Gee v. Davis-Director TDCJ-CID

Filing 18

MEMORANDUM OPINION and ORDER: The court ORDERS the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Court, and 28 U.S.C. § 2253), for the reasons discussed herein, 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. (Ordered by Senior Judge John McBryde on 7/9/2019) (tln)

U.S. DISTRICT COURT
NORTIIERN DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRIC COUFh>
FOR THE NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION,

JUL

9 ?''lo
-

'U 'J

CLERK, U.S. DISTRICT COURT

JASON KYLE GEE,
Petitioner,

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

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lly•---r;-=--lkpuly

No.

4:18-CV-469-A

MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Jason Kyle Gee, a state
prisoner confined in the Correctional Institutions Division of
the Texas Department of Criminal Justice, against Lorie Davis,
director of that division, 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. FACTUAL AND PROCEDURAL HISTORY
A jury in Wise County, Texas, Case No. CR18318, found
petitioner guilty of aggravated assault with a deadly weapon and
assessed his punishment at 75 years'
fine.

(Clerk's R. 21.)

imprisonment and a $10,000

Petitioner's conviction was affirmed on

appeal and the Texas Court of Criminal Appeals refused his
petition for discretionary review.

(Electronic R. 1.) Petitioner

did not seek writ of certiorari or post-conviction state habeas
relief.

(Pet. 3-4.)

The appellate court summarized the evidence at trial as
follows:
One day in March 2015, [petitioner] and Jeseca
Drury, who were dating each other, visited the house of
Bryon Nabors and Michelle Combs. Drury wanted to trade
two power tools for illegal drugs, and Nabors called
Skinner to facilitate the trade. Skinner arrived at the
house. According to Nabors, [petitioner] gave Skinner
the power tools, and Skinner gave [petitioner]
methamphetamine.
According to Combs, after Skinner left,
[petitioner] became upset. [Petitioner] believed that
Skinner had "shorted" Drury on the agreed-upon amount
of methamphetamine. Skinner had agreed to deliver one
gram of methamphetamine but had given Drury only about
half a gram. Nabors attempted to contact Skinner again
but was not able to immediately reach him. Nabors
observed that [petitioner] "storm[ed] around" and "kept
talking about" the fact that Skinner had not delivered
the promised amount of drugs.
Later that night, [petitioner], Drury, Nabors, and
Combs-all of whom had been using methamphetamine that
day-traveled together in Nabors's truck and spotted
Skinner and Jessica Puckett (Skinner's girlfriend), who
were riding together in Puckett's car. Both vehicles
pulled over. Nabors got out of his truck and approached
Skinner. They spoke for a couple of minutes. According
to Nabors, Skinner conveyed that he would eventually
deliver more methamphetamine.
When Nabors got back into the truck, he attempted
to reassure [petitioner] that Skinner was "going to
take care of the situation." Drury testified that
Nabors told [petitioner] that Skinner did not "have
anything" at that time and that [petitioner] could
"check back with him in a couple of hours." But
[petitioner] became angrier, jumped out of the truck,
moved toward Puckett's car with a knife in his hand,
yelled in that direction, and attempted to slash or
stab a tire with the knife as Skinner began to drive
2

away. Skinner testified, "[petitioner] went to make a
stabbing motion toward me or the car or something, and
I mashed on the accelerator." According to Drury, when
[petitioner] returned to the truck, he said, "I cannot
believe I stabbed [Puckett's] tire."
Skinner saw [petitioner]'s attempt to slash the
tire and became angry. Knowing that [petitioner] had a
knife, he circled back toward Nabors's truck, stopped
the car, got out of it, and approached [petitioner],
who had returned to the truck. Skinner said to
[petitioner], "You just fucked up, boy." Nabors heard
Skinner's words and believed that Skinner was going to
"whip [petitioner's] ass."
[Petitioner] and Skinner began to fight. During
the fight, [petitioner] used the knife to slash
Skinner's throat. The sequence of when [petitioner] did
so is in dispute. According to Skinner, when he
approached [petitioner], [petitioner] slashed his
throat, and Skinner then began to hit [petitioner] with
a car door in attempt to hurt him and knock him off
balance. Skinner testified, "[A]fter I felt the impact
is when I started slamming the door." According to
Drury and [petitioner], however, Skinner slammed
[petitioner] with the door before [petitioner] slashed
Skinner's neck.
Puckett moved Skinner back toward her car, and
according to Puckett, [petitioner] "came at [her] with
the knife." After Puckett helped Skinner get in the
car, while he was severely bleeding in the front
passenger's seat and trying to hold pressure against
his neck with a shirt, she drove toward a hospital and
called 9-1-1.
At the same time, [petitioner] jumped into
Nabors's truck and told Nabors to "get him out of
[there]." He shouted at Nabors and Combs, telling them
not to say anything to anyone about what had occurred.
According to Nabors, [petitioner] said that Nabors and
Combs "better not say a damn thing or [he would] kill
[them] both." Nabors eventually pulled over, and
[petitioner] and Drury got out of the truck. They hid
near a bush and called [petitioner]'s mother.
[Petitioner] threw the knife away. Nabors and Combs
returned home.

3

Puckett and Skinner eventually arrived at a
hospital. Skinner had emergency surgery to treat a
lacerated jugular vein and an exposed trachea. In one
of Skinner's pockets, the police found a small folding
pocketknife; the police did not recover any other
weapons from Skinner, from the car he had been in, or
from the scene of the crime. The police discovered
Skinner's fingerprint and his blood on a door of
Nabors's truck. A police officer spoke with
[petitioner] after arresting him. [Petitioner] did not
deny slashing Skinner's throat or claim that Skinner
had used a weapon during the incident, but he stated
that he had feared for his life and that he was trying
to get away before Skinner attacked him.
A grand jury indicted [petitioner] for aggravated
assault; the indictment alleged that the knife he had
used qualified as a deadly weapon. [Petitioner]
received appointed counsel, chose the jury to assess
his punishment in the event of his conviction, and pled
not guilty. At trial, he testified that when he
approached Puckett's car, a window was down, and he
asked Skinner "if he was going to make it right.u
According to [petitioner], at that point, Skinner
became angry, reached under his seat "for something,u
and attempted to open his door. [Petitioner] initially
did not let him. Skinner told [petitioner] to "[s]tep
back from [his] fucking door,u and [petitioner] then
did so. Skinner got out of the car, but Puckett began
yelling at him, and he got back into the car and began
to drive away. At that point, [petitioner] punched one
of Puckett's tires with one hand while holding the
knife with his other hand. He had pulled his knife out
because he had thought that Skinner had "pulled
something from underneath his seat.u
According to [petitioner], he was "really scaredu
when Skinner circled Puckett's car back toward him, got
out of the car, and approached him. [Petitioner]
testified that he "thought [Skinner] had pulledu a
weapon. He testified that Skinner opened the door of
the truck and repeatedly slammed it against him.
According to [petitioner], because he had "nowhere to
go,u thought Skinner had a weapon (although not knowing
whether Skinner did), and feared for his life, he slit
Skinner's throat.
[Petitioner] testified that he thought that

4

Skinner had a weapon because he "got in his car and
came back." But [petitioner] admitted that he never saw
Skinner with a weapon. [Petitioner] also admitted that
he had displayed a deadly weapon (the knife) in an
aggressive manner to Skinner before Skinner drove away
and then circled back toward him. [Petitioner] denied
that he had threatened Puckett with the knife after
slashing Skinner's throat.
The trial court's charge to the jury on the issue
of [petitioner]'s guilt contained language related to
the law of self-defense and instructed the jury as
follows:
[I]f you believe from the evidence
beyond a reasonable doubt .
. that
[petitioner] did .
. intentionally,
knowingly[,] or recklessly cause bodily
injury to Clifton Skinner by cutting Clifton
Skinner with a knife, and [petitioner] did
then and there use or exhibit a deadly weapon
. during the commission of said assault,
then you will find [petitioner] guilty[,]
. but [if] you further find from the
evidence, or you have a reasonable doubt
thereof, that .
[petitioner] reasonably
believed that from the words or conduct, or
both, of Clifton Skinner, it reasonably
appeared to [petitioner], as viewed from his
standpoint, that his life or person was in
danger and there was created in his mind a
reasonable expectation or fear of death or
serious bodily injury from the use of
unlawful deadly force by Clifton Skinner, and
that acting under such apprehension and
reasonably believing that the use of deadly
force on his part was immediately necessary
to protect himself against Clifton Skinner's
use or attempted use of unlawful deadly
force, he cut Clifton Skinner, then you will
find [petitioner] not guilty .

If you find from the evidence beyond a
reasonable doubt that .
[petitioner] did
not reasonably believe that he was in danger

5

of death or serious bodily injury, or that
[petitioner]
. did not reasonably believe
that the degree of force actually used by him
was immediately necessary to protect himself
against Clifton Skinner's use or attempted
use of unlawful deadly force, then you should
find against [petitioner] on the issue of
self-defense.
After receiving the parties' evidence and
arguments on the issue of petitioner's guilt, the jury
deliberated for less than an hour and found him guilty.

(Mem. Op. 2-7

(footnote omitted).)
II. ISSUES

In one ground for relief, petitioner claims that the
evidence is insufficient and does not support a conviction for
aggravated assault with a deadly weapon.

(Pet. 6.)

III. RULE 5 STATEMENT
Respondent believes that petitioner has exhausted his statecourt remedies as to the claims raised and that his petition is
neither barred by limitations nor subject to the successivepetition bar. as required by 28 U.S.C. §§ 2244(b),

(d), 2254(b)

(Resp't's Ans. 8.)
IV. DISCUSSION
A. Legal Standard for Granting Habeas Corpus Relief
A § 2254 habeas petition is governed by the heightened
standard of review provided for in 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

6

court arrives at a decision that is contrary to or an
unreasonable application of clearly established federal law as
established by the United States Supreme Court or that is based
on an unreasonable determination of the facts in light of the
record before the state court. 28 U.S. C.

§

2254(d) (1)-(2);

Harrington v. Richter, 562 U.S. 86, 100 (2011). 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.u Richter, 562 U.S. at 102.
The statute further 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 this presumption with clear and convincing evidence. 28
U.S.C.

§

2254 (e) (1).

Additionally, the Texas Court of Criminal Appeals, the
state's highest criminal court, denied discretionary review
without written opinion or order. Under these circumstances, a
federal court "should 'look through' the unexplained decision to
the last related state-court decision providingu particular
reasons, both legal and factual,

"presume that the unexplained

decision adopted the same reasoning,u and give appropriate
deference to that decision. Wilson v. Sellers, ---U.S.

7

138

S. Ct. 1188, 1191-92 (2018). Petitioner raised his sufficiencyof-the-evidence claim on direct appeal, but the Texas Court of
Criminal Appeals refused discretionary review without written
order or opinion. Thus, this court will look through to the state
appellate court's opinion, the last reasoned state-court decision
regarding the claim, in addressing petitioner's ground for
relief.
B. Sufficiency of the Evidence

Petitioner claims that he is entitled to federal habeas
relief "as the evidence entered at his trial was insufficient to
support his conviction as it did not disprove or controvert his
claim that he acted in justifiable self-defense." (Pet. 6.) He
asserts that "the state court's decision denying his claim is an
unreasonable application of U.S. Supreme Court precedent because
the jury's verdict rested on mere speculation that [his) use of
deadly force was not reasonable."

(Id.) He urges that "[i]t is

undisputed that [his] actions were reasonably justified under the
apparent danger that Mr. Skinner was pursuing [him) intending to
inflict serious harm and even had him trapped in the truck with
no avenue of escape." (Id.)
A criminal defendant has a federal due process right to be
convicted only upon evidence that is sufficient to prove beyond a
reasonable doubt the existence of every element of the offense.
Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Federal

8

courts, nevertheless, have extremely limited habeas review of
claims based on the sufficiency of the evidence. When reviewing
such claims, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319 (1979). When faced with a record of historical
facts that supports conflicting inferences federal courts must
presume-even if it does not affirmatively appear in the
record-that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.

Id.

at 326. Where a state appellate court has conducted a thoughtful
review of the evidence, its determination is entitled to great
deference. Callins v. Collins,

998 F.2d 269, 276 (5th Cir. 1993).

Applying the Jackson standard, and relevant state law, the
state appellate court addressed petitioner's claim as follows:
[Petitioner] contends that the evidence does not
support his conviction. Specifically, he argues that
the evidence is not sufficient to support the jury's
implicit rejection of his claim that he acted in
justifiable self-defense.
In our due-process review of the sufficiency of
the evidence to support a conviction, we view all of
the evidence in the light most favorable to the verdict
to determine whether any 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 the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to
ultimate facts.

9

to draw reasonable inferences from basic facts to
ultimate facts.
The trier of fact is the sole judge of the weight
and credibility of the evidence. Thus, when performing
an evidentiary sufficiency review, we may not
re-evaluate the weight and credibility of the evidence
and substitute our judgment for that of the factfinder.
We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and
defer to that resolution.
A person commits aggravated assault with a deadly
weapon if he intentionally, knowingly, or recklessly
causes bodily injury to another and uses or exhibits a
deadly weapon-here, a knife-during the commission of
the assault.
However, section 9.31(a) of the penal code
provides that "a person is justified in using force
against another when and to the degree the actor
reasonably believes the force is immediately necessary
to protect the actor against the other's use or
attempted use of unlawful force." Similarly, section
9.32(a) provides that a "person is justified in using
deadly force against another" if the person is
justified in using force under section 9.31 and the
person "reasonably believes the deadly force is
immediately necessary" to protect himself "against the
other's use or attempted use of unlawful deadly force."
An actor's belief that the use of deadly force is
immediately necessary is presumed to be reasonable when
the actor
(1) knew or had reason to believe that
the person against whom the deadly force was
used:
(A) unlawfully and with force
entered, or was attempting to enter
unlawfully and with force, the actor's
occupied habitation, vehicle, or place
of business or employment;
(B) unlawfully and with force
removed, or was attempting to remove
unlawfully and with force, the actor
from the actor's habitation, vehicle, or
place of business or employment; or
(C) was committing or attempting to
10

commit an offense described by
Subsection (a) (2) (B);
(2) did not provoke the person against
whom the force was used; and
(3) was not otherwise engaged in
criminal activity, other than a Class C
misdemeanor that is a violation of a law or
ordinance regulating traffic at the time the
force was used.
A defendant has the burden of producing some
evidence to support a claim of self-defense. After the
defendant has introduced some evidence of a defense,
the State bears the burden of persuasion to disprove
it. This burden does not require the State to produce
evidence disproving the defense; it requires only that
the State prove its case beyond a reasonable doubt. To
determine the sufficiency of the evidence involving a
self-defense claim, we ask whether, after viewing all
the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the charged offense
beyond a reasonable doubt and also could have found
against the [petitioner] on the self-defense issue
beyond a reasonable doubt. A guilty verdict is an
implicit finding rejecting self-defense.
The statements of the defendant and his witnesses
do not conclusively prove a claim of self-defense.
Rather, one product of the jury's exclusive role of
assessing witnesses' credibility is that the jury "is
free to believe or disbelieve the testimony of any
witness, to reconcile conflicts in the testimony, and
to accept or reject any or all of the evidence of
either side."
On appeal, [petitioner] predicates a large part of
his argument on an assertion that under [Texas Penal
Code] section 9.32(b), he was entitled to the
presumption that he reasonably believed that deadly
force was immediately necessary. He contends that he
was entitled to the presumption because at the time he
slashed Skinner's neck, Skinner was "either attempting
to enter the truck to get [him] or extract [him] from"
the truck and because he did not provoke the
altercation.
Even assuming that the evidence proves those
II

requirements for applying the presumption, we cannot
agree that [petitioner) is entitled to the presumption
because viewing the evidence in the light most
favorable to the verdict, the jury could have
rationally found that when [petitioner] slashed
Skinner's throat, he was engaged in criminal activity.
Specifically, the evidence, including [petitioner]'s
own testimony, showed that he was high on
methamphetamine, an illegal drug, when the altercation
with Skinner occurred and that the origin of the
dispute concerned [petitioner)'s attempt to obtain more
methamphetamine. [Petitioner) testified that hours
before the altercation, he sent a message to Puckett on
Facebook to see whether Skinner was going to "make it
right," meaning deliver more methamphetamine. And just
before the altercation, [petitioner) got out of
Nabors's truck and approached Skinner "to see if he was
going to make it right." [Petitioner] testified, "I
just asked him .
. if he was going to make it right.
If not, if maybe he could .
. give some money back
instead of drugs."
Because [petitioner)'s dispute with Skinner that
led to the slashing of Skinner's throat focused on
[petitioner)'s attempt to obtain methamphetamine, the
jury could have rationally found that he was engaged in
criminal activity and was not entitled to the statutory
presumption.
With no need to apply the statutory presumption,
the jury could have rationally rejected [petitioner]'s
self-defense claim by finding that he could not have
reasonably believed that deadly force was immediately
necessary to prevent Skinner's use or attempted use of
deadly force. Combs testified that she never saw
Skinner brandish any weapons and never heard Skinner
threaten deadly force. When the State asked Combs
whether Skinner appeared to be trying to kill
[petitioner], she replied, "All I seen was them two
fighting." Combs explained that when [petitioner] got
back into Nabors's truck after attacking Skinner, he
did not say that Skinner had tried to kill him.
Nabors testified that Skinner never displayed any
weapon and did not do anything toward [petitioner] that
threatened deadly force. Puckett testified that she
never saw Skinner with a gun on the night that
[petitioner] slashed his throat and that while Skinner
12

had a pocket knife, he never took it out of his pocket.
Puckett also opined that [petitioner] provoked the
altercation by attempting to stab her tire. She stated
that she never saw Skinner use or threaten deadly force
against [petitioner].
Skinner testified that he never threatened to kill
[petitioner] and that he never used his knife. He also
testified that he never pretended to have a gun, did
not have a gun, and never threatened or used deadly
force against [petitioner]. Finally, he testified that
he did not slam [petitioner] with the door of Nabors's
truck until [petitioner] had already cut his throat.
Drury testified that she never saw Skinner possess
a weapon on the night [petitioner] slashed his throat.
She admitted that Skinner never threatened deadly force
against [petitioner] that night.
Based on all of the evidence summarized above and
the remaining evidence in the record, and even
considering [petitioner]'s testimony that Skinner had
slammed him with the door before he slashed Skinner's
neck and that he subjectively feared for his life, the
jury could have rationally found that Skinner's words
and acts could not have produced any reasonable belief
by [petitioner] of an immediate threat of unlawful
deadly force against him. Viewing the evidence in the
light most favorable to the verdict and deferring to
the jury's role to draw inferences from the evidence
and resolve conflicts from it, we conclude that the
jury could have rationally found the essential elements
of aggravated assault beyond a reasonable doubt and
also could have found against [petitioner] on
self-defense beyond a reasonable doubt.
(Mem. Op. 7-15.)
Petitioner claims that the evidence was insufficient to
support his conviction "as it did not disprove or controvert his
claim that he acted in justifiable self-defense." (Pet. 6.)
According to petitioner, the state court's determination is an
unreasonable application of Jackson "because the jury's verdict

13

rested on mere speculation that [his] use of deadly force was not
reasonable." (Id.) He urges that it is "undisputed that [his]
actions were reasonably justified under the apparent danger that
Mr. Skinner was pursuing [him], intending to inflict serious harm
and even had him trapped in the truck with no avenue to escape."
( Id.)
Where, as here, a petitioner's sufficiency-of-the-evidence
claim is based on arguments concerning witness credibility, a
federal habeas court generally will not grant relief. See Schlup
v. Delo, 513 U.S. 298, 330 (1995)

("[U]nder Jackson, the

assessment of the credibility of witnesses is generally beyond
the scope of review."); Ramirez v. Dretke, 398 F.3d 691,
Cir. 2005)

695

(5th

(providing "[a]ll credibility choices and conflicting

inferences are to be resolved in favor of the verdict"). There is
no basis for varying from that general rule in the instant case.
The jury had broad discretion, as trier of fact,

to "resolve

conflicts in the testimony, to weigh evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Green
v. Johnson, 160 F.3d 1029, 1047

(5th Cir. 1998)

(quoting Jackson,

443 U.S. at 319). Given the history of that evening, the state
court's conclusion that the jury could have reasonably found that
petitioner was engaged in criminal activity, regardless of
whether the drug transaction was between petitioner and Skinner
or Drury and Skinner, was not objectively unreasonable.

14

Nevertheless, such a finding did not disqualify petitioner from
defending his use of force; it merely removed the presumption
that his use of force was reasonable. See TEX. PENAL CODE
9.31(a) (3)

§

(West 2011); Barrios v. State, 389 S.W.3d 382, 393

(Tex. Crim. App. 2011).
Whether petitioner reasonably believed the use of deadly
force was immediately necessary under the circumstances was also
an issue of fact for the jury. Saxton v. State, 804 S.W.2d 910,
913-14

(Tex. Crim. App. 1991). The jury obviously concluded that

petitioner's version of events lacked credibility and did not
reasonably believe that he feared for his life or that deadly
force was necessary to defend himself under the circumstances.
This court may not substitute its own views on the credibility of
witnesses for those of the jury. See United States v. Anderson,
559 F. 3d 348, 353 (5th Cir. 2009).
In summary, having independently reviewed the record, this
court finds nothing unreasonable in the state court's application
of Jackson. Accordingly, petitioner's claim does not warrant
federal habeas relief.
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.
denied.

§

2254 be, and is hereby,

Pursuant to Rule 22(b) of the Federal Rules of Appellate

Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases

15

in the United States District Court, and 28 U.S.C.

§

2253©), for

the reasons discussed herein, 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.
SIGNED July

__
&4_,1,___,

201 9 .

16