Lee v. Stephens Director TDCJ-CID

Filing 76

Memorandum Opinion and Order... The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby , denied, as Petitioner has not made a substantial showing of the denial of a constitutional right. Finally, the court ORDERS that all motions not previously ruled upon be, and are hereby, denied. (Ordered by Judge John McBryde on 7/27/2016) (wxc)

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IN THE UNITED STATES DISTRI T. C
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FOR THE NORTHERN DISTRICT 0 TEXA~
FORT WORTH DIVISION
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BOBBY JOE LEE,

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§
§

Petitioner,

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§

v.

§

No. 4:14-CV-928-A

§

LORIE DAVIS, Director,'
Texas Department of Criminal
Justice, Correctional
Institutions Division,

§
§
§
§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.

§

2254 filed by petitioner, Bobby Joe Lee, a state

prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie
Davis, Director of TDCJ, Respondent. After having considered the
pleadings, state court records, and relief sought by petitioner,
the court has concluded that the petition should be denied.
I. Procedural History
On September 2, 2010, in the 432nd District Court of Tarrant
County, Texas, Case Nos. ll81069D, 1181071D and ll81073D, a jury
1Effective May 4, 2016, Lorie Davis replaced William Stephens as
director of the Correctional Institutions Division of the Texas Department of
Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.

found Petitioner guilty on two counts of felony theft and one
count of felony criminal mischief. Clerk's R. 67, ECF No. 24-9;
Clerk's R. 68, ECF No. 24-22; Clerk's R. 68, ECF No. 25-2. The
Amarillo Court of Appeals affirmed the trial court's judgments,
as modified to correctly reflect petitioner's pleas to the
sentencing-enhancement paragraphs in the indictments, and the
Texas Court of Criminal Appeals refused his petition for
discretionary review. Mem. Op. 13, ECF No. 24-4; "Case Info
Sheet," ECF No. 24-1. Petitioner also filed three postconviction
state habeas applications, one for each conviction, which were
denied by the Texas Court of Criminal Appeals on the findings of
the trial court. Action Taken, ECF Nos. 25-10, 25-15 & 25-16.
These three consolidated federal petitions for habeas relief
followed.
The Amarillo Court of Appeals summarized the facts of the
case as follows:
In January 2010, three indictments were returned
against Appellant. In Cause No. 1181069D, Count One of
the indictment alleged that, on or about November 18,
2009, Appellant unlawfully appropriated by acquiring or
otherwise exercised control over property, to-wit:
money and an automated teller machine, valued at
$20,000 or more, but less than $100,000, with intent to
deprive the owner, Joe Martinez, of the property. In
Count Two, the indictment alleged that, on the same
date, Appellant intentionally, with the specific intent
to commit the offense of theft of property valued at

2

$20,000 to $100,000, performed an act, to-wit: pull or
push an automated teller machine from its base with the
use of a Caterpillar tractor/wheel loader, which
amounted to more than mere preparation that tended but
failed to effect the commission of the offense
intended.
In Cause No. 1181071D, Count One of the indictment
alleged that, on or about November 18, 2009, Appellant
unlawfully appropriated, by acquiring or otherwise
exercising control over property, to-wit: a Caterpillar
tractor/wheel loader with a value of $20,000 or more,
but less than $100,000, with intent to deprive its
owner, Russell Cobbs, of the property. In Count Two,
the indictment alleged that, on the same date,
Appellant intentionally operated a motor-propelled
vehicle, to-wit: a Caterpillar tractor/wheel loader,
knowing that he did not have the effective consent of
its owner, Russell Cobbs.
The indictment in Cause No. 1181073D alleged that,
on or about November 18, 2009, Appellant intentionally
or knowingly damaged or destroyed tangible property,
to-wit: bank property and an automated teller machine,
by pulling or pushing an automated teller machine from
its base attached to bank property with the use of a
Caterpillar tractor/wheel loader, without the effective
consent of its owner, Joe Martinez, and caused a
pecuniary loss of $100,000 or more, but less than
$200,000 to Martinez.
In August 2010, a trial on the merits was held.
Officer Kaare Martin of the Fort Worth Police
Department testified that, on November 18, 2009 at 4:37
a.m., he responded to a commercial hold-up alarm at the
OmniAmerican Bank. As he approached the bank, he saw a
front-end loader being driven up the street adjacent to
the bank. He then observed a black male wearing a tan
jacket jump from the cab of the front-end loader. The
man then ran toward the bank's drive-thru where two
other men were standing approximately four feet from an
ATM that had been removed from its base and was sitting
in the middle lane of the drive-thru. One man was

3

wearing a black jacket and camouflage pants. The other
man was wearing black clothing. Both men had masks on
their faces.
As the man who jumped from the front-end loader
approached the two men at the ATM, they started running
in the same direction. Officer Martin followed the
three men until they split up in a parking lot and then
followed the man wearing the black jacket and
camouflage pants. The man ran through the parking lot
and jumped a stockade fence into the backyard of a
residence. Officer Martin left his patrol car and,
approximately thirty seconds later, spotted a man
crouching underneath a tree in the side yard of the
residence. He believed the man was attempting to
conceal himself. Officer Martin feigned a move as if he
were going around to the other side of the residence.
As he did so, he could see the shadow of the crouching
man move toward him. Officer Martin then returned to
his original position, pulled his gun and ordered the
man to lie on the ground. The man was wearing a black
jacket and camouflage pants. Around the man's neck was
a pair of shorts and he had a pair of gloves. Officer
Martin testified that he had observed the man earlier
using the pair of shorts as a mask and identified
Appellant as one of the men who was standing near the
ATM. He also identified Darius Jackson as the man who
jumped from the cab of the front-end loader wearing a
tan jacket.
Officer Martin further testified that on the night
in question he also observed a GMC pickup less than a
block from the bank. Its engine was running and the
steering column had been broken allowing the ignition
switch to be bypassed. Based on these observations, he
believed the pickup was involved in the commission of
the offense.
Officer Christopher Britt testified that, when he
arrived at the bank, the front-end loader was parked in
the street. After observing that Officer Martin had
handcuffed Appellant, he discovered a Chevrolet Tahoe
SUV parked nearby on the wrong side of the street in

4

front of a vacant house. The ignition had been punched
out, there were no keys, and the vehicle appeared to
have been stolen. He searched the vacant house but
found no one.
Russell Cobbs, project superintendent for Texas
Sterling Construction Company, testified that, on the
morning of November 18, he discovered his Caterpillar
front-end loader was missing from the equipment yard
located near the bank. Two gates that were usually
chained together were flung open and the padlock
holding the chains together had been cut. He later
identified the front-end loader missing from the
equipment yard as the front-end loader found at the
bank. Without objection, he estimated the value of the
front end loader to be between $90,000 and $100,000.
Angel Grizzle, Director of Administrative Services
and Corporate Security for the bank, arrived at the
bank and observed that the drive-thru canopy was nearly
completely down and the ATM had been removed from its
base. Without any objection, she testified that its
purchase price was approximately $60,000, but also
testified the total amount of money in the ATM at the
time of the incident was $59,380. On cross-examination,
she agreed with Appellant's counsel that the value of
the ATM was less than $20,000 if you accounted for its
depreciation taken during the time the bank owned it.
Detective Ed Van Meter testified that, at least
two persons were involved in the incident, Jackson and
Appellant. He testified that the awning of the drivethru and ATM were heavily damaged. Without objection,
he estimated the ATM's value including its cash was
more than $20,000 but less than $100,000 and, based on
an estimate from a construction company given to him by
the bank, he estimated the cost of repairing the drivethru was approximately $116,000. On cross-examination,
he testified that his original estimation of the cost
of repairing the drive-thru was much higher than the
information subsequently presented to him by the
prosecutor during trial. He testified that he now
believed the cost of repairing the drive-thru was $90,000.

5

Detective Van Meter also testified he believed
there were two vehicles involved in the theft-the GMC
pickup and the Chevrolet Tahoe SUV. He testified that
both vehicles had broken steering columns and contained
tools commonly used for theft and burglary. He also
testified the Tahoe contained Caterpillar keys, heavyduty bolt cutters and a picture of Jackson. He later
determined the Tahoe was registered to Jackson's
brother. Both Jackson and Appellant lived in Dallas.
At the trial's conclusion, the jury convicted
Appellant of theft of property valued at $20,000 or
more but less than $100,000 as alleged in Causes Nos.
1181069D and 1181071D. The jury also convicted
Appellant of criminal mischief, a third degree felony,
i.e., criminal mischief involving property valued at
$20,000 or more but less than $100,000, a lesserincluded offense to the offense criminal mischief, a
second degree felony, as alleged in Cause No. 1181073D.
At the punishment phase of trial, the Appellant plead
"true" to the enhancement allegations contained in each
indictment. The jury assessed Appellant's sentence at
fifty years in each case . . . .
Mem. Op. 2-7, ECF No. 24-4 (footnotes omitted).
II. Issues

Petitioner's grounds for habeas relief are multifarious and
addressed as thoroughly as practicable. Generally, he claims(1)

There is no evidence to support the convictions;

(2)

The trial court erred by applying the law of
parties to his cases;

(3)

The trial court abused its discretion by denying
his motion for a direct verdict;

(4)

The court of appeals erred by "upholding not
addressing trial court's denial of" his motion for
a directed verdict;

6

(5)

The trial court gave invalid jury instructions
over defense counsel's objections;

(6)

The trial court erred by allowing the state to
make improper statements to the jury and to
withhold evidence;

(7)

The trial court erred by answering a jury note
without him or his counsel being present and not
reading note one and his answer in open court so
it would be a part of the record;

(8)

He received ineffective assistance of trial
counsel; and

(9)

He received ineffective assistance of appellate
counsel.

Pets. 6-9, ECF Nos. 1, 2 62 & 65.
III. Rule 5 Statement
Respondent believes that petitioner has sufficiently
exhausted his state court remedies as to the grounds raised and
that the petition is neither untimely under the federal statute
of limitations or a successive petition. Resp't's Answer 6, ECF
No . 2 2 ; 2 8 U . s

.c .

§

2 2 4 4 (b) ,

(d) .

2The pagination in the ECF header is used when citing to this 35-page
document.

7

IV. Discussion

Legal Standard for Granting Habeas Corpus Relief
A

§

2254 habeas petition is governed by the heightened

standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C.

§

2254. Under the

Act, a writ of habeas corpus should be granted only if a state
court arrives at a decision that is contrary to or an
unreasonable application of clearly established Supreme Court
precedent or that is based on an unreasonable determination of
the facts in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C. §

2254 (d) (1)- (2). This standard is difficult to meet and "stops
short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings." Harrington,

562

u.s. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court's factual findings. Hill v.
Johnson,

210 F.3d 481, 485

(5th Cir. 2000). Section 2254(e) (1)

provides that a determination of a factual issue made by a state
court shall be presumed to be correct. The petitioner has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C.
Cockrell,

2254(e) (1); Miller-El v.

§

537 U.S. 322, 340 (2003); Williams v.

8

Taylor,

529 U.S.

362, 399 (2000). Typically, when the Texas Court of Criminal
Appeals denies relief in a state habeas corpus application
without written opinion, as in this case, it is an adjudication
on the merits, which is entitled to the presumption. Singleton v.
Johnson, 178 F. 3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943
S.W.2d 469, 472

(Tex. Crim. App. 1997). Under these

circumstances, a federal court may assume the state court applied
correct standards of federal law to the facts, unless there is
evidence that an incorrect standard was applied. Townsend v.
Sain, 372 U.S. 293, 314 (1963)
491, 493 n.3

3

;

Catalan v. Cockrell, 315 F.3d

(5th Cir. 2002); Valdez v. Cockrell, 274 F. 3d 941,

948 n.11 (5th Cir. 2001).
In this case, the state habeas court entered express
findings of fact as to one or more of petitioner's claims, which
he has failed to rebut with clear and convincing evidence, and
the Texas Court of Criminal Appeals adopted those findings. Under
these circumstances, a federal court must defer to the state
courts' factual findings and may assume the Texas Court of
Criminal Appeals applied correct standards of federal law to the
facts, unless there is evidence that an incorrect standard was

§

3The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
2254(d). Harris v. Oliver, 645 F.2d 327, 330 n.2 (5th Cir. 1981).

9

applied.

Townsend v. Sain, 372 U.S. 293, 314 (1963)

Cockrell, 315 F.3d 491, 493 n.3
Cockrell, 274 F.3d 941,

4;

Catalan v.

(5th Cir. 2002); Valdez v.

948 n.11 (5th Cir. 2001); Goodwin v.

Johnson, 132 F. 3d 162, 183 (5th Cir. 1997). With these principles
in mind, the court addresses petitioner's claims.

(1) No Evidence and (3) and (4) Trial and Appellate Court Error
Under his first ground, petitioner claims his constitutional
rights were violated because there was no evidence, other than
his mere presence at the scene, to support his convictions in the
form of a video recording, witness testimony, fingerprints, DNA,
or other forensic evidence connecting him to the crimes. As such,
he asserts under his third and fourth grounds that the trial
court abused its discretion by denying his motion for a directed
verdict and the appellate court erred in upholding the trial
court's denial on appeal. Pets. 6-7, ECF Nos. 1, 62 & 65; Pet.
15-16, 19, ECF No. 1.
A claim that "no evidence" supports a conviction is the same
as a challenge to the legal sufficiency of the evidence. Haley v.

Cockrell, 306 F.3d 257, 266 67

(5th Cir. 2002),

vacated on other

grounds, 541 U.S. 386 (2004); United States v. Jackson,

§

86 Fed.

4The standards of Townsend v. Sain have been incorporated into 28 U.S.C.
2254(d).
Harris v. Oliver, 645 F.3d 327, 330 n.2 (5th Cir. 1981).

10

App'x 722, 722

(5th Cir. 2004). Likewise, a claim that a trial

court erred in failing to grant a motion for a directed verdict
is merely another way of alleging that the evidence is
insufficient to support the verdict. Gatrell v. Lynaugh, 833 F.2d
527 (5th Cir. 1987). Therefore, petitioner's first and third
grounds for relief are addressed together as a claim that the
evidence is legally insufficient to support his convictions. Such
claims are reviewed under the legal-sufficiency standard set out
in Jackson v. Virginia,

443 U.S. 307 (1979). Under this standard,

a court views all the evidence in the light most favorable to the
prosecution in determining whether any rational trier of fact
could have found the existence of facts necessary to establish
the essential elements of the offense beyond a reasonable doubt.
Id.

at 318-19. Direct and circumstantial evidence adduced at

trial, as well as all inferences reasonably drawn from it, is
viewed in the light most favorable to the verdict. United States

v. Sanchez, 961 F.2d 1169, 1173

(5th Cir. 1992). The jury is the

final arbiter of the weight of the evidence and of the
credibility of witnesses and is tasked with resolving any
conflicts or inconsistencies in the evidence. United States v.

Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir. 1992). The jury
is presumed to have resolved any such conflicts or

11

inconsistencies in the evidence in favor of the verdict rendered.
United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.),
cert. denied, 540 U.S. 858 (2003).
Petitioner was convicted of two counts of third-degree
felony theft of property valued at $20,000 or more but less than
$100,000 and one count of the lesser-included offense of thirddegree felony criminal mischief involving property valued at
$20,000 or more but less than $100,000. Applying the Jackson
standard and relevant state law, the state appellate court
addressed the issue as follows:
DISCUSSION

Appellant asserts the evidence is insufficient
because he was at the wrong place at the wrong time,
i.e., a location close to where a fleeing suspect had
last been seen. He also asserts Officer Martin was
confused by the similarity in the clothes of the
various suspects fleeing the scene and there was no
evidence at trial of monetary damages related to the
various offenses for which he was convicted.
SUFFICIENCY OF THE EVIDENCE STANDARD OF REVIEW

The only standard that a reviewing court should
apply in determining whether the evidence is sufficient
to support each element of a criminal offense the State
is required to prove beyond a reasonable doubt is the
standard set forth in Jackson v. Virginia. Under that
standard, in assessing the sufficiency of the evidence
to support a criminal conviction, this Court considers
all the evidence in the light most favorable to the
verdict and determines whether, based on that evidence
and reasonable inferences to be drawn therefrom, any

12

rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. This
standard gives full play to the responsibility of the
trier of fact to resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.
Further, the trier of fact is the sole judge of
the weight of the evidence and credibility of the
witnesses, and we may not re-evaluate the weight and
credibility determinations made by the fact-finder.
Thus, we resolve any inconsistencies in the evidence in
favor of the verdict.
Sufficiency of the evidence is measured by the
elements of the offense as defined by a hypothetically
correct jury charge. The State is not required to
present direct evidence to establish guilt. Indeed,
circumstantial evidence is as probative as direct
evidence in establishing the guilt of the actor, and
circumstantial evidence alone can be sufficient to
establish guilt. Furthermore, the law does not require
that each fact "point directly and independently to the
guilt of the appellant, so long as the cumulative force
of all the incriminating circumstances is sufficient to
support the conviction." In addition, when conducting a
legal sufficiency review, we consider all evidence that
was admitted, including evidence that might have been
inadmissible if a proper objection had been made.
THEFT

A person commits the offense of theft if he
unlawfully appropriates property with the intent to
deprive the owner of that property. Intent to deprive
may be determined from the acts of the accused, and it
must be remembered that the element which must be
proven is not deprivation, but the accussed's [sic)
"intent to deprive• at the time of the taking. If the
value of the property stolen is $20,000 or more but
less than $100,000, the offense is a third degree
felony.

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CRIMINAL MISCHIEF

A person commits criminal mischief if, without the
effective consent of the owner, he intentionally or
knowingly damages or destroys the tangible property of
the owner. If the value of the property damaged or
destroyed is $20,000 or more but less than $100,000,
the offense is a third degree felony.
LAW OF PARTIES

The Texas Penal Code provides that "[a] person is
criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or
by both." A person is criminally responsible for the
offense committed by the conduct of another if, acting
with intent to promote or assist the commission of the
offense, he or she solicits, encourages, directs, aids,
or attempts to aid the other person to commit the
offense. When determining whether one participated as a
party, we may look to events occurring before, during,
and after the commission of the offense and rely on
actions of the defendant that show an understanding and
common design to do the prohibited act.
ANALYSIS

The evidence at trial showed that, at
approximately 4:30a.m., moments after an alarm went
off, a person wearing a mask, a black jacket, and
camouflage pants was seen standing four feet from an
ATM that had been forcibly removed from its base by a
stolen front-end loader. When approached by a police
officer, that person fled from the bank in the same
direction as the driver of the front-end loader and the
other person standing near the ATM. He ran through a
parking lot and jumped a stockade fence into a
residential backyard. Approximately thirty seconds
later, he was observed by Officer Martin crouched
beneath a tree, apparently attempting to avoid
detection. And, when he believed Officer Martin was
circling the residence in the opposite direction, he

14

attempted to escape but was caught. That man was
identified by Officer Martin as Appellant.
At the time of his arrest, Appellant was wearing a
black jacket and camouflage pants. He had a pair of
shorts around his neck and a pair of gloves. The
presence of the shorts, presumably being used as a
mask, and the gloves, to avoid leaving fingerprints, is
indicative that, prior to his arrival at the bank,
Appellant had formed the intent to deprive the owner of
the ATM and/or its contents. Because he was assisting
in the ATM's theft with other persons, a rational juror
could infer that he was acquainted with Darius Jackson,
the driver of the front-end loader. Because the frontend loader was appropriated from its owner prior to the
incident at the bank and was necessary to move the ATM,
a rational juror could also infer that Appellant was
part of a plan to steal the front-end loader and then
remove the ATM from its base in order to steal the ATM
and/or its contents. That he fled at the same moment
and in the same direction as Jackson and the other
person standing beside the ATM supports the inference
that he was a part of the group involved in illegal
activity. In the process of carrying out this crime,
the ATM and drive-thru were heavily damaged. In sum,
the evidence established Appellant not only
participated in removing the ATM from its base while
damaging the ATM and drive-thru in the process, but
also the theft was part of a common design with at
least one other person to steal the front-end loader
and then use that vehicle to steal money from the ATM.
Regarding property valuations, Cobbs testified
that a new front-end loader would cost him $120,000 and
the value of the front-end loader that was stolen was
$90,000 to $100,000. Although Grizzle agreed with
Appellant's counsel on cross-examination that the value
of the ATM, considering its depreciation for accounting
purposes, was less than $20,000, her direct testimony
was that the ATM was purchased for $60,000 and the
total amount of money in the ATM at the time of the
incident was $59,380. Although Detective Van Meter
originally testified on direct examination that the
15

original estimated cost of repairing the bank's drivethru was $116,000, he testified during crossexamination that new information led him to believe
that the cost of repair was $90,000. These three
witnesses supplied evidence, without objection, that
the cost of the front-end loader, the value of ATM
and/or its contents, and the repair cost of the drivethru was, in each case, more than $20,000 but less than
$100,000.
Accordingly, based upon an interpretation of this
evidence in a light most favorable to the verdict and
the reasonable inferences to be drawn therefrom, a
rational juror could have found that the State proved
the elements of theft and criminal mischief, involving
property valued at more than $20,000 but less than
$100,000, beyond a reasonable doubt.
Mem. Op. 7-12, ECF No. 24-4

(citations omitted).

A federal court reviews the state court's application of
Jackson under the deferential standard of§ 2254(d). McDaniel v.
Brown, 558 U.S. 120, 132-33 (2010). Applying the appropriate
deference, the state court's application of Jackson is not
"objectively unreasonable.• Petitioner is not entitled to relief
under his first,

third or fourth grounds.

(2) Law of Parties, (5) Invalid Jury Instructions,
Prosecutorial Misconduct, and (7) Jury Note

(6)

Under his second and fifth grounds, petitioner claims his
constitutional rights were violated by the trial court's
application of the law of parties to his case, over defense

16

counsel's objection, and the court's invalid jury instructions. 5
Pets. 6, 8, ECF Nos. 1, 62 & 65; Pet. 15, 21-22, ECF No. 1. Under
his sixth ground, petitioner claims, in part, that his
constitutional rights were violated by the state's use of
'"suggestive identification," improper jury argument, perjured
testimony regarding the misplaced gloves, and the prosecutor's
personal writing (a large diagram). Pet. 23-24, ECF No. 1.
Finally, under his seventh ground, petitioner claims the trial
court violated article 36.27 of the Texas Code of Criminal
Procedure when the judge read and answered a jury note without
petitioner and his trial counsel present. Pet. 29, ECF No. 1.
In addressing these claims, the state habeas court found
that the claims were not cognizable in a habeas proceeding
because they could have been raised on direct appeal but were
not. Adm. R., WR-32,427-05, 287-89, 291-92 & 298-99, ECF No. 2514. In general, federal courts may not review a state court
decision that rests on an adequate and independent state
procedural default unless the habeas petitioner can establish
either "cause" for the default and "prejudice attributable
thereto" or demonstrates that the failure to consider the federal
5It appears that the state habeas court treated Petitioner's fifth
ground as an improper jury argument claim. Adm. R., WR-32,427-05, 291-92, ECF
No. 25-14. That fact has no effect on this court's disposition of the claim.

17

claims will result in a "fundamental miscarriage of justice."
Harris v. Reed, 489 U.S. 255, 262

(1989). To satisfy the

independent and adequate requirements, the dismissal of a claim
must "clearly and expressly" indicate that it rests on state
grounds which bar relief, and the bar must be strictly and
regularly followed by state courts and applied to the majority of
similar claims. Finley v. Johnson, 243 F.3d 215, 218 (5th
Cir.2001)

(citing Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir.

1995)).
The Fifth Circuit has held that a claim is procedurally
defaulted if the state habeas court explicitly found that the
claim could have, but was not, raised on direct appeal, unless
one of the exceptions has been met. Brewer v. Quarterman, 466
F.3d 344, 347 (5th Cir. 2006). Therefore, these claims are
procedurally defaulted unless petitioner can meet one of the
exceptions. Toward that end, he claims the cause for the default
was his appellate counsel's failure to the raise the issues on
appeal. Pet'r's Resp. 4, 6, ECF No. 36. Although ineffective
assistance of appellate counsel can constitute "cause" for a
procedural default, petitioner has failed to identify a
meritorious claim that he was denied effective assistance of
appellate counsel, see infra. Petitioner is not entitled to
18

relief under his second, fifth and seventh grounds and his sixth
ground, in part, as the claims therein are procedurally
defaulted.
(6) Prosecutorial Misconduct

Under his sixth ground, petitioner also claims the state
withheld exculpatory evidence in the form of 58 photos taken by
the crime scene investigator, the gloves he supposedly wore on
the night in question, and DNA evidence of the individual who was
wearing the gloves. The state habeas court entered the following
findings of fact relevant to this claim:
1.

The Tarrant County Criminal District Attorney's
Office maintains an open file policy through the
Tarrant County Electronic Case Filing System
(ECFS) .

2.

The online records indicate that the complete
photographic file containing all fifty-eight
photographs was added on July 30, 2010.

3.

The ATM camera stills were provided to defense
. on March 1, 2010.
counsel

5.

The camera still photographs and the portion of
the actual videotaped surveillance which had not
been damaged by the front loader were admitted
into evidence during the applicant's trial.

6.

The defense was aware at trial that the lap gloves
had been misplaced.

7.

The State discharged its duty to disclose
exculpatory evidence to the defense prior to

19

trial, and did not withhold evidence from the
defense.
Adm. R., WR-32,427-05, 293-94 (record citations omitted).
Based on its findings, and applying state law citing Brady
v. Maryland,

373 U.S. 83 (1963), the state court entered the

following legal conclusions:
1.

The State has an affirmative duty to disclose
evidence favorable to the defendant.

2.

To prove that the State has failed to disclose
evidence favorable to the applicant, the applicant
must meet a three-prong test.

3.

The applicant must show that (1) the State,
including all members of law enforcement involved
in the investigation, failed to disclose evidence,
regardless of good or bad faith; (2) the evidence
is favorable to the applicant; and (3) the
evidence is material and that there is a
reasonable probability that, had the evidence been
disclosed, the outcome of the trial would have
been different.

4.

An open file policy satisfied the State's duty to
disclose exculpatory evidence.

5.

The State discharged its duty to disclose
exculpatory evidence to the defense prior to
trial, and did not withhold evidence from the
defense.

Id. at 294-95

(citations omitted) .

In the absence of clear and convincing evidence of a
violation of the state's open file policy, this court defers to
the state courts' factual findings. Applying the appropriate

20

deference, the state court's adjudication of the claim is not
contrary to or an unreasonable application of clearly established
Supreme Court precedent. 28 U.S.

§

2254(d) (1). The Supreme Court

has never held that the Constitution demands an open file policy.
Kyles v. Whitley, 514 u.s. 419, 436-37

(1995). However, where the

state asserts it has complied with Brady through its open file
policy, the Court has held that the defense may reasonably rely
on the open file to contain all relevant exculpatory materials
the state is obligated to disclose. Strickler v. Greene, 527 U.S.
263, 283 n.23

(1999). Petitioner is not entitled to relief under

his seventh ground.
(8) and (9) Ineffective Assistance of Counsel

Petitioner claims he received ineffective assistance of
counsel at trial and on appeal. Pet. 31-34, ECF No. 1. A criminal
defendant has a constitutional right to the effective assistance
of counsel at trial and on a first appeal as of right. U.S. CONST.
amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985);
Strickland v. Washington, 466 U.S. 668, 688
California, 386 U.S. 738, 744

(1984); Anders v.

(1967). An ineffective assistance

claim is governed by the familiar standard set forth in
Strickland v. Washington. 466 U.S. at 668. See also Styron v.
Johnson,

262 F.3d 438, 450 (5th Cir. 2001)

21

(applying the

Strickland standard to ineffective assistance claims against

appellate counsel) . To establish ineffective assistance of
counsel a petitioner must show (1) that counsel's performance
fell below an objective standard of reasonableness, and (2) that
but for counsel's deficient performance the result of the
proceeding would have been different. Strickland, 466 U.S. at
688.
In applying this standard, a court must indulge a strong
presumption that counsel's conduct fell within the wide range of
reasonable professional assistance or sound trial strategy. Id.
at 668, 688-89. Judicial scrutiny of counsel's performance must
be highly deferential and every effort must be made to eliminate
the distorting effects of hindsight.

Id. at 689. Where a

petitioner's ineffective assistance claims have been reviewed on
their merits and denied by the state courts, federal habeas
relief will be granted only if the state courts' decision was
contrary to or involved an unreasonable application of the
Strickland standard in light of the state court record.
Harrington,

131 S. Ct. at 785 (quoting Williams v. Taylor, 529

U.S. at 410)); Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Petitioner presents a laundry list of ineffective-assistance
claims against trial counsel. Specifically, Petitioner alleges

22

trial counsel was ineffective by failing(1)

to object to the racially biased selection of the
jurors;

(2)

to object to the false testimony of officer Kaare
Martin;

(3)

to object to the "suggestive identification by the
(A.D.A.) Mr. Rodgers to officers Britt, Kaare
Martin, F. Myers, and Det. Ed Van Meter";

(4)

to object to the "radio-transmission not being
authenticated";

(5)

to object to the "officers who tainted, tampering
with, and fabericating [sic] physical evidence";

(6)

to "subpoena the officer who tainted, tampering
with and fabericating [sic] physical evidence";

(7)

to "file a motion for a new trial or mistrial when
the court admitted the prosecutor's personal
'legal writing pad' as evidence and to be use
[sic] by the jury in their deliberations in the
guilt and innocence phase";

(8)

to "ask for a new trial or a mistrial when he
found out the 'fifty plus photos' were missing and
not admitted into evidence";

(9)

to "ask for a new trial or a mistrial when he
found out the gloves and shorts that was evidence
were missing";

(10) to conduct an independent investigation;
(11) to call character witnesses "D. Randle and Clyde
Lee of Dallas, Texas"; and
(12)

to object to the "perjury testimony of Detective
Ed Van Meter, when he testified that the defendant
(Bobby Lee) and Darius Jackson both lived in
23

Dallas," when the prosecutors and trial counsel
knew Darius Jackson was from Hutchin, Texas, and
Bobby Lee was from Dallas.
Supp. Pet. 2-3, ECF No. 19.
The state habeas court conducted a hearing via affidavit,
and trial counsel responded to petitioner's allegations as
follows:
General Background
On December 2, 2009, I was appointed by the trial
court to represent Mr. Lee in his then pending three
felony criminal charges (Theft $20K - $lOOK, Theft $20
- $lOOK, and Criminal Mischief $lOOK - $200K) . As part
of my representation of Mr. Lee I thoroughly reviewed
his case file (containing police reports and witness
statements) which was obtained from the District
Attorney's office, allowed Mr. Lee to review his entire
case file, extensively discussed the allegations and
all possible defensive strategies with Mr. Lee,
answered all of his questions, researched all legally
relevant issues, effectively explained to him his right
to a jury trial, clearly explained to him the possible
punishment range, and effectively explained to him the
pros and cons of going to trial. In addition to
personally visiting with Mr. Lee about his case on at
least seven court settings prior to his trial, I also
visited with Mr. Lee four times in the county jail
(each visit lasting well over an hour) . Well prior to
the beginning of Mr. Lee's trial both he and I were
intimately familiar with all evidence (exhibits and
testimony) admitted and/or presented at trial.
Mr. Lee now alleges ineffective assistance of
counsel. Accordingly, responses to those allegations
are provided below:
Response to Allegation 7: Code of Criminal Procedure
Violation of Article 36.27.

24

Mr. Lee essentially argues that there was a
violation of Article 36.27 because the Court allegedly
failed to allow Mr. Lee and myself the opportunity to
respond to Jury Note number 1. I cannot specifically
recall whether or not the Petitioner was in the court
room when the discussion regarding jury note number one
was had but I do recall having a conversation with the
Petitioner informing him of the note and my thoughts
regarding it. I simply agreed to provide the jury with
all admitted evidence and as noted in Petitioner's
Exhibit C inform the jury that the Court could only
provide disputed testimony. There were no legally
appropriate objections to be made therefore, I made
none. It is my general practice to insist upon the
defendant's presence whenever a response to a jury note
is discussed and/or decided upon. However, because any
discussion and/or rulings on this issue are apparently
absent from the trial transcript it is possible that
the Petitioner was not present but I doubt it. At this
point I simply do not specifically recall.

Response to Allegation 8: Violation of Petitioner's
Sixth Amendment Rights.
Petitioner appears to make several specific
allegations of ineffectiveness with this general
allegation. Accordingly, I will attempt to address them
individually. The first allegation appears to involve
my failure to object to the "racially biased jury". At
the time of Mr. Lee's trial I was familiar with the
Batson case, its progeny, and the underlying associated
and relevant procedures required for obtaining related
relief and/or preserving the error resulting from the
denial of such relief. In my professional opinion there
were no Batson issues presented in Mr. Lee's trial.
There were several minorities both on the actual jury
and in the panel. Nor were there any instances of the
prosecution inappropriately exercising their strikes.
Secondly, Mr. Lee alleges ineffectiveness because
I failed to object to Officer Martin's testimony and
"never investigated the facts of the case". Many of Mr.

25

Lee's erroneous presumptions regarding this essentially
irrelevant issue involve his insisting that the law
enforcement officer that actually transports him to the
jail and is administratively listed as the "arresting
officer" must be the same officer that actually chased
him down earlier that night. Based upon my
understanding of events Officer Martin's testimony was
not false. In any event there is no "legal objection"
to allegedly false testimony. Additionally, for
strategic reasons it would not have been prudent to
make an issue out of something that was in fact
accurate and the disputing of which was not essential
to our defensive strategy. Our defensive strategy was
simply that while Mr. Lee was near the crime scene, he
was not involved in the crime and ran only because he
is afraid of law enforcement. The strategy was
knowingly absurd based upon what I knew the evidence to
be but it was Mr. Lee's version and we had no other
options because the pretrial plea bargain offer was
unacceptable to Mr. Lee and for other strategic reasons
Mr. Lee decided not to do an open plea to either the
Judge or the Jury.
The in-court identification procedure complained
about was neither suggestive nor legally improper. All
witnesses complained of simply identified Mr. Lee in
court as the man they arrested that night. He was in
fact the person that they arrested that night. They did
not specifically say that he was the person they saw
committing these crimes. Accordingly, for strategic
reasons it would not have been prudent to make an issue
out of something that was in fact accurate and the
disputing of which was not essential to our defensive
strategy. Our defensive strategy was simply that while
Mr. Lee was near the crime scene, he was not involved
in the crime and ran only because he is afraid of law
enforcement. The strategy was knowingly absurd based
upon what I knew the evidence to be but it was Mr.
Lee's version and we had no other options because the
pretrial plea bargain offer was unacceptable to Mr. Lee
and for other strategic reasons Mr. Lee decided not to
do an open plea to either the Judge or the Jury.

26

Any objection to the improper authentication (if
any) of the radio transmission would have been
frivolous. Based upon prior conversations with the
prosecution, I was legally satisfied that there were no
authentication issues. Accordingly, no objection was
voiced. Additionally, for strategic reasons it would
not have been prudent to make an issue out of something
that was in fact accurate and the disputing of which
was not essential to our defensive strategy. Our
defensive strategy was simply that while Mr. Lee was
near the crime scene, he was not involved in the crime
and ran only because he is afraid of law enforcement.
The strategy was knowingly absurd based upon what I
knew the evidence to be but it was Mr. Lee's version
and we had no other options because the pretrial plea
bargain offer was unacceptable to Mr. Lee and for other
strategic reasons Mr. Lee decided not to do an open
plea to either the Judge or the Jury.
Because I voiced an appropriate objection to the
Court's admittance of the "prosecutor's legal writing
pad" I fail to see how any finding of ineffectiveness
can be found. I pursued the objection until I received
an adverse ruling which is generally all that is
required of trial counsel.
I am unaware of any legal requirement to request a
mistrial after prosecution witnesses admit that they
have lost evidence. Strategically, once the prosecution
witnesses admitted that they lost the evidence there
was nothing more for me to do other than hope that the
jury would draw some favorable inference from the
absence. Unfortunately, because there was both
testimony and video of Mr. Lee actually wearing the
shorts, the jury obviously felt that the evidence that
was available regarding Mr. Lee's guilt far overwhelmed
any reasonable inferences drawn from the absences.
Finally, Mr. Lee alleges ineffectiveness because
two character/punishment witnesses were not called. In
response it should be noted that I invariably attempt
to prepare a punishment case in all trial cases.
Accordingly, on numerous occasions well before trial I
27

repeatedly asked Mr. Lee for the names and contact
information for any character/punishment witnesses that
he would like called at his trial. Mr. Lee repeatedly
told me that he had none and did not wish a[n]y to be
called. He specifically told me that his mother was
dead and that he was essentially estranged from the
rest of his family. Furthermore, he intimated that he
only "runs around with other crooks". Both he and I
agreed that unless he had some quality
character/punishment witnesses that we would simply
(for strategic purposes) highlight to the jury that he
was all alone in this world and attempt to garner some
sympathy for his chosen life of crime. This approach
can be evidenced on pages 21
24 of volume 7 of the
trial transcript.
Adm. R., WR-32,427-05, 192-97, ECF No. 25-13.
The state habeas court clearly found counsel's affidavit
credible, and supported by the record, and entered findings, too
numerous to list here, consistent with the affidavit, which were
adopted by the Texas Court of Criminal Appeals. Id. at 301-08,
ECF No. 25-14. Based on those findings, and applying the
Strickland standard, and other relevant state and Supreme Court

case law, the state habeas court concluded that counsel
adequately and independently investigated petitioner's case;
fully and adequately prepared for petitioner's trial; fully and
adequately defended petitioner at trial, including making the
proper and necessary objections; made reasonable decisions
regarding the interviewing and calling of witnesses; functioned
as counsel guaranteed by the Sixth Amendment; and provided
28

effective assistance to petitioner. Id. at 310-11. The state
court further concluded that petitioner had failed to demonstrate
a reasonable probability that, but for the alleged acts of
misconduct, the result of his trial would have been different.

Id. at 311.
Deferring to the state court's findings, and having
independently reviewed petitioner's claims in conjunction with
the record, the state courts' application of Strickland was not
unreasonable. Petitioner's claims are conclusory, with no legal
and/or evidentiary basis, refuted by the record, involve state
evidentiary rulings or other matters of state law, or involve
strategic and tactical decisions made by counsel, all of which
generally do not entitle a state petitioner to federal habeas
relief. See, e.g., Strickland, 460 U.S. at 689 (holding strategic
decisions by counsel are virtually unchallengeable and generally
do not provide a basis for postconviction relief on the grounds
of ineffective assistance of counsel); Johnson v. Cockrell, 306
F.3d 249, 255 (5th Cir. 2002)

(concluding that counsel is not

required to make futile motions or objections); Green v. Johnson,
160 F.3d 1029, 1042 (5th Cir. 1998)

("Mere conclusory allegations

in support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue."); United States v.

29

Green, 882 F.2d 999, 1003 (5th Cir.1989)

(providing "[a]

defendant who alleges a failure to investigate on the part of his
counsel must allege with specificity what the investigation would
have revealed and how it would have altered the outcome of the
trial"); Alexander v. McCotter,

775 F.2d 595, 602

(5th Cir. 1985)

(ineffective assistance claims "based upon uncalled witnesses
[are] not favored because the presentation of witness testimony
is essentially strategy and thus within the trial counsel's
domain, and .

.

. speculations as to what these witnesses would

have testified is too uncertain"). Moreover, even if petitioner
could demonstrate defective assistance based on one or more of
his claims, in view of the overwhelming evidence of his guilt, he
cannot make a showing of Strickland prejudice. Strickland, 466

u.s. at 694-96.
Petitioner claims that his appellate counsel was ineffective
by failing to communicate with him before filing appellant's
brief; failing to raise the claims raised in this federal
petition; failing to file a motion for a new trial; and failing
to file a "motion for destination of records", thereby denying
hima meaningful appellate review of the sufficiency of the
evidence by not requesting and forwarding a copy of the
radio-transmission between Officer Kaare Martin and the
30

City of Fort Worth Police Department dispatch marked as
"State's Exhibit No. 1," a "copy of the photos
exhibit," a copy of the bank's surveillance security
camera recording marked as "State's Exhibit No. 57,"
and "State's Exhibit No. 32," which was played to the
jury.
Supp. Pet 3-4, ECF No. 19.
Appellate counsel responded to the allegations via affidavit
as follows:
Mr. Lee suggests my counsel was ineffective
because I failed to allege as points of error that:
There was no evidence to support each element of the
offense charged;
The trial court gave the jury invalid instructions;
The trial court improperly instructed the jury on the
law of parties;
The trial court improperly denied his motion for
directed verdict;
The trial prosecutors made improper jury arguments;
The trial prosecutors withheld evidence;
The trial court improperly responded to a request in a
jury note without the applicant or his counsel being
present; and
Ineffective assistance of trial counsel.
I raised the issues of "no evidence to support the
verdicts" and the "trial court improperly denied
applicant's motion for directed verdict" on appeal.
Applicant's trial counsel objected to portions of
the jury instructions given. The court overruled the
objections. It is my belief that the jury instructions
given were proper, and would not constitute reversible
error.
The applicant claims the prosecutors['] jury
arguments were improper because the prosecutors refer
31

to a pair of gloves that were not admitted into
evidence. The gloves referred to were not admitted as
evidence at trial. Pictures of the missing gloves were
admitted at trial. The existence of the gloves was
testified to at trial, as was the fact that the police
could no longer locate the gloves. During closing
arguments, applicant's counsel raised the issue of the
missing gloves. The State responded to the applicant's
arguments, during rebuttal. It is my belief that this
was not improper, and would not constitute reversible
error.
The testimony at trial raised the issue that the
gloves had been misplaced. It was not claimed at trial
that the evidence was being "withheld", nor argued that
if the gloves were to be found that it would benefit
applicant's case in some manner. Applicant had the
opportunity at trial to address the issue of the
missing gloves, and in fact, trial counsel argued in
closing that the fact the gloves were missing was a
further example of the state's lack of evidence to
convict applicant.
Applicant argues that the State violated CODE
CRIM. PRO. ART. 36.27 by responding to jury note one
without the applicant and his counsel being present. I
did not raise that issue because the fact that counsel
and applicant were or were not present is not in the
record. No objection, nor comment of any kind was made
in the record regarding the trial court's response to
jury note one, and whether applicant or his counsel
were, or were not present. Further non-compliance with
Art. 36.27 is not reversible error.
I did not raise the issue of ineffective
assistance of trial counsel because it is my belief,
looking at the record as a whole that applicant was
effectively assisted by counsel throughout his trial.
Adm. R., WR-32,427-05, 162-64, ECF No. 25-13.
The state habeas court entered factual findings consistent

32

with counsel's affidavit and concluded that counsel exercised
reasonable professional judgment in deciding which issues to
raise on direct appeal. Id. at 314. The state court's application
of Strickland was not unreasonable. As noted by the court,
appellate counsel is not required to raise every conceivable
argument urged by his client on appeal, regardless of merit.
Smith v. Robbins, 528 U.S. 259, 287-88

(2000). It is counsel's

duty to choose among potential issues, according to his judgment
as to their merits and the tactical approach taken. Jones v.
Barnes, 463 U.S. 745, 749 (1983). Petitioner fails to raise any

meritorious claims in this petition. Prejudice does not result
from appellate counsel's failure to assert meritless claims or
arguments. See United States v. Wilkes, 20 F.3d 651, 653
Cir. 1994). Thus,

(5th

it follows that counsel was not ineffective for

failing to raise one or more of Petitioner's claims on appeal.
In summary, the record supports the state courts' denial of
the claims presented in this federal habeas proceeding. The state
courts' adjudication of the claims is not contrary to or involve
an unreasonable application of clearly established federal law,
as determined by the Supreme Court, in light of the record as a
whole. Accordingly, it is entitled to deference and the
presumption of correctness.

33

For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied, as Petitioner has not
made a substantial showing of the denial of a constitutional
right. Finally, the court ORDERS that all motions not previously
ruled upon be, and are hereby, denied.
SIGNED July

.2 1

, 2016.

34