Ledet v. Stephens, Director, TDCJ-ID

Filing 42

Memorandum Opinion and Order...petition for writ of habeas corpus 28 USC 2254 is denied; COA denied. (Ordered by Judge John McBryde on 6/28/2017) (wrb)

·· U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS

FIT,

IN THE UNITED STATES DISTRICT COURT r··~·
FOR THE NORTHERN DISTRICT OF EXAS 1 JUN
FORT WORTH DIVISION

'!

2 8 2017

1-'-.

CLERK, 1 r.:1,. :}i:-·,·; k,t_,; COURT

DESMOND LEDET,

§

BY----;::::::;::-----

Deputy

§

Petitioner,

§
§

v.

§

No. 4:15-CV-882-A

§

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

§
§
§
§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER

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

§

2254 filed by petitioner, Desmond Ledet, 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

In June 2009 petitioner was indicted in Tarrant County,
Texas, Case No. 1152016D, with aggravated sexual assault.
(Clerk's R. 2, ECF No. 25-17.) Petitioner's jury trial commenced
on June 22, 2010, at the conclusion of which the jury found

petitioner guilty of the lesser-included offense of sexual
assault, and the trial court assessed his punishment at 20 years'
imprisonment.

(Id. at 205.) The Second District Court of Appeals

of Texas affirmed the trial court's judgment, and the Texas Court
of Criminal Appeals refused petitioner's petition for
discretionary review.

(Mem. Op. 10, ECF No. 25-3.) Petitioner

also filed a state postconviction habeas-corpus application
challenging his conviction, which was denied without written
order by the Texas Court of Criminal Appeals on the findings of
the trial court.

("Action Taken," ECF No. 26-10.) This federal

petition followed.
The state appellate court summarized the evidence at trial
as follows:
The complainant testified that appellant
approached her in his truck at Jasmine Food Store on
East Berry Street in Fort Worth and asked if she wanted
a ride; she was walking to find a telephone, so she
agreed. She also said that appellant told her he needed
to stop at a friend's house along the way. Appellant
drove to an apartment complex and left the complainant
alone in the truck for about five minutes. When he
returned, he drove to the back of the complex, and the
complainant started to feel nervous. She told appellant
that she would find another way home.
According to the complainant, when she tried to
step out of the truck, appellant pulled a gun from the
driver's side door, pointed it at her, told her to get
back in the truck, and threatened to kill her if she
screamed.
2

The complainant testified that appellant told her
to pull off her panties; she began to beg him not to
"do this." Appellant became more aggressive, pulled off
the complainant's panties, ordered her to face backward
in the seat, placed his hands around her neck, and
forced her to have sex with him. Appellant then got
back in the driver's seat and drove off with the
complainant still in the truck. She jumped out on a
bridge and ran across the street to a pay phone where
she called 911.
The evidence shows that police took the
complainant to the hospital where hospital personnel
performed a sexual assault examination. Semen with
unidentified DNA was taken from the complainant's
vagina, ankle, and panties and preserved; that DNA was
determined to originate from appellant after the
complainant identified him in a photo lineup
approximately five years later.
(Mem. Op. 2-3, ECF No. 25-3.)
The defensive theory at trial was to discredit the victim
with her admission to using alcohol and crack cocaine at the time
of the offense and Petitioner's testimony that she approached him
at a car wash and propositioned him with sex in exchange for
money to buy crack cocaine; that he gave her money for crack
cocaine; that the sex was consensual; and that he believed she
was in a "cocaine-induced, paranoid, schizophrenic, panic attack"
based on her "schized out" behavior.
32, 163, 171, ECF No. 25-9.)

3

(Reporter's R., vol. 5, 112-

II. Issues
In eleven grounds for relief, petitioner claims that he
received ineffective assistance of trial counsel.

(Pet. 6-7 &

Attach. 1-10, ECF No. 1.)
III. Rule 5 Statement
Respondent believes that petitioner has sufficiently
exhausted his state court remedies as to the claims raised and
that the petition is not time-barred or subject to the
successive-petition bar.

u.s.c.

§§2244(b),

(d)

(Resp't's Answer 5, ECF No. 21.) 28

&2254(b).
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

4

short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings." Harrington,

u.s.

562

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.

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

§

Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S.
362, 399 (2000). Further, when the Texas Court of Criminal
Appeals denies a federal claim in a state habeas-corpus
application without written opinion, a federal court may presume
"that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
the contrary" and applied the correct "clearly established
federal law, as determined by the Supreme Court of the United
States" unless there is evidence that an incorrect standard was
applied, in making its decision. Johnson v. Williams, -U.S.
133 S. Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99;
Schaetzle v. Cockrell, 343 F. 3d 440, 444 (5th Cir. 2003).

5

A criminal defendant has a constitutional right to the
effective assistance of counsel at trial. U.S. CONST. amend. VI,
XIV; Evitts v. Lucey, 469 U.S. 387, 396 (1985); Strickland v.
Washington,

466 U.S. 668,

688 (1984). 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 test, a court must indulge a strong
presumption that counsel's conduct fell within the wide range of
reasonable professional assistance. 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.
The Supreme Court recently emphasized in Harrington v.
Richter the manner in which a federal court is to consider an

ineffective-assistance-of-counsel claim raised in a habeas
petition subject to AEDPA's strictures:
The pivotal question is whether the state court's
application of the Strickland standard was
unreasonable. This is different from asking whether
defense counsel's performance fell below Strickland's
standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a

6

criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the
two questions are different. For purposes of §
2254(d) (1), "an unreasonable application of federal law
is different from an incorrect application of federal
law." A state court must be granted a deference and
latitude that are not in operation when the case
involves review under the Strickland standard itself.
562 U.S. at 101 (quoting Williams, 529 U.S. at 410)).
Accordingly, it is necessary only to determine whether the state
courts' rejection of petitioner's ineffective assistance claims
was contrary to or an objectively unreasonable application of
Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson
v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle, 343
F.3d at 443.
Petitioner was represented at trial by Curtis L. Fortinberry
and Lindsay M. Gilland. In response to petitioner's allegations,
Fortinberry filed an affidavit in the state habeas proceedings,
which the state habeas court found to be credible.

(State Habeas

R., vol. 2, 489, ECF No. 27-9.) The state habeas court adopted
the state's proposed findings of fact, which are largely
consistent with counsel's affidavit and the documentary record.
The Texas Court of Criminal Appeals, in turn, denied relief based
on the trial court's findings. Petitioner has not presented clear
and convincing evidence in rebuttal. Thus, relying on the

7

presumptive correctness of the state courts' factual findings,

in

conjunction with the state court records, the court conducts an
independent review of petitioner's claims.
Under his first ground, petitioner claims Fortinberry was
ineffective by failing to adequately prepare for trial because he
did not make a request to the state for evidence favorable to the
accused or attempt to discover any such evidence on his own.
Specifically, he asserts that counsel should have discovered
police reports involving the victim that could have been used as
impeachment evidence against her.

(Pet. 6, ECF No. 1; State

Habeas R., vol. 1, 292-312.) To the extent raised in petitioner's
state habeas application, counsel denied the allegations and
discussed them in his affidavit as follows:
Ms. Gilliland [sic] and I worked many hours on
Petitioner's case. We read all of Petitioner's letters
(approximately 20) which included areas of questioning
for trial. Petitioner was very engaged in the defense
of his case. We discussed the strategy and theme of his
case. He knew what we were attempting and was in full
agreement.

Petitioner asserts that the victim had "multiple
convictions" I saw no evidence of this. There are two
offense reports in which the victim is the complainant
but none where she is the suspect. The State produced
no criminal histories of the victim even after a motion
to do so was filed. The officer also denied the
existence of a criminal history for the victim under

8

oath.

This ground alleges impeachment evidence regarding
two offense reports in which the victim was the injured
party. In one case, after making the deadly conductfamily member report, she refused to cooperate in the
investigation and the detective wasn't convinced
complainant did not embellish the story. The other
offense report was another assault family violence. The
police interviewed both her and the suspect and the
detective determined that the complainant really didn't
care about the case so he cleared it and said that all
the elements of assault were not met.
I do not believe this is impeachment evidence as
she was not questioned about it so she did not deny
anything regarding these reports. Furthermore the mere
fact that the police did not file a case against the
two suspects does not mean the assaults did not happen.
(State Habeas R., vol. 2, 403-04, ECF No. 27-9.)
The state court found that petitioner's first attorney, who
filed a plethora of motions, filed a motion for production of
evidence favorable to the accused, which included a request for
"the arrest and/or conviction record of each State witness"; that
there was no evidence the state was ever in possession of the
reports or knew of their existence; that counsel saw no evidence
that the victim had prior convictions; that the police reports
are not evidence that the victim had prior convictions; and that
there was no evidence that the state failed to disclose evidence
favorable to petitioner because counsel did not file a second

9

motion.

(Id. at 488, 490, 501.) The court also found that the

reports "significantly predated" petitioner's offense and had
nothing to do with his case.

(Id. at 491.) Applying Strickland,

the court concluded that petitioner had failed to demonstrate
that there was a reasonable likelihood that the outcome of the
proceedings would have been different had counsel investigated
the case more or filed a second motion to provide favorable
evidence prior to trial.

(Id. at 497.)

The state courts' application of Strickland was not
unreasonable. It is presumed that counsel made an adequate
investigation, and, in this case, it appears counsel had the
added benefit of a court-appointed investigator.

(Clerk's R. 55,

ECF No. 25-17.) Strickland, 466 U.S. at 689. Additionally,
Tarrant County has an "open file" policy, and nothing in the
record suggests that counsel should have been aware of the
reports or suspected that impeaching evidence was being withheld.
Nor does petitioner demonstrate any resulting prejudiced by
counsel's failure to discover the reports. The reports indicate
that in 2001 the victim was involved in a fight with another
woman at an apartment complex but was not arrested in connection
with the incident; that the victim was the complaining party in
two reports taken in 2002; that the victim was arrested for
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outstanding traffic warrants following one of the 2002 incidents;
and that sometime before the 2002 reports, she was arrested for
resisting arrest and failure to identify truthfully. Typically,
evidence of an arrest may not be used for impeachment of a
witness. See United States v. Aguilar, 754 F.2d 1202, 1206 (5th
Cir. 1985). Nor is there any evidence that, as alleged by
petitioner, the reports were false or made in retaliation.
(Pet'r's Reply 10-11, ECF No. 37.) Mere conclusory allegations in
support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue. Green v. Johnson,
160 F.3d 1029, 1042 (5th Cir. 1998).
Under his second ground, petitioner claims counsel was
ineffective by failing to object to the following argument made
by the prosecution during the guilt/innocence phase:
Driving around his hood. He was familiar with that
place, wasn't he? He knew all the hangouts. He knew
everywhere to go to have undetected sex, didn't he? All
those places he went. Let her go to the bathroom. We
had sex here. He knew that place like the back of his
hand because he drives it. He drives it. Looking for
people he can do what he wants to do with. The man's a
predator.
(App. to Pet'r's Reply 16, ECF No. 38; Reporter's R., vol. 6, 18,
ECF No. 25-10 (emphasis added).) Petitioner urges that the
argument served to insinuate to the jury that he was "habitually

II

driving around in a predatory manner hunting for multiple people
to sexually assault."

(Pet. at 6, ECF No. 1.) Counsel responded

to the allegation in his affidavit as follows:
The state asserts in closing argument that he knew
what he was doing, that he knew the neighborhood. He
knew where to go to have undetected sex. The fact that
he went to a location and did in fact have undetected
sex indicates he knew where he was going. This is not
outside the scope of the evidence presented.
(State Habeas R., vol. 2, 403, ECF No. 27-9.)
Under state law,

"summation of the evidence" is a proper

area of jury argument. Felder v. State, 848 S.W.2d 85, 94-95
(Tex. Crim. App. 1992). Thus, the state habeas court found that
as a matter of state law, the argument was proper as a summation
of the evidence. Applying Strickland, the court concluded that
counsel's decision to not object to the argument was therefore
the result of reasonable trial strategy. The court also concluded
that petitioner failed to demonstrate a reasonable likelihood
that the result of the proceedings would have been different had
counsel objected to the argument.

(Id. at 495.)

The state courts' application of Strickland was not
unreasonable. "[I]n our role as a federal habeas court, we cannot
review the correctness of the state habeas court's interpretation
of state law." Young v. Dretke, 356 F.3d 616, 628 (5th Cir.

12

2004). Accepting the state court's conclusion based on state law
that the argument was proper, counsel was not ineffective for
failing to raise an objection to it. Ries v. Quarterman, 522 F.3d
517, 531 (5th Cir. 2008). Counsel is not required to make
frivolous motions or objections. Green v. Johnson, 160 F.3d 1029,
1037 (5th Cir. 1998); United States v. Oakley, 827 F.2d 1023,
1025 (5th Cir. 1987).
Under his fourth ground, petitioner claims counsel was
ineffective by failing to object during voir dire to the state's
use of a "prejudicial definition" of proof beyond a reasonable
doubt based on the "Wheel of Fortune" television show.

(Pet.,

Attach. 1-3, ECF No. 1.) According to petitioner, the
hypothetical based on the show violated his right to a fair trial
and his right to be convicted only upon proof of each element of
the offense beyond a reasonable doubt, lessened the state's
burden of proof, and tainted the presumption of innocence.

(Id.,

Attach. 1.) Relying solely on state law, the appellate court
addressed the claim as follows (all grammatical and/or
punctuation corrections and errors are in the original)
Failure to Object to Prosecutor's Wheel of Fortune
Example

Appellant contends that his trial counsel was
ineffective because he did not object or seek curative

13

instructions but instead
allowed the State to indoctrinate .
[the]
jury with a prejudicial definition of proof
beyond a reasonable doubt using the Wheel of
Fortune as an example, which violated
[a]ppellant[']s [constitutional] right to a
fair trial, the due process right to be
convicted of proof of all the elements
[necessary] to constitute an offense beyond a
reasonable doubt, the right to an impartial
tribunal, lessened the State[']s burden of
proof and tainted [a]ppellant[']s
"presumption of innocence [.]"
During voir dire, the State used the following
example to explain the concept of proof beyond a
reasonable doubt:
[STATE]:
. Judge Vick mentioned this, and
these are rights that are based on our
[C]onstitution. We all have these rights. If
we were committed-convicted of a crime,
accused of a crime, we each and every one
have these rights. If you get a traffic
ticket, you still have these rights.
A defendant has a presumption of
innocence, and that stays with him until and
unless we prove beyond a reasonable doubt
that he is guilty.
It's our burden, it's always our job to
bring evidence, but it's not beyond all
doubt. It's not a hundred percent.
[JUROR] , how could I prove something to you
beyond any question whatsoever?
[JUROR]

Evidence.

[STATE]
Okay. But, I mean, you'd still have
a question in your mind, wouldn't you?

14

Because you don't know these people, right?
[JUROR]

Right.

[STATE]
I mean, you have to make the best
decision you can. So to prove it to you beyond all
doubt, [Second Juror]? .

[STATE] : How could I prove it to you beyond
all doubt, to get any doubt out of your mind?
[SECOND JUROR]: I'm not sure. I'd have to
see-I'd have to see a big picture of all the
evidence and then make a decision. You know,
just talking, I don't know what would be in
my mind. I would have to see everything to
come up with that.
[STATE]: Okay. Thank you.
For most people, it's like, you know,
I'm going to have to see it. I'm going to
have to see it with my own eyes to have no
doubt whatsoever.
And so, you know, until they invent my
time machine and I can take every one of
y'all back to the crime itself and let y'all
see it, this is the standard we have. There's
no way I could ever prove to anyone beyond
all doubt. So this is the burden that we
have. Because if y'all saw the crime, you
wouldn't be able to be jurors, would you? You
would be witnesses. I'd have a lot of good
witnesses.
So it's not certainty. It's somewhere
short of that. Where are my Wheel of Fortune watchers?
(Hands raised)

15

[STATE] : Oh, come on. I'm not the only one
that watches that show, am I? I got through
law school on this thing. [Third Juror].
[THIRD JUROR]: I love Wheel of Fortune.
[STATE]: Okay. Wheel of Fortune. Vanna turns
the letter over as people guess and say, give
me an M, she'll turn letters over. And at
some point before the puzzle is complete,
usually you can guess it. All the letters
might not be turned over, but you know what
it says, you know what the answer is.
Tim had a hard time with the second one, but
he got the first one. We had Julia Roberts.
The thrill of victory and the agony of
defeat, that's an old one. So at some point
before you get all the letters you know what
the answer is. Is it [Fourth Juror]?

[STATE] : Would you agree with that?
[FOURTH JUROR] : That at a certain point all
reasonable doubt is gone or[STATE] : At a certain point the picture
becomes clear.
[FOURTH JUROR]: Yes.
[STATE]: At some point it's earlier than
others. You can guess what the-what it is
before you get very many letters. Sometimes
you need almost all of them.
[FOURTH JUROR]
of them.

It's always good to have all

[STATE]: Yeah. It's always good to have all
of them, but sometimes you don't. Are you
16

comfortable making a decision without all the
letters?
[FOURTH JUROR) : Not a hundred percent sure on
that one. I would have to, like I say, see
all the evidence, see what kind of light it's
presented in.
[STATE): Okay. Anyone else who just doesn't
think they would be able to do that? You're
going to have to have all doubt removed?
Okay. I'm going to-don't see any hands or any
head nods.
[Fifth Juror)
[FIFTH JUROR)

Yes.

[STATE) : Are you comfortable with making a
decision maybe if you still have questions,
but you're to the point where you're beyond a
reasonable doubt?
[FIFTH JUROR): If I'm to the point beyond a
reasonable doubt, then I feel comfortable
making a decision.
[STATE): Okay. Thank you.
Appellant contends that the prosecutor's use of the
word "letters" in the analogy encouraged the jury to
convict even if all of the elements of the offense were
not proved.
The use of a hypothetical fact situation during
voir dire is permissible if it is used "to explain the
application of the law." Because the court of criminal
appeals has held that the better practice is for the
trial court not to give a definition of reasonable
doubt to the jury, it is permissible for the State to
inquire into the jury's understanding of the parameters
of that burden of proof. This area of inquiry is

17

designed not to "assign a precise meaning" to the term
"beyond a reasonable doubt," which is left to the
jurors themselves to apply in their own common sense
understanding, but instead is to test whether the
prospective jury members will hold the State to an
impermissibly high or low burden of proof.
Here, the prosecutor's colloquy with the panel
shows that she was engaging in a permissible inquiry
into the prospective jurors' understanding of the
proper parameters of the beyond a reasonable doubt
burden of proof and how that relates to using
circumstantial evidence to prove a case. It does not
show that the State was urging the prospective jurors
that they could convict upon less than the appropriate
standard or if not all of the elements were proven.
Regardless, even if counsel could be considered
deficient for failing to object to this hypothetical,
the court's charge properly instructed the jury that it
must find "each and every element of the offense
charged beyond a reasonable doubt" to convict; thus, we
cannot say that such a failure would have affected the
trial's outcome.
Accordingly, we conclude and hold that counsel was
not ineffective by not objecting to the Wheel of
Fortune hypothetical and that even if he was, the
outcome of the trial would not have been different.
(Mem. Op. 13-17, ECF No. 25-3

(citations omitted).)

The state court's application of Strickland was not
unreasonable. Deferring to the state court's conclusion based on
state law that the hypothetical was proper, counsel was not
ineffective for failing to raise an objection to it. Ries, 522
F.3d at 531. As previously noted, counsel is not required to make
frivolous motions or objections. Green, 160 F.3d at 1037; Oakley,

18

827 F.2d at 1025.
Under his fifth ground, petitioner claims counsel was
ineffective by failing to object during voir dire to the
prosecutor's comment that if petitioner chose to testify he would
lose the presumption of innocence.

(Pet., Attach. 3-5, ECF No.

1.) The prosecutor explained to the panel that a criminal
defendant does not have to testify and that, if a defendant
decides not to testify for whatever reason, the jury could not
"talk about it."

(Reporter's R., vol. 3, 68, ECF No. 25-7.) The

prosecutor pointed out, however, that[i]f the Defendant does testify, he waives all those
rights and gets up there and tells you what he wants to
tell you, there's no special protection anymore.
There's no presumption, there's no covering over him.
He can be treated just like any other witness. He might
be presumed to be innocent, but he's not presumed to be
a truth-teller. You judge him like anyone else.
(Reporter's R., vol. 3, 69, ECF No. 25-7.) Counsel responded to
petitioner's allegation in his affidavit by noting that "[a]t no
time did the State allude that if a person testified that they
lost the presumption of innocence."

(State Habeas R., vol. 2,

402, ECF No. 27-9.)
The state habeas court found that the state's "explanation
of petitioner's right to not testify and the jury's duty to gauge
[h]is credibility if he did choose to testify was proper"; that
19

counsel did not object on that basis; and that counsel's decision
not to object was the result of reasonable trial strategy.

(State

Habeas R., vol 2, 486-87, ECF No. 27-9.) Applying only the
prejudice prong of Strickland, the state court concluded that
petitioner had failed to demonstrate that there was a reasonable
likelihood that the result of the proceeding would have been
different had counsel objected to the state's voir dire.

(Id. at

486, 496 0)
The state courts' application of Strickland comports with
Supreme Court precedent and was not unreasonable, especially in
light of the trial judge's instructions and the prosecutor's
earlier comments to the venire that "[a) defendant has a
presumption of innocence, and that stays with him until and
unless we prove beyond a reasonable doubt that he is guilty."
(Reporter's R., vol. 3, 10, 62, ECF No. 25-7.) Strickland, 466
U.S. at 698

(it is not necessary to addressed both prongs of the

test if the petitioner makes an insufficient showing on one)
Under his sixth ground, petitioner claims counsel was
ineffective by misstating the law when he admonished petitioner
outside the presence of the jury as follows:
Mr. Ledet, you do understand that if you take the
stand as a witness, that as a witness you lose the
presumption of innocence and you will -- your testimony

20

would be treated as any other witness.
(Id., vol. 5, 109.)

In his affidavit, counsel denied telling

petitioner that he lost the presumption of innocence just because
he testified.

(State Habeas R, vol. 2, 403, ECF No. 27-9.)

The state habeas court found that notwithstanding counsel's
admonishment, petitioner still chose to testify and concluded
that, because he did so, petitioner failed to show that a
reasonable likelihood existed that the result of the proceeding
would have been different had counsel advised him differently
regarding his right to testify.

(State Habeas R., vol. 2, 487,

496, ECF No. 27.9.)
The state courts' application was not unreasonable for the
reason given. Clearly, petitioner chose to testify to relate his
side of the story and, regardless of the consequences, his
testimony was the only evidence available to contradict the
victim's account.

(Pet'r's Reply 3, ECF No. 37; Reporter's R.,

vol. 5, 109, ECF No. 25-9.)
Under his seventh, eighth, and ninth grounds, petitioner
claims counsel was ineffective by failing to pursue suppression
of that portion of his recorded custodial interrogation taken
after he invoked his Fifth Amendment right to silence; to object
"to the presentation

of a multitude of evidence" within

21

that portion of the interrogation where the probative value of
the evidence was substantially outweighed by the danger of unfair
prejudice under Texas Rule of Evidence 403; and to pursue the
suppression of that portion of the interrogation that "put into
evidence several ways several times that Petitioner invoked his
Miranda rights in the face of accusation," thereby allowing the
jury to draw inferences of guilt from the evidence.

(Pet.,

Attach. 6-9, ECF No. 1.) Petitioner asserts that the recording of
his custodial interrogation, which was played in its entirety for
the jury, reflects that he invoked his right to silence and
terminated the interview by unequivocally and unambiguously
asserting,

"I don't even want to talk no more now." He further

asserts that the detectives did not "honor the invocation, but
continued to badger [him] with a relentless interrogation."

(Id.

at 6; Supp. Reporter's R., vol. 3, 25, ECF No. 25-16.)
Counsel responded to petitioner's allegations as follows:
It was my trial strategy to not object to the
interview as, in my opinion, reinforced our contention
that Petitioner was innocent. Although pressured by the
police detectives, Petitioner continued to maintain in
[sic] innocence. I wanted the jury to see that he never
wavered in spite of the persistence of the detectives.
Petitioner knew this prior to trial and never
questioned me regarding this.
(State Habeas R., vol. 2, 402, ECF No. 27-9.)

22

In overruling the issues on appeal, the appellate court
addressed them as follows:
Appellant's .
. points relate to his second
trial counsel's failure to file a motion to suppress
statements appellant made to the police in 2009 and
that second counsel's failure to pursue a motion to
suppress that appellant's prior counsel had filed.
According to appellant, his statements to police should
have been suppressed because he invoked his Fifth
Amendment right to remain silent and because he had
invoked his Fifth Amendment right to counsel.
The clerk's record contains a form signed by
appellant and the magistrate, entitled, "RIGHT TO
COUNSEL," which states, "DO YOU WANT A COURT-APPOINTED
LAWYER?" The box that was checked reads as follows:
YES, I BELIEVE THAT I AM ENTITLED TO AN
APPOINTED LAWYER. I have been advised by the
court of my right to representation by a
lawyer for the charge pending against me. I
certify that I am without means to employ a
lawyer of my own choosing and I now request
the court to select and appoint a lawyer for
me. I understand that I may be required to
repay Tarrant County for a court-appointed
lawyer at a later time, under such terms as a
court may determine based on my future
financial status.
When appellant was later interviewed by officers,
without counsel present, they warned him of his Miranda
rights, but he did not request counsel at that time in
connection with the subsequent questioning.
Once a person invokes his right to have counsel
present during custodial interrogation, a valid waiver
of that right cannot be established by merely showing
that the suspect responded to police-initiated
interrogation after being advised of his rights again.
Edwards v. Arizona, 451 U.S. 477, 485 (1981); Pecina v.

23

State, 361 S.W.3d 68, 75 (Tex. Crim. App.), cert.
denied, 133 S. Ct. 256 (2012). This prophylactic rule
protects a suspect who has made the decision not to
speak to law-enforcement officers without his lawyer
and who has clearly communicated that decision to the
police from further police badgering. Pecina, 361
S.W.3d at 75.

It is the police officer or other law-enforcement
agent who administers Miranda warnings, and he or she
does so immediately before custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966);
Pecina, 361 S.W.3d at 75. Thus, the police must give
the Fifth Amendment Miranda warnings during the process
of custodial interrogation but before questioning
actually begins. Miranda, 384 U.S. at 473-74; Pecina,
361 S.W.3d at 75-76. But the United States Supreme
Court has never accepted the notion of an anticipatory
invocation of Miranda rights (1) given by someone other
than law-enforcement officers or other state agents or
(2) outside the context of custodial interrogation.
McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991);
Pecina, 361 S.W.3d at 76. A preliminary hearing will
not usually involve such a custodial interrogation
context. McNeil, 501 U.S. at 182 n.3; Pecina, 361
S.W.3d at 76.
Thus, "a defendant who does not want to speak to
the police without counsel present need only say as
much when he is first approached and given the Miranda
warnings." Montejo v. Louisiana, 556 U.S. 778, 794
(2009). And if he does invoke his Fifth Amendment right
to counsel, "not only must the immediate contact end,
but 'badgering' by later requests is prohibited." Id.
at 794-95.
Because there is no evidence that appellant
invoked his Fifth Amendment right to have counsel
present for police questioning during the course of a
custodial interrogation, under the Court of Criminal
Appeals's analysis of this issue in Pecina, he would
not have prevailed on a motion to suppress on the
ground he raises in his appeal; thus, counsel was not
24

ineffective under Strickland for failing to pursue a
motion to suppress on that basis. See Pecina, 361
S.W.3d at 76; Jackson v. State, 973 S.W.2d 954, 957
(Tex. Crim. App. 1998). Moreover, even if counsel had
pursued such a motion and prevailed, there is not a
reasonable probability the outcome of the trial would
have been different.
Contrary to the concurring opinion's claim that
our opinion is advisory as it relates to addressing the
likely success of his motion to suppress, appellant
raises the point in the context of his claim of
ineffective assistance of counsel. As the concurrence
knows, under Strickland, this requires us to evaluate
whether but for counsel's alleged errors, the result of
the proceeding would be different. Strickland, 466 U.S.
at 687, 694. As the Supreme Court stated in Strickland,
there is no reason for a court deciding an
ineffective assistance claim to approach the
inquiry in the same order or even to address
both components of the inquiry if the
defendant makes an insufficient showing on
one. In particular, a court need not
determine whether counsel's performance was
deficient before examining the prejudice
suffered by the defendant as a result of the
alleged deficiencies. The object of an
ineffectiveness claim is not to grade
counsel's performance. If it is easier to
dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which
we expect will often be so, that course
should be followed. Courts should strive to
ensure that ineffectiveness claims not become
so burdensome to defense counsel that the
entire criminal justice system suffers as a
result.
Id. at 697, 104 S. Ct. at 2069; see also Ex parte
Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.) ("The
two prongs of Strickland need not be analyzed in a
particular order .
. "), cert. denied, 131 S. Ct.
25

3073 (2011); Smith v. State, 286 S.W.3d 333, 342 (Tex.
Crim. App. 2009) (declining to analyze whether first
prong of Strickland met because second prong was not)
And Thompson specifically states that the failure to
make the required showing of "either deficient
performance or sufficient prejudice defeats the
ineffectiveness claim." Thompson, 9 S.W.3d at 813.
While the concurring opinion is correct that
appellant's motion to suppress was not litigated at
trial, we are required to evaluate its likely success
to evaluate appellant's point on appeal: counsel's
effectiveness in light of his failure to pursue the
motion to suppress at trial. Thus, our opinion on the
likelihood of the success of that motion is not
advisory. See Smith, 286 S.W.3d at 342.

In his second through fourth points, appellant
contends counsel was ineffective for failing to object
to, and move to suppress, the part of the interview in
which he invoked his right to terminate the interview.
The State concedes that appellant did so and agrees
that "the portion of the tape in which [a]ppellant
invokes his right to terminate the interview was not
admissible before the jury." But the State contends
that, nevertheless, trial counsel was not ineffective
because his decision not to object could have been
based on reasonable trial strategy.
When the detectives told appellant they were going
to check his DNA, appellant very clearly told them that
he ended and cancelled the interview. Nevertheless, the
detectives continued to question him, and he continued
to deny knowing or having committed an offense against
the complainant. Appellant's counsel did not object to
the playing of the part of the interview that included
appellant's termination of the interview and his
subsequent denial of the detectives' allegations that
he sexually assaulted the complainant. The State
emphasized appellant's denial in its closing argument
by contrasting it with appellant's testimony at trial

26

that he had consensual sex with her.
Regardless of the fact that part of the interview
was inadmissible, we do not believe that the outcome of
the proceedings would have been any different. The
issue of whether the complainant consented was highly
disputed at trial. As appellant points out, the jury
had to decide whether they believed appellant's
testimony or the complainant's; the DNA evidence merely
confirmed that the sex did occur. Thus, any evidence
tending to impeach appellant's credibility was highly
probative. But appellant was able to explain
extensively during his testimony that he did not
recognize the photograph of the complainant shown to
him by the detectives during the interview. Also,
Detective O'Brien admitted on cross-examination that he
had shown appellant a more recent driver's license
photo of the complainant, that the detective did not
know what she looked like in 2004, and that appellant
could have been unable to identify her for that reason.
Appellant was also able to explain that because of the
passage of time, the complainant had gained a
significant amount of weight; thus, he did not
recognize her in the interview. The complainant had
previously testified that she had gained weight since
the sexual assault. Defense counsel discussed the
matter during closing argument, pointing to appellant's
testimony that his failure to initially recognize the
complainant was a mistake and that appellant had later
written a letter to the district attorney's office
stating that he had previously been mistaken.
Accordingly, appellant's counsel had the opportunity to
neutralize the impact of the State's use of appellant's
statement, bringing the issue back to the jury's choice
over whom to believe; the jury chose the complainant.
For this reason, appellant has not shown that but for
counsel's failure to so object, there is a reasonable
probability that the outcome of the trial would have
been different.
Moreover, we do not believe that there is a
reasonable probability the trial's result would have
been changed had counsel been able to exclude the part

27

of the interview in which appellant invoked his right
to terminate it. Appellant's statements after he
invoked his right were no different than his statements
prior to doing so; he continued to deny knowing or
having sex with the complainant. In fact, he accused
the detectives of lying when they told him they knew
what he had done. Thus, the record does not show a
reasonable probability that the outcome of the trial
would have been different had counsel been successful
in having that part of the statement excluded. See Ali
v. State, 26 S.W.3d 82, 88 (Tex. App.-Waco 2000, no
pet.); see also Lykins v. State, 784 S.W.2d 32, 34-36
(Tex. Crim. App. 1989) (holding that statements taken
in violation of Miranda and article 38.22 could be used
to impeach defendant) .
Contrary to the concurring opinion's assertion, we
are not approving mistakes by the police and prosecutor
"by our silence." Nor have we looked for a way "to
justify the actions of either the State or the
defense." Id. We are simply following the law and
higher courts' precedent, which we are required to do.
Sierra v. State, 157 S.W.3d 52, 60 (Tex. App.-Fort
Worth 2004) (op. on reh'g), aff'd, 218 S.W.3d 85 (Tex.
Crim. App. 2007); see Swilley v. McCain, 374 S.W.2d
871, 875 (Tex. 1964) (holding that a state intermediate
appellate court is bound to follow precedent of the
highest courts of the state). Moreover, the State
itself concedes that part of the interview was
inadmissible because the police should have ended it
after appellant said he wanted to end it, a fact that
we have clearly pointed out in our opinion.
(Mem. Op. 6-13, ECF No. 25-3

(parallel citations to Supreme Court

Reporter and citations to the Majority and/or Concurring Opinions
omitted) . )
The state court's application of Strickland was not
unreasonable. Strategic decisions by counsel are virtually

28

unchallengeable and generally do not provide a basis for habeas
relief. Strickland, 460 U.S. at 691.
Under his tenth ground, petitioner claims that[b]efore Petitioner testified, the D.A. implied as
evidence of guilt before the jury that Petitioner had
an obligation (unfulfilled) to give an explanation to a
question (unfulfilled) detectives asked him after he
invoked his 5th Amend. right to silence; on direct D.A.
Choy asked detective: "Did you give the defendant ample
opportunity to explain why his DNA was in [the victim]?
. Did he ever give you an explanation why?";
counsel was ineffective under the 6th & 14th Amend. for
not objecting to this line of questioning under the 5th
& 14th Amend.
(Pet., Attach. 10, ECF No. 1 (emphasis in original).)
The following exchange occurred during the state's direct
examination of detective O'Brien after the detective testified
that he told petitioner that his DNA was found on and inside the
victim:
Q. Detective O'Brien, did you give the Defendant
ample opportunity to tell you whether or not he knew
[the victim] ?
A. I believe I did, yes.

Q. And did the Defendant ever tell you whether or
not he knew her?
A. No, he did not.
Q. In fact, he said he didn't know her?
A. Over and over again.

29

Q. Did you give the Defendant ample opportunity to
explain why his DNA was in [the victim]?
A. I believe I did. I asked him numerous times
about it.
Q. Did he ever give you an explanation why?
A. No, he didn't.
(Reporter's R., vol. 5, ECF No. 25-9.)
The state habeas court treated the claim as a prosecutorialmisconduct claim and found that it was a "record claim" that
could have been, but was not, raised on direct appeal; thus, the
court concluded that the claim could not be raised for the first
time on state habeas review.

(State Habeas R., vol. 2, 489, 500,

ECF No. 27-9.) Such a procedural-default finding typically bars a
federal court on habeas review from reaching the merits of the
claim. Ylst v. Nunnemaker,

501 U.S. 797, 802-04 (1991); Coleman

v. Thompson, 501 U.S. 722, 729-30 (1991)

However, because the

state courts did not address the claim as an ineffectiveassistance claim, this court does not apply the proceduraldefault doctrine. Nevertheless, having considered the claim on
the merits, petitioner cannot demonstrate Strickland prejudice.
On cross-examination, counsel was able to highlight the fact that
no pictures of the victim were taken on the night in question;
that the detective did not know when the picture was taken and

30

could have been taken any time before 2009; that the victim could
have looked "quite a bit differently" from the picture on the
night in question; and that it was possible petitioner did not
recognize the victim from the picture.

(Reporter's R., vol. 5,

80-83, ECF No. 25-9.) This testimony minimized the prejudice, if
any, of the state's line of questioning.
Under his eleventh ground, petitioner claims counsel was
ineffective by failing to object to the deprivation of his Sixth
Amendment right to a public trial.

(Pet., Attach. 10, ECF NO. 1.)

Petitioner complains that the prospective jurors filled up the
entire gallery, leaving no room for his parents in the public
seating area. He asserts that counsel should have objected to his
parents' exclusion and to the trial court's failure to perform a
Waller test.

(Id.)

In Waller v. Georgia, 467 U.S. 39 (1984), the

Supreme Court held that under the Sixth Amendment, a trial court
may exclude the public from the courtroom only upon satisfaction
of a four-factor test, and, in Presley v. Georgia, 558 U.S. 209
(2010), the Supreme Court reiterated that this test applies to
closures during voir dire.
Counsel responded to petitioner's allegation as follows:
Although the courtroom was full, there was space
for Petitioner's parents. Petitioner's claims that I
refused to allow his parents in are false. I did tell
31

them I did not know where the[y] would sit during voir
dire. I was busy getting ready for jury selection so I
did not make an attempt to see to it that they had
accommodations in the courtroom during voir dire.

I fail to see how Petitioner •suffered a
structural defect" due to defense counsel not objecting
to Petitioner's parents not being in the courtroom
during voir dire. Because the gallery was full,
Petitioner's parents assumed they were not allowed in.
I was never asked to see if there was somewhere else
they could sit during voir dire.

I cannot speak for the trial judge as to why he
did not perform a •sua sponte Waller" test, nor did I
see the need for one. Petitioner's parents were present
for his trial and were not excluded from the voir dire
portion.
(State Habeas R., vol. 2, 401, ECF No. 27-9.)
The state habeas court entered findings consistent with
counsel's affidavit and found that there was no evidence that the
trial court was made aware that petitioner's parents felt they
were being excluded from the courtroom.

(Id. at 485.)

Nonetheless, the state concluded that the claim was waived for
habeas review by petitioner's failure to object in the trial
court and that counsel's decision to not object to the closure
because the courtroom was not closed was the result of reasonable
trial strategy.

( Id. at 4 94-95.)

32

The state courts' application of Strickland was not
unreasonable. The record of the proceedings does not indicate
that the trial judge ordered the courtroom closed to the public
during voir dire. Moreover, the Supreme Court recently held that
when a defendant raises a public-trial violation via an
ineffective-assistance-of-counsel claim, Strickland prejudice is
not shown automatically. The burden is on the defendant to show
either a reasonable probability of a different outcome in his
case or that the particular public-trial violation was so serious
as to render his trial fundamentally unfair. See Weaver v.
Massachusetts, No. 16-240, 2017 WL 2674153, at *11 (U.S. June 22,
2017). Petitioner cannot show that there is a reasonable
probability the jury would not have convicted him if his parents
had been present in the courtroom during voir dire or that their
absence rendered his trial fundamentally unfair. See id. at *13.
In his third and final ground, petitioner claims that the
effect of counsel's cumulative errors violated the "Due Process
guarantee of fundamental fairness" and necessitates a new trial.
(Pet. 7, ECF No. 1.) Replying on state law, the state habeas
court concluded that this claim lacked merit because "[t]here is
no authority for the proposition that the cumulative effect of
non-errors requires reversal." The state courts' conclusion is

33

neither contrary to nor an unreasonable application of
Strickland. See, e.g., Leal v. Dretke, 428 F.3d 543, 552-53 (5th
Cir. 2005)

(holding cumulative error of counsel did not warrant

COA where none of the errors satisfied Strickland's prejudice
prong); Dodson v. Stephens, 611 Fed. App'x 168, 178-79 (5th Cir.
May 1, 2015)

(holding no cumulative analysis required where

counsel "did not engage in multiple instances of deficient
performance") .
V. Evidentiary Hearing

Petitioner requests an evidentiary hearing, however his
claims were adjudicated on the merits in state court, save for
ground ten, and he has failed to overcome the limitation of

§

2254(d) (1) on the record that was before the state court. Cullen
v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 181-82 (2011); Pape
v. Thaler, 645 F. 3d. 281, 287-88

(5th Cir. 2011). Thus, no

evidentiary hearing is warranted.
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
34

right.
SIGNED June

'),

~'

2017.

35