Thomas v. Thaler

Filing 21

ORDER re 1 Petition for Writ of Habeas Corpus filed by Gentries Thomas, is GRANTED. 12 Report and Recommendations. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
GENTRIES THOMAS,
Petitioner,
VS.
RICK THALER,
Respondent.

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Civil Action No: SA-11-CA-322-XR

ORDER
On this date, the Court considered the United States Magistrate Judge’s Report and
Recommendation concerning Petitioner Gentries Thomas’s petition for writ of habeas corpus under
28 U.S.C. § 2254, as well as Respondent’s objections thereto. After careful consideration, the Court
GRANTS Thomas’s petition for a writ of habeas corpus.
Background
Petitioner Thomas is currently serving a 30-year sentence in the custody of the Texas
Department of Criminal Justice–Correctional Institutions Division. He was found guilty by a jury
of aggravated robbery on November 1, 2007. His conviction was affirmed by the Texas Fourth
Court of Appeals. Thomas v. State, No. 04-07-00775-CR, 2008 WL 5264870 (Tex. App.—San
Antonio, pet. ref’d June 10, 2009). The Texas Court of Criminal Appeals refused Thomas’s petition
for discretionary review. On January 26, 2010, Thomas filed a state habeas application under Article
11.07 of the Texas Code of Criminal Procedure. The Texas Court of Criminal Appeals denied the
application without written order on April 28, 2010.
Thomas filed his federal habeas application with this court on August 18, 2010. In his
petition, Thomas raised five grounds for habeas relief: (1) that he was denied his right to exercise

peremptory strikes because the trial court failed to properly instruct the venire regarding the “special
weight and credence to police testimony” and Thomas’s right to remain silent; (2) that trial counsel
was ineffective1; (3) that the conviction is void because neither the Texas Code of Criminal
Procedure nor the Texas Penal Code supports it; (4) that the trial court erred in failing to instruct the
jurors fully on the definition of “deadly weapon” or “unknown object,” thus denying Thomas an
impartial trial; and (5) that the trial court erred in failing to sua sponte include within the charge the
lesser-included offense of assault.
Magistrate Judge’s Memorandum and Recommendation
First, the Magistrate Judge rejected Thomas’s claim that he was denied his right to
peremptory strikes because the trial court failed to properly instruct the venire regarding the “special
weight and credence to police testimony.” The Magistrate Judge concluded that the trial court’s
failure to assist counsel in obtaining information that would permit the intelligent exercise of
peremptory strikes did not give rise to a constitutional claim. United States v. Martinez-Salazar, 528
U.S. 304, 311 (2000). The Magistrate Judge also rejected Thomas’s claim that the trial judge failed
to properly instruct the jury panel on police testimony so as to permit him to exercise his challenges
for cause, reasoning that there is no constitutional requirement for such an instruction. And although
Thomas indicates that the trial judge failed to properly instruct the venire on his right to remain

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On his ineffective assistance of counsel ground, Thomas alleges defense counsel failed: (i) to ask
the venire about following the law, remaining fair and impartial, or how to weigh the testimony of a police
officer, thereby jeopardizing Thomas’s right to exercise peremptory strikes; (ii) to object to the prosecutor’s
improper comments throughout trial, including the prosecutor’s comments that witnesses would not come
forward because they were scared of Thomas; (iii) to object to the prosecutor’s repeated questioning of
Thomas’s mother regarding Thomas’s reputation; (iv) to “interview witnesses, know the law, and be familiar
with the case”; (v) to object to extraneous offense testimony; (vi) to object to the prosecutor bolstering a
witness’s credibility from outside the record; (vii) to object to the prosecutor’s suggestion, from outside the
record, that there were other witnesses who knew about the case and that Thomas had confessed to them;
(viii) to object to the trial court’s refusal to define deadly weapon as requested by the deliberating jury; (ix)
to request jury charge instructions on the lesser-included offense of criminal assault.

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silent, the Magistrate Judge rejected this claim, too, on the ground that Thomas failed to request that
the trial judge so instruct the panel. Likewise, while Thomas suggests that the trial court erred in
failing to give an instruction on the weighing of police testimony in its final charge to the jury, the
Magistrate Judge determined that Thomas made no proposal for the inclusion of such an instruction.
Second, as to Thomas’s ineffective assistance of counsel ground, the Magistrate Judge
determined that the prosecutor’s comments, questions, and arguments at trial amounted to persistent
and pronounced misconduct. The Magistrate Judge concluded that defense counsel’s failure to
object to the misconduct was objectively unreasonable, and but for the failure of defense counsel to
object to any of the misconduct, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984).
Third, addressing Thomas’s contention that his conviction is void under state law, and fourth,
his contention that the trial court erred in failing to instruct the jurors fully on the definition of
“deadly weapon” or “unknown object,” the Magistrate Judge disagreed with Thomas’s assertion that
an “unknown object” cannot be a “deadly weapon” as contemplated by the Texas Penal Code.
Instead, the Magistrate Judge deferred to the state courts’ interpretation of state statutes. Rocha v.
Thaler, 626 F.3d 815, 822 (5th Cir. 2010); Mixon v. State, 804 S.W.2d 107, 107 (Tex. Crim. App.
1991) (approving the practice of allowing an unknown object as a deadly weapon).
Fifth, the Magistrate Judge concluded that Thomas was not entitled to a lesser-included
offense instruction of assault because there was no evidence in the record that if Thomas was guilty,
he was guilty only of assault. See Aguilar v. Dretke, 428 F.3d 526, 531 n.2 (5th Cir. 2005)
(describing the two prong test to determine if a defendant is entitled to a lesser-included offense
charge). In addition, Thomas cited to no authority which would require a trial court to sua sponte
include a lesser-offense instruction on assault.

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The Magistrate Judge’s overall conclusion was that Thomas’s federal habeas petition should
be granted, as defense counsel’s unprofessional conduct was sufficient to undermine confidence in
the outcome of the case. Strickland, 466 U.S. at 694.
Standard of Review
This Court reviews the objected-to portions of the Magistrate Judge’s Report de novo. 28
U.S.C. § 636(b)(1). Such review means that the Court will examine the entire record and will make
an independent assessment of the law. Furthermore, this Court reviews the portions of the Report
and Recommendation that are not objected to for clear error. Id.; United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989).
A petition for a writ of habeas corpus is reviewed under the standards set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Pub L. No. 104-132, 110 Stat. 1214
(1996). Pursuant to 18 U.S.C. § 2254(d), as amended by AEDPA, a petitioner may not obtain
federal habeas corpus relief 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.
A state court’s decision is “contrary to . . . clearly established federal law” if it either “arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law [or] . . . confronts
facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at
[the opposite result].” Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court decision is “an

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unreasonable application of clearly established federal law” if it either “identifies the correct
governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case” or makes an unreasonable determination as to whether or not to
extend a legal principle from the Supreme Court’s precedent to a new context. Id. at 407. Thus, this
Court must examine the state court’s ruling to determine if it was so unreasonable as to constitute
an error “well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
Analysis
This Court finds no clear error in the portions of the Magistrate Judge’s Report and
Recommendation that were not objected to. Upon reviewing de novo the portions of the Magistrate
Judge’s Report and Recommendation that were objected to, this Court finds that Thomas was denied
the effective assistance of counsel.
While Respondent raises five objections to the Magistrate Judge’s opinion, these objections
combine to form one: that the series of incidents to which defense counsel failed to object, cited in
Thomas’s petition, do not rise to the level of ineffective assistance of counsel. To obtain habeas
relief on a claim of ineffective assistance of counsel, Thomas must demonstrate (i) that his counsel
was deficient and (ii) that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687. Under
Strickland’s performance prong, Thomas carries the burden of proving that counsel’s representation
fell below an objective standard of reasonableness. Id. at 688. Thomas must rebut a strong
presumption that the conduct of counsel falls within a wide range of reasonable professional
assistance. Id. at 690. Under Strickland’s prejudice prong, Thomas must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different. Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
1. Prosecutor’s Remark in Opening Statement
In her opening statement, the prosecutor informed the jury that it would soon learn that the
co-defendant, Tamara Porter (“Porter”), had prompted the victim, Billy Lott (“Lott”), to get out of
his car at the rest stop where he was subsequently robbed by Thomas. The prosecutor then
commented: “Something's weird with that,” likely meant to imply that Porter was setting up Lott for
Thomas’s robbery attempt. Thomas’s defense counsel did not object to this comment. The
Magistrate Judge determined that this comment was a “clearly improper” interjection of opinion,
which defense counsel should have objected to. Nonetheless, the Magistrate Judge went on to
conclude that defense counsel’s failure to so object did not prejudice Thomas, as the introduction
of this isolated comment did not render the trial fundamentally unfair. See Darden v. Wainwright,
477 U.S. 168, 181 (1986).
Respondent objects to the Magistrate Judge’s finding that this comment was “clearly
improper,” asserting that the comment was merely a summation of the evidence presented. This
Court rejects Respondent’s objection. The comment was indeed improper. The prosecutor was
highlighting the anticipated evidence, but then inserted the personal remark.2 However, as the
Magistrate Judge concluded, defense counsel’s failure to object to this comment did not prejudice
Thomas. There is not a reasonable probability that, if defense counsel had objected, the outcome of
the trial would have been different. Thomas cannot establish ineffective assistance on this claim.

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Vol. 3, p. 21.

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2. Prosecutor’s Comments on Absence of Witnesses and Thomas’s Reputation
The Magistrate Judge found defense counsel ineffective for failing to object to the
prosecutor’s comments that there was only one witness at trial because other witnesses were too
afraid of Thomas to testify against him. During voir dire, the prosecutor questioned the jury panel
members about their willingness to convict upon the testimony of one witness.3 Thomas’s attorney
failed to object to any suggestion that individuals were afraid of Thomas.
At trial, the prosecutor cross-examined Thomas’s mother on whether she agreed with the
statement that there are people afraid of Thomas; Thomas’s mother responded, “No.” Again,
Thomas’s attorney neglected to object.4
During closing argument, the prosecutor indicated that the jury had not heard from the codefendant and suggested that this was attributable to her fear of Thomas, adding: “[R]egardless of
what his momma wants you to believe that nobody is scared of him. Folks are. The people that we
did find conveniently were out of the state when this came to trial. Wouldn’t take their subpoenas.”
Once again, Thomas’s attorney did not object to these closing remarks.5

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The prosecutor first asked the panel: “How many of you believe ... that there can be witnesses to
an aggravated robbery?.... Why wouldn’t somebody that witnessed it want to come and testify then? Why
do you think somebody wouldn’t want to get involved?” Reporter’s Record Volume 2, pp. 14-15. One
venireman responded: “They could be afraid.” Id. at p. 15. The prosecutor then stated: They’re scared.
Okay. What about a party to the offense, they were a co-defendant in this whole thing? Would that be
another reason?” Id. Sometime later the prosecutor began questioning individual panel members. The
prosecutor asked one venireman whether one witness was enough to achieve beyond a reasonable doubt. The
venireman responded: “I can’t say that I agree with that all the time. It depends on the circumstances.” Id.
at p. 55. The prosecutor responded: “But we talked about in general sometimes people may see but they’re
not willing to come forward because they were a party to it and under the law they have a right not to
incriminate themselves or they’re scared of the repercussions from the person on trial....” Id. The venireman
stated: “I understand what you’re saying, but how does the jury know that there’s not more?... And so if
there’s only one witness then we would know that that is the only one that - -“ Id. at 56. The prosecutor
responded “That’s either willing to come forward or that we can find.” Id.
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Vol. 4, p. 23.

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Vol. 4, pp. 48-49.

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Thomas argues that there is no evidence in the record to support the prosecutor’s suggestion
that any witness failed to testify because of a fear of Thomas, and that the prosecutor’s remarks
improperly fed this false notion. The Magistrate Judge agreed, finding that the prosecutor stepped
outside of permissible bounds; without any supporting record evidence, the prosecutor suggested that
the state had found several witnesses who were either out of Texas at the time of trial or refused to
accept subpoenas, and that these witnesses refused to attend because they were afraid of Thomas.
The Magistrate Judge concluded that the defense counsel’s failure to object to the prosecutor’s
remarks amounted to ineffective assistance of counsel under Strickland. Respondent objects to the
Magistrate Judge’s findings and conclusions on this claim. Specifically, Respondent claims the
comments did not prejudice the jury because they were merely references back to a statement made
by a venire person.
Nonetheless, Respondent’s argument is unavailing. The prosecutor was not simply referring
to a statement made by a venire person. On multiple occasions throughout the trial, the prosecutor
suggested to the jury—without any competent evidence—that several witnesses refused to attend
because they were afraid of Thomas. The state relied on one witness, the victim. The date of the
assault, the victim was seeking to purchase crack cocaine. The state relied upon its arguments that
there were no other witnesses to the crime because the co-defendant did not want to implicate herself
and others were unwilling to testify because they’re scared. This argument was used to bolster the
testimony of the victim.
The remarks also enabled the prosecution to portray Thomas as a dangerous man with a
violent reputation. As Thomas is on trial for aggravated robbery, it is reasonably probable that the
remarks swayed the jury to infer that Thomas was guilty of the offense charged. See Hall v. United
States, 419 F.2d 582, 585 (5th Cir. 1969) (holding as improper prosecutor’s remark in closing

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statement, unsupported by any evidence, that government witness had failed to attend the trial
because he was scared of defendant). As in Hall, the remarks here implicate the “integrity of the trial
itself.” See id. The prosecutor’s persistent and pronounced misconduct so infected the trial with
unfairness that the resulting conviction was a denial of due process. Darden, 477 U.S. at 181; see
also Geiger v. Cain, 540 F.3d 303, 308 (5th Cir. 2008). Applying Strickland, the prosecutor’s
remarks were both objectively deficient and prejudicial. The prosecutor’s conduct fell below an
objective standard of reasonableness, and but for the prosecutor’s deficient conduct, there is a
reasonable probability that the result of the trial would have been different.
3. Extraneous Offense Testimony
The Magistrate Judge also found defense counsel ineffective for failing to object to
extraneous testimony. Thomas alleges that the prosecutor improperly indicated in her opening
statement that Lott had purchased cocaine from Thomas in the past, solicited testimony from Lott
to that effect, questioned Thomas’s mother on Thomas’s reputation as a drug dealer, and referred to
Thomas in her closing statement as a drug dealer. Thomas’s attorney only made one objection related
to this line of commentary: he only objected when the prosecutor attempted to question the victim
regarding the number of drug purchases he made from Thomas. Respondent argues that Lott’s
testimony was appropriate to establish how Lott was familiar with Thomas, thus refuting Thomas’s
defense that he was not present during the attack on Lott, and Thomas’s implication that Lott
misidentified Thomas as the attacker. According to the Magistrate Judge, however, evidence that
Thomas was a drug dealer or that Lott had previously purchased cocaine from Thomas was not
relevant to their relationship, Lott’s identification, or any issue at relevant to the trial. The
extraneous evidence had no rational connection with the aggravated offense with which Thomas was
charged. The Magistrate Judge considered such extraneous evidence against the backdrop of the

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prosecutor’s highly inflammatory remarks about missing witnesses, and concluded that defense
counsel’s failure to object to these remarks was both objectively deficient and prejudicial under
Strickland. Respondent objects to the Magistrate Judge’s relevant findings and conclusions.
This Court agrees with Respondent that Thomas is unable to demonstrate that defense
counsel’s failure to object to the prosecutor’s commentary on Thomas’s drug dealing with Lott
amounted to ineffective assistance. Normally, evidence of other crimes is not admissible to prove
a person’s character in order to show that he acted in conformity therewith. Tex. R. Crim. Evid.
404(b). But such evidence may still be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
Furthermore, evidence of other crimes is admissible when it logically serves to make more probable
either an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defense
evidence that undermines an elemental fact. Montgomery v. State, 810 S.W.2d 372, 287–88 (Tex.
Crim. App. 1991) (opinion on rehearing). Viewed deferentially, the fact that Thomas had sold drugs
to Lott in the past was appropriate to establish that Lott was familiar with Thomas, thereby helping
to corroborate Lott’s identification of Thomas and refute Thomas’s alibi defense. See Albrecht v.
State, 486 S.W.2d 97, 100–01 (Tex. Crim. App. 1972) (holding as admissible evidence of extraneous
offense to “circumstantially prove identity where the state lacks direct evidence”).
4. Bolstering Witnesses
Next, the Magistrate Judge found defense counsel ineffective for failing to object to the
prosecutor’s improper comments bolstering Lott’s credibility. In closing argument, the prosecutor
suggested that Lott had no motive to lie, while Thomas’s relatives who testified to his alibi did have
such a motive. Respondent objected to the Magistrate Judge’s relevant findings and conclusions.

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Except where based on the evidence of the case, an attorney may not express a personal
opinion on the “merits of the case or the credibility of witnesses.” United States v. Garza, 608 F.2d
659, 663 (5th Cir. 1979). However, an attorney may state contentions as to the conclusion the jury
should draw from the evidence. Id. at 662. This Court finds that defense counsel’s failure to object
to the prosecutor’s credibility-bolstering-comments was not objectively deficient under Strickland.
In any event, the comments were not prejudicial: There is not a reasonable probability that, if the
prosecutor had not made such comments, the result of the trial would have been different. This
Court therefore finds that Thomas has not shown ineffective assistance on this claim.
5. Reference to an Adverse, Uncalled Witness
Finally, the Magistrate Judge found trial counsel ineffective for failing to object when the
prosecutor asked Thomas’s alibi witnesses if they would be surprised to hear that Thomas had
confessed to another individual whose testimony was not in the record. In cross-examination of
Thomas’s mother, the prosecutor asked, “And would it surprise you to know that there is someone
that Mr. Thomas confessed to and said he did beat [the victim]?” Thomas’s mother replied that this
suggestion was a lie. The prosecutor also asked Detra Marie Hunt, another alibi witness for Thomas,
“Would it surprise you to know he told a cousin that he did it?” In her closing statement, the
prosecutor repeated that she had asked Thomas’s mother about Thomas’s confession that he had
beaten Lott, along with Thomas’s mother’s response. Thomas’s defense counsel objected to none
of these improper questions or remarks.
Respondent objects to the Magistrate Judge’s findings and conclusions that defense counsel’s
failure to object to these questions and remarks was ineffective assistance. Respondent contends that
the prosecutor was simply questioning the firmness of the alibi witnesses’ testimony, which she is

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permitted to do, and that the questioning was on a collateral matter that the state could not have
proven otherwise as part of its case in chief.
Respondent’s arguments, however, are nonsensical. The Court agrees with the Magistrate
Judge that Respondent cannot seriously contend that it could not have presented a witness to testify,
in its case in chief, that Thomas confessed his crime to them. By her questions, and by her comment
in her closing statement, the prosecutor is representing that the state knows of a witness to whom
Thomas had confessed his crime; normally, such a representation would be made through witness
testimony at trial. Instead, the prosecutor took it upon herself to plant the idea in the jury’s mind,
without any evidence. But the state cannot attempt to establish a theory of a defendant’s act by
questions alone, with no basis in fact. Hartman v. State, 507 S.W.2d 553, 556 (Tex. Crim. App.
1974). Here, the prosecutor’s misconduct so infected the trial with unfairness that the resulting
conviction was a denial of due process. Darden 477 U.S. at 581; Geiger, 540 F.3d at 308. Defense
counsel did not object. Such failure to object was objectively deficient performance and prejudiced
Thomas; but for defense counsel’s unprofessional error, the result of the trial would have been
different.
This Court holds that defense counsel committed ineffective assistance under Strickland for
failing to object to the prosecutor’s persistent and pronounced comments, without any supporting
evidence, that (i) there was only one witness at trial because other witnesses were too afraid of
Thomas to testify against him and that (ii) Thomas had confessed his crime. If defense counsel had
objected to such objectively deficient conduct, there is a reasonable probability that the outcome of
the trial would have been different. Indeed, although Lott testified that Thomas struck him, a third
person was present at the time of the incident, but Lott could not identify this person with certainty.
Furthermore, it is undisputed that Lott had used cocaine prior to the incident. Without the

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inadmissible comments by the prosecutor, there is a reasonable probability that the jury would have
viewed the testimony of Thomas’s alibi witnesses more favorably and, in turn, acquitted Thomas.
Counsel’s errors are sufficient to undermine confidence in the outcome of the case. Strickland, 466
U.S. at 694. The state courts’ determination that Thomas was not denied the effective assistance of
counsel is contrary to and amounted to an unreasonable application of clearly-established federal
law.
Conclusion
For the reasons stated above, Thomas’s federal habeas petition is GRANTED.
It is so ORDERED.
SIGNED this 27th day of February, 2012.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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