Thompson v. Stephens
MEMORANDUM OPINION AND ORDER DENYING 56 Opposed MOTION for evidentiary Hearing. The Court DISMISSES Thompson's challenge to Texas' lethal-injection protocol WITHOUT PREJUDICE. The Court otherwise DENIES Thompson's petition and DISMISSES the remainder of Thompson's claims WITH PREJUDICE. The Court will not issue a Certificate of Appealability. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CHARLES VICTOR THOMPSON,
March 23, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-13-1900
MEMORANDUM OPINION AND ORDER
Charles Victor Thompson (“Thompson”), an inmate on Texas’s death row, has filed a federal
petition for a writ of habeas corpus. Respondent Lorie Davis (“Respondent”) has answered. After
considering the record, the pleadings, and the applicable law, the Court finds that Thompson has not
shown an entitlement to habeas relief.
Thompson started dating Dennise Hayslip, who was twelve years his senior, around June of
1997. Thompson soon moved in with her. Thompson rarely worked, but relied on Hayslip and
another roommate for support. Thompson became increasingly jealous, possessive, angry, and
abusive. Thompson eventually moved out.
Hayslip began dating Darren Cain, but still occasionally saw Thompson. On April 30, 1998,
Thompson was at Hayslip’s apartment when Cain called at around 2:30 a.m. Thompson told Cain
“to come over there and he would beat his ass.” RR1 Vol. 11 at 76.1 When Cain arrived, Thompson
The state court records consist of the Clerk’s Record from the initial trial that contains pretrial motions,
trial court orders, jury instructions, and other pleadings, cited as “CR at __”; a Reporter’s Record, including hearings
on pretrial motions, jury voir dire, the guilt/innocence phase, and the penalty phase, cited as “RR1 Vol. __ at __”; and
a transcript of the state habeas proceedings, cited as “State Habeas Record at __.” On direct appeal, the Texas Court
of Criminal Appeals reversed Thompson’s sentence. The Court will cite the Clerk’s Record from the second punishment
proceedings as CR2 at _____, and the Reporter’s Record as RR2 Vol. __ at __.
answered the door with a stick. A fight ensued. Thompson lost the fight.
Cain and Hayslip exited the apartment. Thompson walked out also, yelling, cussing, and
calling Hayslip a “whore.” RR1 Vol. 11 at 53. As Cain told Thomson to “chill,” Thompson
responded: “do you want to die, mother fucker?” RR1 Vol. 11 at 54.
By that time, the police had been called. The responding officer encountered Thompson,
Hayslip, and Cain standing outside. Thompson’s eye was blackened from the fight he had started.
Because no one wanted to press criminal charges, a police officer allowed Thompson to leave after
threatening him with criminal trespass should he return. After the responding officer escorted him
from the premises, Thompson went to get a gun.
Thompson later described to a friend, Diane Zernia, how he returned to Hayslip’s apartment
and shot both Hayslip and Cain. Thompson kicked down the door to Hayslip’s apartment and
encountered Cain inside. As Cain grabbed the end of the gun, Thompson began firing. Thompson
shot Cain four times, and two bullets missed. After Cain fell to the ground, Thompson reloaded the
gun, put it up to Hayslip’s cheek, and said, “I can shoot you too, bitch.” RR1 Vol. 11 at 132. The
gun fired. The bullet traveled through Hayslip’s cheek, into her tongue, and out the other side.
Thompson later claimed that he also tried to shoot himself, causing a wound on his arm.
Neighbors heard the gunshots. Shortly thereafter, Hayslip began knocking on neighbors’
doors. A neighbor found her sitting on the ground, gasping for breath as she leaned forward to
prevent drowning in her own blood. When emergency responders arrived, they found Cain dead.
Hayslip was bleeding profusely. Responders took her by life flight to a hospital where she later died.
Leaving the apartment, Thompson threw his gun in a nearby creek. Thompson then went to
Zernia’s house and fell asleep on a couch. When he woke up, he described the murders to Zernia.
Thompson then called his father, who picked him up and took him to the police station.
The State of Texas charged Thompson with capital murder for intentionally or knowingly
causing the death of more than one person in the same criminal transaction. See TEX. PENAL CODE
ANN. § 19.03(a)(7). Specifically, the indictment required the prosecution to prove that Thompson
“unlawfully, during the same criminal transaction, intentionally and knowingly caused the death of”
Cain by “shooting [him] with a deadly weapon” and also “intentionally and knowingly caused the
death” of Hayslip by “shooting [her] with a deadly weapon . . . .” CR at 51; RR1 Vol. 11 at 4-5.
Thompson stood trial in 1999.2 The prosecution presented testimony and evidence showing that
Thompson shot both Cain and Hayslip. The prosecution particularly emphasized Thompson’s
confession to Zernia that he shot both victims. The main defensive argument at the guilt/innocence
phase was that medical malpractice, not the gunshot through Hayslip’s mouth, was the primary cause
of her death. The jury convicted Thompson of capital murder. He was sentenced to death.
On direct appeal, Thompson raised issues relating to both the guilt/innocence and punishment
phases of trial. In 2001, the Court of Criminal Appeals found that the State violated Thompson’s
rights by relying in the punishment phase on the tape recording of an undercover police officer’s
jailhouse conversation with him. The Court of Criminal Appeals remanded for a new sentencing
hearing. Thompson v. State, 93 S.W.3d 16 (Tex. Crim. App. 2001).
The trial court held a new sentencing hearing in 2005.3 A Texas jury decides a capital
Ellis McCullough and Bettina J. Richardson represented Thompson in his original trial proceedings.
The Court will refer to Thompson’s trial attorneys collectively as “trial counsel.”
The trial court appointed Thompson’s original trial attorney, Ellis McCullough, to represent him as
first chair at retrial. Terrence Gaiser was originally appointed second-chair counsel. On Thompson’s pro se motion,
the trial court later removed McCullough and elevated Gaiser to first chair. Kyle Johnson served as second-chair counsel
at retrial. Unless necessary to identify one attorney, or to distinguish the attorneys who served at the second punishment
phase from those in his original trial, the Court will generally refer to all trial attorneys as “trial counsel.”
defendant’s sentence by answering two special-issue questions: (1) will the defendant be a future
danger to society and (2) do sufficient circumstances mitigate against a death sentence? See TEX.
PENAL CODE art. 37.071 § 2(b). In addition to the evidence underlying Thompson’s conviction, the
Court of Criminal Appeals summarized the State’s evidence for a death sentence as follows:
A few hours after committing the murders, [Thompson] went to the home of Diane
Zernia and confessed to her. After calling his father, [Thompson] surrendered to
authorities. [Thompson] later phoned Zernia from jail and tried to persuade her to
lie about what he had told her, but she refused. [Thompson] also attempted, from
prison, to solicit someone to kill Zernia and was later indicted for solicitation to
commit capital murder. The State also presented evidence that [Thompson] was
associated with the Aryan Brotherhood gang in prison. A fellow jail inmate testified
that [Thompson] gave him a list of people who [Thompson] believed were potential
witnesses and told the inmate that he would pay him to “eliminate” the witnesses or
otherwise make sure that they would not appear in court. The inmate turned the list
over to the police.
The State also presented evidence that [Thompson] began committing crimes as a
juvenile. In 1984, while living with his parents in an upper-middle-class
neighborhood in Colorado, [Thompson] committed a string of crimes that resulted
in over $60,000 of damage to homes and property. While on probation from the
youth center, [Thompson] stole his father’s motorcycle, ran away, and committed a
variety of crimes. He was arrested again in 1987 and sentenced to a juvenile facility.
[Thompson] had problems with drugs and alcohol from an early age. He married, but
later abandoned his wife and two children. In 1996, [Thompson] was arrested for
transporting illegal immigrants from Mexico.
Thompson v. State, No. AP-73,431, 2007 WL 3208755, at *1-2 (Tex. Crim. App. Oct. 31, 2007).
The jury again answered Texas’s special-issue questions in a manner requiring imposition of a death
sentence. The Court of Criminal Appeals affirmed Thompson’s sentence in a second direct appeal
in 2007. Thompson v. State, No. AP-73,431, 2007 WL 3208755 (Tex. Crim. App. Oct. 31, 2007).
Thompson filed two state applications for a writ of habeas corpus. Thompson filed a state
habeas application during the pendency of his first direct appeal. Thompson filed a second state
habeas application after receiving his second death sentence. In 2013, the trial-level state habeas
court entered findings of fact and conclusions of law recommending that the Court of Criminal
Appeals deny both habeas applications. On April 17, 2013, the Court of Criminal Appeals adopted
the lower court’s recommendation and also provided additional reasons for denying Thompson’s
habeas applications. Ex Parte Thompson, No. WR-78,135-01, 2013 WL 1655676 (Tex. Crim. App.
Apr. 17, 2013).
Federal review followed. Thompson filed an initial federal petition raising unexhausted
issues. Dkt. 21. On Thompson’s motion, the Court stayed the instant proceedings to allow state
court review of Thompson’s unexhausted claims. Texas only allows successive state habeas
proceedings in narrowly defined circumstances. See TEX. CODE CRIM. PRO. art. 11.071 § 5. On
March 9, 2016, the Court of Criminal Appeals found that Thompson’s successive habeas application
did not meet the statutory criteria and dismissed that action as an abuse of the writ. Ex parte
Thompson, No. WR-78,135-03, 2016 WL 922131, at *1 (Tex. Crim. App. Mar. 9, 2016).
Thompson filed an amended federal habeas petition raising the following grounds for relief:
Insufficient evidence supports Thompson’s capital-murder conviction
because intervening medical care was the direct cause of Dennise Hayslip’s
The prosecution violated Thompson’s right to counsel by using a state agent
to secure incriminating statements from Thompson while he was incarcerated
The State’s punishment-phase case relied on incriminating statements secured
by a career informant.
The indictment unconstitutionally omitted any facts pertaining to the Texas’s
The State adduced impermissible victim-impact evidence in violation of
Thompson’s constitutional right to be free from cruel and unusual
Texas’s use of lethal injection to effectuate a death sentence does not comply
with Eighth Amendment standards.
Texas’s post-conviction procedure does not afford due process.
Texas’s statute defining concurrent causation is unconstitutional.
Thompson’s attorneys provided ineffective assistance in both phases of trial.
The trial court violated Thompson’s rights by denying the request for a
continuance before the second punishment phase.
The State violated the Eighth Amendment by presenting evidence at the
second penalty phase of Thompson’s youthful misconduct.
The Constitution requires that jurors consider the mitigation special issue
under a beyond-a-reasonable-doubt standard.
The mitigation special issue unconstitutionally sends mixed signals to jurors.
The State’s testimony and evidence relating to the autopsies of the victims
violated Thompson’s due process rights, his right to confront the witnesses
against him, and right to counsel.
Dkt. 57.4 Thompson has also filed a motion for an evidentiary hearing. Dkt. 56. Respondent has
filed an answer arguing that substantive and procedural law limits federal review and forecloses
habeas relief. Dkt. 66. Thompson has filed a reply. Dkt. 69. This Court has reviewed Thompson’s
grounds for relief and has determined that an evidentiary hearing is not necessary to a full and fair
review of his claims. This matter is ripe for adjudication.
II. STANDARD OF REVIEW
Federal habeas review is secondary to the state court process and is limited in scope. The
States “possess primary authority for defining and enforcing criminal law. In criminal trials they also
Thompson’s original federal petition contained claims that he waived in his amended habeas petition.
Dkt. 57 at 109-110, 244-45. The Court has renumbered his claims as necessary.
hold the initial responsibility for vindicating constitutional rights.” Engle v. Isaac, 456 U.S. 107,
128 (1982). How an inmate has litigated his claims in state court determines the course of federal
habeas adjudication. Under 28 U.S.C. § 2254(b)(1), “[a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless
it appears that . . . the applicant has exhausted the remedies available in the courts of the State[.]”
Exhaustion “reflects a policy of federal-state comity designed to give the State an initial opportunity
to pass upon and correct alleged violations of its prisoners’ federal rights.” Anderson v. Johnson,
338 F.3d 382, 386 (5th Cir. 2003) (internal citations and quotations omitted).
As a corollary to exhaustion, the procedural-bar doctrine requires inmates to litigate their
claims in compliance with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004);
Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991).
When an inmate fails to follow well-established state procedural requirements for attacking his
conviction or sentence, and the state court finds that he has procedurally defaulted his claims, federal
habeas adjudication is barred. See Lambrix, 520 U.S. at 523; Coleman, 501 U.S. at 732. A federal
court may review an inmate’s unexhausted or procedurally barred claims only if he shows: (1) cause
and actual prejudice or (2) that “a constitutional violation has ‘probably resulted’ in the conviction
of one who is ‘actually innocent[.]’” Haley, 541 U.S. at 393 (quoting Murray v. Carrier, 477 U.S.
478, 496 (1986)).
If the inmate has presented his federal constitutional claims to the state courts in a
procedurally proper manner, and the state courts have adjudicated the merits, the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) allows federal review but limits its depth. “[A] habeas
petitioner has the burden under AEDPA to prove that he is entitled to relief.” Montoya v. Johnson,
226 F.3d 399, 404 (5th Cir. 2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002). A
petitioner cannot meet this burden by merely alleging constitutional error. Instead, “focus[ing] on
what a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), an inmate must
show that the state court’s adjudication of the alleged constitutional error “was ‘contrary to, or
involved an unreasonable application of, clearly established Federal law.’” Berghuis v. Thompkins,
560 U.S. 370, 380 (2010) (quoting 28 U.S.C. § 2254(d)(1)); see also Thaler v. Haynes, 559 U.S. 43,
47 (2010); Bell v. Cone, 535 U.S. 685, 698 (2002); Early v. Packer, 537 U.S. 3, 7-8 (2002); Williams
v. Taylor, 529 U.S. 362, 413 (2000). A federal habeas court must presume the underlying factual
determinations of the state court to be correct, unless the inmate “rebut[s] the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El v.
Cockrell, 537 U.S. 322, 341 (2003); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) (“As a
federal habeas court, we are bound by the state habeas court’s factual findings, both implicit and
A petitioner’s compliance with 28 U.S.C. § 2254 does not alone create an entitlement to
habeas relief. No Supreme Court case “ha[s] suggested that a writ of habeas corpus should
automatically issue if a prisoner satisfies the AEDPA standard[.]” Horn v. Banks, 536 U.S. 266, 272
(2002); see also Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C.
§ 2254(d) “does not require federal habeas courts to grant relief reflexively”). Other judicial
doctrines, such as the harmless-error doctrine and the non-retroactivity principle, bridle federal
habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Any trial error cannot
require habeas relief unless it “ha[d] a ‘substantial and injurious effect or influence in determining
the jury’s verdict.’” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629
(1993)); see also Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003) (“Nothing in the AEDPA
suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law
that may have occurred did not affect the outcome.”). Also, under the jurisprudence flowing from
Teague v. Lane, 489 U.S. 288 (1989), a habeas court cannot grant relief if it would require the
creation and retroactive application of new constitutional law. See Horn, 536 U.S. at 272.
Sufficiency of the Evidence
The State of Texas indicted Thompson for causing the death of both Cain and Hayslip. CR
at 51; RR1 Vol. 11 at 4-5. Thompson complains that insufficient evidence supports his capitalmurder conviction because intervening medical care was the direct cause of Hayslip’s death. As
previously discussed, when Thompson shot Hayslip in the cheek, the bullet traveled through her
mouth and nearly severed her tongue. The wound left Hayslip bleeding profusely. Her tongue
swelled up and threatened to close off her throat. Responders tried to keep her airway free. Life
Flight transported Hayslip to a major trauma center. At one point in surgery Hayslip became unable
to breathe, resulting in brain death. She died sometime later in the hospital.
Thompson argues that incompetent medical care intervened in the chain of causation and
resulted in her death. Thompson argues: “The death of Ms. Hayslip was the sole result of her loss
of oxygen to the brain, which in turn caused her family to terminate her life one week after she was
shot. This event was produced by the physicians’ respective inability to properly provide competent
medical assistance by way of a commonly performed hospital procedure.” Dkt. 57 at 52. Because
the indictment required the State to prove that he was the agent of both victims’ death, Thompson
contends that medical malpractice rendered his own actions insufficient to support a capital
Insufficiency-of-the-evidence claims come before a federal habeas court under a standard of
review that gives heavy deference to state-court adjudications. Under Jackson v. Virginia, 443 U.S.
307 (1979), a reviewing court affirms a jury’s conviction if, considering all of the evidence in a light
most favorable to the prosecution, a rational trier of fact could have returned a verdict unfavorable
to the defendant. This demanding inquiry is highly deferential to, and resolves any conflicting
evidence in favor of, the jury’s verdict. See United States v. Harris, 293 F.3d 863, 869 (5th Cir.
2002); United States v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990). AEDPA augments the
deferential Jackson analysis, creating an enhanced barrier to federal habeas relief. See Coleman v.
Jackson, 132 S. Ct. 2060, 2062 (2012); Perez v. Cain, 529 F.3d 588, 599 (5th Cir. 2008). Together,
Jackson and the AEDPA create a “double dose of deference that can rarely be surmounted.” Boyer
v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). A federal habeas court focuses only on whether the
state court reasonably applied the Jackson standard.
After reviewing the trial evidence, the Court of Criminal Appeals determined that the
evidence sufficiently proved that Thompson’s actions caused Hayslip’s death. Texas law on
causation framed the Court of Criminal Appeals’s review of Thompson’s insufficiency-of-theevidence claim. Texas Penal Code § 6.04(a) provides: “A person is criminally responsible if the
result would not have occurred but for his conduct, operating either alone or concurrently with
another cause, unless the concurrent cause was clearly sufficient to produce the result and the
conduct of the actor clearly insufficient.” “An accused may be exonerated under [§6.04] only if his
conduct alone was clearly insufficient to produce the result and the concurrent cause clearly
sufficient, operating alone, to do so.” Felder v. State, 848 S.W.2d 85, 90 (Tex. Crim. App. 1992)
(quotation omitted). The Court of Criminal Appeals found:
The shot to Hayslip’s face went through her cheek and nearly severed her tongue.
According to the State’s medical evidence, because the tongue is especially “well
vascularized” (contains more blood per gram of tissue than other parts of the body),
Hayslip was at risk of bleeding to death or of bleeding down into her lungs which
also could have resulted in death similar to drowning. The doctor in charge of
Hayslip’s care further testified that, without any medical attention, the swelling of
Hayslip’s tongue could have eventually obstructed her airway entirely, resulting in
suffocation. He stated that without medical intervention, Hayslip would not have
survived her injuries. [Thompson’s] medical expert agreed that the injury to
Hayslip’s tongue was life threatening and also agreed that Hayslip “probably” would
have died without medical intervention.
Thompson, 93 S.W.3d at 20-21. Thompson raises two primary criticisms of the Court of Criminal
Appeals’s ruling. Dkt. 57 at 44. First, Thompson faults the state court for relying on a false premise
by looking at whether the victim “would not have survived her injuries” if she went “without medical
attention.” Dkt. 57 at 44.
Thompson contends that “there was no chance that Hayslip would go without medical
attention.” Dkt. 57 at 44. Testimony from medical experts laid out the risks caused by Hayslip’s
bleeding and diminished breathing ability.5 The Court of Criminal Appeals has interpreted Texas
law to include asking whether the initial injury would have been fatal without medical attention.
Thompson has not pointed to any law definitely disallowing the state court to factor into its causation
review the question of what would have happened to the victim without medical care. See Patrick
v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (rejecting the argument that a defendant
lacked a specific intent to kill because the victim did not seek medical attention). This Court must
Thompson relies on evidence developed after trial to support his argument that Hayslip would have
survived her wounds had she been administered adequate medical care. This Court’s analysis under Jackson, however,
focuses on “the record evidence adduced at the trial,” not that developed afterward. Jackson, 443 U.S. at 324.
defer to a state court’s interpretation of its own law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(“We have repeatedly held that a state court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”). Trial
testimony sufficiently established that Thompson inflicted a life-threatening injury, one which
required urgent medical attention in order to preserve Hayslip’s life. “Thus, viewing the evidence
in the light most favorable to the verdict, even assuming, arguendo, that the conduct of the doctors
was ‘clearly sufficient’ to cause Hayslip’s death, the conduct of [Thompson] was not ‘clearly
insufficient’ so as to absolve him of criminal responsibility under § 6.04.” Thompson, 93 S.W.3d
Thompson’s second criticism is that the state court incorrectly characterized his expert’s trial
testimony. The Court of Criminal Appeals described defense witness Dr. Pat Radalat’s testimony
as “agree[ing] that the injury to Hayslip’s tongue was life threatening and also agree[ing] that
Hayslip ‘probably’ would have died without medical intervention.” Thompson, 93 S.W.3d at 21.
Even though Thompson disputes the Court of Criminal Appeals’s interpretation of the defensive
testimony, Dr. Radalat testified that, without medical intervention, the wound “would probably be
fatal.” RR1 Vol. 12 at 232. Thompson’s own expert would not testify that the medical efforts to
save Hayslip’s life caused her death. RR1 Vol. 12 at 256.
Viewing the trial evidence and testimony in a light most favorable to the jury’s verdict, the
Court of Criminal Appeals could reasonably find that a rational jury could convict Thompson.
Thompson shot the victim in the mouth, causing a wound that nearly severed her tongue. The wound
was serious and threatened her ability to breathe. Care had to be taken so that Hayslip would not
drown in her own blood. Tr. Vol. 15 at 84. Surgical efforts to save the victim failed. Whether
medical errors played some part in her death is not a question before this Court. This Court’s sole
inquiry is whether the state court unreasonably found that, construing the evidence in favor of the
jury’s verdict, sufficient evidence existed to support Thompson’s conviction. The doubly deferential
nature of federal review precludes habeas relief on this claim.
Use of Information Derived from a State Actor at the Guilt/innocence Phase
The Court of Criminal Appeals ordered a new sentencing hearing after finding that the State
had unconstitutionally admitted into evidence a recording of Thompson’s jailhouse conversation
with undercover police officer Gary Johnson. In Thompson’s first appellate proceeding, the Court
of Criminal Appeals provided the following background:
Deputy Max Cox of the Harris County Sheriff’s Department testified at
punishment that he was approached by an inmate, Jack Reid, who told him that
[Thompson] was attempting to solicit the murder of Diane Zernia, who was slated
to be a witness in his capital murder case. Reid shared a cell with [Thompson]. Reid
told Cox that [Thompson] had already arranged for the murder by another inmate,
Max Humphrey, who had also shared a cell with [Thompson] and had recently been
discharged, but was looking for someone to retrieve a gun and give it to Humphrey
in order for him to carry out the murder.6 Cox told Reid that if he was approached
by [Thompson] again, he should tell him that he knew someone who could retrieve
the gun for him. Reid called Cox the next day and indicated that he had complied
with Cox’s instructions. Cox then arranged for Gary Johnson, an investigator with
the Harris County District Attorney’s Office, to meet with [Thompson] in an
undercover capacity to discuss the retrieval of the weapon and record their
conversation. Johnson was to assume the identity of Reid’s friend, who had
supposedly been contacted by Reid about retrieval of the gun. Cox further testified
that he gave Johnson a map that presumably identified where the gun could be
located.7 Johnson testified that he had been contacted by Cox and had agreed to
assume an undercover identity for the purpose of meeting with [Thompson] to
discuss retrieving a weapon to be used in a murder that had possibly already been
arranged. Johnson testified that he was wired for recording throughout their meeting.
The gun [Thompson] wanted retrieved was later discovered to be the murder weapon used in the instant
Cox testified that he received the map from the officer who did the initial interview (presumably of
the informant). However, it is not clear where this officer obtained the map.
He further testified that [Thompson] brought a hand-drawn map to the meeting,
similar to the one Cox had given him, and held it up to the glass for him to see. At
that point during Johnson's testimony, the State offered the tape into evidence.
[Thompson] was given permission to question Johnson on voir dire. Johnson
admitted to having been aware that [Thompson] was represented by counsel on the
capital murder charge at the time of their meeting. He conceded that he had not
notified counsel of their meeting, had not informed [Thompson] that he was an
officer of the State, and had not given [Thompson] any warnings. See TEX. CODE
CRIM. PROC. art. 38.22; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). [Thompson] objected and sought suppression of the tape on the ground
that he had been denied counsel during the meeting with Johnson. The trial court
overruled the objection and admitted the tape into evidence. The tape was played for
During their tape-recorded meeting [Thompson] and Johnson briefly
discussed retrieval of the gun. Then, [Thompson] told Johnson that there was a
witness in his case that he wanted “taken care of.” [Thompson] stated that he had
already paid Humphrey to kill the witness, but Humphrey had not gone through with
the job. [Thompson] gave Johnson the witness’ address, and described the witness
as a mother with a fourteen year old daughter and a husband. He described her car,
and informed him that she was usually home in the mornings after her daughter went
to school. He described her house as Victorian and her mailbox as black and white
spotted, like a cow. [Thompson] promised that when he got out of jail, he would pay
Johnson $1,500 for killing the witness. After the tape was played for the jury,
Johnson testified further, without objection, that [Thompson] had brought the map
with him to the meeting, and that it had an address written on it. Johnson stated that
[Thompson] had held it up to the glass for Johnson to read.
Thompson, 93 S.W.3d 1at 22-23 (footnotes in original).
Thompson argued that the State violated his Sixth Amendment rights by using “against him
at his trial evidence from his own incriminating words, which [state] agents had deliberately elicited
from him after he had been indicted and in the absence of his counsel.” Massiah v. United States,
377 U.S. 201, 206 (1964). A Massiah violation has three elements: “(1) the Sixth Amendment right
to counsel has attached; (2) the individual seeking information from the defendant is a government
agent acting without the defendant’s counsel’s being present; and (3) that agent deliberately elicits
incriminating statements from the defendant.” Henderson v. Quarterman, 460 F.3d 654, 664 (5th
Cir. 2006) (quotation omitted). The Court of Criminal Appeals found that the punishment-phase
introduction of the tape-recorded conversation between Thompson and Johnson was improper:
The State elicited information from [Thompson] regarding the solicitation of the
murder of a person who was to be a witness against [him]. The information was
elicited by an agent of the State, without notifying [Thompson’s] counsel, and was
then used at [his] capital murder trial to help the State establish that [he] posed a
continuing threat to society. The State knew the capital murder charges were pending
against [Thompson] at the time, and that any evidence incriminating [him] in another
offense would probably be used against him in the capital punishment phase. We
hold [Thompson’s] Sixth Amendment right to counsel was violated by the State’s
actions in soliciting the tape recorded conversation between [Thompson] and
Johnson and using it against [him] in the punishment phase of his capital murder
trial, the charges of which were pending at the time of the conversation. The trial
court should have granted [Thompson’s] motion to suppress the tape.
Thompson, 93 S.W.3d at 27 (citation omitted). On that basis, the Court of Criminal Appeals
overturned Thompson’s death sentence.
Thompson argues that the Court of Criminal Appeals did not ameliorate all the harm caused
by the State’s use of an undercover agent. Thompson’s federal petition contends that, because the
information Johnson obtained from him led to evidence the State presented in the guilt/innocence
phase, the Court of Criminal Appeals should have overturned not just his first death sentence, but
his capital conviction also. Thompson particularly objects because the discovery of the murder
weapon revealed how many bullets it would hold, which in turn allowed the State to argue that
Thompson reloaded the weapon during the criminal episode.
Thompson’s arguments that a Massiah violation harmed him the guilt/innocence phase
depend on his claim that “the gun was only found based on the information uncovered by Johnson.”
Dkt. 57 at 60. Before Johnson met with Thompson, the police obtained a map of where Thompson
had discarded the gun.8 Johnson testified that Cox had received the map “through an informant in
the Harris County Jail,” presumably Reid. RR1 Vol. 14 at 156. Thompson argues that, “because
authorities were not able to recover the gun based on the map alone,” the police sent “Johnson in to
speak with Thompson with the goal of recovering the weapon.” Dkt. 57 at 55. Cox testified that he
gave the map to Johnson so he “would have knowledge in talking with the defendant when the
defendant was wanting him to go recover the weapon.” RR1 Vol. 14 at 125.
Johnson met with Thompson on July 7, 1998. Johnson intended to talk to Thompson about
“the retrieval of the gun” and “the solicitation” to kill witnesses. RR1 Vol. 14 at 171. After Johnson
lied and said he had personally searched for, but could not find, the gun, Thompson showed a map
that was nearly identical to the first one. RR1 Vol. 14 at 165. The police, however, apparently never
took the second map from Thompson. RR1 Vol. 14 at 165-66, 175. The record does not elaborate
on any information outside of the map that Thompson may have provided about the gun’s location.
The police recovered the murder weapon almost two weeks later.9 Johnson testified that he
did not think that the police used the information from his conversation with Thompson to find the
gun. RR1 Vol. 14 at 175. Johnson thought that the recovery of the gun “would have been from a
map they had prior to” his involvement in the case. RR1 Vol. 14 at 176.
Before turning to the merits, the Court must clarify what issues were resolved by the Court
of Criminal Appeals on direct appeal. Thompson contends that this Court can adjudicate the merits
Deputy Cox did not testify about the origin of the map because trial counsel lodged a hearsay objection
to Cox explaining where it came from. RR1 Vol. 14 at 124-25. Cox, however, told Johnson to represent that he had
received the map from Reid. RR1 Vol. 14 at 126.
One of the investigating police officers testified that he received the recovered gun from Officer
Gregory Pinkins on July 23, 1998. RR1 Vol. 11 at 32-33. Officer Pinkins, who had been investigating the murders,
testified that “with the help of an informant” they found the gun in a bayou. RR1 Vol. 11 at 154. Officer Pinkins did
not say when the police found the weapon other than it was “[a]pproximately four or five days” before he gave it to the
of his claim de novo because the Court of Criminal Appeals never ruled on his argument that a
Massiah violation tainted the guilt/innocence phase. Respondent argues that either (1) Thompson
never made clear to the state courts that the Johnson conversation influenced the guilt/innocence
phase, thus rendering the claim in his federal petition unexhausted or (2) the Court of Criminal
Appeals adjudicated the whole of his claim on the merits, requiring the application of AEDPA
Litigation of this Claim in State Court
Respondent primarily argues that Thompson exhausted his Massiah claim on direct appeal,
but in the alternative asserts that Thompson did not adequately place the issue before the state courts.
Thompson never asked the trial court to find that the gun was inadmissible. The Court must decide
whether his arguments on appeal sufficiently put the guilt/innocence aspects of his claim before the
Court of Criminal Appeals.
Under 28 U.S.C. § 2254(b)(1), a federal habeas petitioner must fully exhaust remedies
available in state court before proceeding to federal court. A federal court may only adjudicate a
claim when the petitioner fairly presents its substance to the state courts. See Smith v. Dretke, 134
F. App’x 674, 677 (5th Cir. 2005). Then, AEDPA deference applies if the state court adjudicated
the merits of the inmate’s claim. Before turning to the merits, the Court must ask: Did Thompson
sufficiently raise his federal claim in state court for the purposes of exhaustion? If so, did the state
courts rule on his claim sub silentio or did they ignore it? If the state courts ruled on his claim, does
AEDPA govern federal review?
Thompson’s appellate brief first introduced his theory that a Massiah violation tainted both
stages of trial: “The undercover interview was intertwined with the recovery of the murder weapon
and the investigation of a solicitation of a homicide. The State of Texas did not make any attempt
to delineate between the two events.” Appellate Brief, at 28. But Thompson’s brief still focused its
discussion on the jury’s punishment phase deliberations: “The record clearly demonstrates that the
Defendant’s statements on the tape recording and to Gary Johnson were incriminating both at guilt
and punishment and significantly aided the State of Texas in securing an affirmative answer to
Special Issue Number 1. It created future dangerousness evidence for the State.” Appellate Brief,
at 28. A supplemental brief emphasized that “[a]s a direct result of the interview the weapon was
recovered by the State,” but only generally argued that “the judgment of the Court should be reversed
and remanded for a new trial or a new punishment hearing.” Supplemental Appellate Brief, at 3.
The Court of Criminal Appeals extensively discussed the effect that the Massiah violation
had on the punishment phase of trial without mentioning Thompson’s allegations relating to the
guilt/innocence phase. Thompson subsequently filed a pro se motion for rehearing and argued that
the Massiah violation harmed him “throughout trial,” including in the guilt/innocence phase. The
Court of Criminal Appeals initially granted Thompson’s motion for rehearing, but subsequently
dismissed it as improvidently granted.10
On federal review, the question of whether Thompson fairly presented his claims to the Texas
courts is separate from the question of whether the Texas courts adjudicated them. See Smith v.
Digmon, 434 U.S. 332, 333 (1978) (“It is too obvious to merit extended discussion that whether the
exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state
appellate court chooses to ignore in its opinion a federal constitutional claim[.]”). Thompson did
The Court of Criminal Appeals provided only a brief explanation of its action: “We granted
[Thompson’s] first ground for rehearing in which he maintained we failed to fully consider his fourth point of error on
original submission. Upon further consideration, we have concluded our decision to grant rehearing was improvident
and we withdraw the order granting rehearing.” Thompson v. State, 108 S.W.3d 269 (Tex. Crim. App. 2003).
not provide the same detailed briefing regarding the Massiah violation as he does in federal court,
but still afforded the state courts an opportunity to consider whether the Johnson conversation
influenced the guilt/innocence phase. The Court finds that Thompson exhausted his Massiah claim.
The record, however, does not clearly indicate whether the Court of Criminal Appeals
intended to adjudicate the guilt/innocence portion of the Massiah claim, intentionally ignored it, or
neglected to rule on it. Generally, “[w]hen a state court rejects a federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim was adjudicated
on the merits.” Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013); see also Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011) (“When a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state court adjudicated the claim on the
merits [for purposes of § 2254(d) ] in the absence of any indication or state-law procedural principles
to the contrary.”). The “presumption can in some limited circumstances be rebutted . . . either by
the habeas petitioner (for the purpose of showing that the claim should be considered by the federal
court de novo ) or by the State (for the purpose of showing that the federal claim should be regarded
as procedurally defaulted). . . . Thus, while the . . . presumption is a strong one that may be rebutted
only in unusual circumstances, it is not irrebuttable.” Williams, 133 S. Ct. at 1096.
Thompson’s pro se motion for rehearing argued that the Court of Criminal Appeals did not
fully adjudicate his claim. The Court of Criminal Appeals ultimately denied rehearing without
divulging whether it had already adjudicated the claim, considered it to be meritless, applied Texas
procedural law, or found some other reason for denial. Nevertheless, neither party has rebutted the
presumption that the Court of Criminal Appeals decided the issue on the merits. The Court,
therefore, presumes that the Court of Criminal Appeals denied the guilt/innocence aspects of his
Massiah claim on the merits. The Court will apply AEDPA’s deferential scheme to Thompson’s
The Court of Criminal Appeals decided on direct appeal that the State had committed a
Massiah violation by sending an undercover agent to speak with Thompson. Because neither party
questions whether the Court of Criminal Appeals was correct in finding a constitutional violation,
this Court does not revisit that decision and only considers its impact on Thompson’s conviction.11
Johnson did not testify in the guilt/innocence phase. Instead, Thompson objects to derivative
evidence and testimony relating to the murder weapon, which Thompson argues was only discovered
after Johnson’s conversation with him. Information about the gun came before the jury in various
contexts.12 Thompson argues that “[t]here is no question that [he] was harmed by the admission of
the gun in his case, and the gun was only found based on the information uncovered by Gary Johnson
in violation of Thompson’s Right to Counsel.” Dkt. 57 at 60.
Respondent claims that two doctrines overcome the deterrence rationale underlying a
Massiah violation. The Supreme Court recognizes an “independent source doctrine” that allows trial
courts to admit evidence when “officers independently acquired it from a separate, independent
source.” Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016); see also Nix v. Williams, 467 U.S. 431, 442
Subsequent to deciding that a Massiah violation occurred in this case, the Court of Criminal Appeals
observed that its “holding in Thompson may have been called into question by the later Supreme Court decision in
Kansas v. Ventris, [556 U.S. 586 (2009)].” Rubalcado v. State, 424 S.W.3d 560, 572 (Tex. Crim. App. 2014). As the
parties have not questioned whether a Massiah violation occurred, and Respondent persuasively argues that Thompson
has not shown any connection between the Johnson conversation and the gun’s recovery, the Court will assume that the
State violated the Sixth Amendment by having Johnson speak with Thompson.
Police officers described finding the weapon submerged in Cypress Creek, RR1 Vol. 11 at 32-33, 15357, based on information from an informant, RR1 Vol. 11 at 153-54. A firearms examiner told jurors that, since the gun
could only hold six bullets, the shooter would have to reload to discharge the number of fired bullets found at the crime
scene. RR1 Vol. 11 at 165-174. In closing arguments, the State emphasized that reloading the weapon showed that the
shootings were not an accident, but an intentional effort to kill. RR1 Vol. 13 at 55-57.
(1984). Also, Respondent argues that the inevitable-discovery doctrine, which “asks whether there
is a reasonable probability that the evidence in question would have been discovered in the absence
of the police misconduct,” cured the Massiah violation. United States v. Zavala, 541 F.3d 562, 579
(5th Cir. 2008); see also Nix, 467 U.S. at 443-44 . Respondent argues that “it is clear that the gun
was discovered either from a source independent of Johnson or its discovery was inevitable.” Dkt.
66 at 40. Respondent’s arguments under both the inevitable-discovery and the independent-source
doctrine rely on the absence of a link between the Johnson conversation and the gun’s recovery.
Thompson has not shown that his conversation with Johnson was the predicate for the police
recovering the murder weapon. Thompson assumes that the police recovered the gun “with the help
of Johnson’s recording,” because they found it afterward. Dkt. 57 at 58. Showing that the police
found the gun after the Johnson conversation does not mean they found it because of the
conversation. The record does not extensively discuss the discovery of the murder weapon, likely
because trial counsel did not challenge its admissibility. Still, the record does not suggest that the
police used information from Johnson to find the gun. Thompson has not pointed to anything in the
record showing that he provided Johnson some detail not already known from the first map or his
statements to Zernia.13 A previous informant had already obtained a map showing the location of
the murder weapon, which the police had before sending Johnson to speak with Thompson. RR1
Vol. 14 at 124-25. That map indicated the location of the creek in which Thompson discarded the
gun. RR1 Vol. 14 at 126. The police used that map in searching for the weapon. RR1 Vol. 14 at
127. Despite having looked before the Johnson conversation, the police did not find the gun until
While Johnson testified that Thompson told him which direction he threw the weapon from his car,
the original map indicated where Thompson discarded the gun. Compare RR1 Vol. 14 at 173 with RR1 Vol. 16, State’s
Exhibit 88. When Johnson asked for more information, Thompson drew a map. RR1 Vol. 14 at 174. Thompson has
not identified any meaningful difference between that map and the initial one, much less any difference that the police
used to find the discarded weapon.
nearly two weeks after Johnson met with Thompson. Johnson testified that he thought the police
used the first map to find the murder weapon. RR1 Vol. 14 at 176-77. Johnson also provided
uncontradicted testimony that the police did not rely on his conversation with Thompson. Tr. Vol.
14 at 174-76.
With that record, Thompson bases his claim on speculation that he provided Johnson some
previously unknown fact about the location of the discarded weapon. He also speculates that
Johnson provided some otherwise-unknown information to the officers who found the gun. From
the record before the Court, it appears that the discovery of the gun was “wholly independent of any
constitutional violation.” Nix, 467 U.S. at 442. Thompson, therefore, has not shown that the Court
of Criminal Appeals was unreasonable in denying the guilt/innocence aspects of his Massiah claim.14
The Court, therefore, will deny relief.
Testimony from an Informant in the Second Punishment Hearing
In his third ground for relief, Thompson claims that the State violated his constitutional rights
by presenting testimony in the second punishment phase from fellow inmate Robin Rhodes. As
previously discussed, undercover police officer Johnson testified in the first penalty hearing that
Thompson had attempted to solicit the murder of witnesses. Johnson, however, was not the only
The Court’s analysis would be the same whether under AEDPA or de novo review. Even
if Thompson had shown constitutional error, he must still prove that any improper influence resulting from
the Johnson conversation had some impact in the guilt/innocence phase. The Supreme Court has held that
a Massiah violation can be harmless. See Milton v. Wainwright, 407 U.S. 371 (1972). Under Brecht v.
Abrahamson, a federal court may grant habeas relief based on trial error only when that error “had substantial
and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 637 (1993) (quotation
omitted). Here, testimony and evidence relating to the murder weapon had a negligible influence on the
jury’s decision. No question existed as to Thompson’s role as the killer. The defense at trial focused on
causation, not ballistics evidence. To the extent that the prosecution drew inferences from the weapon, such
as that Thompson reloaded before shooting Hayslip, that information bore little relationship to his decision
to pull the trigger. In fact, the most conclusive indication of his intent was his declaration “I can shoot you
too, bitch” as he fired into Hayslip’s face. RR1 Vol. 11 at 132. In short, Thompson has not shown that any
Massiah violation harmed him in the guilt/innocence phase.
person who could describe Thompson’s efforts to solicit murder. Prior to Thompson’s original trial,
the Harris County District Attorney’s office gave Thompson the following notice: “In August, 1998
the defendant solicited inmate Robin Rhodes to kill numerous witnesses and obtain and destroy the
murder weapon in this case.” CR at 67-68. Rhodes, however, did not testify at the original trial.
Because the Court of Criminal Appeals found that Johnson’s testimony should have been
excluded, Thompson, 93 S.W.3d at 22-29, the State called other witnesses to show that Thompson
tried to solicit murder, including Rhodes who had been incarcerated with Thompson in 1998.
Thompson contends: “it is clear that (1) his right to counsel had attached in both the capital murder
and the subsequently filed solicitation of capital murder proceedings; (2) Robin Rhodes was a
government agent (full time informant for Harris County law enforcement); (3) and that Rhodes
deliberately elicited evidence from Thompson.” Dkt. 57 at 62. Thompson, in fact, now calls Rhodes
not only an informant, but a “government employee.” Dkt. 69 at 27.
Based on that premise, Thompson raises three separate constitutional arguments. First,
Thompson argues that Rhodes’s testimony amounted to a separate Massiah violation.15 Second,
Thompson asserts that the State of Texas disregarded its duty under Brady v. Maryland, 373 U.S.
83 (1963) to disclose information about its relationship with Rhodes.16 Finally, Thompson maintains
that his trial, appellate, and state habeas attorneys provided ineffective representation in their
Again, “[a] Massiah violation has three elements: (1) the Sixth Amendment right to counsel has
attached; (2) the individual seeking information from the defendant is a government agent acting without the defendant’s
counsel being present; and (3) that agent ‘deliberately elicit[s]’ incriminating statements from the defendant.”
Henderson, 460 F.3d at 664 (alteration in original) (quoting Massiah, 377 U.S. at 206).
“A Brady claim involves three elements; (1) the prosecution’s suppression or withholding of evidence,
(2) which evidence is favorable, and (3) material to the defense.” United States v. Stephens, 964 F.2d 424, 435 (5th Cir.
1992). Also, “Brady does not obligate the State to furnish a defendant with exculpatory evidence that is fully available
to the defendant through the exercise of reasonable diligence.” Reed v. Stephens, 739 F.3d 753, 788 (5th Cir. 2014).
handling of Rhodes’s testimony.17 Respondent contends that each argument is procedurally barred
and, alternatively, without merit.
Thompson failed to raise any arguments from claim three in his first two state habeas
applications. When Thompson raised these claims in his third state habeas application, the Court
of Criminal Appeals dismissed the claims under TEX. CODE CRIM. PRO. art. 11.071 §5 as an abuse
of the writ without considering the merits. “A dismissal pursuant to Article 11.071 ‘is an
independent and adequate state ground for the purpose of imposing a procedural bar’ in a subsequent
federal habeas proceeding.” Gutierrez v. Stephens, 590 F. App’x 371, 384 (5th Cir. 2014) (quoting
Hughes v. Quarterman, 530 F.3d 336, 341 (5th Cir. 2008)).18
Thompson makes two arguments to overcome the procedural bar. First, Thompson contends
that the suppression of evidence, discussed in the Brady portion of his argument, should forgive his
failure to raise the claim properly in state court. Second, Thompson argues that state habeas counsel
provided ineffective representation under Martinez v. Ryan, 132 S. Ct. 1309 (2012), by not raising
his federal claims in the initial rounds of state habeas review. Both arguments, however, cover the
same ground as his substantive claims. For the same reasons that Thompson has not shown
constitutional error in the State’s use of Rhodes’s testimony, he has not shown cause or actual
prejudice to overcome the procedural bar.
Despite some differences in application, whether an inmate complains about the representation
provided by his trial, appellate, or habeas counsel he still must show deficient performance and resulting prejudice under
Strickland v. Washington, 466 U.S. 668 (1984).
Thompson argues that the Court of Criminal Appeals’s dismissal amounts to a decision on the merits
under Ruiz v. Quarterman, 504 F.3d 523, 527 (5th Cir. 2007). Ruiz, however, is not applicable in this circumstance.
“The Fifth Circuit has held post-Ruiz that § 5(a) remains an independent and adequate state ground for the purpose of
imposing a procedural bar.” Stroman v. Thaler, 405 F. App’x 933, 935 (5th Cir. 2010) (citing Hughes v. Quarterman,
530 F.3d 336, 342 (5th Cir. 2008) and Rocha v. Thaler, 619 F.3d 387 (5th Cir. 2010)).
At the core, each of Thompson’s various constitutional arguments complains that the State
failed to divulge important facts about its relationship with Rhodes. Thompson specifically says that
Rhodes “was, by his own admission, a full time informant for Harris County when he elicited
information from Thompson.” Dkt. 57 at 63. Thompson wishes that the State had disclosed that
Rhodes: was employed by the Harris County Organized Crime Narcotics Task Force, which included
the Harris County District Attorney’s Office; had been a confidential informant in numerous cases
and had twice testified for the State, including once in a capital murder prosecution; had received
$30,000 for his participation in another capital murder case relating to a narcotics transaction; had
previously received other payments for assisting police; had helped secure numerous search
warrants; and had acted at the State’s direction in extracting statements from Thompson. As
discussed below, whether he casts his claims in the context of Massiah, Brady, or Strickland claims,
much of the information on which Thompson bases his claim was known to – and used by – trial
Before the retrial, the State gave notice that it intended to call Rhodes as a witness in the
retrial of Thompson’s punishment. CR2 at 110.19 Shortly before retrial, defense counsel moved for
a continuance to investigate Rhodes’s testimony. The defense argued: “For the first time and literally
by accident Counsel on overhearing a conversation learned of Rhodes’s participation in a previous
capital murder trial. Subsequent investigation leads Counsel to believe that Rhodes may well have
been an agent of the State while he was incarcerated with this defendant, if so, his testimony is
The State’s notice specified: “On or about August 21, 1998 the defendant prepared a list of witnesses
to fellow inmate Robin Rhodes for the purpose of Rhodes to kill or otherwise use physical means to prevent from
testifying at trial.” CR at 67-68.
clearly inadmissible.” CR2 at 210. The defense also argued that “there may be significant
impeachment evidence” relating to Rhodes that the State had not disclosed. CR2 at 210. The trial
court refused to postpone the trial.
Before testimony began in the second punishment phase, the parties discussed the disclosure
of any information relating to Rhodes. RR2 Vol. 16 at 8.20 The State had already disclosed that it
had entered into an agreement with Rhodes. RR2 Vol. 2 at 28-29, 47. During opening argument,
the State told jurors that Thompson had developed a hit list of potential witnesses. The prosecutor
told jurors that Rhodes “takes that list to the police . . . . He is expecting consideration for the
evidence and has received consideration in exchange for his testimony in the case. He has eight hot
check cases, Class C misdemeanors that we’re going to go ahead and dismiss. He also has a pending
Class B misdemeanor, false report case, that we’re also going to dismiss in exchange for his
testimony.” RR2 Vol. 16 at 31-32.
Rhodes testified on the second day of the punishment hearing. Rhodes told jurors that he
worked with the Harris County Organized Crime Task Force relating to “pretty much whatever
situation he stumbled into.” RR2 Vol. 17 at 136. In August 1998, Rhodes struck up a conversation
with Thompson in recreation and claimed that he “could find anybody anywhere at any time.” RR2
Vol. 17 at 136. Thompson responded that he “wanted some people to not appear [at his trial] or
disappear.” RR2 Vol. 17 at 138. Rhodes testified:
From my understanding he had a problem with some people that he wanted to, he
said, Just go away. I don’t care how it happens. He – found out he had a problem
with a female and another man and there was some people that could tie him to it.
He figured with my expertise I could make them go away.
The prosecutor told the trial court that Rhodes had several criminal issues pending, and that the State
agreed to treat him with leniency in return for his honest testimony. RR2 Vol. 2 at 26-29, 47.
RR2 Vol. 17 at 138. “The deal was that [Rhodes] would do what [he] could do” to keep them from
coming to court. RR2 Vol. 17 at 138. When Rhodes “asked for some descriptions” of the intended
victims, Thompson gave him a list of names. RR2 Vol. 17 at 140-41. Rhodes then contacted an
officer with the Harris County Organized Crime Unit and gave him the list. RR2 Vol. 17 at 141. The
State admitted the list into evidence without any objection.
Rhodes also testified that Thompson told him about the murders. Thompson explained that
“he had gone over to the apartment and he had shot the gentleman and got mad because it didn’t kill
him and they accidentally got into a struggle and he shot himself and then he shot the guy again.”
RR2 Vol. 17 at 139. Referring to Hayslip, Thompson said “the bitch wouldn’t get up again.” RR2
Vol. 17 at 139.
On cross-examination, Rhodes explained that he had helped the government for a long time.
RR2 Vol. 17 at 149. He had assisted the Harris County District Attorney’s Office as an informant
and had been paid “on many occasions.” RR2 Vol. 17 at 153. Rhodes described his role: “I was a
full-time – basically I was a full-time informant for the Harris County Organized Crime Task Force.”
RR2 Vol. 17 at 153. Rhodes explained that he had testified in two other trials that he could recall.
RR2 Vol. 17 at 154. In one of the trials in which he provided information about a capital murder
involving a significant amount of drugs, the State paid him “somewhere in the neighborhood of
between 20 and $30,000” from money the government had seized. RR2 Vol. 17 at 159. The defense
unsuccessfully moved to strike Rhodes’s testimony because the District Attorney’s Office violated
Brady by not divulging that he was in their employ. RR2 Vol. 17 at 163.
Trial counsel’s thorough cross-examination of Rhodes demonstrated an intricate
understanding of his past interaction with the State.21 To the extent that trial counsel did not know
about some facets of his role as an informant, Thompson concedes that Rhodes’s history was
discoverable from a published appellate opinion. In Stephens v. State, 59 S.W.3d 377, 381-82 (Tex.
App.-Houston [1 Dist.] 2001), a Texas appellate court explained that Rhodes had:
testified before the jury that he was currently employed by the Harris County
Organized Crime Narcotics Task Force, which included the Harris County District
Attorney’s Office, as a confidential informant in over 50 cases, more than 80 percent
of which resulted in convictions; that he had twice testified for the State, including
once in a capital murder prosecution; and that the State had not doubted him.
Stephens, 59 S.W.3d at 381. Thompson has not shown how the State could have suppressed
information in a published judicial decision. See Parr v. Quarterman, 472 F.3d 245, 254 (5th Cir.
2006) (“[T]he prosecution is not required to disclose evidence that could be discovered by exercising
The trial record clearly shows that Rhodes had a history of providing information to, and
testimony for, the State. Even accepting Thompson’s argument that “there is no doubt that
[Rhodes’s] aim, once in jail, was to get information and relay it to the government,” Dkt. 21 at 57,
In adjudicating a different claim, the state habeas court recognized that trial counsel effectively crossexamined Rhodes about his prior work as an informant:
Trial counsel effectively cross-examined Rhodes, impeaching his credibility eliciting testimony
regarding his work as an informant for law enforcement, and suggesting that Rhodes’ testimony in the
instant trial was a product of Rhodes’ desire to help himself. Trial counsel elicited testimony that
Rhodes had a prior conviction for aggravated robbery that he neglected to mention during his direct
examination; that Rhodes had done a lot of work for law enforcement and received pay for that work;
that Rhodes was not looking for a way to gain favor with law enforcement authorities when he was in
jail with [Thompson] but Rhodes would not overlook it if it was dumped in his lap; that Rhodes was
a full-time informant for the Harris County Organized Crime Task Force in 1998 and 1999 and
testified in two trials and that Rhodes was paid for his participation in the Benavidez trial even though
the record from that trial reflected that Rhodes denied receiving payment.
State Habeas Record at 250.
Thompson’s briefing does not show that the State instructed Rhodes to do so. Rhodes characterized
himself as a “ful-time” informant, but the record does not show that he was an agent or employee
of the State with regard to securing information from Thompson. Instead, the record confirms that
Rhodes often provided information to the State in return for monetary gain or leniency. But the
question is “whether the challenged statements had been deliberately elicited” and “whether the
government had directed or steered the informant toward the defendant.” United States v. York, 933
F.2d 1343, 1356 (7th Cir. 1991). The core of Thompson’s claims depends on showing that Rhodes
“was acting under instructions as a paid informant for the Government[.]” United States v. Henry,
447 U.S. 264, 270 (1980) (emphasis added); see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (5th
Cir. 1986) (“[T]he primary concern of the Massiah line of decisions is secret interrogation by
investigatory techniques that are the equivalent of direct police interrogation.”). Rhodes explicitly
testified, however, that he did not talk with Thompson pursuant to any State-directed instruction or
When you went back in jail did anybody from any law enforcement
agency ask you to target Charles Victor Thompson and help us gather
evidence against him?
No, not at all.
RR2 Vol. 17 at 134-35. As it now stands, Thompson only speculates that Rhodes “was charged with
obtaining information” from him. Henry, 447 U.S. at 272 n.10. Even to the extent that Thompson
may not have had all possible information about Rhodes, the new information only fills in outlines
known at the time of trial, yet still does not suggest that the State encouraged Rhodes to act. Simply,
the record before the Court does not suggest that the State deliberately used Rhodes as an agent to
deliberately secure information from Thompson in violation of his constitutional rights.22
The transcript alone reveals that the defense understood at least the rudimentary facts of
Rhodes’s background as a government informant. While Thompson later learned additional
information about Rhodes,23 it only confirms trial testimony showing that Rhodes previously had a
close relationship with law enforcement, had provided information used in criminal prosecutions,
had testified for the State as an informant, and had received a benefit for his testimony. Jurors had
an adequate opportunity to consider that information.24 The record, however, does not show that the
State directed Rhodes to secure information from Thompson. Whether under Brady, Strickland, or
some other standard, Thompson has not shown prejudice or harm.
In conclusion, Thompson has not shown that Rhodes elicited information at the behest of
state agencies or with the authority of a state actor. The record does not show that state actors
The Court ordered the Respondent to submit prosecutorial notes and other material not previously
disclosed for in camera review. Dkt. 32, 35. The Court has fully reviewed the whole of the submitted material and has
found nothing that would support the allegations Thompson raises in his third ground for relief. With the factual record,
Thompson has not shown that an evidentiary hearing or additional factual development is necessary to a full and fair
adjudication of his claims.
For instance, Thompson uncovered a contract between Rhodes and the district attorney’s office to
“cooperate with . . . law enforcement officers in the investigation of narcotics trafficking . . . .” Dkt. 57 at 75. Because
this contract ended years before trial, and involved issues completely separate from those in the instant case, such
evidence is of little value in deciding whether a Massiah violation occurred. Thompson also emphasizes an inter-office
memorandum that an assistant district attorney prepared after being contacted by Rhodes in which he reports contact with
“the witness in this case Robin Rhodes.” Dkt. 57 at 85. Also, other memoranda suggest that the District Attorney’s
Office knew at the time of trial that Rhodes had previously worked as an informant. As Respondent observes, however,
“the ‘recently disclosed’ facts merely provide more detailed specifics relating to Rhodes’s informant activity that he
testified about explicitly at trial” Dkt. 66 at 61. In particular, Respondent observes two problems. First, “it is
unsurprising that Rhodes would be referred to as a potential witness in either Thompson’s capital murder or solicitation
case immediately after he disclosed information that Thompson attempted to enlist him in a plot to murder witnesses.”
Second, “the memo explains that [Rhodes] received information from [Thompson] on August 21, 1998, and contacted
Kelly five days later, on August 26, 1998. Ultimately, instead of providing an indication that the State directed
Thompson to obtain information, this evidence confirms that after Thompson made the disclosures, Rhodes contacted
a ‘handler’ at the Harris County Organized Crime Unit and was put in touch with an investigator from the District
Attorney’s Office to whom he provided the list.” Dkt. 66 at 63-64.
To that end, Thompson has also not shown that his previous attorneys provided ineffective
representation at any prior stage for not doing more to advance his federal claim.
engaged in a plot to hide Rhodes’s alleged role as a state agent. Concomitantly, Thompson has not
shown any new or previously undisclosed information about Rhodes’ relationship with the State that
would have excluded him from testifying or made any greater impact in the jury’s consideration of
his testimony than that known at trial. In sum, Thompson has not overcome the procedural bar of
his third federal claim and, alternatively, has not provided a reasonable basis to suspect that Rhodes
was a government agent or that the State did not divulge material details about his status. Thompson
has not shown that claim three merits federal relief.25
Sufficiency of the Indictment
Thompson contends that the indictment against him was insufficient because it did not allege
any facts relating to the special-issue questions that the jury would answer. In Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt[.]” See also Ring v. Arizona, 536
U.S. 584, 609 (2002) (extending Apprendi to capital cases). Thompson argues that Texas’s capital
punishment system violates Apprendi because it does not require the indictment to notify him of
what evidence the State intends to introduce in seeking a death sentence.
The Court of Criminal Appeals summarily denied this claim on direct appeal by simply
stating: “This Court has repeatedly rejected the argument that Apprendi requires the State to allege
the special issues in the indictment.” Thompson, 2007 WL 3208755, at *3. Thompson has not
shown that the terse rejection of this claim was contrary to, or an unreasonable application of, federal
Thompson’s pending motion for an evidentiary hearing focuses on developing his claim relating to
Rhodes’s testimony. The Court finds that Thompson has not shown that factual development is necessary to a fair
development of this claim.
law. As an initial matter, defects in a state criminal indictment are of no moment on federal habeas
review. The Supreme Court has never held that the indictment provisions of the Fifth Amendment
apply to the States through the Fourteenth Amendment. See, e.g., Branzburg v. Haynes, 408 U.S.
665, 686-88 n.25 (1972) (noting that “indictment by grand jury is not part of the due process of law
guaranteed to state criminal defendants by the Fourteenth Amendment”); see also Apprendi, 530
U.S. at 477 n.3 (declining to discuss the implications of that decision on the sufficiency of an
indictment). The sufficiency of a state indictment is an appropriate concern on federal habeas corpus
only when it can be shown that the indictment is so defective that it deprives the convicting court
of jurisdiction. Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994); McKay v. Collins, 12 F.3d 66,
68 (5th Cir. 1994).
State law dictates whether a state indictment is sufficient to confer a court with jurisdiction.
In addressing a separate issue, the Court of Criminal Appeals found that Texas state law “do[es] not
require the State to plead the punishment special issues in [the indictment in] a capital case.”
Thompson, 2007 WL 3208755, at *4. The Fifth Circuit has held that the district court is “required
to accord due deference to the state’s interpretation of its own law that a defect of substance in an
indictment does not deprive a state trial court of jurisdiction.” McKay, 12 F.3d at 69 (citations
omitted). Where, as here, the state court has been presented the question of the indictment’s
sufficiency on appeal and ruled that the indictment was not fundamentally defective, federal habeas
review is foreclosed. See Wood v. Quarterman, 503 F.3d 408, 412 (5th Cir. 2007).
Even if federal law placed any requirement on state criminal indictments, Thompson has not
shown that Apprendi requires that an indictment include facts relating to the special issues. The
Supreme Court has approached Apprendi from several different legal angles, but has never held that
the prosecution must plead punishment-phase factors in the indictment. See Apprendi, 530 U.S. at
477 n. 3 (refusing to address the indictment issue because the petitioner did not raise it); Ring, 536
U.S. at 597 n. 4 (noting that petitioner did not allege constitutional defects in the indictment); see
also United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir. 2005) (noting that the Supreme Court
has yet to hold that aggravating factors must be charged in the indictment). The Fifth Circuit has
summarily denied a similar claim in at least one case. See Bigby v. Stephens, 595 F. App’x 350, 354
(5th Cir. 2014). For this court to rule otherwise would violate the non-retroactivity principle of
Teague v. Lane, 489 U.S. 288 (1989). See Harris, 81 F.3d at 541.26
For the reasons discussed above, the Court of Criminal Appeals’s denial of Thompson’s
claim of error in the indictment was not contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1).
Thompson contends that the State adduced impermissible victim-impact evidence in
violation of his constitutional right to be free from cruel and unusual punishment. “To be clear, the
Eighth Amendment does not per se bar the introduction of victim impact evidence in capital cases.”
Roberts v. Thaler, 681 F.3d 597, 611 (5th Cir. 2012) (citing Payne v. Tennessee, 501 U.S. 808, 827
(1991)). Instead, the United States Supreme Court has held that, because “[a] State may legitimately
conclude that evidence about the victim and about the impact of the murder on the victim’s family
is relevant to the jury’s decision as to whether or not the death penalty should be imposed,” a State
At any rate, Texas places the constitutionally required finding of an aggravating factor in the
guilt/innocence phase where the jury finds a defendant guilty of a death-eligible offense. See Jurek v. Texas, 428 U.S.
262, 270-71 (1976) (approving Texas’s use of aggravating factors in the guilt/innocence phase to narrow the class of
death-eligible defendants); Woods v. Cockrell, 75 F.3d 1017, 1033-34 (5th Cir. 1996); James v. Collins, 987 F.2d 1116,
1119 (5th Cir. 1993). After a jury convicts a capital inmate, the maximum punishment available is death. The
punishment phase’s factual issues do not increase an inmate’s authorized punishment, making Apprendi inapplicable.
Allen v. Stephens, 805 F.3d 617, 628 (5th Cir. 2015).
may “choose to permit the admission of victim impact evidence and prosecutorial argument on that
subject . . . .” Payne, 501 U.S. at 827. Still, “an Eighth Amendment problem may result” if
“‘evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair . .
. .’” Janecka v. Cockrell, 301 F.3d 316, 328 (5th Cir. 2002) (quoting Payne, 501 U.S. at 825).
During the second punishment phase, Michael Gene Donaghy, Hayslip’s brother, testified
about her funeral. During that testimony, Thompson claims that the State “exceeded the scope of
permissible victim impact [testimony] when it sought detailed testimony on the number and types
of persons who appeared at the complainant Hayslip’s funeral.” Dkt. 57 at 12. Specifically,
Thompson objects to the following interchange:
How many people showed up [at the funeral]?
Hundreds. There was a lot of people.
Did you even realize she had that many friends or that many
people who knew her?
I knew my sister touched a lot of lives and everybody loved
her and she loved everybody. I didn’t know she knew that
Who showed up at the funeral? Social friends? Clients?
Mixture of both?
I object to this. This goes beyond victim impact with this
Gets to the area of victim character evidence and we object to
Overruled. Go ahead.
RR2 Vol. 18 at 35. At that point, the prosecutor did not pursue any more testimony about who
attended Hayslip’s funeral.
On direct appeal, Thompson complained that the trial court erred in allowing Donaghy to
testify about both the number and the type of people who attended Hayslip’s funeral. The Court of
Criminal Appeals provided three justifications for denying Thompson’s claim. The Court finds that
each ground provides a reasonable basis to deny federal habeas relief.
First, the Court of Criminal Appeals held that Thompson failed to preserve error with regard
to testimony about number of people who attended Hayslip’s funeral. See Thompson, 2007 WL
3208755, at *6. Texas contemporaneous objection rule requires “a party to preserve an issue for
appellate review” by making “a timely objection with specific grounds for the desired ruling[.]”
Livingston v. Johnson, 107 F.3d 297, 311 (5th Cir. 1997). The Fifth Circuit “has consistently held
that the Texas’s contemporaneous objection rule constitutes an adequate and independent state
ground that procedurally bars federal habeas review of a petitioner’s claims.” Fisher v. Texas, 169
F.3d 295, 300 (5th Cir. 1999); see also Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir. 2003). The
state courts’s invocation of its procedural law on that portion of Thompson’s claim bars federal
Second, the Court of Criminal Appeals found that Thompson failed to show error because
Donaghy never actually testified about the type of people who attended Hayslip’s funeral. The Court
of Criminal Appeals observed: “Although [Thompson] argues that the trial court erred in allowing
Donaghy ‘to testify to the . . . types of people who attended the . . . funeral,’ no testimony was
actually elicited. The question was asked, and the trial court overruled [Thompson’s] objection, but
the prosecutor never pursued an answer.” Thompson, 2007 WL 3208755, at *6. Even if the
prosecutor asked a question intended to elicit improper victim-impact testimony, the witnesses did
not answer it.
Finally, the Court of Criminal Appeals found that “assuming that the question was improper,”
Thompson “was not harmed by the unanswered question. The question by itself did not assume,
suggest, or interject any facts about who actually attended the service or leave the jury with a
particular impression about the types of persons who attended.” Thompson, 2007 WL 3208755, at
*6. Given the nature of the evidence against Thompson, inferences the jury may have taken from
the question would have had negligible, if any, impact on the jury’s consideration of Thompson’s
sentence. Even if the prosecution erred in asking for details about the victim’s funeral, Thompson
has not shown any prejudice resulting therefrom.
Thompson procedurally defaulted a portion of this claim in state court. Thompson has
otherwise not shown that the state court’s adjudication of the merits was contrary to, or an
unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson claims that Texas’s lethal-injection procedure violates the Eighth Amendment.
In 1982, the State of Texas adopted lethal injection as its sole method of execution. Texas law does
not specify what substance will be used to effectuate its death sentences, but since 2012 Texas has
used pentobarbital. Thompson asserts that a constitutionally unacceptable risk attends Texas’s use
of pentobarbital. Respondent contends that Thompson’s complaints about lethal injection sound in
civil rights, not habeas, law. Alternatively, Respondent argues that Thompson has not shown that
the state habeas court’s rejection of his arguments about lethal injection were contrary to, or an
unreasonable application of, federal law.
In Hill v. McDonough, 547 U.S. 573 (2006), the Supreme Court confronted the question of
“whether a challenge to a method of execution must be brought by means of an application for a writ
of habeas corpus or a civil action under § 1983.” Glossip v. Gross, 135 S. Ct. 2726, 2738 (2015).
The Supreme Court “held that a method-of-execution claim must be brought under § 1983 because
such a claim does not attack the validity of the prisoner’s conviction or death sentence.” Glossip v.
Gross, 135 S. Ct. 2726, 2738 (2015). Based on Hill and Glossip, this ground for relief should be
dismissed without prejudice so that Thompson may raise it in a § 1983 action.27
The Court observes, however, that, even if an inmate could properly litigate a lethal-injection
challenge on habeas review, Thompson has not met his AEDPA burden to show an entitlement to
relief. The state habeas court found that the “Texas lethal injection procedure satisfies the
prohibition against cruel and unusual punishment.” State Habeas Record at 255. Federal law defers
to that factual determination, absent clear and convincing evidence to the contrary. See 28 U.S.C.
§ 2254(e)(1). Texas has performed numerous executions using pentobarbital as the only agent of
execution. Even while identifying hypothetical concerns about the use of pentobarbital, Thompson
has not pointed to any particularized defect in its use, administration, or efficacy. See Raby v.
Livingston, 600 F.3d 552, 560 (5th Cir. 2010) (concluding that the plaintiff “has failed to establish
that the Texas lethal injection protocol creates a demonstrated risk of severe pain” in Texas’s lethal
injection process). Thompson provides nothing but conjecture that Texas will change the execution
drug any time before his execution. “The reality is that pentobarbital, when used as the sole drug
in a single-drug protocol,” has not realized “a sure or very likely risk of pain.” Wood v. Collier, 836
Even in civil rights actions, however, the federal courts in this circuit have not viewed favorably attacks
on pentobarbital. For instance, the Fifth Circuit recently refused to enjoin an execution based on a lethal-injection
challenge and noted: “The reality is that pentobarbital, when used as the sole drug in a single-drug protocol, has realized
no . . . risk” that it “is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently
imminent dangers.” Wood v. Collier, 836 F.3d 534, 540 (5th Cir. 2016) (quotation omitted).
F.3d 534, 540 (5th Cir. 2016). Thompson’s speculative habeas claim falls far short of proving that
the state habeas court’s rejection of his lethal-injection claim was contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254(d)(1). The Court would still deny habeas relief
even if lethal-injection claims were cognizable on habeas review.
Texas Capital Habeas Procedure
Under Article 11.071 of the Texas Code of Criminal Procedure, a state habeas applicant must
file his or her state habeas application (1) within 180 days of appointment of state writ counsel or
(2) forty-five days after the State has filed its response on direct appeal, whichever is later. An
applicant may obtain a 90-day extension of the deadline upon a showing of good cause. TEX. CODE.
CRIM. PROC. ANN. art. 11.071 § 4(a),(b). Thompson “contends that [Texas’s capital-habeas statute]
is unconstitutional, on its face and as applied, because it distorts the historic purpose of a postconviction application for [a] writ of habeas corpus.” Dkt. 57 at 143. Thompson argues that the
short time for filing a habeas writ precludes development of the record and the ripening of issues,
including Strickland claims. With those defects, Thompson contends that Texas’s habeas statute
does not provide due process.
The state habeas court rejected Thompson’s arguments because “[t]he imposition of a time
limit for filing an initial application for writ of habeas corpus in capital cases is appropriate [and]
constitutional.” State Habeas Record at 220. To the extent some claims may not ripen by the time
for habeas filing, Texas allows successive habeas actions to proceed “provided [the inmate] meets
the statutory exceptions.” State Habeas Record at 220. The state habeas court concluded that Texas
habeas procedure met constitutional requirements. State Habeas Record at 220. Importantly,
Thompson failed to show that Texas’s habeas procedure “prevented him from advancing meritorious
habeas claims . . . .” State Habeas Record at 34.
The Supreme Court has held that state collateral proceedings are not constitutionally
required. Murray v. Giarrantano, 492 U.S. 1, 10 (1989); Pennsylvania v. Finley, 481 U.S. 551, 557
(1987). Because the federal constitution does not require state post-conviction remedies, defects in
a State’s chosen habeas process do not give rise to a federal constitutional claim. See Trevino v.
Johnson, 168 F.3d 173, 180 (5th Cir. 1999).28 The state habeas court’s rejection of this claim was
not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Constitutionality of Texas Statutory Law
As previously discussed, the defense in this case argued that medical error, not Thompson’s
action, was the primary cause of Hayslip’s death. With the defense’s argument that botched medical
care caused Hayslip’s death, the trial court instructed the jury as follows:
A person is criminally responsible if the result would not have occurred but for his
conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of the
defendant clearly insufficient.
Therefore if you find from the evidence beyond a reasonable doubt that the death of
Glenda Dennise Hayslip would not have occurred but for the defendant’s conduct as
charged in the indictment operating either alone or concurrently with another cause
unless the concurrent cause was clearly sufficient to produce the result and the
conduct of the defendant clearly insufficient you will find the defendant criminally
responsible. Unless you so find beyond a reasonable doubt or if you have a
reasonable doubt thereof you will find the defendant not criminally responsible and
say by your verdict “Not Guilty of Capital Murder.”
Thompson has failed to establish that the statutory time limits have prevented him from investigating
any known avenues or would prevent him from asserting any potential claims that might be discovered in the future. In
fact, the state habeas court found that Thompson did “not specify or complain that the dual track habeas application
system forced him to neglect certain meritorious claims . . . .” State Habeas Record at 220.
The prosecution has the burden of proving the defendant guilty and it must do so by
proving each and every element of the offense charged beyond a reasonable doubt
and if it fails to do, so you much [sic.] acquit the defendant.
State Habeas Record at 221. The trial court’s instruction mirrored the Texas statutory language on
causation found in Texas Penal Code Section 6.04.29 Thompson argues that the Texas statute
violates Mullaney v. Wilbur, 421 U.S. 684 (1975) by shifting the burden of proof to the defense.
Mullaney was the first case the Supreme Court decided based on In re Winship, 397 U.S. 358
(1970), which “made clear what has long been accepted in our criminal justice system[:] . . . in a
criminal case the government must establish guilt beyond a reasonable doubt.” Jones v. United
States, 526 U.S. 227, 264 (1999). In Mullaney, the Supreme Court struck down a Maine law placing
the burden of proof on a defendant when he argued that a killing was in the heat of passion or due
to provocation. Cases have relied on Mullaney to hold “that a State must prove every ingredient of
an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant
by presuming that ingredient upon proof of the other elements of the offense.” Patterson v. New
York, 432 U.S. 197, 215 (1977). Thompson contends that the Texas statute, by asking whether the
conduct in the concurrent cause was “clearly insufficient” to “produce the result,” unconstitutionally
“creates an impermissible burden of proof for defendants.” Dkt. 57 at 149.
When Thompson raised this claim on state habeas review, the state habeas court found two
reasons to apply a procedural bar. First, Thompson’s claim ran afoul of Texas’s contemporaneousobjection rule because “counsel objected to the trial court’s charge on concurrent causation, but not
on the basis urged in the instant habeas application.” State Habeas Record at 222. Additionally,
Under Texas Penal Code Section 6.04, “[a] person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was
clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”
Thompson “fail[ed] to assert legal arguments or authorities to support his [state habeas] claim that
TEX. PENAL CODE 6.04 is unconstitutional . . . .” State Habeas Record at 222. Both Texas’s
contemporaneous-objection rule and a dismissal for inadequate briefing provide a sufficient basis
to bar federal review. See Roberts v. Thaler, 681 F.3d 597 (5th Cir. 2012); Corwin v. Johnson, 150
F.3d 467, 473 (5th Cir. 1998). Thompson has not shown cause or actual prejudice to overcome the
procedural bar to federal review.
Alternatively, the state habeas court found that Thompson’s “claims are meritless” because
TEX. PENAL CODE § 6.04(a) “does not create a burden of proof for defendants.” State Habeas Record
at 252. The trial court’s instructions properly directed the jury to consider concurrent causes as
provided by the statute. Unlike the Maine law in Mullaney, neither the Texas statute or the jury
instructions explicitly or implicitly placed a burden on the defense to prove that any concurrent cause
was sufficient to product the victims’ death. The instructions centered the jury’s duty on the
reasonable doubt standard, and focused their inquiry on whether Thompson’s own actions caused
the victim’s death, without requiring the defense to present evidence about a separate, concurrent
cause. Thompson has not pointed to any clearly established Supreme Court precedent extending
Mullaney to the circumstances presented by a statute such as TEX. PENAL CODE § 6.04(a).
Thompson, therefore, has not shown that the state court’s decision was contrary to, or an
unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Ineffective Assistance of Trial Counsel
On state habeas review, Thompson exhausted several complaints about trial counsel’s
representation in the guilt/innocence phase. Thompson now argues that trial counsel performed
deficiently by: (1) failing to conduct an effective voir dire; (2) failing to prevent the State from
presenting evidence of extraneous bad acts; (3) not objecting to the prosecution’s characterization
of one defense witness’s testimony; (4) not requesting a lesser-included-offense instruction relating
to Hayslip’s death; and (5) not objecting to the admission of the gun.
Strickland v. Washington, 466 U.S. 668, 686 (1984), provides the general conceptual
framework for judging an attorney’s representation. Under Strickland, a criminal defendant’s Sixth
Amendment rights are “denied when a defense attorney’s performance falls below an objective
standard of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S.
1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v.
Smith, 539 U.S. 510, 520 (2003). To establish deficient performance, the petitioner must show that
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by
the Sixth Amendment.” Strickland, 466 U.S. at 687. A petitioner must also show actual prejudice,
meaning “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.” Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S.
“Surmounting Strickland’s high bar is never an easy task . . . .” Padilla v. Kentucky, 559 U.S.
356, 371 (2010). In federal habeas proceedings, the Strickland inquiry merges with AEDPA’s
forgiving standards into a “doubly deferential” review. Knowles v. Mirzayance, 556 U.S. 111, 123
(2009); see also Pinholster, 131 S. Ct. at 1403; Gentry, 540 U.S. at 5-6. In practice, this standard
gives wide latitude to state adjudications: “The question is whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105; see also Premo
v. Moore, 562 U.S. 115, 123 (2011) (quoting Richter).
Thompson generally criticizes his initial trial counsel’s handing of jury selection, claiming
that trial counsel engaged in superficial and too-brief questioning. Thompson, however, only makes
two specific complaints about trial counsel’s handling of voir dire. First, Thompson complains that
trial counsel did not adequately question jurors about Texas parole law and victim-impact testimony.
Second, Thompson claims that trial counsel should have used peremptory strikes on two prospective
jurors who served at his first trial. Neither argument warrants federal habeas relief.
Thompson’s challenge to trial counsel’s approach to questioning jurors only complains about
the voir dire before his first trial. The Court of Criminal Appeals reversed Thompson’s sentence,
allowing the state habeas court to conclude that “any alleged harm relating to [his initial] trial
counsel’s failure to voir dire on victim impact evidence is moot.” State Habeas Record at 235.
Thompson’s complaints about trial counsel’s questioning focus on punishment issues without
drawing a connection to why those potential jurors would have been partial on questions of guilt.
Thompson cannot show harm because the jurors affected by his initial counsel’s questioning did not
return the death sentence under which he is currently in custody.
The only portion of this claim presenting a judicable issue is that relating to trial counsel’s
failure to use peremptory strikes on two prospective jurors. The state habeas court engaged in a
detailed review of trial counsel’s questioning of the two challenged jurors. The state habeas court
rejected this claim for three reasons. First, trial counsel used strategic professional judgment in not
striking the two jurors. Second, the record suggested that the two jurors would be favorable to the
defense. Finally, the questioning of the two jurors “establishes that both jurors understood various
legal burdens and distinctions, could follow the law, consider the evidence, be fair to both parties,
and participate as jurors in the instant capital murder case . . . .” State Habeas Record at 239.
The state habeas court was not unreasonable in finding that trial counsel did not provide
deficient representation in this regard. Trial counsel made a strategic decision to accept the final two
jurors, which a reviewing court must uphold unless the decision was “so ill chosen that it permeates
the entire trial with obvious unfairness.” Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995).
Perhaps Thompson has provided reasons for which an attorney may have used peremptory strikes
to remove the two final jurors. He has not, however, shown that those jurors were biased as a matter
of law or subject to strikes for cause. Thompson has not shown that the two challenged jurors were
so poorly chosen that it permeated his trial with unfairness. Thompson has not shown that the state
habeas court’s decision on this issue was contrary to, or an unreasonable application of, federal law.
Evidence of Extraneous Bad Acts
Trial counsel filed a pre-trial motion in limine to preclude the prosecution from discussing
“prior convictions, extraneous offenses, and bad acts.” CR at 33. The trial court granted the motion.
During the guilt/innocence phase, Hayslip’s co-worker and roommate Lisa Gonzalez described the
tumultuous relationship between Hayslip and Thompson. Gonzalez testified that when Thompson
became angry he would break things, kick things, and punch holes in the wall. RR1 Vol. 11 at 19092. Trial counsel objected to Gonzalez’s testimony, and in a bench conference reminded the judge
of the motion in limine, but did not seek any ruling from the trial court. Thompson faults trial
counsel for not acting more zealously to exclude testimony about his anger outbursts.30
Trial counsel explained in an affidavit that: “[t]he defense had filed a motion in limine to prevent the
State from going into extraneous matters without the approval of the trial court judge, and the defense reminded the judge
of our motion once the State started questioning Gonzalez about those extraneous matters.” State Habeas Record at 171.
“In order to show that counsel was deficient for failing to object . . ., the objection must have
merit.” Ries v. Quarterman, 522 F.3d 517, 530 (5th Cir. 2008). “Admitting evidence of prior
convictions and other bad acts is generally prohibited in the guilt-innocence phase.” Robles v. State,
85 S.W.3d 211, 213 (Tex. Crim. App. 2002). Still, as the state habeas court observed, Texas law
“allows admission of evidence that shows (1) relevant facts and circumstances surrounding the
murder, (2) the previous relationship between the accused and the deceased, or (3) the condition of
the mind of the accused at the time of the offense.” State Habeas Record at 235; see also TEX. CODE
CRIM. PRO. art. 38.36(a). Presumably because Gonzalez’s testimony related to the “previous
relationship existing between the accused and the deceased” and to “facts and circumstances going
to show the condition of the mind of the accused at the time of the offense,” the state habeas court
concluded that “[t]rial counsel was not ineffective for failing to object and/or preserve error
regarding the State’s properly admitted evidence of the [Thompson’s] violent acts involving
complainant Hayslip at guilt-innocence.” State Habeas Record at 259.
The state habeas court found that the complained-of testimony was admissible under state
law. A federal habeas court does not sit in judgment of a state court’s interpretation of its own law.
With that state-law finding, Thompson has not shown that trial counsel failed to make a meritorious
objection. The state habeas court reasonably found that counsel did not provide deficient
performance with regard to the testimony about his anger outbursts.31 Thompson has not shown that
the state habeas court’s decision was contrary to, or an unreasonable application of, federal law
Prosecutor’s Closing Argument
Thompson contends that trial counsel should have objected to prosecution’s closing
With the weighty evidence against Thompson, any minor prejudicial effect caused by Gonzalez’s
testimony would not amount to a reasonable probability of a different result.
arguments summarizing Dr. Radalat’s testimony as “finally admitt[ing] to you that the wounds
would be fatal if left untreated.” With that testimony, the prosecution said: “You got causation. The
defendant is guilty.” RR1 Vol. 13 at 30-31. Thompson claims that the prosecution’s argument
“mischaracterized” Dr. Radalat’s testimony because he “did not quite go so far as to concede that
the shooting did cause death.” Dkt. 57 at 169-70. The state habeas court, however, found that “the
State’s complained of argument at guilt-innocence was proper as a summary of the evidence and/or
a reasonable deduction of evidence elicited at trial.” State Habeas Record at 237.32
Courts traditionally give defense attorneys broad discretion in choosing whether to object
during closing arguments. See, e.g., Hernandez v. Thaler, 463 F. App’x. 349, 356 (5th Cir. 2012);
Charles v. Thaler, 629 F.3d 494, 502 (5th Cir. 2011). Here, the prosecutor’s statements were within
the range of proper closing argument and a fair interpretation of the defense witness’s testimony.
Dr. Radalat told jurors that “[t]he intermediate long term conditions without any medical
intervention . . . [o]ver the long term . . . would probably be fatal.” RR1 Vol. 12 at 255-56. In
addition, Dr. Radalat replied “no” when asked on cross-examination if the doctors’ actions caused
Hayslip’s death. RR1 Vol. 12 at 256. A reasonable trial attorney could decide not to highlight the
prosecution’s fair interpretation of Dr. Radalat’s testimony by objecting. The state habeas court was
not unreasonable in finding that trial counsel did not provide deficient representation at closing
Under Texas law, proper closing argument may discuss: (1) summary of the evidence; (2) reasonable
deductions from the evidence; (3) response to opposing counsel’s argument; and (4) pleas for law enforcement. See
Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000).
Further, the state habeas court found that Thompson “was not prejudiced by the complained-of
arguments; the arguments were not extreme, manifestly improper, violative of a mandatory statute, and did not inject new
facts harmful to [Thmpson] into the trial proceedings.” State Habeas Record at 237. Given the additional evidence
against Thompson, he has not shown any actual prejudice because trial counsel did not lodge an objection to the
On trial counsel’s request, RR1 Vol. 13 at 39, the trial court instructed jurors that, if they
found Thompson had committed the murder of Cain, but was only guilty of some crime other than
capital murder against Hayslip, they should find Thompson only guilty of the lesser-included offense
of murder. Thompson argues that trial counsel should have requested two additional lesser-includedoffense instructions. First, Thompson argues that the defense’s theory blaming Hayslip’s death on
botched medical care would have allowed jurors to convict him only of aggravated assault. Second,
Thompson contends that he did not intentionally shoot Hayslip, allowing for an instruction on felony
Texas law entitles a defendant to a lesser-included-offense instruction when: (1) the lesserincluded offense is included within the proof necessary to establish the offense charged, and (2) there
is some evidence showing that if the defendant is guilty, he is guilty only of the lesser offense.
Rousseau v. State, 855 S.W.2d 666, 672-673 (Tex. Crim. App. 1993). Respondent does not dispute
that aggravated assault and felony murder are lesser-included offenses of capital murder.
Respondent, however, argues that the evidence did not only allow for Thompson’s conviction of
To that end, the state habeas court found that Thompson’s “criminal conduct towards complainant
Hayslip was committed intentionally and knowingly. Evidence did not exist in the record that [Thompson’s] shooting
of Hayslip was an accident; that [Thompson] intended only one victim; or that [Thompson] knew with a reasonable
certainty that only one person would die.” State Habeas Record at 224. The state habeas court also found that “[t]he
evidence presented at trial did not support the submission of the lesser-included offense instructions urged in the instant
habeas application; accordingly, [Thompson] was not prejudiced by counsel’s failure to request such instructions at trial.”
State Habeas Record at 243.
Here, trial counsel gave the jury the options to render a non-capital verdict. Trial counsel’s
closing argument urged jurors to find that Thompson did not intend to harm Hayslip, requiring them
to return a lesser verdict of simple murder. RR1 Vol. 13 at 36. Trial counsel tried to form a defense
for an acquittal based on the medical-malpractice theory, CR at 171, and asked jurors to convict
Thompson only on a lesser offense based on that same theory, RR1 Vol. 13 at 48-49. Thompson
may wish that trial counsel had requested additional instructions, but trial counsel explained on
habeas review: “I did everything possible to rebut the State’s theory of causation and persuade the
jury to adopt the defense’s theory of the case. Consistent with the defensive theory an instruction
on concurrent causation and the lesser-included offense of murder were included in the
guilt/innocence charge.” State Habeas Record at 171. Thompson may wish that trial counsel had
made different tactical decisions, but under Strickland jurisprudence decisions such as those made
by counsel are “virtually unchallengeable.” Strickland, 466 U.S. at 690-91. Thompson has also not
shown that jurors would be more likely to forgo a capital conviction had the trial court given
instructions different from those provided by trial counsel. Thompson may argue that counsel should
have made different choices, but he has not shown that counsel should have made better ones. Trial
counsel gave the jury two vehicles to return a non-capital conviction; Thompson has not shown that
trial counsel provided constitutionally deficient, prejudicial representation by not doing more.
Admission of the Murder Weapon
Thompson makes a conclusory argument that trial counsel should have objected to the
admission of the murder weapon. Thompson does not elaborate, but his argument presupposes that
trial counsel should have argued that the police only found the weapon because they had violated his
constitutional rights by sending Johnson to interview him. Thompson did not raise this claim on
direct appeal or in any of his state habeas applications. Because the state courts would not authorize
him to file a successive application raising this argument, and he has not shown cause or prejudice
to allow federal review, it is procedurally barred from federal habeas review.
Alternatively, the Court has already discussed at length the tenuous connection between the
Johnson conversation and the recovery of the gun. Thompson had already provided the police a map
of where he discarded the weapon. The trial testimony did not show that the Johnson conversation
provided the police with previously unknown information necessary to recover the gun. Thompson
has not shown that the murder weapon was inadmissible, and thus has not shown that trial counsel
provided ineffective representation.
Denial of a Continuance
Thompson argues that the trial court violated his rights by denying his requests to postpone
trial. Specifically, Thompson complains that the trial court’s denial of additional time for trial
preparation deprived him of due process under the Fourteenth Amendment and precluded effective
legal representation under the Sixth Amendment.
The Constitution guarantees inmates “a meaningful opportunity to present a complete
defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). Still, not every denial
of a continuance violates the Constitution:
The matter of continuance is traditionally within the discretion of the trial judge, and
it is not every denial of a request for more time that violates due process even if the
party fails to offer evidence or is compelled to defend without counsel. Contrariwise,
a myopic insistence upon expeditiousness in the face of a justifiable request for delay
can render the right to defend with counsel an empty formality. There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the circumstances present in every
case, particularly in the reasons presented to the trial judge at the time the request is
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citations omitted). “When a denial of a continuance
forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of
discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional
principles of due process.” Skillern v. Estelle, 720 F.2d 839, 850 (5th Cir. 1983) (quotation omitted).
Also, “the failure to grant a continuance [must have] harmed the defense.” Newton v. Dretke, 371
F.3d 250, 255 (5th Cir. 2004).
Determining whether the trial court abused its discretion in refusing to continue Thompson’s
trial requires a detailed review of the trial court proceedings. When the Court of Criminal Appeals
remanded this case for a new punishment hearing, the trial court appointed Thompson’s original trial
attorney, Ellis McCullough, to represent him at retrial. On January 21, 2005, the trial court
appointed Terrence Gaiser as second-chair counsel. Six months later, Thompson filed a pro se
motion to dismiss McCullough arguing that he was not qualified to represent capital defendants
under Texas’s Fair Defense Act. The trial court delayed ruling on the motion, but on September 15,
2005, removed McCullough from representing Thompson. The trial court elevated Gaiser to first
chair and appointed Kyle Johnson as second-chair counsel.
Gaiser had not been inactive during the pendency of Thompson’s substitution motion.
Throughout August and September 2005, Gaiser filed motions on Thompson’s behalf. Gaiser’s
filings included motions for the appointment of a mitigation specialist, an investigator, and various
experts, including a psychologist. The trial court promptly granted the defense’s motions. Gaiser
secured investigative assistance.
The trial court set October 24, 2005, as the first day for trial testimony. On September 29,
2005, the day before jury selection was set to begin, Thompson’s attorneys filed a motion for
continuance. Trial counsel asked for an additional ninety days because the attorneys had a limited
time to prepare and to investigate mitigating theories after their appointment. In a hearing, trial
counsel provided additional background on the motion for a continuance: “Gaiser stated that he was
recently elevated to first chair, and Johnson was recently appointed to [Thompson’s] case as second
chair counsel and had a limited time to prepare for trial; Gaiser stated that he and Johnson lost time
in their offices due to the threat of a hurricane . . . .” State Habeas Record at 241. The prosecution,
however, provided reasons to deny a continuance: “prosecutor Vic Wisner stated that counsel Gaiser
had been the de facto lead counsel on the case since his appointment, that Wisner had worked with
Gaiser on discovery over the last two months, that Wisner had met with Gaiser and his expert, and,
that the State’s file had been available to Gaiser and his experts ‘at length.’” State Habeas Record
at 241. The trial court denied a continuance.
The next week the defense filed a notice listing two potential experts for defense testimony.
On October 25, 2005, the defense filed a second motion for a continuance. This time, the defense
specifically said it needed additional time to investigate the State’s proposed witness Robin Rhodes.
The trial court denied the second motion for a continuance. CR2 at 209-14.
On state habeas review, Thompson argued that the trial court’s denial of a continuance
violated federal and state law. Thompson argued that additional time would have allowed the
defense to (1) develop mitigating themes, particularly relating to an expert’s testimony about past
substance abuse and possible brain damage and (2) engage in additional investigation of witness
Rhodes for impeachment.35 The state habeas court found that the trial court did not abuse its
As he does on federal review, Thompson observed in state court that the development of a mitigation
case requires six steps:
discretion in denying a continuance on those two arguments.
Thompson wanted more time to prepare his punishment phase expert neuropsychologist, Dr
Daneen Milam. Dr. Milam testified that Thompson suffered from “mild and diffused” brain damage,
but was able to function. Dr. Milam based her conclusion on Thompson’s results from an IQ test
and the Halstead-Reitan Battery. A sharp cross-examination centered on the lack of physical testing
to verify Dr. Milam’s conclusions. Thompson argued that additional time would have allowed trial
counsel to bolster Dr. Milam’s conclusions. In particular, Thompson argues that trial counsel should
have sought out the psychologist who developed the Halstead-Reitan Battery to shore up Dr.
Milam’s interpretation of Thompson’s results.
The state habeas court found that Thompson had not shown prejudice relating to Dr. Milam’s
testimony. The state habeas court specially found that Thompson’s claim that he suffered prejudice
from the denial of a continuance was “purely speculative.” State Habeas Record at 242. The state
habeas court observed that “trial counsel investigated the potential benefit of presenting other
experts” who could provide information about Thompson’s mental health. State Habeas Record at
Hiring a mitigation specialist to guide the research;
Gathering of background information;
Determination, based on that information, of what type of expert could be helpful to the
Expert evaluations, reported back to counsel;
Attempts to negotiate a life sentence; and
Strategic decisions as to what defensive theories and what witnesses to use.
Dkt. 57 at 199-200. Thompson conceded that “[s]teps one, two, and three had been undertaken by Gaiser while he was
second-chair counsel,” but argues that his trial attorneys did not have time to complete “work still needed to be done on
steps four, five, and six . . . .” Dkt. 57 at 200.
243. The state habeas court found that Dr. Milam had provided trial counsel documentary evidence
relating to her testing. Also, Dr. Milam testified “concerning the futility of obtaining a MRI or CAT
scan to support her diagnosis of the [his] alleged brain damage,” thus discounting the benefit of any
physical confirmation of Dr. Milam’s testimony. State Habeas Record at 243.
The state habeas court also found no prejudice in the lack of additional time to investigate
State’s witness Rhodes. The state habeas court found that Thompson “concede[d] that counsel did
not do a bad job impeaching Rhodes . . . .” State Habeas Record at 244.36 Importantly, the state
habeas court observed that Thompson had “not allege[d] the specific information that could have
been garnered had trial counsel obtained additional time to prepare for Rhodes cross-examination.”
State Habeas Record at 244. Without some indication of how the denial of additional time
prejudiced the defense, Thompson’s claims were “purely speculative.” State Habeas Record at 244.
Under AEDPA jurisprudence, Thompson must show that the state habeas court unreasonably
found that the trial court did not abuse its discretion and that he had not shown prejudice. Thompson
has not shown constitutional error in the state court’s decision not to provide more time before trial.
The Supreme Court has noted that trial judges enjoy “a great deal of latitude in scheduling trials and
“only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable
Specifically, the state habeas court found:
Trial counsel effectively cross-examined Rhodes impeaching his credibility eliciting testimony
regarding his work as an informant for law enforcement and suggesting that Rhodes testimony in the
instant trial was a product of Rhodes desire to help himself. Trial counsel elicited testimony that
Rhodes had a prior conviction for aggravated robbery that he neglected to mention during his direct
examination that Rhodes had done a lot of work for law enforcement and received pay for that work
that Rhodes was not looking for a way to gain favor with law enforcement authorities when he was in
jail with the applicant but Rhodes would not overlook it if it was dumped in his lap that Rhodes was
a full-time informant for the Harris County Organized Crime Task force in 1998 and 1999 and testified
in two trials and that Rhodes was paid for his participation in the Benavidez trial even though the
record from that trial reflected that Rhodes denied receiving payment.
State Habeas Record at 244.
request for delay” poses constitutional concern. Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(quotation omitted). Gaiser represented Thompson ten months before the punishment hearing began.
Even though he initially served as second-chair counsel, Gaiser represented Thompson until
eventually appointed first chair. In fact, Gaiser told the trial court that he had been “the de facto first
chair” for some time. RR1 2 Vol. 2 at 7-8. Thompson’s trial attorneys approached the defense of
his punishment retrial with a preview of what evidence the State would present and the viability of
defensive theories. Despite his arguments to the trial court about needing additional time, the record
shows that investigators and experts had been assembled and were working toward a mitigation
defense. Given those circumstances, the state habeas court was not unreasonable in finding that the
trial court had not abused its discretion.
Additionally, Thompson has not shown that the denial prejudiced him. As in state court,
Thompson does not prove that his trial attorneys were unprepared or demonstrate what evidence
remained unpresented. Instead, Thompson speculates that additional witnesses or additional
evidence may have influenced jurors, but provides no specificity about what trial counsel should
have put forth. Without a concrete understanding of how additional time would have amplified or
altered the mitigation defense, the state habeas court was reasonable in finding his allegations of
prejudice to be speculative. Thompson has not shown that the state habeas court’s rejection of this
claim was contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Testimony about Youthful Misconduct
Thompson contends that the State violated his Eighth Amendment rights by presenting
evidence of his youthful misconduct. As described by the Court of Criminal Appeals, the State
presented evidence during the punishment stage of trial of crimes and bad acts Thompson committed
as a minor:
. . . [Thompson] began committing crimes as a juvenile. In 1984, while living with
his parents in an upper-middle-class neighborhood in Colorado, [Thompson]
committed a string of crimes that resulted in over $60,000 of damage to homes and
property. While on probation from the youth center, [Thompson] stole his father’s
motorcycle, ran away, and committed a variety of crimes. He was arrested again in
1987 and sentenced to a juvenile facility. [Thompson] had problems with drugs and
alcohol from an early age.
Thompson, 2007 WL 3208755 at 3.
Thompson, however, did not object to the use of youthful-misconduct testimony at trial. The
state habeas court found that the lack of a contemporaneous objection defaulted judicial
consideration of the instant claim. State Habeas Record at 256. Thompson has not shown cause or
prejudice to overcome the procedural bar of that claim, thus precluding federal review.
Alternatively, the state habeas court found that “the admission of punishment evidence of the
[Thompson’s] youthful misconduct did not violate [his] constitutional rights.” State Habeas Record
at 256. Thompson has not pointed to any Supreme Court case preventing the State from relying on
youthful misconduct when arguing for a death sentence. Thompson instead asks for an extension
of other cases in which the Supreme Court has recognized special protections for juvenile offenders.
Thompson relies on the prohibition on executing juvenile offenders, Roper v. Simmons, 543 U.S. 551
(2005); Thompson v. Oklahoma, 487 U.S. 815 (1988), and the exclusion of juveniles from mandatory
life sentences, Miller v. Alabama, 132 S. Ct. 2455 (2012); Graham v. Florida, 560 U.S. 48 (2010),
to emphasize the lessened moral blameworthiness of juvenile offenders. Because “the juvenile
crimes used against Thompson in his sentencing, essentially crimes of criminal mischief, show both
a lack of maturity and a strong correlation to peer pressure,” Thompson contends that the
Constitution should bar their use in determining his sentence. Dkt. 57 at 218.
The Supreme Court has recognized that important constitutional principles protect juvenile
offenders. Here, although the State presented evidence of bad acts Thompson committed when he
was under the age of eighteen, he was tried and convicted for an offense he committed as an adult.
The Fifth Circuit has held that Supreme Court precedent “does not clearly establish that [a juvenile]
offense may not be used to elevate murder to capital murder.” Taylor v. Thaler, 397 F. App’x 104,
108 (5th Cir. 2010). Extending the constitutional protections in the manner proposed by Thompson
would require the creation of new constitutional law in violation of Teague’s non-retroactivity
principles. For those reasons, Thompson has not shown that he merits federal habeas relief on this
Mitigation Special Issue
Thompson raises two claims challenging the manner in which Texas structures a jury’s
consideration of mitigating evidence. In his twelfth claim, Thompson argues that the Constitution
requires that jurors consider the mitigation special issue under a beyond-a-reasonable-doubt standard.
Thompson’s thirteenth claim argues that Texas’s mitigation special issue unconstitutionally sends
mixed signals to jurors. Settled precedent forecloses relief on both claims.
Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584
(2002), Thompson’s twelfth claim argues the Texas capital sentencing scheme violates constitutional
protections by not requiring the State to prove the absence of sufficient mitigating evidence beyond
a reasonable doubt. The Fifth Circuit has repeatedly rejected the argument that the prosecution bears
a burden to disprove the existence of mitigating factors beyond a reasonable doubt. See Blue v.
Thaler, 665 F.3d 647, 668 (5th Cir. 2011); Druery v. Thaler, 647 F.3d 535, 546-47 (5th Cir. 2011);
Adams v. Thaler, 421 F. App’x 322, 334 (5th Cir. 2011); Granados v. Quarterman, 455 F.3d 529,
536-37 (5th Cir. 2006); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005).37 Because “[n]o
Supreme Court or Circuit precedent constitutionally requires that Texas’s mitigation special issue
be assigned a burden of proof,” granting relief on a capital petitioner’s Apprendi claim would require
the creation of new constitutional law in violation of Teague v. Lane, 489 U.S. 288 (1989).
Thompson’s thirteenth claim argues that the Texas death penalty scheme violates the Eighth
Amendment in light of the Supreme Court’s decision in Penry v. Johnson, 532 U.S. 782 (2001),
because the mitigation special issue sends “mixed signals” to the jury. In Penry, the Supreme Court
struck down a judicially crafted jury instruction because it was perplexing and, in effect, required
the jury to answer the special issues dishonestly in order to give effect to the defendant’s mitigating
evidence. Thompson clams that current mitigation special issue sends mixed signals because it is
unclear about the burden of proof. The state habeas court relied on Texas precedent and denied
relief. State Habeas Record at 247-48.38
Here, the mitigation instruction that the trial court delivered did not contain the defect
identified in Penry. In fact, the Supreme Court has described the current mitigation special issue as
“[a] clearly drafted catchall instruction on mitigating evidence” whose “brevity and clarity . . .
highlight[ed] the confusing nature of the supplemental instruction” they had previously condemned.
Penry, 532 U.S. at 803. Given that endorsement, the Fifth Circuit has found no merit to similar
Thompson argues that a recent Supreme Court case, Hurst v. Florida, 126 S. Ct. 616, 622 (2016),
would compel a different result. The Fifth Circuit, however, has held that Hurst does not change its precedent. See
Davila v. Davis, 650 F. App’x 860, 873 (5th Cir. 2016).
The state habeas court also found that Thompson had defaulted federal consideration of this claim by
failing to raise it on direct appeal. State Habeas Record at 257. In addition to the fact that well-settled precedent
undercuts the merits of this claim, the state habeas court’s procedural ruling forecloses relief.
claims raised by other inmates. See Foster v. Thaler, 369 F. App’x 598, 606 (5th Cir. 2010); Manns
v. Quarterman, 236 F. App’x 908, 911-12 (5th Cir. 2007); Oliver v. Quarterman, 254 F. App’x 381,
385-86 (5th Cir. 2007). The Texas court’s rejection of this claim was not contrary to, or an
unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
Thompson complains that the State violated his due process rights, his right to confront
witnesses against him, and right to counsel though its use of the autopsy results in this case. At the
guilt/innocence phase, the State presented evidence about Hayslip’s cause of death based on an
autopsy performed by Dr. Paul Shrode. Dr. Shrode reported that Hayslip’s cause of death was a
“gunshot wound to the face.” Dr. Shrode, however, did not testify at trial. The State admitted the
autopsy report into evidence during the testimony of Dr. Shrode’s colleague Dr. Patricia Moore. Dr.
Moore had performed the autopsy on Cain and testified about the cause of death for both victims.
Dr. Moore’s testimony reiterated Dr. Shrode’s finding that the cause of Hayslip’s death was a
gunshot wound to the face.
Thompson raises three separate claims based on Dr. Shrode performing the autopsy and the
related testimony. Thompson contends that: (1) the State violated Brady by failing to disclose that
Dr. Shrode lacked adequate qualifications; (2) trial counsel should have objected to the admission
of Dr. Moore’s testimony about the autopsy report on Sixth Amendment Confrontation Clause
grounds; and (3) the State violated the Due Process Clause by knowingly admitting a false autopsy
report. Dkt. 57 at 236-43. Thompson, however, raised these arguments in his third state habeas
application that the Court of Criminal Appeals found to be an abuse of the writ. This claim is
procedurally barred from federal review unless Thompson can show cause and actual prejudice.
Thompson contends that the Court can reach the merits of this claim because the State
suppressed evidence of Dr. Shrode’s qualifications and the true cause of Hayslip’s death. Also,
Thompson contends that he can show ineffective representation by habeas counsel for failing to raise
the issues. This Court’s review of the records and the pleadings shows that Thompson cannot
overcome the procedural bar.
As an initial matter, Thompson contends that “Shrode was incompetent and unqualified to
perform the work he was tasked with, and for failing to disclose that his autopsy was factually
incorrect and misleading.” Dkt. 57 at 240. Thompson bases his arguments on disciplinary actions
and allegations of falsehoods on Dr. Shrode’s curriculum vitae that came to light well after the trial
in this case. Thompson has not pointed to any contemporaneous evidence that any member of the
prosecutorial team knew of the alleged problems with Dr. Shrode’s work. Additionally, Thompson’s
allegations of incompetency may serve to allow the impeachment of Dr. Shrode’s work, but he has
not shown demonstrable errors in Hayslip’s autopsy. Thompson has provided the opinion of another
expert, Dr. Lloyd White, who would have reached a different conclusion about Hayslip’s death. In
doing so, however, Thompson only casts a defensive theory from trial in a different light. Trial
counsel attempted to convince the jury that intervening medical care caused Hayslip’s death. The
fact that other medical professionals may disagree with Dr. Shrode’s conclusions does not mean that
the prosecution knowingly suppressed information about Hayslip’s death.
Also, Thompson faults trial counsel for not raising a Confrontation Clause objection because
Dr. Moore, rather than Dr. Shrode who performed the autopsy, testified about the cause of Hayslip’s
death. After Thompson’s trial, the Supreme Court decided Crawford v. Washington, 541 U.S. 36
(2004), which held that admission of testimonial statements against a criminal defendant violates
the Confrontation Clause unless the witness is unavailable and was subject to a prior
cross-examination. At the time of Thompson’s trial, however, Texas courts held that autopsy reports
were not testimonial, and thus not subject to a Confrontation Clause challenge. Since Crawford
courts have been split on its application to autopsy reports, and some Texas courts have held autopsy
reports are testimonial, see Martinez v. Davis, 653 F. App’x 308, 320 n.5 (5th Cir. 2016) (reviewing
relevant law), but the law at the time of trial and of Thompson’s first two habeas proceedings did
not support a Confrontation Clause challenge to the autopsy report.
Accordingly, Thompson has not shown cause to overcome the procedural bar of his claims
under either Brady or Martinez. For those same reasons, and in consideration of the Court’s review
of the record and the parties’ briefing, the Court would find his claims without merit if fully available
for federal review. The Court denies Thompson’s final ground for relief.
IV. CERTIFICATE OF APPPEALABILTIY
Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment
without receiving a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c). Thompson has
not yet requested that this Court grant him a COA, though this Court can consider the issue sua
sponte. See Alexander, 211 F.3d at 898. “The COA statute establishes procedural rules and requires
a threshold inquiry into whether the circuit court may entertain an appeal.” Slack v. McDaniel, 529
U.S. 473, 482 (2000). A court may only issue a COA when “the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Fifth Circuit holds that the severity of an inmate’s punishment, even a sentence of death,
“does not, in and of itself, require the issuance of a COA.” Clark v. Johnson, 202 F.3d 760, 764 (5th
Cir. 2000). The Fifth Circuit, however, anticipates that a court will resolve any questions about a
COA in the death-row inmate’s favor. See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
The Supreme Court has explained the standard for evaluating the propriety of granting a COA on
claims rejected on their merits as follows: “Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. On the other
hand, a district court that has denied habeas relief on procedural grounds should issue a COA “when
the prisoner shows, at least, 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. Slack, 529 U.S. at 484; Miller-El, 537
U.S. at 336-38. Unless the prisoner meets the COA standard, “no appeal would be warranted.”
Slack, 529 U.S. at 484.
Thompson’s petition raises several issues worthy of judicial review. Nevertheless, having
considered the merits of Thompson’s petition, and in light of AEDPA’s standards and controlling
precedent, this Court determines that a COA should not issue on any of Thompson’s claims.
For the reasons described above, the Court finds that Thompson has not shown an entitlement
to federal habeas relief. The Court DISMISSES Thompson’s challenge to Texas’s lethal-injection
protocol WITHOUT PREJUDICE. The Court otherwise DENIES Thompson’s petition and
DISMISSES the remainder of Thompson’s claims WITH PREJUDICE. The Court also DENIES
Thompson’s motion for an evidentiary hearing. Dkt. 56. The Court will not issue a Certificate of
The Clerk will provide copies of this Order to the parties.
Signed at Houston, Texas, on March 23, 2017.
Gray H. Miller
United States District Judge
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