Crutsinger v. Stephens, Director TDCJ-CID

Filing 48

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS: The Petition for Writ of Habeas Corpus is DENIED. The clerk of the Court shall transmit a copy of this order to Petitioner by certified mail, return receipt requested. [see Order for specifics] (Ordered by Judge Terry R Means on 2/6/2012) (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BILLY JACK CRUTSINGER,
PETITIONER,
v.
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
RESPONDENT.

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No. 4:07-CV-703-Y
(death-penalty case)

OPINION AND ORDER
DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Billy Jack Crutsinger was convicted of capital
murder and sentenced to death in Tarrant County, Texas, in the case
styled State v. Crutsinger, No. 08-85306-D (213th Judicial District
Court, Oct. 1, 2003). The conviction and sentence were affirmed on
appeal in Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App.),
cert. denied, 549 U.S. 1098 (2006). Later, he petitioned for postconviction relief in state court, but the application was denied
in Ex parte Crutsinger, No. WR-63,481-01, 2007 WL 3277524 (Tex.
Crim. App. Nov. 7, 2007) (orig. proceeding) (not designated for
publication).
Pursuant to 28 U.S.C. § 2254, Petitioner has filed an application for writ of habeas corpus alleging three grounds for relief

(doc. 31).

Respondent Rick Thaler filed a brief in response (doc.

36), and Petitioner filed a reply (doc. 37).1
I.

BACKGROUND FACTS

The Texas Court of Criminal Appeals summarized the facts of
this offense as follows:
On April 6, 2003, [Petitioner] entered the home of
eighty-nine-year-old Pearl Magouirk and her seventy-oneyear-old daughter Patricia Syren and stabbed them both to
death.
[Petitioner] then took items from the house
including Syren’s Cadillac and credit card. Magouirk’s
and Syren’s bodies were discovered on April 8, 2003.
While investigating the crime, officers learned that
Syren’s credit card was being used in Galveston, Texas.
The detectives contacted the Galveston Police Department
and traveled to the city to further investigate. The
Galveston police determined that the person using the
credit card was currently in one of several bars in
Galveston. The investigation ultimately led Officer
Clemente Garcia to a man later identified as [Petitioner]. When Garcia approached [Petitioner] and asked
him his name, [Petitioner] did not initially answer.
When Garcia asked [Petitioner] for his name again, [Petitioner] told him his name was “David.” Garcia arrested
[Petitioner] for failing to identify himself and read him
his Miranda rights.
After reading [Petitioner] his
rights, Garcia asked him again for his name, and [Petitioner] identified himself as “David Townsend.” Garcia
took [Petitioner] to the Galveston Police Department
where he subsequently was able to properly identify him.
While in the holding cell, [Petitioner] was
introduced to Detective John McCaskill of the Fort Worth
Police Department. McCaskill asked [Petitioner] if he
could see his hands, and [Petitioner] obliged. Immediately thereafter, McCaskill left the area where [Petitioner] was being held. A few minutes later, [Petitioner]
said that he had “messed up” and asked to speak to
1
Contemporaneously with the filing of the petition, Crutsinger moved for
an evidentiary hearing on the ineffective-assistance-of-counsel claim (doc. 30).
The Court denied the motion on August 17, 2009, primarily because Petitioner
failed to develop the factual basis of the claim in state court, as required by
28 U.S.C. § 2254(e)(2)(doc. 42, p. 6).

2

McCaskill. [Petitioner] was then taken to an interview
room where McCaskill met with him and again read him his
rights. [Petitioner] subsequently consented to having a
DNA sample taken from him and to a search of a black
duffel bag that had been in his possession when he was
arrested. After McCaskill again read [Petitioner] his
legal warnings and [Petitioner] again waived them,
[Petitioner] confessed in a tape-recorded statement to
killing the two women in Fort Worth and taking their
property. In the confession, [Petitioner] told officers
where other evidence of the crime could be found.
Crutsinger, 206 S.W.3d at 609 (footnotes omitted).
A jury convicted Petitioner of causing the deaths of Syren and
Magouirk during the same criminal transaction, and based on the
jury’s answers to the special issues in the court’s charge, the
trial judge sentenced him to death.

(7 CR 1280, 1294-95).2

In his

Petition, Crutsinger alleges (1) the trial court failed to suppress
evidence resulting from his illegal arrest in violation of the
Fourth Amendment; (2) trial counsel provided ineffective assistance
in failing to timely initiate a social history investigation, which
caused counsel to overlook evidence of his mental impairments
caused by alcohol addiction, head trauma, depression, and low
intelligence (the “IAC” claim); and (3) actual innocence.
II.

FOURTH AMENDMENT CLAIM

In the first ground for relief, Petitioner contends his Fourth
Amendment rights were violated by the admission of his confession,

2

“CR” refers to the eight volumes of the trial court clerk’s record,
preceded by the volume number and followed by the page number. Similarly, “RR”
refers to the reporter’s record from trial, and “SHR” refers to the seven volumes
of state-court habeas records.

3

a DNA sample, and other evidence tainted by his illegal arrest.
This claim is barred under Stone v. Powell, 428 U.S. 465, 494
(1976).
A.

Prior Litigation of this Claim

Petitioner raised Fourth Amendment claims in four separate
pretrial motions to suppress, which the trial court denied after
two separate hearings.3

The trial court ruled that Petitioner’s

arrest was illegal under the Texas warrantless-arrest statutes and
excluded any evidence obtained in the period after Petitioner was
arrested but before he asked to speak to a detective.
8 CR 1333).

(25 RR 14;

Petitioner’s police statement, consent to search, and

DNA sample were deemed admissible because they were voluntarily
provided

after

he

asked

to

speak

to

the

detective

and

sufficiently attenuated from the taint of the illegal arrest.

were
(8

CR 1333-34); see generally Brown v. Illinois, 422 U.S. 590 (1975).
At trial, Petitioner relitigated the legality of his arrest
and the attenuation of the taint, and a legal expert was appointed
to testify on his behalf.

(30 RR 4, 16-47, 72-77).

The State also

presented expert testimony on the issue. (30 RR 89-124, 178-183).

3

Petitioner filed his first motion to suppress his statements on July 30,
2003. (1 CR 88). He filed an amended motion to suppress the statements on
August 7. (2 CR 119). On August 8 he filed a motion to suppress all evidence
seized as a result of his illegal arrest.
(2 CR 132).
On September 12
Petitioner filed a motion to suppress DNA evidence that had been obtained by
search warrant dated August 26. (7 CR 1197). A suppression hearing was held
August 22 and written findings were issued October 27. (7 RR 8-192; 8 CR 1331).
A second hearing was held on the motion to suppress the DNA search warrant on
September 18 and the trial court denied it orally from the bench. (24 RR 4-12).

4

The matter was argued and submitted to the jury, which rendered a
guilty verdict.

(30 RR 193, 198-202, 208-210; 7 CR 1281-1284).

Petitioner next raised the issue on direct appeal in the Court
of Criminal Appeals (CCA).

The CCA agreed that the taint of the

illegal arrest was sufficiently attenuated under Brown because (1)
Petitioner had three times received and waived his legal rights
under Miranda, (2) Petitioner had broken down emotionally and
requested to speak to the detective of his own free will, and (3)
the police misconduct was not purposeful or flagrant in that the
officer arguably had probable cause to get a warrant for creditcard abuse when he arrested Petitioner on a different charge that
the officer thought was correct. Crutsinger, 206 S.W.3d at 610-11.
In his state habeas petition, Petitioner asserted that the
trial court erroneously decided the attenuation issue under Brown.
(1 SHR 138-39). The state habeas court concluded the claim was not
cognizable via a writ of habeas corpus and also rejected the claim
on the merits.

(1 SHR 1588, 1591-92 (Nos. 4, 38)).
B.

The Stone Bar

The United States Supreme Court has held that where a state
has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.
Stone v. Powell, 428 U.S. 465, 494 (1976).

5

The Fifth Circuit

applies this bar as long as the state gives the defendant an
opportunity to litigate the issue, whether or not the defendant
takes advantage of the opportunity.

ShisInday v. Quarterman, 511

F.3d 514, 525 (5th Cir. 2007) (citing Janecka v. Cockrell, 301 F.3d
316, 320-21 (5th Cir. 2002)).

The mere allegation that the state

court erred in its determination of the Fourth Amendment issue does
not suffice to circumvent Stone.
401,

409

(5th

Cir.

1983).

See Sonnier v. Maggio, 720 F.2d
Stone

forecloses

review

absent

allegations that the processes provided by a state are routinely or
systematically applied in such a way as to prevent the actual
litigation of Fourth Amendment claims on their merits.

Moreno v.

Dretke, 450 F.3d 158, 167 (5th Cir. 2006)(quoting Williams v.
Brown, 609 F.2d 216, 220 (5th Cir. 1980)).
Petitioner litigated his Fourth Amendment claim before trial,
during trial, on appeal, and in state habeas proceedings. He makes
no

assertion

that

the

state

processes

are

routinely

or

systematically applied in such a way as to prevent the actual
litigation of Fourth Amendment claims on the merits.

Rather,

Petitioner maintains that the state-court application of Brown was
unreasonable in this case and that Doescher v. Estelle, 616 F.2d
205 (5th Cir. 1980) and Gamble v. Oklahoma, 583 F.2d 1161 (10th
Cir. 1978) allow the Court to address the correctness of the statecourt ruling irrespective of Stone.
was

granted

a

certificate

of

He points out that this issue

appealability
6

in

Balentine

v.

Quarterman, No. 2:03-CV-00039 (N.D. Tex. May 2, 2008) (doc. 73),
and he seeks to preserve it for further appellate review.
The circumstances in Doescher, where the litigation procedure
used by the trial court was subsequently declared unconstitutional
but not addressed on direct appeal, do not exist in this case.
Likewise, the circumstances in Gamble, where the state court
“willfully refuse[d] to apply the correct and controlling constitutional standards,” do not exist here.

Gamble, 583 F.2d at 1165.

Further, the Stone issue in Balentine was ultimately decided
against Petitioner’s position.

Balentine v. Quarterman, 324 F.

App'x 304, 307 (5th Cir. 2009) (rejecting claim that state court
must correctly apply federal constitutional law for Stone bar to
apply) (quoting Swicegood v. Alabama, 577 F.2d 1322, 1324 (5th Cir.
1978)).4

Since Petitioner was not deprived of a full and fair

opportunity to litigate his Fourth Amendment claim in state court,
Stone bars consideration of this ground for relief.
III.

ASSISTANCE OF TRIAL COUNSEL

In ground two, Petitioner contends trial counsel initiated the
social-history investigation too late, which prevented counsel from
using

evidence

obtained

by

the

mitigation

specialist

of

Petitioner’s alcohol addiction, head trauma, depression, and low
intelligence.

Petitioner contends this evidence should have been

4

Balentine’s execution was stayed in 2011 pending resolution
unrelated issue. Balentine v. Thaler, 131 S. Ct. 3017 (2011)

7

of

an

used to (1) challenge the admission of his confession and the
tainted fruits thereof, (2) present a “settled insanity” defense
and rebut the culpable mental state, and (3) mitigate evidence of
his antisocial personality disorder.
A. Applicable Law
The substance of this three-part claim was not developed or
presented in the state-court proceedings.5

As this Court has

previously determined, Petitioner’s failure to develop the factual
basis of these claims in state court bars any factual development
in this Court.

See Order Denying Motion for Evidentiary Hearing,

p. 6 (doc. 42); 28 U.S.C. 2254(e)(2).

Nevertheless, the record

contains sufficient facts to make an informed decision on the
merits, and the Court will review the claims de novo.

See 28

U.S.C. § 2254(b)(2)(providing that writ application may be denied
on

the

merits,

notwithstanding

the

failure

to

exhaust

state

remedies); Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (making
de novo determination of whether counsel was deficient because

5

The claims presented in state court alleged a general failure to investigate, failure to adequately communicate with the client, and an attempt to coerce
a guilty plea. (1 SHR 127-28; 7 SHR 1564, 1614). The present claims are, therefore, unexhausted. See 28 U.S.C. § 2254(b)(1)(A). This Court stated as much in
its Order Denying Motion for Evidentiary Hearing (doc. 42, p. 8). Respondent,
however, does not assert a procedural bar based on the failure to exhaust, as he
does against the third ground for relief. Answer, p. 26 (doc. 36). Nor does the
Petition or Reply anticipate any such defense by presenting arguments to overcome
a procedural bar. Under these circumstances, where the omission appears to be
the result of a deliberate decision rather than inadvertent omission, the Court
is not inclined to apply a procedural bar sua sponte. See Magouirk v. Phillips,
144 F.3d 348, 359-60 (5th Cir. 1998) (holding that district court must consider
whether state’s failure to raise procedural default is inadvertent or purposeful
before exercising discretion to raise it sua sponte).

8

state court did not decide this element of Strickland); Carty v.
Thaler, 583 F.3d 244, 253 (5th Cir. 2009)(recognizing that the
AEDPA-mandated deference to state-court decisions does not apply
when the state court did not adjudicate claim on the merits); e.g.,
Hernandez v. Thaler, 398 Fed. App’x 81, 85 n.1 (5th Cir. 2010)
(denying appeal of denial of IAC claims, which district court had
determined de novo because the state did not assert a procedural
bar based on the failure to exhaust).
To

prevail

under

the

well-known

Strickland

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 prove either deficient performance or actual prejudice is fatal
to an ineffective-assistance claim.

Strickland, 466 U.S. at 700.

In evaluating counsel’s representation, counsel should be
“strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.”

See Strickland, 466 U.S. at 690.

Because it is

easy to denounce an unsuccessful course of action with the benefit
of hindsight, courts should evaluate the challenged conduct from
counsel’s perspective at that time.
9

Id. at 689.

Strategic deci-

sions following a thorough investigation are “virtually unchallengeable.” Id. at 690. Strategic choices made after a less-thanthorough investigation are reasonable precisely to the extent that
reasonable

professional

judgments

investigation.

prejudice

the

limitations

on

Id. at 691.

Under

support

the

element,

a

“reasonable

probability”

requires a substantial, not just a conceivable, likelihood of a
different outcome.

Harrington v. Richter, 133 S. Ct. 770, 792

(2011). Conclusory assertions of prejudice do not satisfy the
prejudice requirement of Strickland.

Green v. Johnson, 160 F.3d

1029, 1041 (5th Cir. 1998).
B.

Counsels’ Pretrial Representation

Petitioner first contends that counsel should have challenged
the voluntariness of his confession on the grounds that he was
depressed, of low intelligence, and brain damaged due to longstanding alcohol addiction and a car-accident injury.
Counsels’ Representation
On counsels’ motion, the trial court appointed a forensic
psychologist, Dr. Kelly Goodness, on July 11, 2003, as a mitigation
specialist, whose tasks included a social- history investigation.
(1 CR 65, 67); Exhibit F.
was appointed on June 19.

In addition, psychiatrist Barry Mills
(1 CR 48, 50).

In their affidavit to the state habeas court, trial counsel
explained that the opinions of their two mental-health experts
10

would not have benefitted Petitioner at punishment and that the use
of experts would have allowed the State to present evidence based
on

their

own

expert’s

evaluation.

(7

SHR

1420).

Although

Petitioner contends this affidavit is vague, conclusory, and selfserving (Motion for Evidentiary Hearing, p. 1-2), it is supported
by the record.
Counsels’ misgivings about a state-sponsored examination are
apparent during pretrial proceedings where counsel, after an offthe-record discussion with Petitioner, withdrew his intent to offer
psychiatric testimony at punishment in order to avoid introduction
of a psychiatric evaluation by the state’s expert. (24 RR 16-18).
The trial court agreed and reversed its previous ruling that the
state’s expert, Dr. Price, could interview Petitioner.
1 CR 42-47).

(24 RR 18;

This corroborates counsels’ asserted belief that the

evidentiary value of the mental-health evidence was outweighed by
the risks associated with its use.

Specifically, when a defendant

plans to introduce expert testimony based on his personal psychiatric interview, the trial court may (as it did in this case) order
him to submit to a pre-trial state-sponsored examination, and the
defendant may not use the Fifth Amendment as a shield against
cross-examination on disputed issues.

See generally Davis v.

State, 313 S.W.3d 317, 351-52 (Tex. Crim. App. 2010) (citing
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997)); e.g.,
Yowell v. Thaler, No. 10-70026, 2011 WL 4056707, *1-2 n.1 (5th Cir.

11

Sept. 12, 2011) (noting that trial counsel, who made a strategic
decision not to present expert testimony based on a psychiatric
evaluation of the defendant, stated to the trial court, “Based on
my experience in the past, there’s probably no way on God’s green
earth that we’re going to do anything to allow the State to examine
our client with one of their own experts”).

Not only would a

State’s expert have had unfettered access to Petitioner during a
forensic psychological evaluation, but the prosecution in this case
would have been entitled to discovery of Dr. Goodness’s reports,
underlying data, and notes.

(1 CR 52-54 (Order Granting State’s

Motion for Discovery of Expert Witnesses)); see Tex. R. Evid. 705
(providing for disclosure of facts or data underlying expert
opinion).6
The record also supports counsels’ assertion that the expert
testimony would not have benefitted the defense.

Dr. Goodness

opined that “chances are” Petitioner’s brain is damaged from
alcohol abuse and that he does have “some” intellectual and
cognitive difficulties.

Ex. C, pp. 10, 12.

But she cautioned

against the usefulness of further neuropsychological testing, and
she noted that there is “no particular definitive neuropsychological pattern exhibited by individuals who have damaged their
brains due to alcohol use.”

Ex. C, p. 10.

Dr. Goodness diagnosed

6
Of course, counsels’ statements during the pretrial proceeding pertained
to the punishment phase of trial, but the same risks arise at any phase because
the rule focuses on the defendant’s choice to break his silence by presenting
testimony based on a personal interview. See Davis, 313 S.W.3d at 352.

12

Petitioner with learning disorder, but he is not mentally retarded
and tested in the low-average range of intellectual functioning.
Ex. C, p. 8.

And although Petitioner’s “ability to think with

words, react with speed and use common sense is below average,” his
“ability to visually take-in information, use that information to
plan, as well as his analytic reasoning ability are in comparison
good.”

Ex. C, p. 10.

The report also reflects that Petitioner was

a forty-eight-year-old man with experience in the criminal justice
system dating back to 1974, which tends to undermine the claim of
a coerced confession.

Ex. C (Records Review, pp. 2-5).

In sum,

the report does not contain strong evidence of brain impairment,
much less evidence that brain impairment allowed law enforcement
personnel to extract an involuntary confession.
Petitioner

supplements

his

Petition

with

articles

on

alcoholism, dating back to the time of trial, which discuss
attempts to link brain shrinkage caused by alcoholism to cognitive
function and criminal behavior.

Ex. A, B, G.7

these research articles are equivocal at best.

The conclusions in
One article finds

little or no consistent relationship between alcoholism and the
cognitive functions of short-term memory and problem solving.

Ex.

A, p. 2. Another concludes that, “No study shows that disorders of
the prefrontal cortex predict violent crime.”

7

Ex. G, p. 724.

Even though further development of the record is prohibited by 28 U.S.C.
§ 2254(e)(2), these articles are considered under the Court’s power to review the
merits of an otherwise unexhausted claim under § 2254(b)(2).

13

Another

appears

to

corroborate

Dr.

Goodness’s

conclusions,

suggesting that brain impairment due to alcoholism cannot be
distinguished from brain impairment that predates the alcoholism,
and further stating, “Our understanding of the frontal lobe changes
caused by alcohol . . . remains fragmented.”

Ex. B, p. 365.

These

articles do not improve the probative value of Dr. Goodness’s
report.
On the other hand, the report contains significant aggravating
evidence that would have been provided to the prosecution under the
trial court’s discovery order.
that

Petitioner

Personality

“clearly

Disorder

in

For example, Dr. Goodness writes

meets
that

he

the
has

criteria
a

for

pervasive

Antisocial
pattern

of

disregard for, and a violation of, the rights of others and has
repeatedly broken the law.”

Ex. C, p. 11.

Although Dr. Goodness

opined Petitioner would not be a future danger, she found, or
presumed, that he possessed four out of the six risk factors
associated with future violence among incarcerated murderers.
C, p. 16.

Ex.

She attributes the murders to his alcoholism, alcoholic

rage, a downward spiral of problems often caused or worsened by
alcohol, and a “lifelong lack of consequences,” which taught him he
could get away with acting on his impulses and desires because
others often bailed him out of financial problems or legal scrapes.
Ex. C, p. 12-14.

The witness interview summaries depict a man who

physically abused his wife and never cared about his children, who

14

lied easily, who stole from people close to him including his
handicapped siblings, whose mother rescued him his whole life even
though he mistreated her, and who had threatened to kill his family
members on more than one occasion.

Ex. C (Collateral Interview

Summaries, pp. 1-12).
As

Petitioner

points

out,

trial

counsel

knew that the

confession was “the” critical piece of evidence in the case. (7 CR
1419).

Indeed, counsel challenged the confession and its eviden-

tiary fruits in four motions to suppress and two hearings.
supra note 3.

See

Counsel convinced the trial court of the illegality

of the arrest and relitigated the suppression issue before the
jury.

Counsel also recognized the possible issues regarding their

client’s mental capacity and the need for expert assistance.

They

requested and received funds to employ a psychiatrist and a
psychologist to assist at trial “and testify, if necessary.” (1 CR
48, 65).

That Dr. Goodness provided an opinion unhelpful to the

defense does not render counsel ineffective.

See Dowthitt v.

Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (holding that counsel
was not deficient by not canvassing the field to find a more
favorable defense expert).
To be clear, Petitioner does not contend that the socialhistory investigation was less than thorough or overlooked any
helpful information.

Rather, he contends that counsels’ decision

not to use it to challenge the voluntariness of his confession was

15

unreasonable because counsel made the decision before Dr. Goodness
generated her final, written report.

This allegation assumes that

trial counsel received no information from Dr. Goodness until the
day she issued the written report.

Such an assumption is contra-

dicted by the record.
Dr. Goodness’s report reflects that she would make an oral
report to Petitioner’s counsel and only prepare a written report if
counsel requested one.

Ex. C, p. 3.

The report further shows that

on August 4, 5, and 8, 2003, Dr. Goodness reviewed Petitioner’s
school, hospital, probation, criminal history, substance-abuse
treatment, and jail records; a letter written by his mother to a
judge; and the autopsy reports.

Ex. C (Records Review).

Dr.

Goodness and her staff8 conducted clinical interviews and testing
of Petitioner on July 23 and 30 and August 8, 14, and 26.

Ex. C,

p. 3. Thus, although Dr. Goodness did not issue her written report
until September 10, she and her staff were gathering information
well before that date and before the date of the suppression
hearing, which was August 22. (7 RR). Given Dr. Goodness’s intent
to first present counsel with an oral report of her findings,
Petitioner’s assumption that counsel did not consult his retained
expert until September 10 is not supportable.
written

report

post-dates

the

8

suppression

The fact that the
hearing

does

not

Dr. Goodness utilized the services of a social worker and a psychological
associate to collect data and conduct 14 hours of clinical interviews with
Petitioner. Ex. F, p. 1; Ex. C, p. 3.

16

undermine the reasonableness of counsels’ chosen strategy at the
hearing.9
Prejudice
Even assuming, however, that the record could support a
finding that trial counsels’ strategy was developed without the
benefit

of

Dr.

Goodness’s

investigation,

it

does

not

show

prejudice. Regarding the pretrial portion of counsels’ representation, Petitioner alleges, “The absence of evidence of . . . mental
impairments pre-trial, resulted in the mistaken conclusion by the
state courts’ [sic] that because the confession was voluntary, the
confession, as well as all the evidence flowing from it, was
admissible.” Petition, pp. 52-53. This conclusory assertion fails
to allege the prejudice required by Strickland.

See Mallard v.

Cain, 515 F.3d 379, 383 (5th Cir. 2008); Green, 160 F.3d at 1041.
In any event, the determination of an involuntary-confession
claim is guided by the due-process voluntariness test, which the
Supreme Court has refined into an inquiry that examines “whether a
defendant’s will was overborne” by the circumstances surrounding

9

Petitioner’s untimeliness allegation is also based on letters from Dr.
Goodness and her staff, written before she was retained, indicating that “it
would be difficult if not impossible” to collect all the information necessary
in less than three months, and that Dr. Goodness would no longer take cases with
trial dates fewer than three months away.
Ex. C, D, E; Petition, p. 37.
Regardless of the stated preference for three months’ lead time, Dr. Goodness
accepted the July 11, 2003 court appointment for a trial that began on September
22, about two and a half months later. Ex. F; (1 CR 67; 27 RR 1). She prepared
her written report twelve days before trial began, which contradicts her
previously asserted three-month requirement, at least in this particular case.
Here, again, the Court notes that Petitioner does not challenge the thoroughness
of the report.

17

the giving of a confession.

Dickerson v. United States, 530 U.S.

428, 434 (2000) (quoting Schneckcloth v. Bustamonte, 412 U.S. 218,
226 (1973)).

To establish that his confession was involuntary, a

defendant must demonstrate that it resulted from coercive police
conduct, and it is essential that there be a link between the
coercive conduct of the police and the confession of the defendant.
Hopkins v. Cockrell, 325 F.3d 579, 584 (5th Cir. 2003) (citing
Colorado v. Connelly, 479 U.S. 157, 163-65 (1986)).
Petitioner fails to identify any coercive tactics by the
police that would have rendered his confession involuntary.
Petition, pp. 52-53.

The additional circumstances surrounding the

confession, which Petitioner does not contest, show that he is a
middle-aged man with multiple prior arrests, that he expressed
remorse and asked to speak to the detective, that he appeared
cooperative and willing to talk, and that he was given Miranda
warnings three times.

(7 RR 18-19, 28-29, 65-66, 153-54; 31 RR

57); Ex. C (Records Review).
time

of

arrest

but

was

He had been drinking in a bar at the

not

intoxicated.

(7

RR

58-59).

In

Petitioner’s recorded confession, he says that, after the murders,
he kept telling himself to “just go ahead and tell the police what
you did, you know, and get it behind you . . . go to the FBI, you
know.

You are sick[;] you are going to need some help.”

Pretrial Ex. 4, p. 12; 7 RR 26-27.

State’s

This is strong evidence that

Petitioner was of a mind to confess even before he encountered the

18

police in Galveston.

A challenge to the voluntariness of the

resulting confession using the contents of Dr. Goodness’s report
would have been futile under these circumstances.
Counsels’ investigation in this case was not deficient, but
was guided by sufficient information upon which a reasonable
strategic decision could be made.

The decision not to use Dr.

Goodness’s report to challenge the voluntariness of the confession
was a reasonable strategy given its weak probative value and the
associated risks.

Further, Petitioner was not prejudiced by the

decision because the information upon which he relies would not
have convinced a fact finder that his confession was involuntary
under the circumstances.
C.
Petitioner

Counsels’ Guilt-Phase Representation
next

contends

that

counsel

should

have

used

evidence of his long-term alcohol addiction to present the defense
of “settled insanity” and to negate the alleged mens rea. Had they
done

so,

Petitioner

contends

the

jury

would

have

reached

a

different result as to his culpability.
Delirium Tremens as an Insanity Defense
According to Petitioner, Texas law since 1892 has recognized
the defense of “settled insanity” (as opposed to temporary insanity
due

to

intoxication)

which

is

defined

as

follows:

“Delirium

tremens, caused by the breaking down of the person’s system by long
continued or habitual drunkenness and brought on by the abstinence

19

from drink.”

Petition, p. 50; Evers v. State, 20 S.W. 744, 748

(Tex. Crim. App. 1892); see also Thomas v. Texas, 177 S.W.2d 777,
779 (Tex. Crim. App. 1944); Duke v. Texas, 134 S.W. 705, 708 (Tex.
Crim. App. 1911).
Section 8.01 of the Texas Penal Code defines the insanity
defense.

See 1993 Tex. Gen. Laws 900 (now codified in Tex. Penal

Code Ann. § 8.01(a) (West 2011)).

Section 8.01(a) states: “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.”

Id.

The

insanity defense in section 8.01 is the only “diminished capacity”
defense to criminal responsibility in Texas.
S.W.3d 586, 593 (Tex. Crim. App. 2008).

Ruffin v. Texas 270

Texas does not recognize

any form of insanity short of the inability to distinguish right
from wrong.

See Jackson v. Texas, 160 S.W.3d 568, 572 (Tex. Crim.

App. 2005) (holding that Texas does not recognize diminished
capacity as an affirmative defense but only as a “failure-of-proof”
doctrine in which the defendant claims that, due to his mental or
physical impairments, the state failed to prove he had the required
state of mind at the time of the offense).

To the extent this

claim

insanity”

relies

on

a

definition

of

“settled

that

is

different from insanity as defined in section 8.01, there is no
legal basis for it.

20

As for Petitioner’s apparent claim that counsel should have
raised an insanity defense under section 8.01 (i.e., that delirium
tremens due to long-term alcoholism caused Petitioner not to know
his conduct was wrong), there is no factual basis for it.

While

Dr. Goodness allowed that Petitioner’s brain “does not function in
an altogether average manner,” this is a long way from establishing
that he did not know his conduct was wrong.

Ex. C, p. 10. If

anything, Dr. Goodness believed that Petitioner was intoxicated at
the time of the offense, not insane due to alcohol withdrawal or
delirium tremens. She identified “alcoholic rage” as a factor that
contributed to his crime.

Ex. C, p. 14.

She reported that he

drank several beers before going to the victims’ house and, “as he
was growing increasingly more prone to do when drinking alcohol,
[Petitioner] went into a rage when he realized” that the victims
would not hire him to work.

Ex. C, p. 14.

Voluntary intoxication

on the part of a defendant, even an alcohol-addicted defendant,
does not constitute any defense to the commission of a crime in
Texas.

See 1993 Tex. Gen. Laws 900 (now codified at Tex. Penal

Code Ann. § 8.04(a) (West 2011)); Raby v. State, 970 S.W.2d 1, 4
(Tex. Crim. App. 1998); Heard v. State, 887 S.W.2d 94 (Tex.
App.–Texarkana 1994, pet. ref’d) (rejecting argument that, to an
alcoholic, drinking is not voluntary); see also Hernandez v.
Johnson, 213 F.3d 243, 250 (5th Cir. 2000) (noting that Texas
courts have consistently ruled that alcoholism may not be the basis

21

for an involuntary intoxication defense).

There is no evidence

supporting an insanity defense in this case.
Alcohol-Related Brain Damage to Negate the Mens Rea
Petitioner alternatively contends that counsel should have
introduced

his

alleged

settled

insanity

evidence

as

relevant

“condition-of-the-mind” evidence under article 38.36 of the Texas
Code of Criminal Procedure to negate the mens rea.10

In ground

three, however, Petitioner asserts that there was confusion in the
law at the time of trial as to whether a defendant could introduce
mental impairment evidence to negate mens rea and that this
confusion ended only in 2005, when the CCA issued Jackson, 160
S.W.3d 568.

Petition, p. 59-61.

If this is true, then counsel

cannot be deemed ineffective for failing to predict the future.
Ogan v. Cockrell, 297 F.3d 349, 360 (5th Cir. 2002) (stating that
assessment of counsel’s performance under Strickland is based upon
the law that existed at the time of trial); Ex parte Chandler, 182
S.W.3d 350, 359 (Tex. Crim. App. 2005) (holding that legal advice
that only later proves to be incorrect does not normally fall below
Strickland’s objective standard of reasonableness).
In any event, the Court assumes for purposes of this claim, as
does Petitioner, that mental-impairment evidence less than insanity

10

Article 38.36 provides that “In all prosecutions for murder, the state
or the defendant shall be permitted to offer testimony as to . . . all relevant
facts and circumstances going to show the condition of the mind of the accused
at the time of the offense.” Tex. Code Crim. Proc. Ann. art. 38.36(a) (West
2002).

22

was admissible to negate mens rea at the time of trial.

Under

Jackson and its progeny, a defendant may present any relevant
evidence (except for intoxication) that a jury may consider to
negate the mens-rea elements, just as he may present evidence to
negate any other elements of the alleged offense.

Jackson, 160

S.W.3d at 574; see Davis, 313 S.W.3d at 328-29 (holding that
intoxication evidence is inadmissible to negate mens rea).

But

such evidence must “truly negate the mens rea.” See, e.g., Ruffin,
270 S.W.3d at 594, 596 (explaining that, if a defendant suffers
from delusions such that he sees a “trespasser” or “Muslim” when
everyone else around him sees a police officer, he cannot be
convicted of intentionally shooting at a police officer).
Petitioner fails to identify any condition of his mind that
shows he did not “intentionally cause the death” of the victims,
the mental state alleged in this case.

1 CR 3.

Evidence of

general cognitive impairment, unconnected to Petitioner’s intent
during

the

commission

of

the

offense,

does

not

negate

allegation that he intended to cause the victims’ deaths.

the
See

United States v. Cameron, 907 F.2d 1051, 1067-68 (11th Cir. 1990)
(stating that psychiatric evidence is admissible to negate specific
intent when such evidence focuses on the defendant’s specific state
of mind at the time of the charged offense, but that generalized
psychiatric testimony failed to negate intent); Ruffin, 270 S.W.3d
at 596 n. 32 (citing Cameron).

23

Here, in fact, Dr. Goodness’s

findings confirm that Petitioner intentionally caused the victims’
death during an alcoholic rage because they would not hire him to
work.

See, e.g., Jackson, 160 S.W.3d at 572 (observing that

evidence

of

defendant’s

paranoia

provided

motive

for

the

intentional murder of his brother).
There is no evidence that Petitioner was insane at the time of
the offense or lacked intent to cause the victims’ deaths.
Therefore, counsel was not ineffective for failing to present mental impairment evidence on the issue of insanity or to negate the
culpable mental state.

See United States v. Kimler, 167 F.3d 889,

893 (5th Cir. 1999) (holding that an attorney’s failure to raise a
meritless argument cannot form the basis of a successful ineffective-assistance-of-counsel claim); Sones v. Hargett, 61 F.3d 410,
415 n.5 (5th Cir. 1995) (noting that counsel cannot be deficient
for failing to press a frivolous point).
E.

Counsels’ Sentencing-Phase Representation

Petitioner’s remaining allegation regarding counsels’ representation

is

that

counsel

should

have

presented

the

mental-

deficiency evidence in Dr. Goodness’s report to mitigate punishment. Petitioner contends this evidence would have proved the nonvolitional

nature

of

Petitioner’s

aggression

by

showing

the

correlation between brain injury and antisocial behavior, leading
the jury to conclude he was less morally culpable than a defendant
who acts deliberately.

Petition, p. 52.

24

Counsel’s Representation
Counsels’ affidavit in the state habeas proceeding indicates
that they did not perceive their expert reports to be beneficial to
the defense.

The Court has already concluded that this strategic

decision, made after hiring two experts to assist with mentalhealth issues, was reasonable given the content of the report and
the risk associated with triggering a state-sponsored psychiatric
examination.

Petitioner states that a timely investigation would

have uncovered scientific literature that explained Petitioner’s
antisocial personality disorder as a non-volitional act. Reply, p.
6.

He cites for support a scientific article which states that

persons with traumatic and neurodegenerative disorders involving
the prefrontal cortex display increased rates of aggressive and
antisocial behavior.

Reply, p. 6-7.

Assuming, for the sake of argument, that Petitioner can show
he has such a level of brain impairment, this same article also
states that, “No study, however, shows that disorders of prefrontal
cortex predict violent crime,” and that “few studies attributing
violent

crime

to

frontal

lobe

dysfunction

adequately

address

concurrent psychosocial variables such as emotional stress, drug
and alcohol misuse, physical and sexual abuse, family breakdown,
and poverty.”

Ex. G, p. 724.

It also observes, “The reported

reductions in prefrontal size or activity may, therefore, represent
a

predisposition

to

affective

states

25

relevant

to

aggressive

behaviour, without necessarily signifying an incapacity to avoid
actual violent acts.”

Id.

As previously noted, the article is

equivocal evidence at best, does not assign an involuntary cause to
antisocial

personality

disorder,

and

does

not

undermine

the

reasonableness of counsels’ decision not to use Dr. Goodness’s
report at sentencing.
Dr. Goodness was aware of all the factors that Petitioner now
contends contributed to brain impairment-–the car accident, depression, low-average intelligence, and alcoholism.

She nevertheless

attributed the murders to Petitioner’s (1) alcoholism, (2) lifelong
lack of consequences, (3) a downward spiral of problems that
resulted directly from or were worsened by, his alcoholism, and (4)
alcoholic rage. Exhibit C, p. 12-14. Petitioner’s contention that
Dr.

Goodness

should

have

been

called

to

testify

about

the

involuntary nature of antisocial personality disorder overlooks her
conclusion that alcohol abuse was a direct and indirect cause of
this crime–-a conclusion that Dr. Goodness would most certainly be
asked to admit on cross-examination.

Since the evidence does not

reasonably support an argument that Petitioner’s crime was cause by
non-volitional frontal-lobe impairment as opposed to alcohol abuse,
counsel was not ineffective for failing to make such an argument.
See Byrd v. Smith, No. 93-6939, 1995 WL 8928, *4 (4th Cir. Jan 11,
1005) (holding that counsel’s failure to make a jury argument
unsupported by the trial evidence is not error).

26

Petitioner

contends

this

case

is

similar

to

Walbey

v.

Quarterman, 309 Fed. Appx. 795, 2009 WL 113778 (5th Cir. Jan. 19,
2009), in which the court of appeals concluded that trial counsel
rendered ineffective assistance, in part because counsel failed to
discover and present evidence that would have explained Walbey’s
antisocial personality.
hired

a

mental-health

Reply, p. 6.
expert

one

week

mitigation investigation was conducted.
797.

Trial counsel in Walbey
before

trial,

and

no

Walbey, 309 Fed. Appx. at

Walbey’s attorney therefore overlooked evidence of Walbey’s

abandonment by the murder victim, who was his former foster mother,
as well as evidence of Walbey’s nightmarish childhood of “bloodcurdling” neglect and abuse.

Id. at 797, 803.

Walbey’s counsel

was also unprepared to challenge his own expert’s admission that
Walbey could be diagnosed with antisocial personality disorder,
even though the expert disagreed with such a diagnosis.

Id. at

804.
The facts of this case are nothing like Walbey.

Counsel here

hired a forensic psychologist who, with the assistance of a social
worker

and

psychological

associate,

conducted

a

mitigation

investigation that is documented in a twenty-three page report.
That report is supported by interviews with Petitioner’s friends
and family, document review summaries, a criminal history, fourteen
hours

of

clinical

interviews

with

Petitioner,

and

the

administration of nineteen different psychological instruments.

27

Ex. C, D.

In addition, counsel retained a psychiatrist.

Unlike

Walbey, Petitioner’s expert agreed with the diagnosis of antisocial
personality disorder, a factor that supports the decision not call
her to testify.

If anything, the Walbey opinion demonstrates by

contrast that counsels’ decision in this case was based on a
reasonable investigation.
Prejudice
Alternatively, there is no prejudice.

To determine whether

Petitioner has made a showing of prejudice, the Court ascertains
whether there is a reasonable probability that, absent the alleged
errors,

the

jury

would

have

concluded

that

the

balance

of

aggravating and mitigating circumstances did not warrant a death
sentence.
evaluate

See Strickland, 466 U.S. at 695.
the

totality

of

the

available

The Court must

mitigation

evidence

presented both at trial and in the habeas proceeding and reweigh it
against the evidence in aggravation.

See id. at 694.

Petitioner’s allegation of prejudice, that the jurors were
left with “evilness” as the only explanation for Petitioner’s
conduct,
consisted

is
of

not

true.

testimony

Trial
that

counsels’
Petitioner

sentencing
behaved

strategy

well

while

incarcerated (31 RR 155-60; 32 RR 4-16); that he had an unstable
upbringing and was a “train wreck of a child” (33 RR 16-17, 25;
that all of his bad behavior is connected to alcohol abuse, which
he learned from his father at a young age, and which would not be

28

a factor in prison (32 RR 57-59, 68-70, 88, 94-95, 101, 103-06,
1115, 118); that he was deeply affected by the deaths of many
people close to him, including three of his children (32 RR 46-47,
64-68); and that he was sad and overwhelmingly desperate in the
weeks leading up to the offense (32 RR 33-39, 44); (33 RR 16-26
(closing argument)).
In contrast, Dr. Goodness’s report would have confirmed the
antisocial personality disorder diagnosis, as well as the fact that
Petitioner was an indulged, favored child who never suffered the
consequences of his impulsive acts until he was in his forties.
Had counsel chosen to present Dr. Goodness’s testimony, her report
would have provided the prosecution with information specifically
from Petitioner’s sister who told Dr. Goodness that she would be
“pleased to say how horrible she thinks he is in front of a jury.”
Ex. C (Interview Summaries, p. 8). The prosecution would have been
provided with the sister’s opinion of Petitioner as an overprotected son who assaulted and stole from an elderly mother “who
let him get away with it,” and refused to press charges.
(Interview Summaries, p. 8).

Ex. C.

Instead, trial counsel were able to

present Petitioner as a neglected child whose mother had to be
arrested before she would come testify for him. 33 RR 17.
Dr. Goodness’s report would have also corroborated the prosecution’s evidence regarding Petitioner’s criminal history, spouse
abuse, and child abuse.

(31 RR 2-145).

29

To the extent Dr. Goodness

opined on Petitioner’s mental functioning, she reported minimal
evidence of brain impairment, likely caused by his volitional abuse
of alcohol.

Her report, the mitigation value of which Petitioner

overstates, would not have changed the jury’s assessment of his
moral blameworthiness, nor does it show that the trial cannot be
relied on as having produced a just result.

See Strickland, 466

U.S. at 686 (clarifying the purpose of the effective-assistance
guarantee); Mitchell v. Epps, 641 F.3d 134,152 (2011) (denying
appeal on Strickland claim because, among other things, the mental
health information that the defendant claimed counsel should have
presented contained damaging facts that would not have helped in
persuading the jury to spare his life).

Accordingly, Petitioner

was not prejudiced by the alleged errors of counsel, and the Court
denies this second ground for relief.
III.
Petitioner’s

third

ACTUAL INNOCENCE

ground

for

relief

is

a

free-standing

actual-innocence claim asserted under Herrera v. Collins, 506 U.S.
390 (1993).

He contends that his alcohol addiction very likely

resulted in brain damage that produced a settled insanity, calling
into question whether his acts of killing were intentional.
Petition, pp. 58-59.

Petitioner concludes that if, due to mental

impairment, he did not have the intent to cause the victims’
deaths, then he is actually innocent of capital murder.

30

Respondent

argues

that

this

claim

is

unexhausted

and

procedurally barred because Petitioner would be foreclosed from
presenting it now in state court.

See 28 U.S.C. § 2254(b); Coleman

v. Thompson, 501 U.S. 722, 735 n.1 (1991); Woodfox v. Cain, 609
F.3d 774, 793 250, 254 (5th Cir. 1999).

The Court need not address

the exhaustion issue, however, because a claim of actual innocence
under Herrera, independent of any constitutional error, does not
state a basis for federal habeas relief.

See Herrera, 506 U.S. at

400 (holding that claims of actual innocence based on newly
discovered evidence have never been held to state a ground for
federal

habeas

relief

absent

an

independent

constitutional

violation occurring in the underlying state proceeding); Graves v.
Cockrell, 351 F.3d 143, 151 (5th Cir. 2003); cf. State ex rel.
Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994)
(holding that state habeas proceeding is an appropriate vehicle in
which to assert a factual innocence claim based on newly discovered
evidence).
Furthermore, even if this claim were cognizable, it would fail
on the merits. “Actual innocence” means that, as a factual matter,
Petitioner did not commit the crime of conviction.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999).

See Fairman v.
A free-standing

actual-innocence claim of the sort addressed in Herrera must meet
an extraordinarily high standard of proof based on newly discovered
evidence.

See Herrera, 506 U.S. at 417 (assuming for the sake of
31

argument

that

actual-innocence

claims

warrant

federal

habeas

relief, the threshold showing for such an assumed right would be
extraordinarily high); see also Ex parte Chavez, 213 S.W.3d 320,
322 (Tex. Crim. App. 2006) (holding that a habeas applicant making
bare innocence claim must show by clear and convincing evidence
that, presented with both the inculpatory evidence at trial and the
newly discovered evidence of innocence, no reasonable juror would
have convicted him).

Newly discovered evidence is evidence that

was not known to the defendant at trial and could not have been
known to him even with the exercise of due diligence.

Ex parte

Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (defining “newly
discovered evidence”).
Petitioner presents no new evidence of his innocence, but
rather a legal theory based evidence that was available at the time
of trial.

Further, such evidence does not demonstrate that as a

factual matter, Petitioner did not commit the crime of conviction.
Assuming Dr. Goodness’s report could have been presented to the
jury to determine his culpable mental state, its contents do not
demonstrate a lack of intent.

Dr. Goodness observes that the

forty-eight year-old Petitioner had been recently abandoned by a
mother who enabled him to avoid the consequences of his impulsive
acts his entire life.

He approached the victims looking for work

and went into an alcoholic rage when they would not hire him.
Exhibit C, p. 12-13.

Dr. Goodness concludes, “All of his anger at

32

being left to fend for himself and of having his safety net taken
from him was then brought to bear on the victims.”
12-14.

Exhibit C, p.

She does not opine that he did not intend to stab the

victims to death, but provides a motive and explanation as to why
he intentionally killed them.
claim lacks merit.

Accordingly, the actual-innocence

See Ruffin, 270 S.W.3d at 593 (Texas does not

permit the exoneration or mitigation of an offense because of a
person’s supposed psychiatric compulsion, inability to engage in
normal reflection or moral judgment, or impaired ability to reason
through the consequences of his actions because of a mental
disorder).

Because bare innocence claims are not a ground for

federal habeas relief and because this particular innocence claim
lacks merit, ground three is denied.
The Petition for Writ of Habeas Corpus is DENIED.

The clerk

of the Court shall transmit a copy of this order to Petitioner by
certified mail, return receipt requested.
SIGNED February 6, 2012.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:be

33