Burgess v. Davis

Filing 23

MEMORANDUM OPINION AND ORDER granting 14 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ODELL BURGESS, TDCJ #579316,

§
§
§
§
§
§
§
§
§
§
§
§

Petitioner,
v.

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

March 24, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2470

MEMORANDUM OPINION AND ORDER

State inmate Odell Burgess has filed a Petition for a Writ of
Habeas Corpus By a

Person in State Custody

("Petition") (Docket

Entry No. 1) and Petitioner Memorandum of Law on Points of Ground's
in Argument's

to

Support

His

28

u.S. c.

2254

§

Habeas

Corpus

Application for Habeas Relief ("Petitioner's Memorandum")
Entry No.

6)

seeking relief under 28 U.S.C.

court conviction.

§

(Docket

2254 from a state

The respondent has filed a Motion for Summary

Judgment with Brief in Support ("Respondent's MSJ")

(Docket Entry

No. 14), along with a copy of the state court records (Docket Entry
Nos.

13,

22) .

Burgess

has

filed

Petitioner

Response

to

Respondent's Motion for Summary Judgment ("Petitioner's Response")
(Docket Entry No. 18).
court

record,

and

the

After considering the pleadings, the state
applicable

Respondent's MSJ and will dismiss
explained below.

law,

the

court

this action for

will
the

grant

reasons

I.

Background

A local grand jury returned an indictment against Burgess in
Harris

County cause number 1376308,

charging him with evading

arrest or detention with a motor vehicle . 1

The indictment was

enhanced for purposes of punishment with allegations that Burgess
had two prior felony convictions for aggravated robbery in 1991 and
1982. 2

At trial the State presented evidence showing that Burgess

attempted to evade arrest by fleeing
participating in a robbery. 3
Harris County,

Texas,

in a motor vehicle after

A jury in the 180th District Court of

found Burgess guilty as charged. 4

After

Burgess admitted that the enhancement allegations were "true," the
same jury sentenced him to 53 years' imprisonment. 5
On direct appeal Burgess challenged the sufficiency of the
evidence and the admission of evidence about the extraneous robbery
offense during the guilt-innocence phase of the trial, among other
issues. 6

An

Burgess's

claims

opinion.

1

intermediate
and

court

affirmed

of

the

appeals
conviction

rejected
in

See Burgess v. State, 448 S.W.3d 589, 605

a

all

of

published

(Tex. App. -

Indictment, Docket Entry No. 13-4, p. 16.

3

Court Reporter's Record, vol.
pp. 8-88 (State's case-in-chief).

3,

Docket

Entry No.

13-9,

4

Judgment of Conviction by Jury, Docket Entry No. 22-1, p. 28.

5

Id.

6

Appellant's Brief, Docket Entry No. 13-2, p. 7.
-2-

Houston [14th Dist.]

2014, no pet.).

In doing so,

the court of

appeals summarized the evidence presented at trial, which detailed
Burgess's efforts to evade arrest following a robbery:
According to the State's evidence, at approximately
6:30 p.m. on September 7, 2012, Houston police officer
Marc Stallworth was seated in his police car at a
business on the westbound feeder of the South Loop
freeway.
He heard a "rush of air" from the freeway,
which he associated with a speeding vehicle. He noticed
a black pickup truck, which was travelling westbound on
the freeway,
exit at Stella Link Road.
Officer
Stallworth estimated the vehicle was travelling over 100
miles per hour.
[Burgess] was later identified as the
driver, and there were two male passengers.
Officer
Stallworth entered his police car and followed the truck.
[Burgess] then used the Stella Link u-turn to begin
travelling eastbound on the feeder.
After Officer
Stallworth completed the u-turn, he activated his lights
and siren. At that point, he was four car lengths behind
the truck, with no other vehicles in between.
[Burgess]
immediately "floor [ed] it" - from about 45 miles per hour
(his speed when making the u-turn) to about 65 miles per
hour.
The occupants also threw items out of the truck
onto the side of the feeder.
[Burgess] 's speed then
varied between 50 to 65 miles per hour as he wove through
traffic,
with Officer Stallworth in pursuit,
for
approximately half a mile.
There were several side
streets and businesses along the feeder where [Burgess]
could have safely stopped, but he failed to do so.
He
continued toward the next intersection - the feeder and
South Main Street - where traffic was backed up at the
light.
[Burgess] turned into the parking lot of a service
station located on the corner of that intersection. He
wove through vehicles in the lot and attempted to turn
right onto South Main. A constable who had observed the
activity used his car to cut off the truck and forced it
back into the parking lot.
[Burgess] then attempted to
exit back onto the feeder but stopped when he was cut off
by another police car that had joined the pursuit. The
officers ordered the occupants to exit the truck, and
[Burgess] was arrested, without further incident.
The State also presented evidence that, within twenty
minutes
before
Officer Stallworth's
pursuit,
the
-3-

occupants of the truck committed a robbery, less than
five miles from where they were eventually detained.
Claudine James was seated in her vehicle in the parking
lot of a post office when she saw another woman park her
"two-seat" Mercedes and enter the post office. Then, a
black pickup truck drove up and blocked the woman's car.
A passenger (not [Burgess]) exited the truck, looked
around, and entered the woman's car. A "child, a young
girl" then "jumped" out of the car, screaming, with eyes
as "big" as "plates."
The man took a purse and cell
phone from the car and re-entered the truck, and the
driver left.
James followed the truck as it traveled at an extreme
speed on the South Loop but eventually lost sight of it
near the Stella Link exit.
When James took that exit,
she intended to alert Officer Stallworth whom she saw on
the feeder, but he then activated his lights and
u-turned.
James did not observe Officer Stallworth's
chase and next saw the truck when it had been stopped at
the service station. James informed the officers about
the robbery and identified [Burgess] 's truck as the one
involved and one of his passengers as the man who entered
the woman's car at the post office.
In the area where Officer Stallworth had observed the
occupants throw items from the truck, officers found a
purse and business cards belonging to the robbery victim.
The officers' testimony indicated that a $100 bill found
in one of the truck passenger's shoes was stolen in the
robbery. The officers also found three new $100 bills in
[Burgess] 's pocket.
Id. at 594-95.

Burgess did not appeal further by filing a petition

for discretionary review with the Texas Court of Criminal Appeals. 7
Burgess challenged his conviction by filing an Application for
a Writ of Habeas Corpus under Article 11.07 of the Texas Code of
Criminal Procedure. 8

In his Application Burgess argued that the

7

8

Final

Respondent's Exhibit A, Docket Entry No. 15, p. 2.
Application for a Writ of Habeas Corpus Seeking Relief From
Felony Conviction Under Code of Criminal Procedure,
-4-

prosecutor

committed

error

by

introducing

evidence

of

the

extraneous robbery because he failed to present sufficient proof
that Burgess committed the offense. 9

Burgess also argued that he

was denied his constitutional right to confront and cross-examine
witnesses. 10

Burgess also argued that he was denied effective

assistance of counsel when his

trial attorney:

( 1)

failed to

request a limiting instruction regarding the extraneous robbery
offense;

(2)

advised

him

not

to

testify;

and

(3)

failed

to

investigate or interview the state's witnesses . 11 After considering
an affidavit from Burgess's defense attorney , 12 the state habeas
corpus court entered findings of fact and concluded that Burgess
was not entitled to relief on any of his claims. 13

The Texas Court

of Criminal Appeals agreed and denied relief without a written
order on findings made by the trial court. 14
Burgess has now filed a Petition for federal habeas corpus
relief under 28 U.S; C.

9

§

2254

from his conviction for evading

Id. at 14-15.

10

Id. at 16-19.

11

Id. at 7-10,

16-17.

12

Affidavit of Michael
Entry No. 13-16, pp. 17-22.

Slider

("Slider Affidavit"),

Docket

13

State' s Proposed Findings of Fact, Conclusions of Law and
Order After Remand ("FFCL"), Docket Entry No. 13-16, pp. 25-29.
14

Action Taken,

Writ No.

12,460-12,

p. 1.
-5-

Docket Entry No.

13-11,

arrest with a motor vehicle. 15

He raises the same claims that were

rejected on the merits on state habeas review. 16

The respondent has

filed a Motion for Summary Judgment, arguing that Burgess's claims
are without merit

and

that

relief

is

not

warranted under

the

governing federal habeas corpus standard of review. 17
II.

Standard of Review

To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
the

Antiterrorism

( "AEDPA") ,

and

Effective

codified at 28 U.S. C.

Death
§

Penalty

2254 (d) .

Act

of

1996

Under the AEDPA a

federal habeas corpus court may not grant relief unless the state
court's adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of,
federal

law,

as

United States [.] "

determined
28

u.s.c.

by

the

Supreme

2254 (d) (1).

§

clearly established
Court

of

"A state

the

court's

decision is deemed contrary to clearly established federal law if
it reaches a
decision

of

legal conclusion in direct conflict with a
the

Supreme

Court

or

if

it

reaches

a

prior

different

conclusion than the Supreme Court on materially indistinguishable
facts."

Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

15

Petition, Docket Entry No. 1, p. 2.

16

Id. at 7-19.

17

Respondent's MSJ, Docket Entry No. 14.
-6-

(citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495,
1519-20

(2002) .

To constitute an "unreasonable application of"

clearly established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not

suffice."

Woods v.

(quoting White v.

Donald,

Woodall,

satisfy this high bar,

134 S.

135 S.
Ct.

Ct.

1697,

1372,
1702

1376

(2015)

(2014)).

"To

a habeas petitioner is required to 'show

that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'"

Id. (quoting Harrington

v. Richter, 131 S. Ct. 770, 786-87 (2011)).
The
evaluating

AEDPA

"imposes

state-court

a

'highly

rulings, '

deferential
[which]

standard
'demands

state-court decisions be given the benefit of the doubt.'"
v. Lett, 130 S. Ct. 1855, 1862 (2010)

for
that

Renico

(citations omitted).

This

standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
and to preserve federal habeas review as "a 'guard against extreme
malfunctions

in

the

state

criminal

justice

systems,'

substitute for ordinary error correction through appeal."
131 S. Ct. at 786
27 96, n. 5 ( 197 9)

(quoting Jackson v. Virginia,

not

a

Richter,

99 S. Ct. 2781,

(Stevens, J. , concurring) ) ; see also White, 134

S. Ct. at 1702.

-7-

A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§

to

be

with

2254 (e) (1).

correct"

"clear

and

2006)

the

petitioner

convincing

rebuts

evidence."

28

those

u.s.c.

This presumption of correctness extends not only to

express factual findings,
findings.

unless

Findings of fact are

but also to the state court's implicit

See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.

(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005);

Young v. Dretke, 356 F.3d 616, 629
presents a question of fact,

If a claim

(5th Cir. 2004)).

a petitioner cannot obtain federal

habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."

u.s.c.

§

2254 (d) (2).

characterize

these

A federal

habeas

state-court

unreasonable 'merely because

factual

[it]

2277

(2010)).

(2015)
"Instead,

(quoting Wood v.
§

2254 (d) (2)

court

determinations

A.

as

Brumfield v. Cain, 135 S. Ct.
Allen,

130 S.

requires that

Ct.

841,

849

[a federal court]

accord the state trial court substantial deference."
III.

"may not

would have reached a different

conclusion in the first instance.'"
2269,

corpus

28

Id.

Discussion

Prosecutorial Error
Burgess

contends

that

the

prosecutor

committed

error

by

introducing evidence of his participation in the extraneous robbery
-8-

because he failed to present sufficient proof that he committed the
robbery. 18
of

the

The state court of appeals considered the admissibility

extraneous

properly admitted.

offense

evidence

and

concluded

that

See Burgess, 448 S.W.3d at 599-601.

it

was

Likewise,

the state habeas corpus court summarily denied relief on Burgess's
claim of prosecutorial misconduct, concluding that he "failed to
demonstrate that his conviction was improperly obtained. " 19
A claim of prosecutorial error or misconduct is actionable on
federal

habeas

infected

the

review

trial

only

with

where

the

unfairness

as

conviction a denial of due process."

s. Ct. 2464, 2471 (1986)
S.

Ct.

1868,

1871

alleged
to

make

misconduct
the

resulting

Darden v. Wainwright,

(quoting Donnelly v. DeChristoforo,

(1974))

(internal

quotation marks

accord Greer v. Miller, 107 S. Ct. 3102, 3109 (1987).

"so

106
94

omitted);

Due process

is not violated unless the alleged conduct deprived the petitioner
of his right to a fair trial.

Darden,

106

s. Ct. at 2471.

"A

trial is fundamentally unfair if 'there is a reasonable probability
that the verdict might have been different had the trial been
properly conducted.'"
Cir. 1992)
1988)

Foy v. Donnelly, 959 F.2d 1307, 1317 (5th

(quoting Rogers v. Lynaugh, 848 F.2d 606, 609 (5th Cir.

(citation omitted)).
The error alleged by Burgess concerns the admission of an

extraneous

offense.

The

introduction

of

extraneous

18

Petition, Docket Entry No. 1, pp. 12, 14.

19

FFCL, Docket Entry No. 13-16, p. 28.
-9-

offense

evidence does not violate the Due Process Clause if the State
(1)

makes

offense";

"a
and

strong showing
(2)

that

demonstrates

"rationally connected with the
Procunier,

the

that

defendant

the

committed

extraneous offense

offense charged."

752 F.2d 111, 115 (5th Cir. 1984)

the
is

Enriquez v.

(citation omitted);

accord Wood v. Quarterman, 503 F. 3d 408, 414 (5th Cir. 2007); Story
v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991).
As the court of appeals' opinion reflects, the State presented
substantial

evidence

showing

that

Burgess

participated

in

the

robbery and was acting as the get-away driver when he committed the
charged offense of

evading arrest

Burgess, 448 S.W.3d at 594-95.

with a

motor vehicle.

See

Addressing Burgess's challenge to

the admissibility of the extraneous offense evidence, the court of
appeals made the following additional findings that established
Burgess's

role

in

the

robbery

offense

and

his

motivation

to

subsequently evade police:
The challenged evidence was admitted via the testimony of
police officers James Crowson and Marcus Ryans, who
arrived at the service station after [Burgess] 's truck
had been stopped, and the testimony of Claudine James.
First, the officers collectively testified about the
following facts supporting that the occupants of the
truck commit ted a robbery: James' s report of the robbery
and identification of [Burgess] 's truck; the time and
location of the robbery relative to Officer Stallworth's
pursuit of the truck; and the discovery of the robbery
victim's purse and business cards on the side of the road
(Officer Stallworth having seen the truck's occupants
throw items out) and her $100 bill in one of the
passenger's shoes. Then, James provided the details of
the incident at the post office described above. Based on
all of this testimony, the trial court did not abuse its
discretion by determining the jury could find beyond a
reasonable doubt that [Burgess] committed robbery[.]
-10-

J

~

I

.

Id.

at

600.

Burgess

does

not

dispute

the

state

court's

which are amply. supported by the record in this case. 20

findings,

Absent clear and convincing evidence to the contrary,
court's findings are presumed correct.

See 28 U.S.C.

the presumption of

correctness

that

review "is equally applicable when a
to

a

state

trial

court,

applies

on

the state

2254(e) (1)

§

Moody v. Quarterman, 476 F.3d 260, 268 (5th Cir. 2007)

opposed

fact

(noting that

federal

habeas

state appellate court,

makes

the

finding

(quoting Sumner v. Mata, 102 S. Ct. 1303, 1304 (1982)

i

of

as

fact")

(per curiam))

(citations omitted) .
Because the State made a

sufficiently strong showing that

Burgess committed the extraneous robbery offense, which was plainly
connected to the charged offense of evading arrest, Burgess fails
to show that evidence of the robbery was admitted in violation of
due process or that the state habeas corpus court erred by denying
relief.

Burgess does not otherwise show that relief is warranted

under the federal habeas corpus standard of review.
he
§

B.

is

not

entitled

to

relief

on

this

claim

Accordingly,

under

28

U.S. C.

2254 (d) .
The Right to Confront and Cross-Examine Witnesses

Burgess argues that he was denied his constitutional right to
confront and cross-examine witnesses because he was not allowed to
question the robbery victims, Ka-Ron and Destiny Wade, during the
2

°Court Reporter's Record, vol.
pp. 8-88 (State's case-in-chief)
-11-

3,

Docket

Entry No.

13-9,

gui 1 t- innocence

phase

of

trial. 21

the

This

claim,

which

was

summarily rejected on state habeas review, has no merit.
The

Confrontation

Clause,

which

is

found

in

the

Sixth

Amendment to the United States Constitution, guarantees that "[i]n
all criminal prosecutions, the accused shall enjoy the right
U.S.

to be confronted with the witnesses against him."
amend. VI (emphasis added).
to

be

a

witness

'against'

CONST.

"Ordinarily, a witness is considered
a

defendant

for

purposes

of

the

Confrontation Clause only if his testimony is part of the body of
evidence that the jury may consider in assessing his guilt."

Cruz

v. New York, 107 S. Ct. 1714, 1717 (1987).
The record confirms that Burgess had the opportunity to crossexamine each of the State's witnesses against him during the guiltinnocence phase of the trial. 22

The respondent correctly notes that

the State did not call Ka-Ron and Destiny Wade as witnesses during
the

guilt-innocence

phase.

Rather,

these

witnesses

testified

during the punishment phase, where Burgess had the opportunity to
cross-examine them. 23
The Confrontation Clause does not require the prosecution to
call

all

21

adverse

witnesses

at

the

defendant's

trial.

See

Petition, Docket Entry No. 1, pp. 17-19.

22

Court Reporter's Record, vol. 3, Docket Entry No. 13-9,
pp. 31-51 (Officer Stallworth), 60-62 (Officer Crowson), 65-69
(Officer Childress), 72-75 (Officer Ryans), 81-84 (Claudine James),
86-87 (Claudine James, recross-examination) .
23

Id. at 115-27.
-12-

McAllister v. Brown, 555 F.2d 1277, 1278 (5th Cir. 1977); see also
United States v.

Morgan,

757 F.2d 1074,

1076

(lOth Cir.

1985)

(observing that the Confrontation Clause "is not a guarantee that
the prosecution will call all the witnesses it has against the
defendant"); United States v. Bryant, 461 F.2d 912, 916 (6th Cir.
1972)
upon

("The Sixth Amendment right of confrontation does not impose
the

Government

the

duty

to

call

a

particular witness.")

The Confrontation Clause is not implicated

(citation omitted) .

where the witness neither testifies nor provides evidence at trial.
See

United

States

v.

Porter,

764

F.2d

1,

9

(1st

Cir.

1985)

(citations omitted); see also Garcia v. Bravo, 199 F. App'x 692,
694

(lOth Cir. 2006)

{observing that the constitutional right to

confront witnesses "attaches only to those witnesses who actually
testify against the defendant").

Because the State did not call

Ka-Ron or Destiny Wade during the guilt/innocence phase of the
trial, Burgess's contention that he was deprived of the right to
confront or cross-examine them until the punishment proceeding has
no merit.

See Cooper v. California, 87 S. Ct. 788, 791 n.2 (1967)

(commenting

that

any

"contention

that

(petitioner)

was

unconstitutionally deprived of the right to confront a witness
against him,
testify

because the State did not produce the informant to
. we consider absolutely devoid of merit").

Burgess makes no effort to show that the state habeas corpus
court's

decision

to

reject

his

Confrontation Clause

claim was

contrary to or an unreasonable application of clearly established
-13-

Supreme Court precedent.
under 28 U.S.C.
C.

§

Accordingly, he is not entitled to relief

2254(d) on this claim.

Ineffective Assistance of Counsel at Trial

Burgess alleges that he was denied effective assistance of
(1) failed to

counsel at his trial because his defense attorney:

request a limiting instruction regarding the extraneous robbery
offense;

(2)

advised

him

not

to

testify;

and

investigate or interview state's witnesses. 24

(3)

failed

to

The state habeas

corpus court rejected these claims, concluding that the "totality
of the representation
afford

[him]

[that Burgess received]

reasonably

effective

assistance

was sufficient to
of

counsel

[at]

trial. " 25
Claims for ineffective assistance of counsel are governed by
the standard found in Strickland, 104 S. Ct. at 2064.

To prevail

under the Strickland standard a defendant must demonstrate (1) that
his counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense.

Id.

"Unless a defendant makes

both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result
unreliable."

Id.

"To satisfy the deficient performance prong,

'the defendant

must show that counsel's representation fell below an objective

24

Petition, Docket Entry No. 1, pp. 7-12, 15-16.

25

FFCL, Docket Entry No. 13-16, p. 28.
-14-

I

standard of reasonableness.'"
(5th Cir.
denied,

2014)

135

s.

Hoffman v. Cain, 752 F.3d 430, 440

(quoting Strickland,
Ct.

1160

(2015).

104 S.

This is a

Ct.

at 2064),

cert.

"highly deferential"

inquiry; "[t]here is 'a strong presumption that counsel's conduct
falls

within

assistance."'

the
Id.

wide

range

of

professional

(quoting Strickland, 104 S. Ct. at 2065).

To satisfy the prejudice prong,
that there is a

reasonable

"[t] he defendant must show

reasonable probability that,

but for counsel's

unprofessional errors, the result of the proceeding would have been
different."

Strickland, 466 U.s. at 694.

"affirmatively prove prejudice."

A habeas petitioner must

Id. at 693.

A petitioner cannot

satisfy the second prong of Strickland with mere speculation and
conjecture.
1992) .

See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.

Conclusory allegations are

insufficient

to demonstrate

either deficient performance or actual prejudice.

See Day v.

Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum
v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)

(stating that an

ineffectiveness claim based on speculation or conclusional rhetoric
will not warrant relief).
Because Burgess's ineffective-assistance claims were rejected
by the state court, the issue is not whether this court "'believes
the state court's determination' under the Strickland standard 'was
incorrect but

whether

substantially higher
S.

Ct.

1411,

1420

that

determination was

threshold.'"
(2009)

Knowles

(quotation
-15-

unreasonable -

v.

omitted).

Mirzayance,
In

a
129

addition,

"because the Strickland standard is a general standard, a state
court

has

even

more

latitude

to

reasonably

defendant has not satisfied that standard."

determine

Id.

that

a

When applied in

tandem with the highly deferential standard found in 28 U.S.C.
§

2254 (d),

review of

deferential"

on habeas

ineffective-assistance
corpus

review.

Id.

claims
at

is

1413;

"doubly
see also

Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
"'doubly'

§

2254 (d)

are both "highly deferential," and

so" when applied in tandem)

( citations and quotations

omitted); Beatty v. Stephens, 759 F.3d 455, 463
cert. denied, 135 S. Ct. 2312 (2015)
1.

(5th Cir. 2014),

(same) .

Failure to Request Limiting Instruction

Burgess contends that his counsel was deficient because he
failed to request a limiting instruction regarding the extraneous
robbery offense before evidence of that offense was admitted at
trial. 26

In response to this allegation Burgess's defense attorney

explained his affidavit to the state habeas corpus court that he
did

not

request

a

verbal

instruction

from

the

trial

concerning the extraneous robbery offense for two reasons:

court
(1) he

did not want to highlight or bring the jury's attention to this
evidence as it was being admitted; and (2)

he observed that the

proposed jury charge included instructions limiting the use of
extraneous offenses unless proven by the State beyond a reasonable

26

Petition, Docket Entry No. 1, pp. 7, 8-9.
-16-

doubt. 27

Noting that trial counsel made sure that the jury charge

contained instructions on the limited use and the State's burden of
proof for extraneous offense evidence,

the state habeas corpus

court found that counsel made a "strategic decision" not to request
a verbal instruction on these issues at the time the evidence was
admitted "to avoid calling this evidence to the jury's attention,"
which was not unreasonable. 28
Strategic decisions made by counsel during the course of trial
are entitled to substantial deference in the hindsight of federal
habeas review.
"[j] udicial

See Strickland, 466 U.S. at 689 (emphasizing that

scrutiny

of

counsel's

performance

must

be

highly

deferential" and that "every effort [must] be made to eliminate the
distorting effects of hindsight").

A federal habeas corpus court

may not find ineffective assistance of counsel merely because it
disagrees with counsel's chosen trial strategy.
178

F.3d 309,

312

(5th Cir.

1999).

Thus,

Crane v. Johnson,
" [a]

conscious and

informed decision on trial tactics and strategy cannot be the basis
for constitutionally ineffective assistance of counsel unless it is
so ill chosen that
unfairness."

it permeates the entire trial with obvious

Green v.

Johnson,

116

F. 3d 1115,

1122

(5th Cir.

1997); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)
Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975);

(citing

Daniels v.

Maggio, 669 F.2d 1075 (5th Cir. 1982)).

27

Slider Affidavit, Docket Entry No. 13-16, p. 18.

28

FFCL, Docket Entry No. 13-16, p. 26.
-17-

I

The record confirms that the trial court instructed the jury
verbally

and

in

writing

before

the

start

of

summation

and

deliberation on the limited use and the State's burden of proof on
extraneous offense evidence. 29

For reasons explained above, Burgess

has not shown that evidence of the extraneous robbery offense was
improperly admitted.
strategic

Burgess also fails to show that his counsel's

decision to

avoid calling

further

attention to

this

damaging evidence was deficient or that the state habeas corpus
court's decision was unreasonable under the doubly deferential
standard that applies on federal habeas review.

Therefore, Burgess

is not entitled to relief on this claim.
2.

Advising Burgess Not to Testify

Burgess contends that his counsel was deficient because he
advised Burgess not to testify. 30

Burgess acknowledges that he has

a lengthy criminal record of prior convictions, 31 which includes the
following:

aggravated robbery - serious bodily injury in 1991;

aggravated robbery -

serious bodily injury in 1982;

forgery in

1982; burglary, theft (two counts), credit card abuse, and burglary
of a motor vehicle in 1977; and another burglary in 1976. 32

Prior

29

Jury Instructions, Docket Entry No. 22-1, pp. 13-14; Court
Reporter's Record, vol. 3, Docket Entry No. 13-9, p. 92.
30

Petition, Docket Entry No. 1, pp.
Memorandum, Docket Entry No. 6, pp. 6-9.

7,

10-11;

Petitioner's

31

Petition, Docket Entry No. 1, p. 6; Petitioner's Memorandum,
Docket Entry No. 6, p. 10.
32

State's Notice of Intention to Use Evidence of Prior Convictions and Extraneous Offenses, Docket Entry No. 13-4, pp. 30-31.
-18-

unadjudicated

offenses

aggravated

include:

assault

in

1991;

assault causing bodily injury in 1990; robbery in 1981; aggravated
robbery with a deadly weapon in 1981; passing forged checks (two
counts)

and theft in 1977. 33

The State had given notice that it

would introduce these convictions and other extraneous offenses,
including the robbery of Dr.
phase

and

testify. 34

for

purposes

of

Ka-Ron Wade,
impeachment

during the punishment
if

Burgess

elected

to

Noting that some of the prior convictions were more than

ten years' old and that defense counsel could have filed a motion
in limine under Theus v. State,
1992)

845 S.W.2d 874

(Tex.

Crim. App.

(a "Theus motion") that would have allowed him "to testify at

the guilt stage of the trial

'free'

from impeachment," 35 Burgess

33Id.

35

A defendant who testifies "places his credibility at issue
and may thereafter be impeached like any other testifying witness."
Geuder v. State, 142 S.W.3d 372, 375 (Tex. App. - Houston [14th
Dist.] 2004, pet. ref'd) (citation omitted). Under Rule 609 of the
Texas Rules of Evidence, evidence that a witness has been convicted
of a felony or a crime of moral turpitude is admissible for
purposes of attacking his credibility if the trial court determines
"the probative value of the evidence outweighs its prejudicial
effect to a party." TEx. R. EviD. 609(a) (2). In Theus v. State, 845
S.W.2d 874, 880 (Tex. Crim. App. 1992), the Texas Court of Criminal
Appeals set forth five non-exclusive factors for evaluating whether
the probative value of evidence outweighs its prejudicial effect
for purposes of Rule 609, including:
(1) the impeachment value of
the prior offense; (2) the temporal proximity of the past crime
relative to the charged offense and the witness's subsequent
history; (3) the similarity between the past crime and the offense
being prosecuted; (4) the importance of the defendant's testimony;
and {5) the importance of the credibility issue. In a Theus motion
a defendant essentially asks the trial court to weigh these factors
and rule in advance that he is entitled to testify free from
(continued ... )
-19-

contends that his attorney's advice was deficient and deprived him
of his constitutional right to testify. 36
In his affidavit to the state habeas corpus court,

defense

counsel explained that he discussed a defendant's "absolute right"
to

testify with Burgess

impeached with prior

and

felony

the possibility that
convictions

if

he

he

would be

did. 37

Defense

counsel was not concerned about the State impeaching Burgess with
his older convictions,

but he was particularly concerned about

Burgess's aggravated robbery conviction from 1991, which resulted
in a 99-year prison sentence,
that offense when he was
result,

because Burgess was on parole for

charged with evading arrest. 38

As a

Burgess could be impeached with that prior conviction. 39

Defense counsel explained that he did not consider filing a Theus
motion because Burgess informed him "early" in the case that he did
not want to testify because he had no explanation for his actions
on the day of the offense. 40

35

( • • • continued)
impeachment by evidence of a prior conviction.
See Cisneros v.
State, 290 S.W.3d 457, 468 (Tex. App. -Houston [14th Dist.] 2009,
pet. dism'd) (describing the Theus procedure as a motion to testify
"free of impeachment"); Hensley v. State, 2015
WL 6081798, *2
(Tex. App. - Houston [1st Dist.] 2015, no pet.) (unpublished)
(same).
36

Petitioner's Memorandum, Docket Entry No. 6, p. 8.

37

Slider Affidavit, Docket Entry No. 13-16, at 19.

38

Id. at 19-20.

-20-

l

I

The

state

accurately

habeas

corpus

informed . by

his

court

defense

found

that

Burgess

counsel

that

he

could

was
be

impeached with his prior felony aggravated robbery conviction from
1991,

for which he received a 99-year sentence and was still on

supervised release, because Burgess had not been out of confinement
for more than ten years since he was released from custody for that
conviction. 41
court

also

See TEx. R. Evm. 609(b) . 42
found

that

Burgess

The state habeas corpus

expressly

informed

his

defense

counsel that "he did not want to testify because he did not have
any explanation
offense." 43

for

the

circumstances

surrounding

the

evading

Finding further that Burgess "clearly indicated that

his desire not to testify was due to reasons unrelated to any
concern over being impeached with his prior felony convictions,"
the state habeas corpus court implicitly concluded that defense
counsel's failure to file a Theus motion was reasonable and that
Burgess was not denied the right to testify as a result of his
counsel's deficient performance. 44

41

FFCL, Docket Entry No. 13-16, pp. 26-27.

42

Rule 609(b) of the Texas Rules of Evidence, which limits the
use of prior convictions for impeachment, "applies if more than 10
years have passed since the witness's conviction or release from
confinement for it, whichever is later."
TEx. R. Evm. 609(b).
Evidence of a prior conviction that exceeds the 10-year time limit
"is admissible only if its probative value, supported by specific
facts and circumstances, substantially outweighs its prejudicial
effect." Id.
43

FFCL, Docket Entry No. 13-16, p. 27.

44

Id. at 27, 28.
-21-

"A criminal defendant has a fundamental constitutional right
to testify on his own behalf."
(5th Cir. 1994)
(1987)).

Jordan v. Hargett, 34 F. 3d 310, 312

(citing Rock v. Arkansas, 107 S. Ct. 2704, 2708-10

"This right is granted to the defendant personally and

not to his counsel."

See id.

(citing Rock, 107

s.

Ct. at 2709).

The Fifth Circuit has recognized that a defendant may waive his
right

to testify,

advice of counsel.

and that defendants
See id.

Thus,

frequently do so on the

there is no violation of the

right to testify where the defendant merely acquiesced during trial
to his attorney's recommendation that he not testify, even if the
defendant
testified.

decides
See id.

later,

in

hindsight,

that

he

should

have

Instead, a violation of this right occurs only

"if the 'final decision that [the defendant] would not testify was
made against his will.'"

Id.

(quoting United States v. Teague, 908

F.2d 752, 759 (11th Cir. 1990)).
Burgess acknowledged at trial that his counsel had advised him
of his right to testify. 45

Burgess stated that he understood that

he had the right to testify, but elected not to on the advice of
counsel. 46

Because the state habeas corpus court found that Burgess

clearly indicated he did not wish to testify for reasons unrelated
to the potential for impeachment with his prior felony convictions,
Burgess must present clear and convincing evidence to overcome the

45

Court Reporter's
pp. 128-29.
46

Record,

vol.

Id. at 129.
-22-

3,

Docket

Entry No.

13-9,

presumption of correctness attributed to this finding.
U.S.C.

§

2254(e) (1).

See 28

Other than the allegations in his pleadings,

Burgess presents no evidence that he ever expressed a desire to
testify. 47

This is not sufficient to show that Burgess was denied

his constitutional right to testify.
F.2d 473,
"must

476

produce

{7th Cir.

1991)

something

See Underwood v. Clark, 939

(holding that a habeas petitioner

more

than

a

bare,

unsubstantiated,

thoroughly self-serving, and none too plausible statement that his
lawyer .

. forbade him to take the stand").

To the extent that Burgess chose
counsel's

advice,

he

cannot

not to testify based on his

show

that

he

See Jordan,

constitutional right to testify.

was
34

denied

his

F. 3d at 312.

Likewise, Burgess does not dispute that he committed the charged
offense of evading arrest with a motor vehicle while on parole from
his 1991 aggravated robbery conviction and that his testimony would
have been subject to impeachment for that offense as well as the
extraneous robbery that he participated in immediately before he
attempted to evade police.

Based on this record, Burgess has not

shown that his counsel's advice was constitutionally deficient.
Even assuming arguendo that counsel was somehow deficient for
interfering with Burgess's
demonstrate

actual

right

prejudice.

to

testify,

Burgess

does

Burgess
not

information about what testimony he would have given.

47

See Petition, Docket Entry No.
Memorandum, Docket Entry No. 6, p. 6.
-23-

1,

p.

10;

fails

provide

to
any

In light of

Petitioner's

the substantial evidence against him, Burgess fails to otherwise
show how his testimony would have made a difference in the outcome
of the proceedings.

See Sayre v. Anderson, 238 F.3d 631, 635 (5th

Cir. 2001) ("Considering the overwhelming evidence of [defendant's]
guilt, we cannot conceive of anything [defendant] could have said
that would have provided any reasonable possibility of a different
outcome."); see also United States v. Mullins, 315 F.3d 449, 456-57
(5th Cir. 2002)

(holding that, even where a counsel's performance

was found deficient for failing to honor his client's request to
testify, there was no valid ineffective-assistance claim absent a
showing of actual prejudice); United States v. Willis,
592, 598-99 (5th Cir. 2001)

273 F.3d

(same).

Burgess has not established that his counsel's performance was
deficient with regard to his

right

to testify or that he was

actually prejudiced as a result.

Absent a showing of deficient

performance or actual prejudice,

Burgess fails to demonstrate a

valid claim of ineffective assistance of counsel in connection with
his right to testify.

To the extent that the state court rejected

his

does

claim,

unreasonable

Burgess
under

the

not

show

that

doubly deferential

this

decision

standard of

was

review.

Accordingly, he is not entitled to federal habeas corpus relief on
this claim.
3.

Failure to Investigate State's Witnesses

Burgess contends that his counsel was deficient because he
failed to investigate or interview three witnesses who testified
-24-

for the State, including Officer Stallworth, Judge Claudine James,
and Dr. Ka-Ron Wade, which Burgess contends "could have allowed the
defense to establish a reasonable doubt. " 48

In response to this

allegation, defense counsel explained that he did not attempt to
interview Officer Stallworth because,

based on his experience,

Houston police officers are generally not willing to be interviewed
by defense attorneys. 49

Likewise, he did not attempt to interview

Claudine James or Ka-Ron Wade because he did not believe there was
any benefit,

noting that neither witness positively identified

Burgess as the driver of the vehicle. 50

The state habeas corpus

court made findings consistent with defense counsel's affidavit and
concluded that Burgess failed to show that he was denied effective
assistance

as

the

result

of

his

counsel's

alleged

failure

to

investigate. 51
A

habeas

investigate

corpus

on

the

petitioner

part

of

his

who

alleges

counsel

a

"must

failure
allege

to
with

specificity what the investigation would have revealed and how it
would have altered the outcome of the trial."
Bernard,

762

F.3d 467,

472

(5th Cir.

2014)

United States v.
(citation omitted)

(emphasis added); accord Miller v. Dretke, 420 F.3d 356, 361 (5th
Cir.

2005).

The record reflects

that defense counsel

48

capably

Petition, Docket Entry No. 1, p. 12; Petitioner's Memorandum,
Docket Entry No. 6, pp. 13-16.
49

Slider Affidavit, Docket Entry No. 13-16, p. 20.

50

Id. at 21.

51

FFCL, Docket Entry No. 13-16, pp. 27-28.
-25-

cross-examined Officer Stallworth,
trial. 52

Judge James,

and Dr. Wade at

Burgess does not suggest what other questions his counsel

could have asked, what additional investigation would have shown,
or how it would have

benefitted his

defense.

His

conclusory

allegations are insufficient to show that counsel's investigation
was

deficient

for

failing

Burgess was prejudiced.

to

interview

See Day,

the

witnesses

566 F.3d at 540-41;

or

that

see also

Lincecum, 958 F.2d at 1279 (denying habeas relief where petitioner
"offered nothing
pleadings"

to

more

support

than
claim

the

conclusory

that

counsel

failing to investigate and present evidence)

allegations
was

in

his

ineffective

for

Absent a showing of

both deficient performance and actual prejudice, Burgess does not
show that he was denied effective assistance of counsel because of
his attorney's alleged failure to investigate or that the state
court's

decision

was

unreasonable

under

the

circumstances.

Accordingly, he is not entitled to relief on this claim.
Because Burgess has failed to establish a valid claim for
relief, Respondent's Motion for Summary Judgment will be granted
and the Petition will be denied.
IV.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when

52

Court Reporter's Record, vol. 3, Docket Entry No. 13-9,
pp. 31-51 (Officer Stallworth), 81-84 (Judge Claudine James), 86-87
(Judge Claudine James, recross-examination), 121-23 (Dr. Ka-Ron
Wade) .
-26-

entering a

final

order that

is adverse

to the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate
court's

"that

assessment

2253 (c) (2),

§

'reasonable
of

the

constitutional

which requires a petitioner to
jurists

would

constitutional

find

the

claims

district

debatable

wrong."'

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v.

McDaniel,

120 S.

Ct.

1595,

1604

(2000)).

or

(quoting

Under the

controlling standard this requires a petitioner to show "'that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were "adequate to deserve encouragement to proceed further."'"
1029, 1039 (2003).

Miller-El v.

Cockrell,

123 S.

Ct.

Where denial of relief is based on procedural

grounds, the petitioner must show not only that "jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right," but also that they "would
find it debatable whether the district court was correct in its
procedural ruling."

Slack, 120

s. Ct. at 1604.

A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.
Alexander v. Johnson,

211 F.3d 895,

898

(5th Cir.

2000).

See
After

careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the

constitutional

claims

debatable
-27-

or

wrong.

Because

the

petitioner does not demonstrate that his claims could be resolved
in a different manner,

a

certificate of appealability will not

issue in this case.
V.

Conclusion and Order

The court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 14} is GRANTED.

(Docket

2.

Odell Burgess's Petition for a Writ of Habeas
Corpus By a Person in State Custody (Docket Entry
No. 1} is DENIED, and this action will be dismissed
with prejudice.

3.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 24th day of March, 2017.

LAKE
UNITED STATES DISTRICT JUDGE

-28-