Gutierrez v. Stephens

Filing 10

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Jorge Gutierrez. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JORGE GUTIERREZ

§
§
§
§
§

V.
LORIE DAVIS

A-16-CA-488-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates.
Petitioner is represented by counsel and has paid the full filing fee for this case. Before the
Court are Petitioner’s Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Document 1)
and Brief in Support of Petition for a Writ of Habeas Corpus (Document 2), Respondent’s Answer
with Brief in Support (Document 7), and Petitioner’s Reply (Document 8). For the reasons set forth
below, the undersigned recommends that Petitioner’s Application for Writ of Habeas Corpus be
denied.
STATEMENT OF THE CASE
Respondent has custody of Petitioner pursuant to a judgment and sentence imposed by the
167th District Court of Travis County, Texas. A jury found Petitioner guilty of capital murder and
the trial court imposed the statutory sentence of life imprisonment without parole. Petitioner

contends he is entitled to federal habeas relief because he was denied his right to the effective
assistance of trial counsel.
BACKGROUND
A.

Factual background

The Texas Court of Appeals did not specify a statement of facts in its decision denying
Petitioner’s appeal. Gutierrez v State, 2013 WL 4822923 (Tex. App.–Austin 2013, pet. ref’d). The
following facts are quoted from the State’s brief in Petitioner’s state habeas proceedings:
On May 31, 2010, Sergeant Scott Crowe received a call of shots fired at 3:17
a.m. at a business known as the Pink Monkey. (RR VII: 39). He arrived at the scene
within 7 minutes of the call and found two victims on the ground. (RR VII: 40). One
victim, Arturo Rodriguez, was located south of the business building, and another
victim, Jose Hernandez, was just to the right of the front door of the business laying
on the curbside. (RR VII: 40). . . . . Jose appeared to already be deceased. (RR VII:
43-44).
Crowe observed a shell casing and a projectile on the ground next to this
second victim. (RR VII: 44-45). To the right of the entrance to the Pink Monkey,
Crowe found shell casings for a .380 caliber gun and 9 millimeter. (RR VII: 50). He
also found pieces of belt, belt buckle, and piece of leather attached to the buckle. (RR
VII: 50; SX6). Crowe found another shell casing for a 9 millimeter in some pea
gravel near the victim south of the building. (RR VII: 51; SX8). Witnesses reported
to Crowe that the suspect had left the scene in a vehicle. (RR VII: 51; SX8). . . .
Crowe also learned that the night manager for the club, Ryan Dorer, had fired a gun
at some point during the evening, but Crowe did not locate that weapon. (RR VII:
67). Based on the number of casings at the scene, Crowe determined that the .380
was fired four times and the 9 millimeter was fired at least four times. (RR VII:
71-72).
Dorer testified that after the club closed that night, a security guard informed
him that there was an altercation in the parking lot. (RR VII: 85). In the parking lot,
Dorer encountered two groups of people, about 4 or 5 in each group, bickering and
calling each other names. . . .
Raul Hernandez, the brother of the two victims killed in this shooting,
testified that the fight began between two girls arguing over a cell phone. (RR VIII:
102). One of the girls accused the victim named Jose of stealing the cell phone,
2

which angered him. (RR VIII: 102). The other victim, Arturo, had actually picked up
the phone off the ground. As Arturo was handing it over, one of the men with
applicant snatched the phone from Arturo’s hand. (RR VIII: 102-103). A fight broke
out between the two groups. (RR VII: 104).
. . .The argument escalated into a fist fight between about 8 people; one
person, who had driven the get-away car, took off his “big cowboy belt” and swung
it at and hit Jose. (RR VII: 87-88). In Dorer’s words, Jose was “getting his butt
kicked.” (RR VII: 88).
. . . Dorer went to the back of the property where a female employee gave him
what he thought was a “starter pistol” and told him to shoot it to break up the fight.
(RR VII: 88-89). Dorer twice fired two shots into the air, but the fighting continued.
(RR VII: 89-90). Dorer gave the gun back to the female employee and began
screaming that the cops were coming; the fighting stopped, and everyone “started
going their own way.” (RR VII: 90).
Dorer started walking toward the front door of the club and toward Jose when
he heard someone say “he has got a gun.” (RR VII: 90-91). Dorer looked and saw
applicant (Dorer identified applicant in the courtroom) walking toward him and Jose
with a big silver gun in his hand. (RR VII: 91). Dorer testified that applicant was
coming out of a truck with the “big gun” in his hand. (RR VII: 91). Applicant’s
friends stood in front of him and tried to stop him. (RR VII: 91-92). But, applicant
pushed through his friends, walked up to Jose and shot him. (RR VII: 92).
Dorer described the events immediately before applicant shot Jose. Jose had
his back turned as applicant approached. (RR VII: 92). Jose turned around, saw the
gun in applicant’s hand, and then tried to turn again but applicant shot him. (RR VII:
92) Dorer was only 10 feet away. (RR VII: 92). Dorer never saw a weapon in Jose’s
hands. (RR VII: 93).
The surveillance video from the Pink Monkey showing the incident was
admitted into evidence and played for the jury. (RR VII: 95-96; SX13A). While
watching the video, Dorer explained that everybody ran for their cars after applicant
shot Jose. (RR VII: 100). Applicant ran back to the truck, but the person with him
that night did not want applicant to get back into the truck. (RR VII: 101). Applicant
then walked from the truck with the gun in his hand and shot Arturo, Jose’s brother.
(RR VII: 101-102). Applicant shot Arturo a second time as Arturo was running away.
(RR VII: 102).
Dorer never saw a weapon in either Jose’s or Arturo’s hands. (RR VII: 104).
Jose did not pose any threat to applicant when he shot him; in fact, Jose was walking
away. (RR VII: 104). And, Arturo did not pose any threat of physical harm to
3

applicant when he shot Arturo. (RR VII: 104). Arturo was sitting in a car and then
running away when applicant twice shot him. (RR VII: 104). Dorer never aimed his
small pistol at applicant, and he never saw anyone threaten applicant with any kind
of weapon. (RR VII: 103-104). Dorer testified that applicant could have left the scene
before shooting the brothers, but he didn’t. (RR VII: 102-103). Asked to describe
applicant’s demeanor during the incident, Dorer stated that applicant “was totally
calm. Like it was nothing. It was really scary.” (RR VII: 104-105).
Nichole Teaney arrived at the Pink Monkey about 2:30 a.m. to pick up her
sister who was a waitress at the club. (RR VII: 163). She was talking to some men
in the parking lot when she saw two females fighting. (RR VII: 164). Teaney got out
of the car to record with her phone the females fighting, but then some guys started
fighting with fists and belts. (RR VII; 166-167). The club manager fired into the air
to stop the fighting. (RR VII: 168). Teaney recalled applicant going to his truck,
getting his gun, and shooting Jose who was not armed. (RR VII: 169-171). She also
saw applicant shoot Arturo, who was also unarmed, and then calmly walk away. (RR
VII: 171, 172-173) (Teaney testified that Arturo was still wearing his belt when he
was shot, so he was not one of the men fighting with a belt.) (RR VII: 200).
Sergeant Craig Smith of the Travis County Sheriff’s Office was the lead
detective in this case. (RR VII: 228). Smith explained for the jury how investigations
into a case proceeded. (RR VII: 233). He explained that murder cases start out as
“deceased person” cases while each lead is pursued, witnesses are investigated, and
evidence is collected. (RR VII: 233-234). The investigation includes following any
information or [indications] of self-defense. (RR VII: 234). Smith interviewed
applicant in his office after applicant was pulled from the truck that fled the scene.
(RR VII: 231-232). Applicant had on a ripped shirt but no significant injuries to his
face or person. (RR VII: 232-233). The evidence collected in this case did not appear
to be self-defense. (RR VII: 234).
***
. . . The night of this capital murder, [Pedro] Solis arrived at the club about
11 p.m. or midnight. (RR VII: 264). Solis observed Jose in an altercation with
applicant. (RR VII: 266-267). There were about 8 people involved in the fight, four
on four. Jose, Arturo, and two friends were on the same side of the fight. (RR VII:
267). Solis testified that Jose’s and Arturo’s friends started the fight with applicant’s
friends, but applicant and his friends “absolutely decimated” them. (RR VII: 268).
Solis tried to break up the fight, and he pulled two of applicant’s friends off Jose.
(RR VII: 268). Jose then swung at Solis, but Solis took him down and began to walk
away. (RR VII: 268).

4

At this point, the fighting was over, but Solis saw applicant take a gun from
the backseat of the truck. (RR VII: 268-270). In fact, Jose [] was walking back
toward the club. (RR VII: 270). As applicant walked by Solis, applicant’s gun
accidentally discharged, and a ricochet fragment hit Solis in the leg. (RR VII: 270).
Applicant acknowledged “my bad,” and Solis was shocked by applicant’s
nonchalance with just having struck him with a round. (RR VII: 270, 272). Then
applicant fired two shots at Jose who had his back to applicant and was walking
away. (RR VII: 272-273). Applicant walked back toward his truck but he took a shot
at Arturo as Arturo went to get his car. (RR VII: 273). . .
Solis testified that applicant then trotted back to this truck and drove away
“like he just ordered a pizza.” (RR VII: 274). He described it as “the most cool, calm,
collected situation [he had] ever seen.” (RR VII: 274). Solis stated that he had friends
in the military with 18 years’ experience doing special operations and special forces
who were not as calm as applicant after shooting someone. (RR VII: 274). Solis
cautioned that he was not testifying that applicant’s shootings were premeditated, but,
in his opinion, it wasn’t applicant’s “first rodeo.” (RR VII: 274).
Solis never saw Jose or Arturo with a weapon. (RR VII: 275). Neither Jose
nor Arturo posed any physical threat to applicant at the time of the shooting. (RR VII:
275). In fact, Arturo was by the building, running away from the situation when
applicant shot him. (RR VII: 275; RR VIII: 45-46).
Deputy John Lopez with the Travis County Sheriff’s Office responded to the
shots fired call at the Pink Monkey. (RR VIII: 141). While in route, Lopez received
a description of the suspect vehicle, a white F-250 pickup. (RR VIII: 142). Lopez
noticed a vehicle matching that descriptions and pursued it. (RR VIII: 144). As Lopez
began to pursue the vehicle, it changed direction and began to increase its speed. (RR
VIII: 144). Lopez noticed the vehicle lost control and swerve[d] on the road, a flash
came out of the driver’s side, and it smelled like a gun had been fired. (RR VIII:
145). Lopez thought someone had fired at him. (RR VIII: 146).
The suspect vehicle eventually stopped, and Lopez ordered the occupants to
stick their hands out the windows. (RR VIII: 148). The driver and passenger both put
their hands out initially, but the passenger’s hands kept going in and out [of] the
window. (RR VIII: 148). Once back up arrived, Lopez was able to take the occupants
of the vehicle into custody. (RR VIII: 150). . . . The passenger was identified as
applicant. (RR VIII: 153). A black triangular gun case (SX 25) fell out of the vehicle
as applicant exited it. (RR VIII: 151-152). Lopez was struck with how calm applicant
appeared. (RR VIII: 169).

5

Lopez then walked to the area where he had smelled the odor of a fired
weapon. (RR VIII: 154). Lopez found a shiny pistol on the roadway. (RR VIII: 154).
Lopez described the pistol as a 9 mm Beretta . . .
The medical examiner testified as to the manner and cause of death of both
victims. Jose suffered three gunshot wounds to his head, upper right arm, and his
back. (RR VIII: 245). The gunshot wound to his head was just below his right eye
and apparently travelled into his mouth. (RR VIII: 245, 247). The gunshot wound to
his upper arm went through his arm and reentered his body on the right side of his
back. (RR VIII: 247-248). The bullet travelled through Jose’s right lung, his aorta,
left lung, and then exited the left side of his chest. (RR VIII: 248). This gunshot
severely damaged the aorta and caused significant internal bleeding. (RR VIII:
247-248). . . . The medical examiner determined that the cause of Jose’s death was
multiple gunshot wounds and the manner of his death was a homicide. (RR VIII:
262-263).
Arturo came to the medical examiner from the hospital where multiple
life-saving procedures had been attempted. (RR VIII: 263). Arturo suffered one
gunshot wound to his left thigh. (RR VIII: 264). The gunshot travelled back to front,
angling [from] left to right. (RR VIII: 267). The gunshot entered from the back of the
thigh and severed both his femoral artery and left femoral vein. (RR VIII: 264). . . .
He died of a gunshot wound to his thigh, and the manner of death was homicide. (RR
VIII: 269).
Document 6, Exh. 17 at 10-21.
B.

Petitioner’s state court proceedings

A grand jury indictment returned August 11, 2010, charged Petitioner with capital murder,
alleging that he killed two people during the same criminal transaction. Id., Exh. 11 at 5. Petitioner
was represented by retained counsel in his criminal proceedings. Document 5, Exh. 14 at 13. The
State noticed that it would not seek the death penalty. Id., Exh. 6 at 6. The State offered Petitioner
a plea bargain of 60 years’ imprisonment, which he declined. Id.
All of the witnesses testified that two or three shots were fired by Mr. Dorer before Petitioner
retrieved his gun from the truck. Id., Exh. 11 at 56. Two witnesses related to the victims testified
that, just before the shooting of the two men, “[w]e were going to try to leave at the end because the
6

cops were going to get there.” Id., Exh. 11 at 57, 107. These witnesses testified that, other than Mr.
Dorer and Petitioner, no one was armed. Id., Exh. 11 at 57, 105. The two witnesses who were related
to the victims testified that, just before he was shot, “ [Jose] was about to square up again, like he
put his hands up, and I guess he seen the gun, and . . .that is when he got shot.” Id., Exh. 11 at 58,
108 (Petitioner came toward them “but we couldn’t see the gun yet, so then he shot to the ground
and then that is when my brother is like he was like getting ready to fight him again, but then when
he saw he shot the ground, my brother like turned around, and that is when he like he aimed at him
and he shot him.”). The victims’ brother testified, in response to the question: “And what was Jose
doing when the defendant raised the gun to shoot him,” that “He was getting ready to put his hands
up to fight.” Id., Exh. 11 at 108. In response to the question: “And once Jose saw the gun or once
both of you saw the gun, what did you do,” this witness answered “We were trying to run.” Id.
Petitioner’s brother, and a female friend who witnessed the fight preceding the shooting,
testified at his trial. Id., Exh. 12 at 146-213. Petitioner’s brother testified that they were attacked
outside the bar by several men. Id., Exh. 12 at 80. The brother testified that, after a lull in the fight,
Petitioner assessed his brother’s injuries:
Q.

So you testified that when he grabbed your face, that it was bleeding?

A.

Yes.

Q.

He said what?

A.

They got you.

Q.

And what did he do after that? I don’t want to know what he said after that.
What did he do after that?

A.

He takes the gun and he cocks it twice, two full bullets fall into the ground,
and then he shoots one into the floor.
7

Q.

Was anybody facing him? Was he – was anybody yelling at him or telling
him anything as he was doing that, screaming or anything going on?

A.

Yes. The other guys were – they were pretty close, maybe like 10 feet, and
they were still like – they had their hands up and they were yelling cuss words
like bitch, you ain’t going to do shit. It was just a whole bunch of people.

Q.

Did your brother appear calm at that time?

A.

No.

Q.

And were you calm?

A.

No, sir.

Q.

Was Iris calm?

A.

I don’t think so.

Q.

And so what happens next?

A.

So that is when she comes and she tries to pull them. They are still yelling at
him and like they keep on getting closer. That is when he takes a step and he
shoots the first guy.
***

A.

Well, it was really fast, but I saw who he was shooting at.

Q.

Okay. Was that person that he shot one of the persons that was involved in
the fight?

A.

Yes, sir, it was the main guy that started everything.
***

Q.

Did somebody flick a cigarette in his face?

A.

Yes, sir.

Q.

Do you know who it was that flicked the cigarette in his face?

A.

Yes.
8

Q.

Who was the one that flicked the cigarette in his face?

A.

It was some guy wearing a black shirt.

Q.

Do you know if it was the same guy that got shot first or not?

A.

No, sir.

Id., Exh. 12 at 187-88, 190. Petitioner’s brother reiterated that Petitioner had first fired a “warning
shot into the ground.” Id., Exh. 12 at 193. The defense also called two female cousins of Petitioner,
who testified that Petitioner was not the instigator of the melee and that they left the scene before
the victims were shot. Id., Exh. 12 at 67, 147. The defense also called a forensic expert to testify
regarding the trajectory of the bullet which killed the second victim. Id., Exh. 12 at 218-63.
After presenting its case and after some testimony had been introduced by the defense, the
State:
essentially [conceded] the first aggressor issue in the sense that we don’t want to
present any evidence on it and we are not going to argue against it. We are not going
to claim that either of the . . . victims was not the first aggressor. . . . in terms of
starting the brawl.
Id., Exh. 13 at 5-6.
The jury was given a charge that included an instruction on capital murder, an instruction on
murder, and the law of self-defense. Document 6, Exh. 11 at 6-15. With regard to the charge to the
jury, the defense argued “we would object that the charge contains no provisions for a finding of
manslaughter, and we are asking that a charge of manslaughter be included in the charge in addition
to what we have there.” Document 5, Exh. 13 at 9-10. The State argued that a manslaughter charge
would be inconsistent with the evidence introduced at trial. Id., Exh. 13 at 10. The trial court
determined:

9

based on the evidence before the Court, there is – we have included murder both
ways in the lesser included, and I don’t see where that has been raised or where there
is a theory that has been presented where that would be appropriate or reasonable
given the evidence, so I am going to deny that.
Id. The charge included these instructions:
Now, therefore, bearing in mind the foregoing instructions and definitions,
if you believe from the evidence beyond a reasonable doubt that the defendant, Jorge
Gutierrez, on or about the 31st day of May, 2010, in the County of Travis, and State
of Texas, did then and there intentionally or knowingly cause the death of Jose
Arroyo Hernandez, by shooting him with a firearm, and did then and there
intentionally or knowingly cause the death of another individual, namely, Arturo
Rodriguez, by shooting him with a firearm, as alleged in the indictment; but you
further find from the evidence, or have a reasonable doubt thereof, that the defendant
reasonably believed as viewed from his standpoint alone that deadly force when and
to the degree used, if it was, was immediately necessary to protect himself against the
use or attempted use of unlawful deadly force by the said Jose Arroyo Hernandez
and/or Arturo Rodriguez, you will acquit the defendant and say by your verdict “not
guilty.”
ln summary, if, and only if, you find beyond a reasonable doubt that the
defendant intentionally caused the death of both Jose Arroyo Hernandez and Arturo
Rodriguez and you further find beyond a reasonable doubt that the defendant was not
justified in using deadly force to defend himself against any use or attempted use of
unlawful deadly force by Jose Arroyo Hernandez and the defendant was not justified
in using deadly force to defend himself against any use or attempted use of unlawful
deadly force by Arturo Rodriguez, you will convict the defendant of capital murder.
If you do not so find beyond a reasonable doubt, you will say by your verdict “not
guilty” and proceed to consider the charges of murder as set out below.
Proceed to consider paragraphs 8 and 9 only if you have found the defendant
“not guilty” of capital murder. Otherwise, proceed to paragraph 10.
Document 6, Exh. 11 at 9-10. The jury found Petitioner guilty of capital murder. Id., Exh. 11 at 16.
The state trial court imposed the mandatory sentence of life imprisonment without the possibility of
parole. Id., Exh. 11 at 21.1

1

After being indicted but prior to his trial in this matter, Petitioner was convicted in the United
States District Court for the Eastern District of Virginia for the offense of conspiracy to distribute five (5)
kilograms or more of cocaine, and was sentenced to a prison term of 235 months, to be served concurrently

10

Petitioner appealed his conviction and sentence. Petitioner’s retained counsel filed an Anders
brief in his appeal. Document 5, Exh. 1. Petitioner argued in a pro se pleading that his attorneys were
prevented from the intelligent exercise of peremptory strikes of the venire panel because they were
not provided with the addresses of potential jurors until the day of trial. Document 6, Exh. 11 at 2526. The conviction and sentence were affirmed. Gutierrez v. State, 2013 WL 4822923, at *1 (Tex.
App.–Austin 2013, pet. ref’d). The Court of Criminal Appeals refused a petition for discretionary
review. Id. The United States Supreme Court denied Petitioner’s petition for a writ of certiorari.
Gutierrez v. Texas, 134 S. Ct. (2014).
Petitioner, through counsel, filed an application for a state writ of habeas corpus. Document
6, Exh. 11 at 29-107. Petitioner alleged he was denied the effective assistance of counsel. Id., Exh.
11 at 60, 63, 64, 66, 68, 70-72. Petitioner also asserted a claim that the state’s capital punishment
statute, as applied to Petitioner, was unconstitutional. Id., Exh. 11 at 74.
Petitioner’s lead trial counsel filed an affidavit in the state habeas matter, averring:
Mr. Gutierrez was charged with capital murder for killing Jose Hernandez and
Arturo Rodriguez during the same transaction []. The court instructed the jury on
self-defense with regard to each death []. I argued that Mr. Gutierrez had a legal right
to shoot the men because they were trying to hurt him and that the jury should acquit
him based on self-defense [].
OPINION TESTIMONY
Sergeant Craig Smith, the lead detective, testified without objection on direct
examination that, although he is open-minded regarding self-defense, he saw no
evidence of self-defense in this case [].
Pedro Solis, a civilian who was present during the incident, testified without
objection on direct examination that Mr. Gutierrez was very calm when he left in his
truck and, in Solis’ opinion, “. . . this wasn’t his first rodeo” []. . . .

with his sentence of life imprisonment in this matter. Document 5, Exh. 6 at 4-5 & Exh. 15 at 14-21. See also
Gutierrez v. McNeils, No. 1:14 CV 00211 LY, at Document 1, Exh. 1 at 4.

11

The defense did not file a motion in limine or object to the detective’s opinion
testimony that he saw no evidence of self-defense; . . . and to lay opinion testimony
that “this wasn’t [Mr. Gutierrez’s] first rodeo.” Neither expert nor lay opinion
testimony of this nature is admissible. I routinely file a motion in limine in a murder
case to exc1ude . . . police opinion testimony suggesting that the defendant is guilty.
There was no reason not to file a motion in limine to exclude these references in Mr.
Gutierrez’s case and, if necessary, to object to this testimony. The failure to do so
was inadvertent rather than strategic.
THE JURY INSTRUCTION ON MURDER
The court instructed the jury that it could consider the lesser included offense
of murder only if it found Mr. Gutierrez not guilty of capital murder []. The
prosecutor’s final argument and the verdict form were both consistent with this
instruction []. The defense did not object to the jury instruction, the argument, or the
verdict form.
It was my understanding at the time of trial that Texas law does not require
a jury to acquit the defendant of the charged offense before it can consider any lesser
included offenses in the court’s charge. Rather, if the jury cannot reach a verdict on
the charged offense, it can consider the lesser included offenses. I believe that the
court incorrectly instructed the jury that it had to acquit Mr. Gutierrez of capital
murder before it could consider murder.
The defense should have objected to this incorrect instruction. The failure to
do so was inadvertent rather than strategic.
CHALLENGING THE CONSTITUTIONALITY OF THE STATUTE
I understood at the time of trial that Texas law provided that a person
commits murder pursuant to § 19.02(b) of the Penal Code if he intentionally or
knowingly causes the death of an individual or intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual. The offense has a maximum punishment of life imprisonment (with
parole eligibility in 30 years). I knew that, pursuant to § 19.02(d), a defendant
convicted of murder could raise at the punishment stage the issue of whether he
caused the death under the immediate influence of sudden passion arising from an
adequate cause; if he proved by a preponderance of the evidence that he did, the
offense is a second degree felony with a maximum punishment of 20 years in prison.
Mr. Gutierrez was charged with capital murder under § 19.03(a)(7)(A) of the
Penal Code because he allegedly murdered two men during the same transaction.
Because the State did not seek the death penalty, if he were convicted, he would be
sentenced automatically to life without parole pursuant to § 12.3l(a) of the Penal
Code. The defense did not consider that a defendant who kills one or more persons
12

in the same transaction under the immediate influence of sudden passion arising from
an adequate cause should not automatically receive life without parole. We did not
consider filing a motion challenging the constitutionality, facially or as applied, of
§ 19.03(a)(7)(A) on the grounds that it would deny due process of law and/or
constitute cruel and unusual punishment to automatically impose life without parole
without allowing the jury to decide whether the defendant killed one or both persons
under the immediate influence of sudden passion arising from an adequate cause.
We should have argued that § 19.03(a)(7) is unconstitutional because it requires an
automatic sentence of life without parole for the murders of two persons in the same
transaction even if the defendant killed one or both of them under the immediate
influence of sudden passion arising from an adequate cause.
The deceaseds (sic) and their companions instigated the altercation and struck
Mr. Gutierrez and his companions with fists and belts. Mr. Hernandez flicked a lit
cigarette at Mr. Gutierrez before Mr. Gutierrez went to his truck and retrieved a gun.
Given the opportunity, the jury reasonably could have found that he killed either or
both men under the immediate influence of sudden passion arising from an adequate
cause. In retrospect, we should have filed a motion challenging the constitutionality
of the statute, facially and as applied, and requested a special issue at the
guilt-innocence stage (and, if denied, renewed the request upon receipt of the verdict)
with regard to each death. We should have considered the relevant statutes more
carefully and preserved these issues for appeal. The failure to do so was inadvertent
rather than strategic.
Id., Exh. 11 at 88, 93-97 (emphasis added and internal citations to the record omitted).
The State filed an answer to the petition for state habeas relief, with proposed findings of fact
and conclusions of law. Id., Exh. 17 at 4-7. The State asserted, inter alia, that counsel’s performance
was not unconstitutionally ineffective because “the evidence did not raise sudden passion arising
from an adequate cause.” Id., Exh. 20 at 9. The state trial court issued an order adopting the State’s
findings of fact and conclusions of law and denying habeas relief. Id., Exh. 18.
6.

The court finds that applicant has made multiple allegations of ineffective
assistance of counsel in his writ application. The court concludes that
Strickland v. Washington, 466 U.S. 668 (1985) is the appropriate standard of
review of these claims. . . .

7.

The court concludes that, even if Mr. Martinez’s failure to object to various
testimony and the court’s charge constituted a deficient performance,

13

applicant did not suffer any prejudice therefrom given the facts of this
offense.
***
10.

The court concludes that the issues of “sudden passion” and “adequate cause”
were not raised by the evidence in this capital murder trial.

11.

The court finds applicant did not challenge the constitutionality of the capital
murder scheme at trial or on direct appeal.

12.

The court concludes defense counsel did not render ineffective assistance of
counsel by failing to challenge in the trial court the constitutionality of the
capital murder scheme because the issues of “sudden passion” and “adequate
cause” were not raised by the evidence in this cause.

13.

Based on the record in this cause, the court concludes that applicant has failed
to meet his burden under Strickland v. Washington, and applicant has
therefore failed to show that he is entitled to relief.

14.

The court concludes that the constitutionality of the capital murder scheme,
raised by applicant in his second ground for relief, is not cognizable via an
application for writ of habeas corpus where it was not raised in the trial court
or on direct appeal. Ex parte Boyd, 58 S.W.3d 134 (Tex. Crim. App. 1998).

Id., Exh. 17 at 5-7.
Petitioner filed objections to the trial court’s findings of fact and conclusions of law. Id., Exh.
20. Petitioner supplemented his habeas pleadings, alleging that his trial counsel rendered ineffective
assistance by failing to impeach Mr. Solis with his prior statements to the police. Id., Exh. 19 at 5.
The Texas Court of Criminal Appeals denied the application without written order. Id., Exh. 5.
C.

Petitioner’s federal habeas claims

Petitioner alleges he is entitled to federal habeas relief because he was denied the effective
assistance of trial counsel. Petitioner argues his counsel’s performance was unconstitutionally
deficient because counsel failed to:

14

1.

file a motion in limine and object to the lead detective’s opinion that there
was no evidence of self-defense;

2.

object when a lay witness opined that this was not Petitioner’s “first rodeo;”

3.

impeach the state’s key witness, Mr. Solis, with his prior statements to the
police;

4.

object to the jury charge, which indicated that the jury had to acquit Petitioner
of capital murder before it could consider the lesser-included offense of
murder; and

5.

make an as-applied challenge to the constitutionality of Texas’s capital
punishment scheme because there was evidence that Petitioner committed the
murders under the immediate influence of sudden passion.

Document 2 at 19-32.
Petitioner notes the Texas Court of Criminal Appeals did not adopt the trial court’s findings
of fact and conclusions of law in denying relief in Petitioner’s state habeas action. Id. at 12-13.
Accordingly, Petitioner argues, the Court must apply a de novo standard of review to Petitioner’s
claims. Respondent maintains that, because the Texas Court of Criminal Appeals’ decision was an
adjudication on the merits of Petitioner’s claims, “[r]eview here, then, is not de novo but under 28
U.S.C. § 2254(d).” Document 7 at 14.
ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996

The Supreme Court summarized the basic principles established by the Court’s many cases
interpreting the 1996 Antiterrorism and Effective Death Penalty Act in Harrington v. Richter, 562
U.S. 86, 97–100 (2011). The Supreme Court noted that the starting point for any federal court
reviewing a state conviction is 28 U.S.C. § 2254, which states:

15

An 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 with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim–
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The Court stated that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 562 U.S. at 98.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. The
deference due to a state court decision under § 2554(d) “does not require that there be an opinion
from the state court explaining the state court’s reasoning.” Id. (citations omitted). The Supreme
Court reaffirmed that “a state court need not cite nor even be aware of our cases under § 2254(d)”
for its opinion to be entitled to deference. Id., citing Early v. Packer, 537 U.S. 3, 8 (2002). When a
state court decision denying relief is unexplained, the habeas petitioner’s burden is to show there was
“no reasonable basis for the state court to deny relief.” Id.
Section 2254(d) permits the granting of federal habeas relief in only three circumstances:
(1) when the state court’s decision “was contrary to” federal law as clearly established by the
holdings of the Supreme Court; (2) when the state court’s decision involved an “unreasonable
application” of such law; or (3) when the decision “was based on an unreasonable determination of
the facts” in light of the record before the state court. Id. at 100, citing 28 U.S.C. § 2254(d), and

16

Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law, or if the state court decides a case differently than the Supreme Court
on a set of materially indistinguishable facts. Thaler v. Haynes, 559 U.S. 43, 47 (2010); Mitchell v.
Esparza, 540 U.S. 12, 10 (2003).
Under the unreasonable application clause of § 2254(d), a federal court may grant the writ
“if the state court identifies the correct governing legal principle from . . . [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Dowthitt v.
Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quotation and citation omitted). A state court’s
determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists
could disagree” on the correctness of the state court’s decision. Yarborough v. Alvarado, 541 U.S.
652, 664 (2004). See also Premo v. Moore, 562 U.S. 115, 123 (2011) (“The Court of Appeals was
wrong to accord scant deference to counsel’s judgment, and doubly wrong to conclude it would have
been unreasonable to find that the defense attorney qualified as counsel for Sixth Amendment
purposes.”).
If this standard is difficult to meet, that is because it was meant to be. As
amended by AEDPA, § 2254(d) stops short of imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings.[] It preserves
authority to issue the writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with this Court’s precedents.
It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard
against extreme malfunctions in the state criminal justice systems,” not a substitute
for ordinary error correction through appeal.
Harrington, 562 U.S. at 102-03 (internal citations omitted). The Supreme Court, “time and again,
has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may

17

be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Grim v. Fisher, 816 F.3d 296, 304 (5th Cir.), cert. denied, 137 S. Ct. 211
(2016) (internal quotations omitted).
The provision of § 2254 which allows the granting of federal habeas relief when the state
court made an unreasonable determination of the facts is limited by the next section of the statute,
§ 2254(e). Section 2254(e)(1) requires a federal court to presume state court factual determinations
to be correct, although a petitioner can rebut the presumption by clear and convincing evidence. This
presumption extends not only to express findings of fact, but to the implicit findings of the state
court as well. Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006). Absent a showing of clear
and convincing evidence, the federal court must give deference to the state court’s factual findings.
28 U.S.C. § 2254(e)(1); Ward v. Stephens, 777 F.3d 250, 256 (5th Cir.), cert. denied, 136 S. Ct. 86
(2015). Additionally, “[t]he Supreme Court has clarified that when a claim is adjudicated on the
merits, for the purposes of review under § 2254(d)(1), the record is limited to the one before the state
court, even if the state court issued a summary affirmance.” Hoffman v. Cain, 752 F.3d 430, 437 (5th
Cir. 2014), cert. denied, 135 S. Ct. 1160 (2015).
This standard of review applies to Petitioner’s federal habeas claims notwithstanding the fact
that the Texas Court of Criminal Appeals’ decision denying relief in Petitioner’s state habeas action
was unexplained and did not adopt the trial court’s findings of fact and conclusions of law. Although
the state court did not make explicit findings, that does not mean the court “merely arrived at a legal
conclusion” unworthy of the presumption of correctness. Cantu v. Collins, 967 F.2d 1006, 1015 (5th
Cir. 1992), citing Marshall v. Lonberger, 459 U.S. 422, 433-34 (1983). If a state court summarily
denies a petitioner’s claim, the Court’s authority under AEDPA is limited to determining the
18

reasonableness of the ultimate decision. Charles v. Thaler, 629 F.3d 494, 498-09 (5th Cir. 2011);
Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002).
As this Court has explained, “[i]t seems clear to us that a federal habeas court
is authorized by Section 2254(d) to review only a state court’s ‘decision,’ and not the
written opinion explaining that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc).
[W]e conclude that our focus on the “unreasonable application” test
under Section 2254(d) should be on the ultimate legal conclusion that
the state court reached and not on whether the state court considered
and discussed every angle of the evidence. The latter approach
appears unduly formalistic considering that the federal habeas court
has the full record before it and is competent to determine whether
Strickland has been unreasonably applied to the case before it.
Id.
Here, as in Neal, “[t]he precise question, then, is whether the [state] court’s
ultimate conclusion-that there was no prejudice and, consequently, no ineffective
assistance of counsel under the Strickland test-is objectively unreasonable.” [Id.]
“The statute compels federal courts to review for reasonableness the state court’s
ultimate decision, not every jot of its reasoning.” Santellan v. Cockrell, 271 F.3d 190,
193 (5th Cir. 2001).
Pondexter v. Dretke, 346 F.3d 142, 148-49 (5th Cir. 2003).
The state court’s decision was an adjudication on the merits. Salazar v. Dretke, 419 F.3d 384,
398-99 (5th Cir. 2005); Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir. 1999); Ex Parte Grigsby,
137 S.W.3d 673, 674 (Tex. Crim. App. 2004); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997) (“In our writ jurisprudence, a ‘denial’ signifies that we addressed and rejected the merits
of a particular claim while a ‘dismissal’ means that we declined to consider the claim for reasons
unrelated to the claim’s merits.”). When state habeas relief is denied without an opinion, this Court
must assume that the state court applied the proper “clearly established Federal law,” and then

19

determine whether the state court decision was “contrary to” or “an objectively unreasonable
application of” that law. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
B.

The Strickland standard is applicable.

Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1984):
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make
both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Accordingly, to prevail on a claim of ineffective assistance of counsel, a habeas petitioner
must show that counsel’s representation fell below an objective standard of reasonableness and a
reasonable probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. Id. When deciding whether counsel’s performance was deficient, the
Court must apply a standard of objective reasonableness, mindful that judicial scrutiny of counsel’s
performance must be highly deferential. Id. at 686-89. “A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. “Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that, under

20

the circumstances, the challenged action might be considered sound trial strategy.” Id. (citation
omitted).
The deference to state court determinations of a petitioner’s claims is heightened when the
petitioner asserts a Strickland claim. To be entitled to habeas relief,
[t]he state court decision must be “so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1702,
188 L.Ed.2d 698 (2014) (internal quotation marks omitted). When the claim at issue
is one for ineffective assistance of counsel, mo reover, AEDPA review is “doubly
deferential,” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d
557 (2011), because counsel is “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment . . .”
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016).
The prejudice prong of Strickland provides for federal habeas relief only if there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S.. at 694. “‘The likelihood of a different result must
be substantial, not just conceivable.’” Trevino v. Davis, 829 F.3d 328, 351 (5th Cir. 2016), quoting
Brown v. Thaler, 684 F.3d 482, 491 (5th Cir. 2012). Counsel’s performance cannot be considered
deficient or prejudicial if counsel fails to raise a non-meritorious argument. Turner v. Quarterman,
481 F.3d 292, 298 (5th Cir. 2007); Parr v. Quarterman, 472 F.3d 245, 256 (5th Cir. 2006).
Additionally, if a state appellate court found evidence to be admissible pursuant to state rules, or it
found a claim based on state law without merit, counsel’s failure to object to the admission of the
evidence or their failure to assert the claim is not prejudicial because federal habeas courts are to
review state court misapplications of federal law, and the Court may not rule that a state court
21

incorrectly interpreted its own law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Garza v. Stephens,
738 F.3d 669, 677 (5th Cir. 2013); Charles, 629 F.3d 500-01 (“Because the state determined that
[the] testimony was permissible lay opinion under state evidentiary law . . . a federal habeas court
may not conclude otherwise.”).
A habeas petitioner has the burden to prove both prongs of the Strickland ineffective
assistance standard. Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009); Blanton v.
Quarterman, 543 F.3d 230, 235 (5th Cir. 2008). And the deferential review standards of the AEDPA
also require the Court to presume the correctness of the state court’s factual findings unless they are
rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S.
465, 473-74 (2007).
Under § 2254(d), a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision; and then it
must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of this Court.
Harrington, 562 U.S. at 102. Accordingly, when evaluating Petitioner’s complaints about the
performance of his counsel under the AEDPA, the issue before this Court is whether the Texas Court
of Criminal Appeals could reasonably have concluded Petitioner’s complaints about his counsel’s
performance failed to satisfy either prong of the Strickland analysis. Schaetzle, 343 F.3d at 444.
C.

Analysis
1.

Motion in limine

Petitioner contends his trial counsel’s performance was unconstitutionally ineffective because
counsel did not file a “motion in limine and, if necessary, object to the prejudicial opinion testimony

22

of an experienced homicide sergeant that petitioner was not defending himself.” Document 2 at 21.
This claim is based on a single statement from the lead police investigator, Sergeant Smith:
Q.

In this case as the guy who collects all the evidence, did you see any evidence
that appeared to be self defense?

A.

It did not appear to me to be so, no.

Document 5, Exh. 10 at 234. Petitioner contends that the sergeant’s opinion “that he saw no evidence
to support self-defense constitutes the functional equivalent of his opinion that petitioner was guilty.
Police opinion testimony suggesting that the defendant is guilty is inadmissible.” Document 2 at 20,
citing Boyde v.State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974).2 With regard to prejudice,
Petitioner contends: “The lead detective’s opinion that there was no evidence to support self-defense
undoubtedly had a profound effect on the jury.” Id. at 25.
Contrary to his affidavit in Petitioner’s state habeas action, defense counsel did file two
motions in limine, which were both granted by the trial court. Document 5, Exh. 2 at 37-41, 105-06;

2

In Boyde, the objectionable questioning was as follows:

Q. (By Mr. Gay) Officer, I will ask you if at the time you made your investigation and made
the arrest in this case, you were totally satisfied with (sic) the Defendant, Marvin Boyde,
was guilty of this murder?
Appellant’s objection to the question was sustained, the court instructed the jury to disregard
the question, and appellant’s motion for mistrial was overruled. Despite the court’s ruling,
the prosecutor then asked:
Q. (By Mr. Gay) Officer, do you know of any evidence in this case known to you which
would tend to exonerate or show that the Defendant, Marvin, Boyde, is not guilty of this
offense?
Appellant’s objection to this question was sustained, and instruction to the jury to disregard
same was given by the court.
Boyde, 513 S.W.2d at 590.

23

Exh. 9 at 4. Respondent allows that, arguably, the sergeant’s testimony violated the portion of the
original motion in limine prohibiting the State from “trying to bring in obviously inadmissible
evidence,” or the portion of that motion addressing statements going to the defendant’s mental state.
Document 7 at 20. Respondent allows that the statement could be viewed as violating the second
motion in limine, which prohibited witnesses from volunteering inadmissible testimony depriving
the defendant of the opportunity to object. Id. However, Respondent contends that this testimony was
otherwise admissible, citing James v. State, 335 S.W.3d 719 (Tex. App.–Fort Worth 2011, no pet.).
In James, the following testimony of a police officer was found admissible by the Texas
Court of Appeals:
Q. (BY [Prosecutor]) Ma’am, did the defendant’s claim of self-defense make any
sense to you based on what you saw?
[Defense Counsel]: Objection, Your Honor. It’s asking for an opinion and a
conclusion based on things that apparently aren’t in evidence at this time.
THE COURT: Overruled.
A. No, sir.
Id. at 725. The appellate court held that this testimony “was admissible under rule 701 because it was
rationally based on events that [the officer] perceived.” Id. at 726.3

3

The complained-of question specifically inquired about the sense of
James’s self-defense assertion in light of Officer Fletcher’s observations.
The State did not ask Officer Fletcher to opine on the truthfulness of
another witness’s testimony, to opine on the truthfulness of James’s
assertion of self-defense, to opine whether James was guilty, or to even
opine on James’s credibility, thus possibly encroaching upon the jury’s
province to make credibility determinations. Instead, the question inquired
about the logical force of James’ assertion in light of what Officer Fletcher
had personally observed.

James, 335 S.W.3d at 726.

24

The Texas Court of Appeals’ decision that trial counsel’s performance was not deficient was
not an unreasonable application of Strickland. The single statement at issue was more like the
testimony in James than the objectionable questioning in Boyde, i.e., it was not a direct opinion as
to the defendant’s guilt. The appellate court could reasonably have found the challenged statement
by Sergeant Smith was admissible – Texas law allows that a person may offer an opinion as a lay
witness if it is based on the perception of that person and helpful to the determination of a fact in
issue. Tex. R. Evid. 701; Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997) (collecting
cases); Roberson v. State, 100 S.W.3d 36, 39 (Tex. Ct. App.–Waco 2002, pet. ref’d). Although
Petitioner’s trial counsel states in his affidavit that the failure to object to this evidence was
inadvertence rather than strategy, counsel also erroneously avers he did not file a motion in limine.
Counsel could have reasonably believed that the law permitted this evidence, Givens v. Cockrell, 265
F.3d 306, 309 (5th Cir. 2001) (finding no deficient performance in failure to object where the status
of the law on point was not entirely clear), or counsel could have made a strategic decision not to
object to the statement, which strategic decision is “virtually unchallengeable.” Strickland, 466 U.S.
at 690-91; Charles, 629 F.3d at 502 (decision not to object to adverse witness testimony was not an
unreasonable strategy when doing so would draw the jury’s attention to that testimony).
Regardless of whether it was deficient performance to fail to object to this statement,
Petitioner has not established that he was prejudiced by the admission of this testimony given the
weight of all of the testimony presented at trial. Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir.
2003) (“The comment Cotton complains of was ‘an isolated comment in a sea of evidence’
incriminating him for Epstein’s murder,” quoting Montoya v. Collins, 955 F.2d 279, 287 (5th Cir.

25

1992)); Norris v. Davis, 826 F.3d 821, 835 (5th Cir. 2016) (“Norris cannot show Strickland prejudice
in light of the overwhelming evidence of his guilt.”), cert. denied, 137 S. Ct. 1203 (2017) .
Because trial counsel’s failure to object to this statement was not deficient performance or
prejudicial, the state court’s decision denying relief was not an unreasonable application of
Strickland and Petitioner is not entitled to habeas relief on this claim.
2.

Solis’ testimony

The Texas Court of Criminal Appeals’ decision that this omission did not constitute
ineffective assistance of counsel was not an unreasonable application of Strickland. As noted by
Respondent:
The record suggests that counsel’s inadvertence to object may have been a result of
not understanding the answer. After Solis opined that this was not applicant’s “first
rodeo,” the court reporter asked him “first what?” as she obviously did not clearly
hear the testimony. [] Perhaps defense counsel, and even the jury, did not hear Solis’
answer. And, the record does not reflect what Solis meant by “first rodeo,” i.e. did
he mean the first time applicant engaged in a fight, fired a weapon, or shot a person.
Document 6, Exh. 17 (State’s response in Petitioner’s state habeas action) at 27-28.
Regardless of whether the failure to object was deficient performance, there was no prejudice
arising from allowing this testimony to go unchallenged. This witness was not a friend of Petitioner
and, accordingly, he had no basis for knowledge of any previous criminal history, as compared to
a police officer or the State, whom the jurors could have inferred would have knowledge of a
criminal history. Additionally, this particular statement was cumulative of this witness’s other
testimony about Petitioner’s calm demeanor, which was allowable testimony by an eye witness, and
other witnesses’ testimony that Petitioner was calm at the time of the shootings. Document 5, Exh.
10 at 105, 155 (Mr. Dorer said that Petitioner “was totally calm”); Id., Exh. 10 at 173 (Ms. Teaney

26

testifying that Petitioner did not seem fearful or panicked). Because the testimony was allowable
and cumulative, the state court’s decision denying relief was not an unreasonable application of
Strickland and Petitioner is not entitled to habeas relief on this claim.
3.

Failure to impeach Solis with his prior statements

The Texas Court of Appeals’ decision denying relief on this claim was not an unreasonable
application of Strickland because defense counsel’s alleged failure to impeach this witness was not
deficient performance or prejudicial. Petitioner contends:
The offense report reflects that Solis told the police that Hernandez was the
instigator, was “running his fucking mouth,” and flicked a lit cigarette at petitioner
before the shooting []. He described Dorer as “an idiot for firing the gun,” as it
“instigated an even bigger disturbance.” He also overheard one of petitioner’s
companions say in Spanish, “Fuck it, if they have guns, we have guns,” just before
petitioner obtained the gun. Martinez did not elicit these statements on crossexamination. Had he done so, the jury would have perceived Solis and the events
much differently.
Document 2 at 24 (internal citation omitted). Petitioner does acknowledge that counsel:
elicited on cross-examination that Solis could not say that he was “100 percent
sober” because he had been drinking that day, that he did not deny telling the police
that petitioner fired one shot at the ground and another at Hernandez’s back, and that
he did not see the second shooting.
Id. at 23-24.
Counsel’s cross-examination of this witnesses was not below the prevailing professional
standard. Respondent correctly observes that Petitioner’s counsel did elicit testimony from Mr. Solis
that Mr. Dorer’s firing of a gun “escalated the situation.” Document 5, Exh. 11 at 37. Defense
counsel did ask the question: “And as a matter of fact, you heard in response to those two gunshots
someone say they got guns, we got guns,” which question drew a hearsay objection. Id., Exh. 11 at
37. After a lengthy discussion, the trial court granted the objection. Id., Exh. 11 at 37-40.
27

Additionally, defense counsel did impeach Mr. Solis’ credibility,4 and counsel was looking
at the prior statement during cross-examination. Id., Exh. 11 at 26 (“Let me show you that and have
you take a look at that and ask you if you recognize that as the written statement you gave that
night?”). Any alleged deficient performance in not raising more of Mr. Solis’ prior statements was
presumably strategic, as the report contained statements counsel would not have wanted the jury to
hear, inter alia, his description of the killing as “cold-blooded murder.” Document 6, Exh. 11 at 106.
“[A] conscious and informed decision on trial tactics and strategy cannot be the basis of
constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness.” Richards v. Quarterman, 566 F.3d 553, 564 (5th Cir. 2009).
Neither was the alleged failure to impeach Mr. Solis with his prior statements prejudicial.
The other witnesses testified in accordance with Mr. Solis’ testimony about the instigation of the
fight, the panic caused by Mr. Dorer firing a weapon, and whether the victims were threatening
Petitioner just prior to the time they were shot. And Mr. Solis agreed with defense counsel that Mr.
Dorer’s warning shots “didn’t have the desired effect” and “escalated the situation.” Document 5,
Exh. 11 at 37. Furthermore, any testimony regarding who started the fight was ultimately irrelevant,
as the parties stipulated that Mr. Hernandez was the “first aggressor.” Id., Exh. 13 at 5-6.
Counsel’s questioning and limited impeachment of Mr. Solis was apparently strategic, and
did not constitute deficient performance and was not prejudicial. Because the state court’s decision

4

This included asking him, “For example, you told Officer Pelt on the night an hour after the incident
that you never saw the other person get shot by who or how. . . “ and “Yesterday you testified that you saw
the second individual get shot from a distance of 25 yards, but yet on the night in question when you were
asked about the other person, you said that I don’t know who got shot there or why or when or by who.”
Document 5, Exh. 11 at 27-28.

28

denying relief was not an unreasonable application of Strickland, Petitioner is not entitled to habeas
relief on this claim.
4.

The jury charge

Petitioner contends counsel’s performance was deficient because counsel did not object to
“sequencing error in the charge.” Document 2 at 25-27. As previously noted, after the instruction on
capital murder, the charge advised:
In summary, if, and only if, you find beyond a reasonable doubt that the
defendant intentionally caused the death of both Jose Arroyo Hernandez and Arturo
Rodriguez and you further find beyond a reasonable doubt that the defendant was not
justified in using deadly force to defend himself against any use or attempted use of
unlawful deadly force by Jose Arroyo Hernandez and the defendant was not justified
in using deadly force to defend himself against any use or attempted use of unlawful
deadly force by Arturo Rodriguez, you will convict the defendant of capital murder.
If you do not so find beyond a reasonable doubt, you will say by your verdict “not
guilty” and proceed to consider the charges of murder as set out below.
Proceed to consider paragraphs 8 and 9 only if you have found the defendant
“not guilty” of capital murder. Otherwise, proceed to paragraph 10.
Document 6, Exh. 11 at 9-10. Petitioner contends this charge improperly “instructed the jury that it
had to acquit petitioner of capital murder before it could consider the lesser included offense of
murder.” Document 2 at 26. Petitioner raised this issue in his state habeas action, and the Texas
Court of Criminal Appeals held that counsel was not unconstitutionally ineffective for failing to raise
this claim of error. The State’s brief in Petitioner’s state habeas action, the State allowed that
“[c]ounsel erred by failing to object to this instruction,” while arguing that Petitioner failed to
overcome the “strong presumption” that counsel’s error was not prejudicial. Document 6, Exh. 17
at 33.
Based on the record in this case, there is no reasonable probability that, but
for counsel’s failure to object to this single sentence in the court’s charge, the result
29

of the proceeding would have been different. [] The court read the entire charge to
the jury before the parties argued and before the jury retired to deliberate. [] Thus, the
jurors heard the instructions on murder before deliberating and, therefore, knew it
was an option. The State initially emphasized in its argument that, although there
were two definitions for murder, the State had to prove the first definition that
applicant intentionally and knowingly killed the two victims to prove capital murder.
[] . . . By its verdict, the jury obviously resolved the self-defense issue against
applicant.
Id. “The Sixth Amendment does not guarantee criminal defendants the right to error-free
representation.” Emery v. Johnson, 139 F.3d 191, 197 (5th Cir. 1997). Even if counsel’s performance
was deficient, Petitioner must still establish prejudice arising from counsel’s error. The Supreme
Court has held:
a court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed.
Strickland, 466 U.S. at 698.
Petitioner has not established that he was prejudiced by this error, as the overwhelming
weight of the evidence indicates that Petitioner was guilty of capital murder, i.e., that he calmly shot
both victims without a well-founded belief that either victim was about to inflict substantial harm
on Petitioner. In addition to testimony from several witnesses that neither of the victims was armed,
several witnesses testified that Petitioner shot one victim as he was turning away from Petitioner,
and then shot the other as he was running away from Petitioner. There was no reasonable probability
that, but for the unchallenged jury instruction, the result of the proceeding would have been different,
and Petitioner has not established a substantial likelihood of a different outcome. Williams, 529 U.S.
at 398 (explaining that, when considering the prejudice prong of the Strickland test, the court

30

“correctly emphasized the strength of the prosecution evidence”); Miller v. Dretke, 404 F.3d 908,
919 (5th Cir. 2005) (concluding there was no reasonable probability that the petitioner would have
been acquitted “in light of the other overwhelming evidence”).
Because the state court’s decision was not an unreasonable application of Strickland,
Petitioner is not entitled to habeas relief on this claim.
5.

Failure to challenge the capital punishment statute

Petitioner argues that counsel’s performance was deficient and prejudicial because he failed
to assert a claim:
that the statutory punishment scheme for capital murder that requires a sentence of
death or life without parole for a defendant who murdered two persons during the
same transaction is unconstitutional as applied to a defendant who committed one or
both murders under the immediate influence of sudden passion arising from an
adequate cause.
Document 2 at 28.5 Petitioner asserts that counsel erred by failing to preserve this error for appeal.
Id. at 29. This issue was raised in Petitioner’s state habeas action, and Petitioner contends that the
trial court’s conclusion that the evidence did not raise an issue of sudden passion arising from an
adequate cause was “an unreasonable determination of the facts in light of the evidence presented.”

5

The relevant statute provides:

(a) An individual adjudged guilty of a capital felony in a case in which the state seeks the
death penalty shall be punished by imprisonment in the Texas Department of Criminal
Justice for life without parole or by death. An individual adjudged guilty of a capital felony
in a case in which the state does not seek the death penalty shall be punished by
imprisonment in the Texas Department of Criminal Justice for:
***
(2) life without parole, if the individual committed the offense when 18 years of age or
older.
Tex. Penal Code Ann. § 12.31.

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Id. As evidence of sudden passion arising from an adequate cause, Petitioner notes the first victim
“flicked a lit cigarette in the face of petitioner or one of his friends;” that one of the victims’
“companions hit Javier, and another hit petitioner in the head when he tried to help;” that “the men
fought with their fists and belts;” and that Petitioner “felt intimidated” when Mr. Dorer fired shots
in the air and that he “obtained a pistol because he thought that the assailants were shooting at them.”
Id. at 29-30. Petitioner also avers sudden passion arising from an adequate cause was demonstrated
because Mr. Hernandez was “squared off to fight,” but then Petitioner states that he “shot Hernandez
in the side as Hernandez turned away.” Id. (emphasis added).
“When a party makes an ‘as applied’ challenge to a statute, the essence of the challenge
asserts that the statute, although generally constitutional, operates unconstitutionally given the
challenging party’s particular circumstance.” Collins v. State, ___ S.W.3d ___, 2017 WL 1173815,
at *6 (Tex. Ct. App.–Beaumont 2017, no pet. h.).6 In the State’s response to Petitioner’s state habeas
application, the State argued:
Applicant contends that the statutory punishment scheme was
unconstitutional as applied to him because the evidence raised sudden passion and
the jury did not have a procedural vehicle to consider whether he killed either or both
men under the immediate influence of sudden passion arising from an adequate
cause. Applicant claims defense counsel rendered ineffective assistance of counsel
by failing to challenge the constitutionality of Penal Code § 19.03(a)(7)(A), at trial.

6

The failure to raise a facial challenge would not have constituted deficient performance:
[C]ounsel’s failure to anticipate a rule of law that has yet to be articulated by the governing
courts, and failure to raise a novel argument based on admittedly unsettled legal questions
does not render his performance constitutionally ineffective. While the Constitution
guarantees criminal defendants a competent attorney, it does not insure that defense counsel
will recognize and raise every conceivable . . . claim.

Ragland v. United States, 756 F.3d 597, 601 (8th Cir. 2014) (internal quotations and citations omitted), cited
in Jones v. Davis, ___ Fed. App. ___, 2016 WL 7187381, at *5 (5th Cir.), petition for cert. filed, No. 16-7876
(Feb. 9, 2017).

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Applicant’s claim is without merit because the evidence in this case did not
raise “sudden passion” or “adequate cause.” A murder committed under the
“immediate influence of sudden passion arising from an adequate cause” is a seconddegree felony offense rather than a first degree. [] Sudden passion is “passion directly
caused by and arising out of provocation by the individual killed[,]” which arises at
the time of the murder. V.T.C.A. Penal Code § 19.02(a)(1).
The defendant has the burden of production and persuasion with regard to the
issue of sudden passion. Penal Code § 19.02(d). To justify an instruction on sudden
passion in the jury charge at punishment, the record must “at least minimally
support” an inference that (1) the defendant in fact acted under the immediate
influence of a passion such as terror, anger, rage, or resentment; and (2) his sudden
passion was in fact induced by some provocation by the deceased or another acting
with him, which provocation would commonly produce such a passion in a person
of ordinary temper; (3) he committed the murder before regaining his capacity for
cool reflection; and (4) a causal connection existed between the provocation, passion,
and homicide. Wooten v. State, 400 S.W.3d 601 (Tex. Crim. App. 2013) . . . The
mere fact that someone acts in response to provocation of another is not enough to
support a sudden passion instruction. Trevino v. State, 100 S.W.3d 232, 241 (Tex.
Crim. App. 2003). . . .
Document 6, Exh. 17 at 35-36 (emphasis added).
The Texas Court of Appeals’ resolution of this claim was not contrary to or an unreasonable
application of Strickland. The state court’s decision was based on an interpretation of state law; the
state court necessarily concluded that the failure to challenge the sentencing scheme was not
deficient performance and/or that an as-applied challenge to the statute would have failed because
Petitioner could not meet his burden of production or persuasion with regard to “sudden passion.”
Because the denial of relief on this claim was an interpretation of state law, that determination is
entitled to complete deference by this Court. Bradshaw, 546 U.S. at 76; Amador v. Quarterman, 458
F.3d 397, 412 (5th Cir. 2006); Fuhrman v. Dretke, 442 F.3d 893, 901 (5th Cir. 2006); Moore v.
Quarterman, 526 F. Supp. 2d 654, 687-88 (W.D. Tex. 2007). Cf. Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004) (“However, the state habeas court . . . implicitly must necessarily have concluded that

33

Art. 28.061 is not unconstitutional under state law,” a decision entitled to deference by the federal
habeas court). See also Wooten, 400 S.W.3d at 609 (“It is highly unlikely that a jury that had already
rejected the appellant’s claim that he reasonably believed that deadly force was immediately
necessary to defend himself would nevertheless find in his favor on the issue of sudden passion.”).
Additionally, counsel’s performance cannot be considered deficient or prejudicial if counsel
fails to raise a non-meritorious argument. Turner, 481 F.3d at 298; Parr, 472 F.3d at 256. Under
Texas law, “sudden passion” is an argument offered in mitigation of a sentence, rather than as a
lesser-included offense. Tex. Penal Code An.. § 19.02(d). Accordingly, the argument that Petitioner
should have been allowed to present evidence of “sudden passion” is an argument that Petitioner’s
rights were violated by the inability to present evidence to mitigate his sentence. The United States
Supreme Court has held that the imposition of a mandatory life sentence without the opportunity to
present mitigating circumstances does not violate the United States Constitution. Harmelin v.
Michigan, 501 U.S. 957, 994-95 (1991). It is well-established that the automatic life sentencing
provision of the Texas capital sentencing framework is constitutional. Allen v. State, 552 S.W.2d
843, 847 (Tex. Crim. App. 1977) (holding that a mandatory life sentence for capital murder does not
violate the constitutional right to trial by jury because that right does not extend to the assessment
of punishment); Murkledove v. State, 437 S.W.3d 17, 30 (Tex. App.—Fort Worth 2014, pet. denied)
(“Texas courts have consistently held that the mandatory life sentence required under section
12.31(a) of the penal code . . . is not unconstitutional as cruel and unusual punishment under the
Eighth Amendment”); Cienfuegos v. State, 113 S.W.3d 481, 495-96 (Tex. App.– Houston 2003, pet.
ref’d) (holding the imposition of automatic life sentence for conviction as a party to capital murder
does not offend the Constitution); Laird v. State, 933 S.W.2d 707, 714-15 (Tex. App.—Houston
34

1996, pet. ref’d) (holding that the imposition of a mandatory life sentence for capital murder does
not violate a defendant’s due process rights).
Because the state court’s decision was not an unreasonable application of Strickland,
Petitioner is not entitled to habeas relief on this claim.
CONCLUSION
The Texas Court of Criminal Appeals’ decision denying relief on the claims presented in
Petitioner’s federal habeas petition was not an unreasonable application of Strickland to those
claims. Accordingly, Petitioner is not entitled to habeas relief on his ineffective assistance of counsel
claims.
RECOMMENDATION
It is, therefore, recommended that Petitioner’s Application for Writ of Habeas Corpus be
DENIED.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)
(1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective December
1, 2009, the district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
35

constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” Id. “When a
district court denies a habeas petition on procedural grounds without reaching the petitioner’s
underlying constitutional claim, a COA should issue when the petitioner 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.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not
issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. Battles v. United
States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
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district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en banc).
SIGNED this 16th day of June, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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