless a petitioner can
demonstrate cause and prejudice, unexhausted claims are procedurally barred in federal court if the
state court to which petitioner must return would likely dismiss the subsequent petition on state
procedural grounds. See Coleman, 501 U.S. at 735 n.1. Thus, article 11.071, section 5(a)(1) of the
Texas Code of Criminal Procedure bars federal habeas review where a subsequent state application
raises a claim that was factually or legally available when the original application was filed. See
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a)(1) (West 2011); Rocha v. Thaler, 626 F.3d 815, 837
(5th Cir. 2010); Balentine v. Thaler, 626 F.3d 842, 856-57 (5th Cir.) (op. on reh’g), cert. denied, 131
S. Ct. 2992 (2010).
For potentially meritorious claims of ineffective assistance of trial counsel, the United States
Supreme Court has held that the ineffective assistance of initial state habeas counsel may establish
cause to excuse procedural default. See Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012) (holding
that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.”). A petitioner
seeking to rely on Martinez to excuse procedural default must show the underlying ineffectiveassistance-of-trial-counsel claim to be substantial, “which is to say that the prisoner must

3

A federal court may, however, deny relief on the merits notwithstanding any failure to exhaust.
See 28 U.S.C. § 2254(b)(2); Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005).

10

demonstrate that the claim has some merit.” Id. at 132 S. Ct. at 1318. Sprouse relies on Martinez
and the alleged ineffective assistance of state habeas counsel to excuse the procedural default of his
claims in Issues 1b, 2, and 3c. Reply at 2 n.2, 8, 11 n.9.
There has been further development of this issue in the time since Sprouse filed his Reply.
The Fifth Circuit held that Martinez does not apply to Texas inmates because “Texas habeas
procedures do not mandate that ineffectiveness claims be heard in the first instance in habeas
proceedings.” See Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012). And the Fifth Circuit’s
interpretation of Martinez has been challenged in Trevino v. Thaler, No. 11-1018, 133 S. Ct. 524
(2012), a federal habeas case currently pending in the Supreme Court. Because the Court concludes
in the following discussion that Sprouse’s unexhausted claims are procedurally defaulted and also
lack merit, the Court need not predict the outcome in Trevino nor address whether Martinez excuses
any procedural default in this case.
B. Discussion
Issues 1b, 1c, and 2 are based on trial counsel’s failure to investigate and present the defense
of “settled insanity” at the guilt phase of trial. In Issue 1b, Sprouse specifically contends counsel
should have retained a neurospychologist, who would have been able to demonstrate that Sprouse
suffered from settled insanity caused by the “long-continued use of [ ] intoxicants.” Petition at 33.
In Issue 1c, Sprouse contends counsel should have investigated his birth parents and childhood
acquaintances because it may have revealed a genetic predisposition to drug dependency or to mental
illness. Petition at 34-36. In Issue 2, Sprouse contends counsel should have requested a settledinsanity instruction in the jury charge, as discussed in Thomas v. State, 177 S.W.2d 777, 778 (Tex.
Crim. App. 1944). Petition at 36-38. Issue 3c challenges trial counsels’ representation at
11

punishment, specifically, their strategy to present mitigation evidence through an insanity defense
at guilt and then forego the presentation of evidence at sentencing in order to deprive the State of its
rebuttal case. Petition at 39-40. Sprouse contends that trial counsel’s failure to consult a neuropsychologist undermined the reasonableness of this sentencing-phase strategy. Petition at 43; Reply
at 10. All of the foregoing claims are unexhausted.
Ground 10 in Sprouse’s state writ application and supplemental application focused on
counsel’s failure to develop mitigating evidence for sentencing and obtain an addiction expert, not
a neuropsychologist. (1 SHR 70-73; Supp. 6A 45-72). The claims before this Court regarding
counsel’s failure to retain a neuropsychologist (Issue 1b and 3c) and the failure to request a settledinsanity instruction (Issue 2) were not presented to the state habeas court. A claim challenging
counsel’s investigation of Sprouse’s birth family and childhood acquaintances was made with respect
to the punishment phase of trial, but not the guilt phase. (Supp. 6A SHR 49). Therefore, counsel’s
alleged failure to conduct an adequate guilt-phase investigation into these matters (Issue 1c) is also
unexhausted. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (holding that it is not enough that the
facts necessary to support the federal claim were before the state court or that a somewhat similar
state-law claim was made); Picard v. Connor, 404 U.S. 270, 276 (1971) (holding that the exhaustion
rule “would serve no purpose if it could be satisfied by raising one claim in state courts and another
in the federal courts”).
Given the legal and factual nature of these unexhausted claims, it appears they could have
been raised in Sprouse’s initial state application and that the CCA would now find them barred as
an abuse of the writ. See art. 11.071, § 5(a). Therefore, the Court is procedurally barred from
considering these claims unless an exception applies. See Coleman, 501 U.S. at 735 n.1. Sprouse
12

contends, pursuant to Martinez, that the ineffective representation by state habeas counsel excuses
the procedural default. Reply at 2 n.2, 8, and 11 n.9. As noted above, to overcome procedural
default based upon the deficient performance of state habeas counsel, Sprouse must demonstrate that
the underlying ineffective-assistance-of-trial-counsel claims have “some merit.” Martinez, 132 S.
Ct. at 1318. The Court concludes that they do not.
1. The “Settled-Insanity Defense”
The Court assesses the merits of Sprouse’s unexhausted ineffective-assistance claims under
the well known Strickland standard. To prevail under this standard, a petitioner must demonstrate
that (1) counsel’s representation fell below an objective standard of reasonableness and (2) there is
a reasonable probability that prejudice, sufficient to undermine confidence in the trial outcome,
resulted from the deficiency. See Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir. 2007) (citing
Strickland v. Washington, 466 U.S. 668, 694 (1984)). The failure to show either deficient
performance or actual prejudice defeats an ineffective-assistance claim. Strickland, 466 U.S. at 700;
e.g., Day v. Quarterman, 566 F.3d 527, 536-39 (5th Cir. 2009).
The unexhausted claims in Issues 1b, 1c, and 2 flow from the allegation that trial counsel
forfeited the opportunity to pursue the defense of “settled insanity.” Relying on case law from 1944,
Sprouse suggests the defense of settled insanity is available when a defendant, due to the longcontinued use of drugs, does not have sufficient mental capacity to know (1) the nature and
consequences of the very act he was committing, (2) that what he was doing was wrong, or (3) the
difference between right and wrong as to the particular act charged against him in the case. Petition
at 37; Thomas, 177 S.W.2d at 778. Sprouse alleges counsel were forced to rely on a theory of
“insanity due to schizophrenia” because counsel erroneously believed that “drug use causing
13

permanent mental illness was not a defense under Texas law.” Petition at 29-30; Attachment A to
Petition (aff’t of counsel); Reply at 6. Respondent contends that settled insanity did not survive the
enactment of the Texas Penal Code. Answer at 23. The Court agrees with Respondent.
Texas law on this issue is straightforward. The CCA has unanimously held: “The only
affirmative defense available under Texas law for those who commit crimes while suffering from
an abnormal mental disease or defect is insanity under Section 8.01.” Mays v. State, 318 S.W.3d
368, 385 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 1606 (2011) (citing Giesberg v. State, 984
S.W.2d 245, 250 (Tex. Crim. App. 1998) (reaffirming that “only the Legislature can establish
defenses and affirmative defenses to criminal offenses”)). Section 8.01 of the penal code defines
insanity as follows: “It is an affirmative defense to prosecution that, at the time of the conduct
charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was
wrong.” Tex. Penal Code Ann. § 8.01(a) (West 2012) (effective September 1, 1994). The insanity
defense in section 8.01 is the only “diminished capacity” defense to criminal responsibility in Texas.
Ruffin v. Texas 270 S.W.3d 586, 593 (Tex. Crim. App. 2008). Texas does not recognize a lesser
form of the insanity affirmative defense. Jackson v. Texas, 160 S.W.3d 568, 572 (Tex. Crim. App.
2005).
The trial court’s charge applied this statutory definition of insanity. Like the statute, the
instruction did not require the jurors to identify the cause of Sprouse’s mental deficits. It required
only that they believe “that at the time he committed said act, if he did, the defendant, as a result of
severe mental disease or defect, did not know that his conduct was wrong.” (CR 92). Thus, if the
jury believed Sprouse did not know his conduct was wrong, the charge permitted the jury to find him

14

insane, irrespective of whether his mental disease or defect was caused by primary mental illness or
by brain damage from long-term drug abuse.4
To the extent the unexhausted guilt-phase claims in Issues 1b, 1c, and 2 rely on counsel
having forfeited the opportunity to develop a “settled-insanity defense,” they have no support in the
law. Counsel is not ineffective for failing to raise a non-existent defense. See Paredes v.
Quarterman, 574 F.3d 281, 291 n.12 & 13 (5th Cir. 2009) (recognizing that the failure to raise a
meritless objection or argument is not ineffective assistance).
2. Failure to Hire a Neuropsychologist
Sprouse’s neuropsychologist-related claims have no merit for the additional reason that
counsel’s investigation was professionally reasonable despite the fact that a neuropsychologist was
not consulted, and there is no demonstrated prejudice. Relying on the report of Dr. Shawanda
Anderson, Sprouse asserts in Issue 1b that a neuropsychologist would have confirmed that Sprouse
suffered from “demonstrable physiological brain damage,” which would have been vital to prove
“settled insanity” and refute the prosecution’s evidence of temporary intoxication at the guilt phase
of trial. Petition at 33; Reply at 6. In Issue 3c, he posits that brain damage would have been
powerful mitigation evidence at punishment too, regardless of whether it was related to drug use or
not. Petition at 43; Reply at 10-11.

4

Sprouse complains the prosecutor told the jury otherwise in her closing remarks by equating intoxication at
the time of the offense to chronic mental disorder caused by fifteen years of methamphetamine abuse. Petition at 38.
Assuming for the sake of argument that this unobjected-to remark during closing argument could form the basis of federal
relief, Sprouse’s interpretation of the record is debatable. The prosecutor’s remarks could be interpreted to limit the
jury’s consideration of chronic mental illness, not insanity. (28 RR 34-35). In any event, the charge also instructed the
jury to wholly disregard statements of law made by counsel “not in harmony with the law as stated to you by the Court
in these instructions.” (CR 94). The prosecutor’s remarks are, therefore, harmless. See Penry v. Johnson, 532 U.S. 782,
799 (2001) (presuming generally that jurors follow their instructions).

15

“Counsel has a duty to make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. In this case, psychologist
and mitigation expert, Kelly Goodness, prepared a notebook for trial counsel with information on
schizophrenia, methamphetamine-induced psychosis, drug addiction, and the difficulties with a dual
diagnosis of mental illness and drug addiction. (2 SHR 176-204). She conducted a current mental
status exam, a competency evaluation, and an insanity evaluation on Sprouse. (2 SHR 287, 301,
306). She administered nine clinical instruments, including the Repeatable Battery for the
Assessment of Neuropsychological Status. (2 SHR 299, 303, 307). She described Sprouse’s
immediate and delayed memory as “relatively satisfactory,” his attention and concentration abilities
as “adequate,” and his remote memory as “intact.” (2 SHR 308-09). Although she diagnosed
Sprouse with schizophrenia and amphetamine dependence in institutional remission, she posed the
question of whether Sprouse’s psychosis was the result of methamphetamine abuse and stated that
this determination would require presumptions of fact that are best left to the triers of fact. (2 SHR
298, 309). She noted that “[c]hronic methamphetamine use is not simply an intoxicated state, it is
a brain damaged state in that chronic use permanently alters and damages the brain.” (2 SHR 298).
In the course of her mitigation investigation, Dr. Goodness obtained sixteen statements from
witnesses who knew Sprouse well. (2 SHR 235-86). She reviewed law enforcement reports,
hospital records, academic records, jail medical and disciplinary records, the competency trial record,
and letters written by Sprouse. (2 SHR 313-26). She viewed the recording of the five-hour
evaluation conducted by the prosecution’s competency expert, Dr. Daryl Matthews, in which
Sprouse states he received injuries, including head injuries, in three alcohol-related car wrecks but
states that he has never been treated for a head injury. (2 SHR 318-19); doc. 53 (disc 1). Dr.
16

Goodness mentions these car wrecks in her report, (2 SHR 318), and she obtained details about them,
as well as a motorcycle crash, from Sprouse’s close friend. (2 SHR 248).
In addition to Dr. Goodness, psychiatrist Dr. Crowder evaluated Sprouse on five separate
occasions. (26 RR 129-30). He consulted hospital records, law enforcement reports, and the report
prepared by Dr. Goodness. (26 RR 130). He testified that Sprouse had either schizophrenia or
substance-induced psychosis, depending on whether his symptoms were caused by primary mental
illness or by substance abuse. (26 RR 137-38). He believed that drug use “certainly worsened”
Sprouse’s mental status. (26 RR 138). When asked how Sprouse could have psychotic symptoms
after being incarcerated with no access to drugs, Dr. Crowder explained:
Well, the reason is either he has the schizophrenia like I was talking about or it’s the
brain damage that we’re seeing. Chronic abuse of methamphetamines destroys
dopaminergic and scrotonergic nerve terminals. . . . It destroys the endings of the
nerves in your brain so that the person ends up looking kind of schizophrenic. So it’s
one of those two things. Either the disease impaired the central nervous system or
his chronic use of the substance had caused some very long lasting or perhaps
permanent damage to the central nervous system.
(26 RR 139-40).
This record demonstrates that trial counsel’s investigation was reasonable. Counsel knew
the likelihood that Sprouse’s mental condition was caused or exacerbated by brain damage due to
long-term substance abuse but chose not to emphasize it. Given the options, counsel could have
reasonably chosen to focus on the schizophrenia diagnosis to downplay Sprouse’s responsibility for
his own brain damage through extensive drug abuse. The extent of counsel’s investigation into
Sprouse’s mental state, which included the assistance of these two experts as well as information
gained from the prosecution in the competency trial, demonstrates reasonable professional judgment.
See Martinez v. Dretke, 404 F.3d 878, 885-86 (5th Cir. 2005) (holding that counsel’s reliance on
17

information gained during first trial, plus additional investigatory efforts into defendant’s mental
health records, family members, and expert psychiatric assistance was a reasonable mental health
investigation). Any disagreement with counsel’s decision to focus on schizophrenia is not a basis
for finding counsel ineffective. See Pape v. Thaler, 645 F.3d 281, 291 (5th Cir. 2011), cert. denied,
132 S. Ct. 1100 (2012) (concluding court may not, in hindsight, second-guess counsel’s strategy
merely because an alternative course of action existed during trial); Wesbrook v. Thaler, 585 F.3d
245, 251 (5th Cir. 2009), cert denied, 130 S. Ct. 1889 (2010) (holding that court may not find
ineffective assistance merely because it disagrees with counsel’s trial strategy).
Even if counsel’s investigation had been deficient, Sprouse cannot show prejudice. In
addressing this issue, the Court is mindful of the different standards for demonstrating prejudice at
each phase of trial. See Livingston v. Johnson, 107 F.3d 297, 308 (5th Cir. 1997) (holding that the
proper standard of review as to prejudice is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt or, with respect to the
sentencing phase, would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death); Strickland, 466 U.S. at 694 (stating that a “reasonable
probability” is a probability sufficient to undermine confidence in the outcome of trial).
Viewed in the light most favorable to Sprouse, Dr. Anderson’s report contributes no new
helpful information on the issues of brain damage and intoxication.5 She interviewed Sprouse on
March 5, 2012 and administered seven tests of assessment. Ex. B at 1. She rendered no opinion as

5

Even though further development of the record is prohibited by 28 U.S.C. § 2254(e)(2), Dr. Anderson’s
affidavit is considered under the Court’s power to review the merits of an unexhausted claim under § 2254(b)(2) and
under the Supreme Court’s directive that procedurally defaulted claims may be excused under Martinez only if they have
“some merit.”

18

to whether Sprouse was insane or intoxicated at the time of the offense, although she stated that he
had ingested Valium and Xanax on that day. Ex. B at 3. She found minimal deficits in only two
areas of functioning. Ex. B at 5, 6. She confirmed Sprouse’s extensive drug abuse to the point of
psychosis and delusions. Ex. B at 3. Like the experts before her, she did not have sufficient
information to say whether Sprouse, who is adopted, was genetically predisposed to a psychotic
disorder or to substance addiction. She opined that he had a “compromised brain” due to motor
vehicle accidents and chronic substance abuse, and that the “residual effects are very likely
permanent.” Ex. B at 6. Dr. Anderson concluded that it was “not possible to use illicit substances
for more than a decade and not have cognitive deficits and some residual effects.” Ex. B at 6.
This is not new information. Dr. Anderson’s report aligns closely with the information in
trial counsel’s possession. Moreover, it supports the prosecution theory at trial that Sprouse was
under the influence of drugs at the time of the offense and damaged his own brain through the
chronic abuse of methamphetamine. (27 RR 132, 168-69, 186-87). Of course, Sprouse argues that
this information would have supported a settled-insanity defense, but as previously discussed, this
defense was not available. Furthermore, if this constitutes “powerful mitigation evidence,” as
Sprouse contends, then the jury heard it through the testimony of Dr. Rogers and, to a lesser extent,
through Dr. Crowder.
Dr. Anderson’s report does not undermine the Court’s confidence in the jury’s guilty verdict
or its punishment verdict, and it fails to demonstrate Strickland prejudice. See Livingston, 107 F.3d
at 308. The claims in Issue 1b and 3c regarding counsel’s failure to retain a neuropsychologist lack
merit.

19

3. Failure to Investigate Birth Parents and Childhood Acquaintances
Sprouse’s unexhausted claim regarding counsel’s failure to investigate his birth parents and
childhood acquaintances in preparation for the guilt phase (Issue 1c) likewise has no merit. Sprouse
concedes he is unable to present any evidence to show he was harmed by the alleged failure to
investigate. Reply at 2 n.1. Accordingly, he cannot demonstrate Strickland prejudice.
To summarize, the following claims are unexhausted, procedurally barred, and lack merit:
the guilt-phase claims in Issue 1b and 1c related to counsel’s failure to hire a neuropsychologist and
failure to investigate Sprouse’s birth parents and childhood acquaintances; the jury-charge claim in
Issue 2; and the punishment-phase claim in Issue 3c related counsel’s failure to hire a
neuropsychologist. Because the claims lack merit, the Martinez exception to procedural bar would
not apply.6 See Martinez, 132 S. Ct. at 1318.
IV. EXHAUSTED CLAIMS
A. Applicable Law
For claims adjudicated on the merits in state court, section 2254(d) states that a writ of habeas
corpus shall not be granted unless the state court arrived at a conclusion that (1) was contrary to
federal law clearly established in the holdings of the United States Supreme Court, (2) involved an
unreasonable application of such precedent, or (3) was based on an unreasonable determination of

6

Because Sprouse’s claims lack merit, the Court need not address whether state habeas counsel was ineffective
but notes that such a claim would be difficult to prove. Habeas counsel pursued this writ in state court for four years,
during which time she obtained two remands from the CCA for further factual development and received $19,000 to fund
expert assistance, which was more funding than trial counsel received. In addition to the addiction expert and mitigation
specialist, state habeas counsel hired Dr. Goodness to provide an affidavit explaining how she would have advised trial
counsel if she had been paid to act as a consulting expert during trial testimony. (1 SHR 141-45; Supp. 2 SHR 35).
Federal counsel supplemented state habeas counsel’s efforts with additional investigation into Sprouse’s birth family,
the results of which revealed nothing new, and a neuropsychological evaluation that confirmed the prior opinion of
habeas counsel’s addiction expert, Dr. Rustin.

20

the facts in light of the record before the state court. See 28 U.S.C. § 2254(d)(1)-(2); Richter, 131
S. Ct. at 785. Section 2254(d) does not authorize habeas relief, but bars relitigation in this Court of
any claim adjudicated on the merits in state court, unless the exception in (d)(1) or (d)(2) applies.
See Richter, 131 S. Ct. at 784. The phrase “adjudicated on the merits” is a term of art referring to
a state court’s disposition of a claim on substantive rather than procedural grounds. See Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Evidence introduced in federal court has no bearing
on the determination made pursuant to § 2254(d). See Cullen v. Pinholster, 131 S. Ct. 1388, 1400
(2011) (holding that a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the
record that was before the state court); 28 U.S.C. § 2254(d)(2) (providing that the reasonableness
of the state court’s determination of the facts is assessed “in light of the evidence presented in the
State court proceeding”). The standard in section 2254(d) is difficult to meet, highly deferential, and
demands that state-court rulings be given the benefit of the doubt. See Pinholster, 131 S. Ct. at 1398
(internal citations omitted) (quoting Richter, 131 S. Ct. at 786, and Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam)). “[E]ven a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Richter, 131 S. Ct. at 786.
Finally, section 2254(e)(1) presumes that the determination of a factual issue made by a state
court is correct. See 28 U.S.C. § 2254(e)(1). Under this provision, the applicant has the burden of
rebutting the presumption of correctness by clear and convincing evidence. Id.
B. Discussion
1. Failure to Retain Addiction Specialist
In Issues 1a and 3d, Sprouse complains of trial counsel’s failure to retain an addiction
specialist at both phases of trial. Petition at 30, 44. These claims are exhausted. Sprouse’s tenth
21

ground for relief in state court was an unambiguous Wiggins/Rompilla claim that challenged
counsel’s mitigation investigation at punishment. (1 SHR 70-73). Nevertheless, after receiving
funds to retain an addiction specialist, Dr. Rustin, Sprouse filed a supplemental writ application that
included within ground ten these guilt- and punishment-phase claims. (Supp. 6A SHR 64-72). The
state habeas court addressed the claims concerning Dr. Rustin without reference to any specific phase
of trial. (Supp. 6B SHR 303-04). The state court also found that trial counsel chose to present
mitigation evidence, in the context of an insanity defense, during the guilt phase of trial. (Supp. 6B
SHR 304). It is apparent that the line between the guilt phase and the punishment phase–particularly
as to Sprouse’s mental state evidence–was not rigidly drawn in this case. Given these circumstances,
the Court concludes that the briefing in Sprouse’s tenth ground for relief provided the state court
with a fair opportunity to apply the controlling legal principles to the facts bearing upon both the
guilt- and punishment-phase aspects of this claim. See Hill v. Lockhart, 28 F.3d 832, 835 (8th Cir.
1994) (reasoning that ineffective-assistance-of-counsel claim, which focused primarily on mental
health evidence overlooked by counsel in the penalty phase, was sufficient to apprise state court of
guilt-phase claim). This Court therefore reviews the state court’s decision on the merits under
section 2254(d).
The state court found that Dr. Goodness had expertise in addiction and substance abuse and
provided counsel with a tremendous amount of information about methamphetamine-induced
psychosis and alteration of the human mind due to methamphetamine use. (Supp. 6B SHR 302 (nos.
1, 2, 3)). The state court concluded that the habeas addiction expert, Dr. Rustin, did not provide any
additional information that would demonstrate Strickland prejudice. (Supp. 6B SHR 303 (nos. 10,

22

4)).7 Sprouse asserts, however, that Dr. Rustin would have provided testimony that (1) Sprouse was
brain-damaged from chronic methamphetamine abuse and (2) contradicted Dr. Rogers’s testimony
that Sprouse was intoxicated at the time of the offense. Together, this could have persuaded the jury
that Sprouse was suffering from “settled insanity” rather than intoxication and, if the jurors believed
he was not intoxicated at the time of the offense, there is a reasonable probability they would have
spared his life. Petition at 33, 44.
This Court has already concluded that settled insanity was not an available defense and that
counsel’s investigation into Sprouse’s mental state was professionally reasonable. Dr. Rustin’s
report does not alter this Court’s conclusions nor does it demonstrate that the state court’s
conclusions were unreasonable.
As discussed, Dr. Goodness conducted three distinct psychological evaluations on Sprouse
and a full mitigation investigation. See supra at 16. She also advised trial counsel on drug-related
topics, such as methamphetamine-induced psychosis; the effects of methamphetamine use, including
aggressive tendencies, risk factors for violence, and the link between methamphetamine abuse and
crime; the difficulties in treating methamphetamine addiction; the history of methamphetamine use
in the United States, resources for current local trends, and a “DEA overview” of the greater
Dallas/Fort Worth area. (2 SHR 176-233). She diagnosed Sprouse with schizophrenia and
amphetamine dependence in institutional remission, and left open the possibility that Sprouse’s
symptoms were caused in whole or in part by substance abuse. (2 SHR 297-98, 315). She advised
that chronic methamphetamine use is “a brain damaged state in that chronic use permanently alters

7

The CCA did not adopt the state habeas court’s finding that Dr. Rustin’s opinion was not credible, and the
Court gives this finding no deference. (Supp. 6B SHR 303 (no. 8)); Sprouse, 2010 WL 374959 at *2.

23

and damages the brain.” (2 SHR 298). Similarly, Dr. Crowder testified that Sprouse’s psychosis
was caused either by schizophrenia or by permanent brain damage from drug abuse, and that drug
abuse “certainly worsened” his mental state. (26 RR 137-40). The State’s expert, Dr. Rogers,
testified more decisively that Sprouse’s disorder was substance-induced. (27 RR 132, 168-69).
Dr. Rustin’s report is based, in part, on information that trial counsel already possessed,
namely, Dr. Goodness’s report and the Dr. Matthews videotape. Attachment D at 10. To this extent,
the factual basis for Dr. Rustin’s report was already known to the defense. Dr. Rustin’s report also
contains information similar to that provided by Dr. Goodness and Dr. Crowder about how chronic
amphetamine use causes permanent changes to the brain, delusional thinking, paranoid fears, and
hostile acts in response to perceived threats. Attachment D at 8-9. Dr. Rustin concluded that
Sprouse was addicted to marijuana and methamphetamine and that a decade of chronic methamphetamine use damaged Sprouse’s brain and caused his unprovoked, violent behavior at the time
of the offense. Attachment D at 10. Dr. Rustin concluded that Sprouse has delusions (bizarre
beliefs) and is introverted. He also found that Sprouse has “intact” mental functioning in six areas,
an “appropriate” fund of knowledge, “superior” functioning in math, “appropriate” grooming and
behavior, no hallucinations, logical and goal-directed thought process, and “somewhat
circumstantial” but otherwise intact speech. Attachment D at 6-7. Thus, Dr. Rustin’s report contains
information that is substantially similar to that provided by Dr. Goodness and Dr. Crowder, and Dr.
Rustin’s diagnosis actually favors the State’s theory at trial. See Attachment D (Rustin’s formal
report of July 6, 2009); (Supp. 6B SHR 275 (Rustin’s preliminary findings of May 19, 2009)).
Sprouse also contends that Dr. Rustin could have refuted the evidence that he was intoxicated
at the time of the offense and that this would have persuaded the jury to accept the alternative
24

explanation of “settled insanity” or, perhaps, spare his life. Petition at 30-33, 44-45; Reply at 6, 1112. The Court disagrees with Sprouse’s characterization of the impact that Dr. Rustin’s sobriety
testimony would have had on the trial.
First, a paramedic testified during cross-examination by defense counsel that Sprouse did not
appear to be intoxicated when he treated him at the scene for his injuries. (24 RR 196). This
paramedic was not an addiction expert like Dr. Rustin but was trained specifically to recognize signs
of intoxication due to the ingestion of alcohol or controlled substances, and he was an eyewitness
to Sprouse’s state of sobriety minutes after the offense. (24 RR 196). Dr. Rustin’s opinion would
have been duplicative of this testimony, if not overshadowed by it.
Second, Dr. Rustin confirms that Sprouse smoked amphetamine and marijuana on the
morning of the offense and that it showed up in his urine screen at the hospital. Attachment D at 8,
10. Dr. Rustin’s conclusion that Sprouse was, nevertheless, not intoxicated was based on Dr.
Rustin’s reading of the trial testimony of the gas station proprietor, i.e., information that was already
before the jury. (24 RR 59); Attachment D at 8. In contrast, a surgeon at Parkland Hospital testified
for the prosecution that Sprouse was under the influence of drugs based on his personal observation
of Sprouse as well as Sprouse’s subsequent verbal admissions and a positive drug screen. (27 RR
8-13). Dr. Clayton, in addition to Dr. Rogers, testified based on post-offense evaluations that
Sprouse was intoxicated at the time of the murders. (27 RR 71, 132). Given the state of the
evidence, the Court disagrees that Dr. Rustin’s opinion as to Sprouse’s sobriety, based on lay
testimony that was already before the jury, would have “completely changed the dynamics of the
trial.” Petition at 33.

25

Third, Dr. Rustin’s report contains information that would have been harmful to Sprouse’s
case. Specifically, it confirms that Sprouse used drugs on the day of the offense and that he does not
believe his drug abuse is a problem. Attachment D at 7, 10. It also indicates that Sprouse “does not
show any remorse for the deaths of the two men he shot” and that Sprouse explained the second-intime shooting of Officer Steinfeldt as “in for a penny, in for a pound,” saying that “it didn’t matter”
because he was already in trouble. Attachment D at 6-7.
Sprouse has not asserted that the state court’s conclusions on this matter conflict with any
clearly established federal law. Rather, he has reasserted these claims in the context of the “settledinsanity defense,” which this Court has determined was not available to him. Having compared the
opinion of Dr. Rustin to the opinions of Drs. Goodness and Crowder as well as the testimony of Dr.
Rogers, the Court concludes that Dr. Rustin’s report does not undermine this Court’s confidence in
the guilty verdict or the punishment verdict. The state court reasonably rejected this claim for failure
to demonstrate prejudice under Strickland. The Court denies the claims in Issue 1a and 3d regarding
counsel’s failure to hire an addiction specialist at both phases of trial.
2. Failure to Investigate Birth Parents and Childhood Acquaintances
In Issue 3b, Sprouse challenges the sufficiency of trial counsel’s punishment-phase
investigation into his birth family and childhood acquaintances. This claim was raised and funded
in state habeas proceedings. Toni Knox prepared a full mitigation report for state habeas counsel,
including a critique of the trial investigation and a witness list. (Supp. 6B SHR 86-276). Knox
contacted Sprouse’s birth parents through Missouri social services and spoke to his birth mother by
telephone. The mother indicated that she had a cousin with bipolar disorder and a drug problem and
reported no mental health issues in any of her other children. (Supp. 6B SHR 123). The biological
26

father apparently provided no information additional to what was already in the adoption papers.
(Supp. 6B SHR 124-25).
The state court concluded that Sprouse was not prejudiced by counsel’s alleged failure to
investigate Sprouse’s birth family and childhood acquaintances. The court found: the statements
of the birth mother regarding her cousin did not undermine confidence in the trial proceeding;
Knox’s habeas mitigation report was largely repetitive of Dr. Goodness’s trial mitigation report; the
mitigation witnesses possessed negative information as well as positive information; some of the
positive information had been presented to the jury; and the presentation of any testimony during the
punishment phase would have allowed the State to present damaging rebuttal testimony from Officer
Steinfeldt’s father, who had lost his only child, and the officer’s pregnant widow, who had lost her
home due to her husband’s murder. (Supp. 6B SHR 303-04). The state court concluded that
counsel’s decision to put on mitigating evidence in the context of an insanity defense and not present
additional evidence during punishment, which avoided victim-impact testimony on rebuttal, was a
reasonable trial strategy. (Supp. 6B SHR 304).8
Sprouse makes no argument that the state-court decision is contrary to federal law or
unreasonable. Petition at 43; Reply at 10. Sprouse has, therefore, not met his burden to show he is
entitled to relief on this claim. See 28 U.S.C. § 2254(d). In any event, the state court conclusions
are supported by the record and not an unreasonable application of Strickland. Compare (2 SHR 176
(Dr. Goodness’s trial mitigation notebook)) with (Supp. 6B SHR 86 (Knox’s mitigation report));
8

The CCA rejected the state habeas court’s findings that trial counsel used an adoption specialist prior to
November 8, 2002 in an attempt to locate Sprouse’s parents (no. 6) and that the information provided by Sprouse’s
purported birth mother was not reliable and would have been inadmissible (no. 14). (Supp. 6B SHR 302-03). The CCA
also rejected the state court’s conclusion that trial counsel were not ineffective for failing to investigate Sprouse’s birth
parents because the investigation revealed that the parents could not be located (no. 2). (Supp. 6B SHR 304).
Accordingly, the Court gives no deference to findings 6 and 14 and conclusion 2.

27

(Supp. 1 SHR 56 (affidavit of trial counsel)); (Supp. 6B SHR 296 (affidavit of trial prosecutor)); Bell
v. Cone, 535 U.S. 685, 699-700 (2002) (rejecting Strickland claim based on counsel’s failure to
present mitigating evidence and argument at sentencing phase where, among other things, extensive
mitigating testimony was presented at guilt phase through insanity defense).9
3. Counsel’s Objection to Dr. Matthews’s Videotape
The remaining punishment-phase ineffective-assistance claim in Issue 3a focuses on the
videotape of Dr. Matthews’s interview with Sprouse, which the prosecution offered into evidence
and then withdrew after trial counsel objected. According to Sprouse, trial counsel should not have
objected because the tape was powerful evidence of Sprouse’s psychological condition. Petition
at 40; Reply at 8-9. Respondent contends that counsel lodged a valid objection to the videotape and
that there is no prejudice because the jury received testimony that was similar to the evidence
contained on the videotape. Answer at 29-33.
This issue was not raised as a separate ground for relief in state court. It was, however,
discussed in Sprouse’s supplemental habeas petition and supported by the opinions of mitigation
specialist Toni Knox and addiction specialist Dr. Rustin that the recording would have been valuable
evidence for the defense. (Supp. 6A SHR 66-68 (Ground 10)). The state habeas court implicitly
rejected the claim when it concluded that trial counsel was not ineffective for failing to request
additional funding for addiction and mitigation experts, that no new evidence resulted from the
additional habeas funding, and that Sprouse did not show a reasonable probability that the trial

9

Knox’s report states that both she and Dr. Goodness operated under time and funding constraints. (Supp. 6B
SHR 95, 98). Sprouse consequently received additional funds from the Court to further develop this issue, but he
concedes that he is unable to present any evidence to show he was harmed by the allegedly inadequate investigation.
Reply at 10.

28

outcome would have been different with the additional funding. (Supp. 6B SHR 307 (nos. 1, 3, 4)).
The Court therefore reviews this claim under section 2254(d). See Richter, 131 S. Ct. at 784-85
(holding that § 2254(d) applies even to summary denials unaccompanied by an explanation).
Dr. Matthews testified for the State at the competency trial, and his five-hour interview with
Sprouse was recorded on videotape. (9 RR 63). The prosecution provided a copy of the Matthews
videotape to defense counsel approximately six months before the capital murder trial began. (6 RR
28). The prosecution sought to admit the videotape during the punishment phase because it
contained Sprouse’s description of the offense and prior criminal acts and drug use, which the
prosecutor argued were relevant to the future dangerousness and mitigation special issues. (29 RR
66). Trial counsel, who had believed the State was going to introduce the tape at the guilt phase,
lodged five objections to the tape during a lengthy admissibility hearing, including an objection that
the tape does not contain the necessary Fifth Amendment warnings. (29 RR 55-56, 64-68, 70-71).
The judge recessed to watch the first two hours of the videotape, and then advised the parties of his
inclination to exclude the tape based on inadequate Fifth Amendment warnings. (29 RR 72-76).
The prosecutor then conceded that Sprouse had not been properly warned, withdrew the proffer, and
notified the court of its intention to rest when the trial resumed the next day. (29 RR 76-78). Upon
questioning by the court, defense counsel advised that he did not intend to introduce the videotape.
(29 RR 77). The following morning, the judge reaffirmed the prosecutor’s decision not to offer the
videotape, and both sides rested and closed. (30 RR 4).
Sprouse does not dispute that a valid objection to the videotape was available under Estelle
v. Smith, 451 U.S. 454, 468 (1981) (holding that testimony by state’s psychiatrist as to future
dangerousness, which was based on competency evaluation conducted without notice to counsel or
29

Miranda warnings, violated right against self-incrimination and right to counsel). Reply at 8.
Rather, he contends counsel’s objection fell below objective professional standards because it was
a “knee jerk” reaction that wasted a “golden opportunity” to have the jury receive what would
otherwise have been inadmissible hearsay evidence of his own statements, admitted without the risk
of cross-examination. Petition at 40; Reply at 8-9. He points out that there is no evidence in the
record that counsel made a conscious, strategic decision to object. Reply at 9.
Under Strickland, however, counsel is strongly presumed to have rendered adequate
assistance, and it is Sprouse’s burden to overcome that presumption by showing that counsel failed
to act reasonably considering all the circumstances. See Pinholster, 131 S. Ct. at 1403. Further, a
conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with
obvious unfairness. See Pape, 645 F.3d at 291.
Here, the record affirmatively demonstrates that counsel’s decision was both conscious and
informed. The objection was readily justified under Estelle because the warnings at the beginning
of the recording are incomplete. See doc. 53. The length of the admissibility hearing, the number
of counsel’s objections, and the fact that counsel possessed the tape and was prepared for the State
to introduce it at guilt, all belie Sprouse’s contention that counsel’s objection was an uninformed,
knee-jerk reaction. Counsel also had the opportunity to reconsider the matter overnight, before both
sides rested and closed.
Moreover, counsel’s decision to object was not “so ill chosen that it permeated the entire trial
with obvious unfairness.” Sprouse asserts that the recording shows him “talking, gesturing, and
emoting in ways that demonstrate his psychotic state.” Reply at 9. The Court disagrees with this
30

characterization. It is true that Sprouse articulates bizarre or paranoid ideas and describes past
experiences that were hallucinatory or delusional. But while expressing these beliefs and past
events, Sprouse appears composed, articulate, and intelligent. As Sprouse’s own expert, Dr. Rustin,
observed, “The interview . . . shows Mr. Sprouse to have many firmly held ideas of reference
(paranoid ideas relating to himself), but intact intelligence, executive function, and abstracting
ability,” as well as intact “abstraction, memory, concentration and speech.” Attachment D at 7, 8.
In fact, on the videotape, Sprouse expresses doubt in his bizarre belief that he is the Lord in
human form on Earth by acknowledging that he should be able to get himself out of his current
problem if he is God and that if he is just “Joe Schmoe, regular old country boy,” then “the joke” is
on him. When asked if he would go along with an insanity defense, he said he would be a fool not
to, that maybe he could be convinced he is not God but has some mental illness. Sprouse concludes:
“[I]f I did get away with this without due process, then hell, everybody be out there blowing people
away, running around screaming they’re God. We just can’t have that.” Sprouse’s admission of the
possibility that he is not God undermines the genuineness of the delusion. Defense counsel knew
the significance of this because Dr. Matthews testified about it in the competency trial. (9 RR 82).
Furthermore, Sprouse’s strange beliefs would have had limited mitigating impact at
punishment because they did not explain why he shot two people. Sprouse described the murders
as “stupid and ignorant.” He believed the customers were laughing at him because his car would not
start, so he fired a warning shot towards two men near a telephone. He denies intending to kill Mr.
Moreno, saying that he fired at him to make him leave, and that the slug accidentally ricocheted off
the gas pump. Acknowledging he was in “deep shit,” Sprouse describes how he watched Officer
Steinfeldt arrive at the scene, check on the victim, and then look around for the shooter. When the
31

officer finally saw Sprouse and reached for his weapon, Sprouse shot him, apparently intentionally.
Sprouse’s retelling of the offense would have confirmed the State’s testimony that Sprouse was not
psychotic or acting under any delusions or hallucinations at the time of the murders. (27 RR 77, 132,
134-36, 142-44, 158, 183).
The recording also contains information about Sprouse’s extraneous offenses of drug
possession, driving while intoxicated, flagrant reckless driving (including passing on the shoulder
at 110 miles per hour), and carrying illegal weapons and loaded rifles. Sprouse admits that, two days
before the murders, he purchased and had been using a “bag of weed” and some methamphetamine,
which supports the State’s intoxication theory. He also admits to smoking 4 to 5 and sometimes 10
to 12 “joints” per day for a “good ten years.” He says he “kinda liked” methamphetamine and
smoked it steadily from age 16 to 18 and from age 21 to present. He also used Valium, especially
while drinking alcohol in quantities of up to twelve beers a day, and said it knocked a few strokes
off of his golf game. He tried cocaine about ten times, but did not like it, and tried LSD about four
times, which made him laugh uncontrollably. Once, he “snatched” his grandmother’s Demerol from
the trash can. As recognized by the defense team’s own mitigation expert, Sprouse also appears to
use the interview as a platform to argue for the legalization of drugs, which could have eroded any
sympathy the jury might have had for his mental problems. (2 SHR 319).
Evidence of Sprouse’s bizarre beliefs and past psychotic behavior was admitted through the
testimony of Dr. Crowder, four lay witnesses (including Sprouse’s mother), and photographs of his
living quarters and surrounding area. (26 RR 9-123, 132-71; DX 1-29, 34-36, 40). As defense
counsel argued at punishment, “[M]itigation. We could have paraded the family and friends up here.
But you already know that. It’s come out during the first phase of the trial. You already know.” (30
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RR 20). Thus, counsel provided much of the same anecdotal information to the jury through live
witnesses without the added risk of the jury seeing Sprouse confirm and defend his drug abuse.
The state court’s application of Strickland was not unreasonable. Counsel could have
reasonably determined that any benefit obtained by the videotape would be outweighed by its
aggravating effect. See Brewer v. Quarterman, 550 U.S. 286, 292-93 n.4 (2007) (holding that
mitigating evidence of depression and substance abuse was a two-edged sword that tended to
confirm the evidence of future dangerousness).
To summarize, the Court denies the following exhausted ineffective-assistance claims
because the state court’s resolution was not unreasonable: the guilt-phase claim in Issue 1a and the
punishment-phase claim in Issue 3d regarding counsel’s failure to retain an addiction expert; the
punishment-phase claim in Issue 3b that counsel failed to investigate Sprouse’s birth parents and
childhood acquaintances; and the punishment-phase claim in Issue 3a regarding counsel’s objection
to the Matthews videotape.
4. Sufficiency of the Evidence
In Issue 4, Sprouse challenges the CCA’s resolution of his claim on direct appeal that the
evidence is legally insufficient to support the jury’s answer to the future dangerousness special issue.
The future dangerousness special issue asks the jury: “Is there a probability that the defendant, Kent
William Sprouse, would commit criminal acts of violence that would constitute a continuing threat
to society?” (CR 102). In determining the sufficiency of the evidence, a reviewing 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 prosecution and decide whether “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
33

U.S. 307, 319 (1979). This Court may reach the merits of this claim only if the state court decision
was contrary to or involved an unreasonable application of the already deferential Jackson standard.
See § 2254(d).
Upon applying the Jackson standard, the CCA found the following evidence sufficient to
support the jury’s answer to the future dangerousness special issue: (1) without hesitation or
emotion, Sprouse shot one person he decided was an undercover police officer and a second person
he knew was a police officer, (2) he repeatedly professed to various individuals that he had shot two
officers, (3) he ingested drugs prior to the offense, (4) he was mentally ill in a way that the jury could
conclude would cause him to behave in a manner that constituted a threat to society, both in prison
and out, (5) the same conclusions could be drawn concerning his drug use or any combination of his
drug use and his mental illness, and (6) on a prior occasion unrelated to this offense, officers had
been called to Sprouse’s house when he was acting in a threatening manner towards his family.
Sprouse, 2007 WL 283152 at *4.
Sprouse argues that the CCA’s determination was unreasonable because there was no
evidence he had a criminal history or prior violent acts and the crime was not committed with
forethought. He argues that he has no incidents of misbehavior in jail and “absolutely no evidence”
predicting that his psychiatric condition would result in future acts of violence. Sprouse also argues
that, under the State’s theory that he committed this offense while intoxicated, Sprouse would not
be a future danger because drugs would not be available to him in prison. Petition at 45-47.
Sprouse understates the disturbance between him and his parents as a non-violent act. When
the police arrived, Sprouse’s parents were scared, and Sprouse told the police that he had just fired
the gun into the ground. (29 RR 25, 29). Sprouse was in possession of a .357 handgun, which he
34

surrendered, and he had two long guns in his apartment. (29 RR 26, 29-30). In addition to this
violent act, Dr. Crowder confirmed on cross-examination that some of Sprouse’s friends reported
that Sprouse had pulled a gun on them. (26 RR 164). Furthermore, during her cross-examination
by the prosecutor, Sprouse’s mother described an occasion when Sprouse threatened to kill her
because he believed the family horse would die if kept in the corral. She testified, “[H]e got right
here against my nose almost and said that he would kill me before he let me kill the horse.” (26 RR
107). She described another occasion where she was arguing with Sprouse about going to the doctor
when his father intervened, and Sprouse “chest-bumped” him and knocked him into a table. (26 RR
108).
Sprouse also downplays the evidence that indicates he was prepared to use deadly force on
the day of the murders and shot Officer Steinfeldt with forethought. For example, Sprouse told Dr.
Clayton that he went to the convenience store after he had fought with his father and “kinda of fumed
around.” (27 RR 56-57). Sprouse took with him a sawed-off shotgun and two boxes of ammunition.
(25 RR 50-52). There is eyewitness testimony that Sprouse shot the first victim without any apparent
provocation and there is testimony from the experts that he knew this was wrong and tried to start
his car because “he wanted to get out of there.” (24 RR 121-22; 27 RR 59, 144-45). There is
evidence from which the jury could conclude that Sprouse essentially ambushed Officer Steinfeldt
from inside his car. (24 RR 110-11, 123-24, 137-38, 149). Sprouse would later tell Dr. Rogers that,
with respect to shooting the officer, he had decided he was going to “finish it” at that point. (27 RR

35

145). One eyewitness testified that Sprouse tried to get his car working and then attempted to flee
on foot. (24 RR 126, 130-31).10
Evidence of no misbehavior in the jail while awaiting trial for capital murder and an absence
of expert testimony predicting Sprouse would commit future acts of violence do not undermine the
CCA’s conclusions. Sprouse has identified no clearly established federal law that requires the
reviewing court to give this type of evidence, or a lack thereof, conclusive weight on the future
dangerousness issue. Moreover, the Court has found no evidence in the record that drugs are not
available in prison. In fact, the State would have called a witness to say that drugs are available to
inmates in prison, but trial counsel successfully objected to that testimony. (29 RR 41, 47, 52-54).
As the CCA noted, evidence of drug abuse and mental illness–which Sprouse’s experts agree is
likely permanent–can cut both ways. Id. at *4 n.6; see Brewer, 550 U.S. at 292-93 n.4 (recognizing
that Brewer’s mitigating evidence of depression and substance abuse tended to confirm the State’s
evidence of future dangerousness, specifically, testimony of police officer who had been called to
quell a family dispute). The CCA’s assessment of the evidence in this case was not unreasonable,
and Issue 4 is denied.
5. Counsel’s Assistance During Competency Trial
In Issue 5, Sprouse challenges the state habeas court’s rejection of his claim that trial counsel
provided ineffective representation during the competency trial. This ineffective assistance claim
derives from a long-standing Texas rule that it is improper to introduce evidence of the offense itself
during a hearing on competency to stand trial. See Barber v. State, 757 S.W.2d 359, 361 (Tex. Crim.

10

The jury also viewed a store security videotape and the officer’s squad car videotape of the events, which
apparently show Sprouse waiting for 28 seconds after the officer arrived before shooting him. (24 RR 49, 63; 25 RR
90-91; 28 RR 16-17).

36

App. 1988) (citing Goodman v. State, 701 S.W.2d 850, 862 (Tex. Crim. App. 1985)). Reversal is
required under this rule when the evidence of the offense brought to the attention of the competency
jury is of such nature as to deny the accused a “fair trial and impartial determination of his
competency.” Id.
At the competency trial, the prosecutor read the indictment before the jury. (9 RR 6-7).
Later, the State’s expert, Dr. Matthews, narrated a slide show on the evaluation he conducted. (9 RR
67-80). Dr. Matthews testified, “When I asked him what the police said he did, he said,
[‘A]ccording to Sheriff Ledbetter, I killed a man with a ricochet off a gas pump and then what
followed is a cop came and he shouted out and I killed him. That’s the reason I’m being held.[’]”
(9 RR 71) (quotation marks added). In his state habeas application, Sprouse complained that counsel
should have objected to the reading of the indictment and to Dr. Matthews’s testimony on the subject
of whether Sprouse understood the charges against him. (1 SHR 62).
The state court found that no evidence was presented regarding the underlying capital murder
charge and that only incidental references were made. (Supp. 1 SHR 126 (no. 56)). That state court
also found that it had instructed the jurors that the indictment “is no evidence of present competency
to stand trial” and that they should not to consider or discuss Sprouse’s guilt or innocence of the
charged offense. (Supp. 1 SHR 126 (no. 58); CR 56). The state habeas court concluded that Sprouse
was “not denied a fair and impartial determination of his competency.” (Supp. 1 SHR 126 (no. 62)).
The court also concluded that Sprouse’s rights to due process and effective assistance of counsel
were not violated. (Supp. 1 SHR 126 (no. 61)). These findings and conclusions were adopted by
the CCA. Sprouse, 2010 WL 374959.

37

The state court’s conclusion that Sprouse was not “denied a fair and impartial determination
of his competency,” as required for reversal by Barber, is binding on this Court. See Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Schaetzle v. Cockrell, 343 F.3d 440, 448-49 (5th Cir. 2003) (holding
that it is not the function of federal habeas courts to review a state’s interpretation of its own law)
(quoting Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995)). And, in any event, the state court’s
conclusions appear to be supported by the very case law upon which Sprouse relies. See Petition at
49; Goodman, 701 S.W.2d at 862-63 (finding no reversible error where expert-witness related the
accused’s understanding of the charges against him and the indictment was contained in the court’s
charge, but jury was instructed not to consider the indictment or the accused’s guilt or innocence in
their competency determination).11 Because there was no reversible error under state law, counsel’s
failure to object does not constitute ineffective assistance. See Green v. Johnson, 160 F.3d 1029,
1037 (5th Cir. 1998) (holding that failure to make frivolous objection does not cause counsel’s
performance to fall below an objective level of reasonableness).
Sprouse challenges the state court’s ruling with a 2011 affidavit provided by trial counsel in
which he states that it did not occur to him to object because he was “not aware at that time that a
valid objection could be made to disclosure of the facts of the case during the competency trial.”
Attachment K. This affidavit was not presented to the state habeas court, however, and cannot be
used to assess the reasonableness of the state court’s decision under § 2254(d). See Blue v. Thaler,
665 F.3d 647, 655-56 (5th Cir. 2011), cert. denied, 133 S. Ct. 105 (2012). Nevertheless, counsel’s
subjective state of mind does not affect the analysis under Strickland because Strickland calls for an

11

Goodman was overruled on other grounds by Hernandez v. State, 757 S.W.2d 744, 752 (Tex. Crim. App.
1988), which was in turn overruled by Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992). Crutsinger v. State,
206 S.W.3d 607, 608 n.2 (Tex. Crim. App. 2006).

38

inquiry into the objective reasonableness of counsel’s performance. Richter, 131 S. Ct. at 790. The
2011 affidavit does not render the state court’s decision unreasonable under federal law, and Issue
5 is denied.
V. CLAIMS PRECLUDED BY CIRCUIT PRECEDENT
Sprouse concedes the remaining issues raised in his petition are foreclosed by Fifth Circuit
precedent. Reply at 1.
A. Voluntary Intoxication Instruction in Punishment Charge
In Issue 6, Sprouse disputes the state court’s resolution of his claims that trial and appellate
counsel rendered ineffective assistance by failing to challenge an intoxication instruction in the
punishment charge as a violation of the Eighth and Fourteenth Amendments. (1 SHR 56-59).
Sprouse’s state habeas counsel argued that the voluntary intoxication instruction required by Texas
penal code § 8.04 was an unconstitutional limitation on the jury’s ability to consider mitigating
evidence. (1 SHR 49).
The first page of the court’s punishment charge instructed the jury to consider “all evidence
submitted to you during the whole trial as to defendant’s background or character or the
circumstances of the offense that mitigates against the imposition of the death penalty.” (CR 101)
(emphasis added). It later provides:
You are instructed that the term “mitigating evidence,” as used herein, means
evidence that a juror might regard as reducing the defendant’s moral
blameworthiness.
You are instructed that under our law neither intoxication nor temporary insanity of
mind caused by intoxication shall constitute any defense to the commission of a

39

crime.12 Evidence of temporary insanity caused by intoxication may be considered
in mitigation of the penalty, if any, attached to the offense.
By the term “intoxication” as used herein is meant disturbance of mental or physical
capacity resulting from the introduction of any substance into the body.
By the term “insanity” as used herein is meant that as a result of intoxication the
defendant did not know that his conduct was wrong.
Now, if you find from the evidence that the defendant, Kent William Sprouse, at the
time of the commission of the offense for which he is on trial, was laboring under
temporary insanity as defined in this charge, produced by voluntary intoxication,
then you may take such temporary insanity into consideration in mitigation of the
penalty which you attach to the crime.
The mitigation special issue then reads as follows:
Special Issue No. 2
Taking into consideration all of the evidence, including the circumstances of the
offense, the defendant’s character and background, and the personal moral culpability
of the defendant, do you find that there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment rather than a death
sentence be imposed?
(CR 103) (emphasis added).
The state habeas court concluded that there was no error in the charge under Drinkard v.
Johnson, 97 F.3d 751, 758-59 (5th Cir. 1996).13 Therefore, neither trial counsel nor appellate
counsel performed deficiently in failing to challenge the instruction. (Supp. 1 SHR 124-25 (no. 48)).
As Sprouse acknowledges, this issue was decided against his position in Narvaiz v. Johnson,
134 F.3d 688, 692-94 (5th Cir. 1998) (citing Drinkard and Lauti v. Johnson, 102 F.3d 166, 169-70
(5th Cir. 1996)). Petition at 54-55. The Narvais opinion reasoned that the general instruction to
12

Trial counsel objected unsuccessfully to this portion of the charge as confusing to the jury since Sprouse had
already been convicted. (30 RR 6-7).
13

Drinkard was overruled on other grounds by Williams v. Taylor, 529 U.S. 362, 410 (2000). See Neal v.
Puckett, 286 F.3d 230, 236 (5th Cir. 2002).

40

consider “all of the evidence” admitted at trial negates any inference that the intoxication instruction
precludes consideration of non-insane, voluntary intoxication. Narvais, 134 F.3d at 693. The claim
is therefore foreclosed by circuit precedent.
The Court notes, however, that the prosecutions in Narvaiz, Drinkard, and Lauti all predate
the use of the mitigation special issue that is present in this case, as well as the Supreme Court’s
opinion in Penry v. Johnson, 532 U.S. 782 (2001). Penry appears to reject the type of reasoning
relied upon in Narvaiz that a jury can logically and ethically follow two conflicting sets of
instructions. See Penry, 532 U.S. at 799-800. Reasonable jurists would therefore find it debatable
whether the instructions in this case are unconstitutional because they are internally inconsistent, i.e.,
that following one set of instructions (to consider “all the evidence”) means ignoring the other (to
consider intoxication evidence only if it arises to the level of temporary insanity). Id. Thus, the
Court denies this issue but certifies it for purposes of appeal. See infra p. 43.
B. Constitutionality of Texas Death Penalty Statute
Issues 7 through 11 challenge the state habeas court’s rejection of Sprouse’s claims that trial
counsel rendered ineffective assistance by failing to challenge the constitutionality of the Texas death
penalty statute. Conceding these claims are foreclosed by circuit precedent, Sprouse seeks only to
preserve them for en banc Fifth Circuit review or review by the United States Supreme Court. These
claims are based on counsel’s failure to challenge the Texas statute on the ground that (1) it does not
provide for meaningful appellate review of the special punishment issues, Petition at 55 (contra
Moore v. Johnson, 225 F.3d 495, 505-07 (5th Cir. 2000) and Martinez v. Johnson, 255 F.3d 229,
241-45 (5th Cir. 2001)); (2) its definition of mitigating evidence is unconstitutionally narrow,
Petition at 56 (contra Beazley v. Johnson, 242 F.3d 248, 259-60 (5th Cir. 2001)); (3) the future
41

dangerousness special issue does not define the terms “probability,” “continuing threat to society,”
and “criminal acts of violence,” Petition at 57 (contra Turner v. Quarterman, 481 F.3d 292, 299-300
(5th Cir. 2007)); (4) it prohibits the jury from being informed of the effects of a jury deadlock based
on a single holdout juror, Petition at 58 (contra Alexander v. Johnson, 211 F.3d 895, 897 n.5 (5th
Cir. 2000)); and (5) it violates Apprendi v. New Jersey, 530 U.S. 466 (2000) because it does not
assign the burden to prove the non-existence of mitigating evidence to the State, Petition at 61
(contra Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir. 2007)). These claims are denied.
VI. EVIDENTIARY HEARING
Sprouse requests that an evidentiary hearing be held to resolve all factual disputes raised by
the petition. Petition at 63. In deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable a petitioner to prove the petition’s factual allegations,
which, if true, would entitle him to relief under 28 U.S.C. § 2254(d); Schriro v. Landrigan, 550 U.S.
465, 474 (2007). In making this determination, “the judge must review the answer, any transcripts
and records of state-court proceedings, and any materials submitted under Rule 7 to determine
whether an evidentiary hearing is warranted.” See R. 8(a) of the Rules Governing § 2254 Cases in
the United States District Court. The decision to grant a hearing rests in the discretion of the district
court, unless a hearing is barred under 28 U.S. C. § 2254(e)(2). See Landrigan, 550 U.S. at 468.
To the extent Sprouse failed to develop the unexhausted claims in this petition, a hearing on those
claims is barred under § 2254(e)(2). Furthermore, because the pleadings demonstrate that there is
no factual dispute upon which federal habeas corpus relief can be granted, no evidentiary hearing
is warranted.

42

VII. CERTIFICATE OF APPEALABILITY
Under Federal Rule of Appellate Procedure 22(b), Sprouse cannot take an appeal from this
order unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253(c). Rule 11(a) of
the Rules Governing Section 2254 Cases requires the Court to issue or deny a COA when it enters
a final order adverse to the applicant.
A COA may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” See § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). An
applicant satisfies this standard by demonstrating that jurists of reason could disagree with the
resolution of his constitutional claims or that jurists could conclude the issues presented are adequate
to deserve encouragement to proceed further. See id. (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)) . Where the district court dismisses the petition on procedural grounds, a petitioner satisfies
this standard by showing that reasonable jurists would find it “debatable whether the petition states
a valid claim of the denial of a constitutional right” and “debatable whether the district court was
correct in its procedural ruling.” Slack, 529 U.S. at 484.
Only Issue 6 meets this standard. It asserts that trial and appellate counsel were ineffective
for failing to challenge the intoxication instruction in the punishment charge as an unconstitutional
limitation on the jury’s ability to give mitigating effect to evidence of non-insane intoxication. For
the reasons previously noted, reasonable jurists would find it debatable whether state habeas court’s
ruling conforms with clearly established federal law.
The Court GRANTS a certificate of appealability as to Issue 6. In the event Sprouse files
a notice of appeal, the Court notes that he may proceed in forma pauperis on appeal. See 18 U.S.C.
§ 3006A(d)(7).
43

The Court GRANTS Respondent’s motion for summary judgment and DENIES the
application for habeas relief.
SIGNED this 29th day of March, 2013.

_________________________________
JORGE A. SOLIS
UNITED STATES DISTRICT JUDGE

44