Moore v. Stephens

Filing 32

Opinion and Order: The Court DENIES Petitioners petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Further, a certificate of appealability will not be issued. (Ordered by Senior Judge Terry R Means on 6/2/2017) (edm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
TEZELLE MOORE,
Petitioner,
v.
LORIE DAVIS, Director,1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

§
§
§
§
§
§
§
§
§
§
§
§

No. 4:16-CV-024-Y

OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Tezelle Moore, a
state

prisoner,

against

Lorie

Davis,

director

of

the

Texas

Department of Criminal Justice, Correctional Institutions Division,
Respondent. After having considered the pleadings and relief sought
by Petitioner, the Court has concluded that the petition should be
denied.
I.

FACTUAL AND PROCEDURAL HISTORY

In February 2011 in Tarrant County, Texas, Case No. 1220521D,
Petitioner was indicted for murder in the shooting death of his
neighbor, Ernest Davis, (count one) and felon in possession of a

1

Effective 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 was
automatically substituted as the party of record.

firearm

(count

two).2

(Adm.

R.,

SH02

11,

ECF

No.

9-2.)

The

indictment also contained deadly-weapon and repeat-offender notices.
(Id.) In March 2012 Petitioner was re-indicted in Case No. 1276457R
for aggravated assault with a deadly weapon (count one) and felon
in possession of a firearm (count two). (Id. at 7.) The reindictment also contained deadly-weapon and repeat-offender notices.
(Id.) Petitioner pleaded not guilty and his jury trial commenced on
June 25, 2012. The jury found Petitioner guilty of aggravated
assault, but it found Petitioner not guilty of being a felon in
possession of a firearm. It then violated the Court’s instructions
by proceeding to find that petitioner did not use or exhibit a
deadly weapon, a firearm, during commission of the offense.3 (Id.,
Clerk’s R. 179-81, ECF No. 9-2.) Thereafter, Petitioner pleaded true
to the repeat-offender notice, and the jury assessed his punishment
at

forty years’ confinement. (Id. at 200.) Petitioner appealed his

conviction, but the Fourth District Court of Appeals of Texas
affirmed the trial court’s judgment and, on February 12, 2014, the
Texas Court of Criminal Appeals refused Petitioner’s petition for
discretionary review. (Id., Docket Sheet 2, ECF No. 9-3.) Petitioner
did not seek writ of certiorari.

2

Petitioner’s brother, Jeremy B.J. Miller, was also charged with murder in
Davis’s death and is serving a life sentence. See Moore v. State, No. 04-1200492-CR, 2013 WL 3804577 (Tex. App.–San Antonio July 17, 2013, pet. ref’d).
3

The jury was instructed that only if it found Petitioner guilty of the
offense of felon in possession of a firearm as charged under count two, was it
to consider the “special issue” of the deadly weapon. (Id. at 181.)

2

On December 10, 2014,4 Petitioner filed a state application for
habeas relief challenging his conviction, which was denied by the
Texas Court of Criminal Appeals on September 9, 2015, without a
hearing on the findings of the trial court. (Id., SH02 & Action
Taken, ECF Nos. 9-17 & 9-18.) Petitioner filed his original federal
habeas petition on January 5, 2016,5 and was granted permission to
file his amended petition on July 19, 2016. (Pet. 10, ECF No. 1;
Order, ECF No. 21; Am. Pet., ECF No. 22.)
II.

ISSUES

Petitioner raises five grounds for relief in his amended
petition. Under grounds one through four, Petitioner asserts that
the Texas Court of Criminal Appeals unreasonably applied federal
law,

as

determined

by

the

United

States

Supreme

Court,

in

concluding–
(1)

that
the
trial
court’s
“supplemental jury
instruction” was legally sufficient;

(2)

that there was sufficient evidence to support his
conviction for aggravated assault;

(3)

that his trial counsel was not ineffective by
failing
to
request
a
lesser-included-offense

4

A prisoner’s state habeas application is deemed filed when placed in the
prison mailing system. Richards v. Thaler, 710 F.3d 573, 578-79 (5th Cir. 2013).
Petitioner’s state application does not provide the date he placed the document
in the prison mailing system but does reflect the date it was signed by
Petitioner. Therefore, for purposes of this Opinion and Order, the state
application is deemed filed on that.
5

Similarly, a federal habeas petition filed by a prisoner is deemed filed
when the petition is placed in the prison mail system for mailing. Spotville v.
Cain, 149 F.3d 374, 377 (5th Cir. 1998).

3

instruction on deadly conduct; and
(4)

that his right to cross-examine witnesses regarding
their pending felony criminal cases was forfeited
due to ineffective assistance of counsel.

(Am. Pet. 6-7, ECF No. 22.) Under Petitioner’s fifth ground, he
asserts

that

the

Texas

Court

of

Criminal

Appeals

abused

its

discretion by “making an unreasonable determination of the facts,
without conducting a ‘sue [sic] sponte’ review of the record.”6 (Id.
at 11-13.)
III.

RULE 5 STATEMENT

Respondent believes that the third ground enumerated above is
time-barred but does not allege that the remaining grounds are
barred by successiveness, the statute of limitations, or a failure
to exhaust state-court remedies. (Resp’t’s Am. Answer 6-7, ECF No.
25.)
IV. STATUTE OF LIMITATIONS
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
established a one-year limitations period for state prisoners filing
federal habeas petitions. See 28 U.S.C. § 2244(d)(1). The one-year
limitations period begins on the latest of several dates. Relevant
here is “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for

6

The Court’s understanding and enumeration of Petitioner’s claims differ
from that of Respondent but correspond with the specific grounds raised in
Petitioner’s amended petition.

4

seeking such review.” Id. § 2244(d)(1)(A). The limitations period
is tolled during the pendency of a state habeas application with
respect to the pertinent judgment or claim. Id. § 2244(d)(2).
Petitioner’s

judgment

of

conviction

became

final

upon

expiration of the time that he had for filing a petition for writ
of certiorari in the United States Supreme Court on May 13, 2014.
Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir. 1998); SUP. CT. R.
13. Therefore, the statute of limitations began to run the following
day and closed one year later on May 13, 2015, absent any tolling.
Petitioner’s state habeas application, pending from December 10,
2014, through September 9, 2015, tolled limitations 274 days, making
his federal petition due on or before February 11, 2016. Thus, his
original petition filed on January 5, 2016, was timely. His amended
petition, however, filed on July 19, 2016, was not.
Federal Rule of Civil Procedure 15, which allows a party to
amend its pleadings, applies to federal habeas-corpus proceedings.
United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002). A
supplemental or amended petition must be made within the one-year
statute of limitations unless the supplement or amendment relates
back to the original petition. Fed. R. Civ. P. 15. While Rule
15(c)(1)(B) provides that an amendment “relates back” when the
amendment

“asserts

a

claim

that

arose

out

of

the

conduct,

transaction, or occurrence set out--or attempted to be set out--in
the

original

pleading,”

the

Supreme

5

Court

has

construed

this

provision narrowly when applied to federal habeas corpus cases. In
Mayle v. Felix, the Supreme Court held that “[a]n amended habeas
petition does not relate back (and thereby escape AEDPA’s one year
time limit) when it asserts a new ground for relief supported by
facts that differ in both time and type from those the original
pleading set forth.”

545 U.S. 644, 650 (2005).

Under his third ground, Petitioner claims that the Texas Court
of Criminal Appeals unreasonably applied federal law, as determined
by the United States Supreme Court, in concluding that his trial
counsel was not ineffective in failing to request a lesser-includedoffense instruction on deadly conduct. Respondent asserts that this
ineffective-assistance-of-counsel claim does not relate back to the
original petition because it is a new claim, raising new theories
and facts different from those underlying the original claims.
(Resp’t’s Am. Answer 13, ECF No. 23-1.) According to Respondent,
[t]he petition originally filed by [Petitioner] lacked
any substance and failed to provide any facts or legal
authority [that] would entitle [Petitioner] to relief, or
even explain what his allegations were in the context of
ineffective assistance of counsel.
(Id.)
Petitioner, on the other hand, asserts that (all spelling,
punctuation, and/or grammatical errors are in the original)–
although this claim set’s forth new fact’s not mentioned
in the original petition these fact’s are “tied to a
common core of oprative fact’s argued in the original
petition”, where petitioner Moore argued that because the
jury found him not guilty of felon in possession of a
firearm, the state failed to prove “every element of the
6

indictment as charged”, therefore violating Petitioner’s
right’s under the due process clause of the 14th
Amendment to the United States Constitution. Moreover,
petitioner Moore assert’s that the new fact’s are “tied
to” his challenge to the sufficiency of evidence to
support the conviction for aggravated assault, because
Petitioner did not possess a firearm during the
commission of the offense, therefore, in light of this
evidence, Petitioner was entitled to a lesser included
offense
instruction
of
deadly
conduct.
Thereby,
Petitioner’s trial counsel’s abandoning the lesser
included offense instruction of “deadly conduct” was
deficient performance that resulted in Petitioner being
convicted of aggravated assault w/ a deadly weapon.
Stated differently, this deficient performance violated
Petitioner’s due process right under the 14th Amendment
to
the
United
States
Constitution,
as
well
as
Petitioner’s 6th Amendment.
(Pet’r’s Traverse 3-4, ECF No. 29-1 (citations omitted).)
Petitioner’s argument is not persuasive. The Court agrees that
the original petition did not contain ground three and that ground
three asserts a new claim for habeas relief based on facts that do
not relate to or enhance Petitioner’s claims in the original
petition–i.e., that do not share the “same common core of operative
facts.” Accordingly, the claim does not relate back to the original
petition and is time-barred.
V. PROCEDURAL DEFAULT
Respondent asserts that ground four is procedurally barred from
the Court’s review because the claim, although raised on appeal, was
overruled by the appellate court because it was not preserved for
appellate review by a contemporaneous objection. (Resp’t’s Am.
Answer 16-17; Adm. R., Mem. Op. 5-6, ECF No. 9-15.)

7

Under the procedural-default doctrine, federal habeas review
of a claim is procedurally barred if the last state court to
consider the claim expressly and unambiguously based its denial of
relief on a state procedural default. Coleman v. Thompson, 501 U.S.
722, 729 (1991). It is well settled that Texas’s contemporaneousobjection rule is an independent and adequate state procedural bar
to federal habeas review. See, e.g., Wainwright v. Sykes, 433 U.S.
72, 87-88 (1977). In Wainwright v. Sykes, the Supreme Court held
that, absent a showing of “cause” and “prejudice,” federal habeas
review is barred if the petitioner fails to comply with a state
contemporaneous-objection rule at trial. Id. at 87. The state court
clearly and unambiguously relied on the procedural default in
overruling Petitioner’s fourth claim; thus, the claim is immune from
federal review unless Petitioner can demonstrate “cause and actual
prejudice as a result of the alleged violation of federal law.” Ogan
v. Cockrell, 297 F.3d 349, 356 (5th Cir. 2002).
In his ground four, Petitioner claims that the Texas Court of
Criminal Appeals unreasonably applied federal law, as determined by
the United States Supreme Court, in concluding that his right to
cross-examine state witnesses regarding their pending criminal cases
was forfeited due to his trial counsel’s ineffectiveness in failing
to object to the restriction on his right to confrontation. (Am.
Pet. 12, ECF No. 22; Pet’r’s Traverse 23-24. ECF No. 29-1.)
A

criminal

defendant

has

a

8

constitutional

right

to

the

effective assistance of counsel at trial. See U.S. CONST. amend. VI,
XIV;

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. Both prongs of the Strickland test must be met to
demonstrate ineffective assistance. Id. at 687, 697. 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 emphasized in Harrington v. Richer the
standard under which a federal court is to consider an ineffectiveassistance-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 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
9

Strickland standard itself.
562 U.S. 86, 101 (2011) (quoting Williams v. Taylor, 529 U.S. 362,
410 (2000)). Accordingly, it is necessary only to determine whether
the state courts’ rejection of petitioner’s ineffective-assistance
claim 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 v. Cockrell,
343 F.3d 440, 443 (5th Cir. 2003).
At trial, three eyewitnesses testified to the events leading
up to the shooting: Patrick and Carolyn Cato and Patricia Manning.
Of the three, Patrick and Carolyn Cato had unrelated pending
criminal cases–i.e., “felony drug cases that occurred on March 7,
2012.” (Adm. R., Reporter’s R., vol. 3, 8, ECF No. 9-7.)

There was

no plea deal for their testimony in Petitioner’s case. (Id.)
Patricia Manning had two prior criminal convictions, which she
acknowledged during direct examination. (Id., Reporter’s R., vol.
4, 187, ECF No. 9-8.)
The state habeas court entered the following factual findings
on the issue:
18.

Hon. Salvant objected to the State’s motion in
limine for the pending cases of Carolyn Cato and
Patrick Cato.

19.

The court granted the State motion in limine
[holding evidence of the pending charges were
inadmissible under Texas Rules of Evidence 608 or
609] but stated, “I’m not going to rule on anything
that’s – I’m not going to – that’s not a – it’s not
proper for me to rule on what’s admissible at this
10

point because I don’t know what you’re going to
present until it’s actually presented and the State
makes an objection.”
20.

There is no evidence that Carolyn Cato’s pending
case caused her to be biased against Applicant and
in favor of the State.

21.

There is no evidence that Patrick Cato’s pending
case caused him to be biased against Applicant and
in favor of the State.

22.

Patricia Manning did not have any pending criminal
cases.

23.

Patricia Manning saw the entire incident.

24.

Patricia Manning testified that she personally saw
Applicant shooting at the victim.

25.

Even if counsel had impeached Patrick Cato and/or
Carolyn Cato with their pending cases, Patricia
Manning’s testimony would have been sufficient to
prove Applicant committed the offense.

26.

There is no evidence that the outcome of the
proceeding would have been different had counsel
objected differently to the State’s motion in
limine.

(Id., State Habeas R. 80, ECF No. 9-18.)
Based

on

its

findings,

the

state

court

concluded

that

petitioner failed to prove that counsel’s objection to the state’s
motion in limine was inadequate or that there was a reasonable
probability that the outcome of the proceeding would have been
different had counsel objected differently to the motion in limine.
(Id. at 84-85.) The state court’s determination of the claim is a
reasonable application of Strickland.
Even assuming counsel’s objection was deficient and resulted

11

in the procedural default in state court, Petitioner fails to
establish

any

prejudice

as

result

of

counsel’s

deficiency.

Confrontation error is subject to a harmless-error analysis. Brecht
v. Abrahamson, 507 U.S. 619, 637-38 (1993). See also Delaware v. Van
Arsdall, 475 U.S. 673, 679, 684 (1986) (holding that it was a
violation of the Confrontation Clause for a trial court to prohibit
all inquiry into the possibility that a witness would be biased as
a

result

of

pending

criminal

charges

against

him

subject

to

harmless-error analysis). In Delaware v. Van Arsdall, the United
States Supreme Court explained:
To determine whether the error was harmless, we consider
the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise
permitted, and of course, the overall strength of the
prosecution’s case.
Hafdahl v. Johnson, 251 F.3d 528, 540 (5th Cir. 2001) (quotation
marks omitted).
As the state court found, the exclusion of evidence of the
Catos’ pending cases was harmless. The cases were not related to
Petitioner’s case; cross-examination was not otherwise restricted;
testimony regarding the Catos’ criminal convictions was admitted;
the Catos’ testimony was cumulative to Patricia Manning’s and
corroborated her testimony; and the case against Petitioner was
strong. Because Petitioner cannot show prejudice, his confrontation
claim is procedurally barred from this Court’s review.
12

VI.

LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF

A § 2254 habeas petition is governed by the heightened standard
of review provided for in the AEDPA. See 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 federal law as established by the
Supreme Court or that is based on an unreasonable determination of
the facts in light of the record before the state court. See 28
U.S.C. § 2254(d)(1)–(2); Harrington v. Richter, 562 U.S. 86, 100
(2011).

This standard is difficult to meet but “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. When the Texas Court of
Criminal Appeals denies relief on a state habeas-corpus application
without written order, typically it is an adjudication on the
merits, which is likewise entitled to this presumption. Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a
situation, a federal court may assume that 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,
13

372 U.S. 293, 314 (1963); Schartzle v. Cockrell, 343 F.3d 440, 443
(5th Cir. 2003); Catalan v. Cockrell, 315 F.3d 491, 493 n.3 (5th
Cir. 2002); Valdez, 274 F.3d at 948 n.11; Goodwin v. Johnson, 132
F.3d 162, 183 (5th Cir. 1997). A 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).

VII. DISCUSSION
A. Jury Instruction
Under his first ground, Petitioner raises the following claim
(all spelling, punctuation, and/or grammatical errors are in the
original):
The [Texas] Court of Criminal Appeals made an objectively
unreasonable application of clearly established Supreme
Court precendent, in summarraily concluding that the
trial courts “supplemental jury instruction was legally
sufficient.
(Am. Pet. 6, ECF No. 22.)
During deliberations in the guilt/innocence phase, the jury
sent a note to the trial court, stating “[o]n Count One, the
aggravated

assault.

We

need

clarification

to

know,

does

the

defendant have to have a deadly weapon in his possession?” (Adm. R.,
Clerk’s R. 184, ECF No. 9-2.) The court responded, over Petitioner’s
objection, as follows:
The Court has received your Jury Note No. 3. As to
14

the Count One of the aggravated assault, if you believe
the Defendant acted alone, then he must be in possession
of a deadly weapon to be guilty of aggravated assault.
If, however, you believe he acted as a party with Jeremy
Miller [Petitioner’s brother], as previously defined in
the Court’s Charge, then he does not need to be in
possession of a deadly weapon.
(Id. at 185.)
Petitioner asserts that the jury note did not reference or ask
about the law of parties and that by injecting the law of parties
into its answer, the trial court impermissibly focused the jury on
the law of parties and unjustly singled out Jeremy Miller’s conduct.
(Am. Pet. 11, ECF No. 22.)
Petitioner raised the claim on appeal, and the appellate court,
relying solely on state statutory and case law, addressed the issue
as follows:
On appeal, appellant asserts the trial court’s
instruction implicitly commented on the weight of the
evidence and impermissibly encouraged the jury to
concentrate
on
specific
evidence
during
their
deliberations. Appellant contends the jury’s note did not
reference or ask about law of the parties; therefore,
when the trial court injected law of the parties into its
answer, the court impermissibly focused the jury on law
of the parties, and unjustly singled out Jeremy Miller’s
conduct. Appellant contends that because the jury
question asked only about aggravated assault, the only
permissible answer should have been “yes, an individual
does have to be in possession of a deadly weapon to be
found guilty of aggravated assault with a deadly weapon.”
We do not agree that the trial court’s answer should have
been so narrow.
The jury is governed by the law it receives from the
court. A trial court may not comment on the weight of the
evidence in the charge. Although the trial court
ordinarily provides instructions to the jury before the
jury retires to deliberate, the court may give further
15

written instructions upon the jury’s written request for
additional guidance regarding applicable law. When the
trial court responds substantively to a question the jury
asks during deliberations, that communication amounts to
a supplemental jury instruction, and the trial court must
follow the same rules that generally govern jury
instructions.
Because a trial court’s answer to a jury’s question
must comply with the same rules that govern charges, the
trial court, as a general rule, must limit its answer to
setting forth the law applicable to the case; it must not
express any opinion as to the weight of the evidence, sum
up the testimony, discuss the facts, or use any response
calculated to arouse the sympathy or excite the passions
of the jury.
Here, the jury charge on aggravated assault included
the law of parties and the application paragraph allowed
conviction if the jury found that appellant “did
intentionally or knowingly or recklessly, acting alone or
as a party, as that term has been previously defined,
with Jeremy Miller, threaten imminent bodily injury to
Ernest Davis and the defendant did use or exhibit a
deadly weapon during the commission of the assault, towit: a firearm, then you will find the Defendant, Tezelle
Moore, guilty of the offense of aggravated assault, as
charged in Count One of the indictment.” We believe the
trial court’s answer to the jury question merely restated
the application paragraph contained in the jury charge;
thereby treating both theories of liability in a neutral
manner. Therefore, we conclude the trial court did not
impermissibly answer the jury’s question.
(Adm. R., Mem. Op. 9-11, ECF No. 9-15 (citations omitted) (emphasis
in original).) In turn, the Texas Court of Criminal Appeals refused
Petitioner’s petition for discretionary review without written
order, which constitutes an adjudication of the issue against
Petitioner.
Petitioner has failed to rebut the presumption of correctness
of the state courts’ adjudication of the claim. Nevertheless, the

16

claim does not implicate a federal constitutional right. Texas
courts are prohibited from commenting on the weight of the evidence
as a matter of state law. See TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007). This court must defer to the state courts on matters
of state statutory interpretation. See Weeks v. Scott, 55 F.3d 1059,
1063 (5th Cir. 1995); Fierro v. Lynaugh, 879 F.2d 1276, 1278 (5th
Cir. 1989).

B. Sufficiency of the Evidence
Under his second ground, Petitioner raises the following claim
(all spelling, punctuation, and/or grammatical errors are in the
original):
The
[Texas]
Court
of
Criminal
Appeals
made
an
unreasonable application of clearly established Supreme
Court precendent, in summaraily concluding that there was
sufficient evidence to support conviction of aggravated
assault.
(Am. Pet. 6, ECF No. 22.)
In essence, Petitioner contends that the jury’s guilty verdict
on the aggravated-assault charge is inconsistent with the jury’s
acquittal on the charge of felon in possession of a firearm and the
finding that he did not use or exhibit a deadly weapon during the
commission of the offense. Under Texas law, a person commits
aggravated assault if he commits assault and uses or exhibits a
deadly weapon during commission of the offense. TEX. PENAL CODE ANN.
§

22.02(a)(2)

(West

2011).

Petitioner

argues

that

the

jury’s

acquittal and finding of no deadly weapon as to the felon-in17

possession

charge

effectively

negates

the

second

element

of

aggravated assault. (Pet’r’s Traverse 10, ECF No. 29-1.)
Relying on Dunn v. United States, 284 U.S. 390 (1932), Jackson
v. Virginia, 443 U.S. 307 (1979), and relevant state law, the
appellate court addressed this claim as follows:
Inconsistent verdicts in prosecutions based on the
same evidence do not require a reversal on the ground of
legal insufficiency. “Inconsistent verdicts do not
necessarily imply that the jury convicted the defendant
on insufficient evidence, but may simply stem from the
jury’s desire to be lenient or to execute its own brand
of executive clemency. Even where an inconsistent verdict
might have been the result of compromise or mistake, the
verdict should not be upset by appellate speculation or
inquiry into such matters. Consequently, we are limited
to determining whether the evidence is legally sufficient
to support the jury’s guilty verdict on count one. “What
the factfinder did with the remainder of the charge is
immaterial.”
When determining whether evidence is sufficient to
support each element of a criminal offense that the State
is required to prove beyond a reasonable doubt, we use
the standard of review set forth in Jackson v. Virginia.
Under this standard, we ask whether, considering all of
the evidence in the light most favorable to the verdict,
a jury was rationally justified in finding guilt beyond
a reasonable doubt. “Viewing the evidence ‘in the light
most favorable to the verdict’ under a legal-sufficiency
standard means that the reviewing court is required to
defer to the jury’s credibility and weight determinations
because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.”
This legal sufficiency standard applies equally to both
direct and circumstantial evidence.
Appellant and his family lived across the street
from the complainant, Ernest Davis, and his family.
Patrick Cato lived in the same house as Ernest and has
known appellant for most of his life. Earlier in the
afternoon of November 8, 2010, appellant and Patrick had
a confrontation about parking cars in front of the
houses. Patrick said appellant told appellant’s brother
18

to “shoot at” anyone who pulled up in front of the house.
Several adults and children were outside of both houses
at the time, including Ernest’s grandmother-in-law,
Carolyn Cato, who also lived in the same house with
Ernest. Carolyn witnessed the argument between appellant
and Patrick, after which appellant offered to take her to
the store. When they returned from the store, appellant
said he wanted to talk to Ernest, but he had not yet
returned home from work.
When Ernest returned from work, he walked over to
appellant and Patrick who were again talking. For no
apparent reason, appellant hit Ernest in his head and the
two began fighting in the street. After several minutes
of fighting, Ernest, who was apparently winning the
fight, stopped and went into his house to get his asthma
pump. Patrick, who had been walking toward his house and,
therefore, had his back turned, heard appellant say “get
the guns” and then gunfire. Patrick had earlier seen
appellant’s gun under a shirt on the hood of a Chevy
Traverse. Patrick had also seen appellant with the
revolver earlier in the day and knew appellant had fired
the gun inside his house on another evening about a week
earlier.
When the gunfire started, Patrick picked up his
small son, and with his wife ran to the side of his house
for cover. Patrick said he looked around the corner and
saw appellant and his brother, Jeremy Miller, shooting.
As they were shooting, both appellant and Jeremy stood or
crouched near the Traverse. Patrick said appellant fired
his gun about three times with Jeremy firing the most.
Patrick said no one else from appellant’s house fired a
weapon. However, Patrick also heard gunfire coming from
his house and he learned later that Ernest was the person
firing the gun. The shooting continued for almost eight
minutes. Eventually, Patrick ran into his house to find
Ernest at the front of the house bleeding from a chest
wound.
Carolyn also witnessed the fight between Ernest and
appellant, and said appellant started the fight. After
the fight ended, she heard appellant say “he keeps his
piece,” which she believed meant appellant was tired of
“people messing over him.” She also had seen appellant
with a gun earlier in the day and had heard him shoot his
gun inside his house. She said Ernest was walking toward
his house to get his asthma pump and she was standing in
19

the doorway when she heard gunfire. She saw appellant
point his gun at her house. She heard appellant say
“Don’t hit the old lady standing in the door.” With her
and all the children safely inside her house, Ernest
walked past her in the house and said “I’m hit.” Carolyn
told her granddaughter to take him to the hospital.
Ernest’s father-in-law was inside the house when the
gunfire began. He saw Ernest walk into his own room and
retrieve a gun from under his bed. He never saw Ernest
alive again. Ernest returned fire, and was fatally shot
by appellant’s brother Jeremy. Jeremy was convicted of
murder in a separate trial.
Two days later, police, while executing a search
warrant on appellant’s house, found an empty ammunition
box for a .44–caliber revolver, a live .44–caliber round,
and a projectile in the floor that was consistent with a
bullet fired from a .44–caliber revolver. When shown a
picture of a nine-millimeter gun, Patrick testified it
was similar to the one fired by Jeremy. Patrick described
appellant’s gun as a revolver.
After considering all the evidence in the light most
favorable to the verdict, we conclude a jury was
rationally justified in finding appellant’s guilt beyond
a reasonable doubt on the charge of aggravated assault
with a deadly weapon.
(Adm. R., Mem. Op. 3-5, ECF No. 9-15.)
In United States v. Powell, the Supreme Court said that “where
truly inconsistent verdicts have been reached, ‘[t]he most that can
be said . . . is that the verdict shows that either in the acquittal
or the conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the defendant’s
guilt.” 469 U.S. 57, 64-65 (1984) (quoting Dunn, 284 U.S. at 393).
The Court explained:
Inconsistent verdicts . . . present a situation where
“error,” in the sense that the jury has not followed the
court’s instructions, most certainly has occurred, but it
20

is unclear whose ox has been gored. Given this
uncertainty, and the fact that the Government is
precluded from challenging the acquittal, it is hardly
satisfactory to allow the defendant to receive a new
trial on the conviction as a matter of course. . . .
[N]othing in the Constitution would require such a
protection. . . . For us, the possibility that the
inconsistent verdicts may favor the criminal defendant as
well as the Government militates against review of such
convictions at the defendant’s behest.
Id. at 65. See also United States v. Agofsky, 516 F.3d 280, 283 (5th
Cir.), cert. denied, 555 U.S. 837 (2008) (“The Supreme Court held
that consistency in verdicts is not necessary, writing that it ‘is
possible’ that ‘the verdict may have been the result of compromise,
or of a mistake on the part of the jury . . . .’ But verdicts cannot
be upset by speculation or inquiry into such matters.”). The review
for sufficiency of evidence “should not be confused with the
problems caused by inconsistent verdicts [and] should be independent
of the jury’s determination that evidence on another count was
insufficient.” Powell, 469 U.S. at 67. Accordingly, consistency is
unnecessary under clearly established Supreme Court precedent.
The

state

courts’

application

of

Dunn

and

Jackson

was

reasonable because the evidence was sufficient to satisfy the
“substantive elements” of aggravated assault as defined by state
law. See Jackson, 443 U.S. at 324 n.16. Read in conjunction with the
law

of

parties

(set

forth

in

the

court’s

instructions),

the

substantive elements of aggravated assault demand proof beyond a
reasonable

doubt

that

the

defendant

or

someone

for

whom

the

defendant is criminally responsible committed assault and used or
21

exhibited a deadly weapon. The State’s evidence, viewed in the light
most favorable to the prosecution, was sufficient for a rational
jury to find Petitioner guilty of aggravated assault beyond a
reasonable doubt.

C. State Habeas Proceedings
Finally,

under

his

fifth

ground,

Petitioner

raises

the

following claim (all spelling, punctuation, and/or grammatical
errors are in the original):
The [Texas] Court of Appeals abused its discretion in
making an unreasonable determination of the facts [and
denying him habeas relief], without conducting a “sue
sponte” review of the record.
(Am. Pet. 12, ECF No. 22.)
A full and fair hearing in state court is not a prerequisite
to the operation of AEDPA’s deferential scheme. Valdez v. Cockrell,
274 F.3d 941, 946 (5th Cir. 2001). Furthermore, alleged defects in
a state habeas proceeding are not cognizable under § 2254. See Rudd
v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 534 U.S.
1001 (2001).
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, a certificate of appealability will not be issued.
Such a certificate may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Under this standard, when a district court
22

denies habeas relief by rejecting constitutional claims on their
merits, ‘the petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional
claims debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498
(5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). When the district court denies the petition on procedural
grounds without reaching the merits, the petitioner must show “that
jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id. (quoting Slack, 529
U.S. at 484). Petitioner has not made a showing that reasonable
jurists would question this Court’s resolution of Petitioner’s
constitutional

claims

or

procedural

rulings.

Therefore,

certificate of appealability should not issue.
SIGNED June 2, 2017.

____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

23

a