Brite v. Davis
Filing
23
MEMORANDUM OPINION AND ORDER. No Certificate of Appealability shall issue in this case. Signed by Chief Judge Orlando L. Garcia. (aej)
F LE D
UNITED STATES DISTRICT COURT
'P!DTT flTPT("P AW 'PWY
SAN ANTONIO DIVISION
Petitioner,
V.
LORIE DAVIS, Director, Texas
Dep't Of Criminal Justice,
Correctional
Institutions
Division,
Respondent.
Pursuant
to
U.S.C.
28
WI
P TV CLERK
CIVIL NO. SA-16-CA-005
Jim
2254,
§
AUG 312017
CLERK. U.S. OISTRICT COURT
WESTERN DIS'rRIOT QEJEXAS
*
*
*
*
*
*
*
*
*
*
*
*
*
JIM BRITE, TDCJ No. 1471684,
I
Brite,
-OLG
"Jimmy
a/k/a
Acosta Brite," an inmate in the custody of the Texas Department
of
Justice-Correctional
Criminal
OlD"),
filed
has
(DE
underlying
child
convictions
III
II),
who
imprisonment
1)
I,
(Count
Petitioner,
for
challenging
1),
(Counts
assault
Motion
was
for
the
three
and VI),
("TDCJ-
Hearing
(Docket
writ of habeas
count
four
of
aggravated sexual
terms
with
years'
maintains
he is actually innocent and trial counsel was ineffective
objection
to
for
failing
to
extraneous-offense
raise
evidence,
a
2)
that
for
trial counsel
collateral
failing
a
(Count IV)
twenty
of
and one term of life imprisonment,
ineffective
his
indecency
and one count of sexual assault
sentenced to
of
of
counts
one
a
constitutionality
failing to challenge prosecutorial misconduct;
was
Division
Evidentiary
an
along with his application for
Entry "DE" 17),
corpus
a
Institutions
to
estoppel
know
the
regarding
law
jeopardy.
second
the
on
third
and
1),
Respondent's
(DE
16
and
22),
Answer
opinion
the
(DE
and
13
Petitioner's
21),
applicable
the
Court
the
law,
(DE
1)
Brite was
2007,
child
a
by
aggravated sexual assault of
assault
Dist.
202)
of
child.
was
He
given
sexual
Traverse
is
of
the
Petitioner's
.
(DE 17)
State v. Brite,
No.
Tex.,
Nov.
2,
twenty-year
four
three
counts
of
one
count
of
contact,
and
a
all to run concurrently.
sentence,
convicted of
child,
Bexar County,
Ct.,
.
a
(DE
Procedural Background
I.
with
double
of the Rules Governing
4
Notion for an Evidentiary Hearing is also DENIED.
indecency
his
3)
violated
counts
petition should be DENIED.
and
November
and
witness;
the
Having considered the habeas application
the petition.
In
secure
to
the Court has conducted a preliminary review
Section 2254 Cases,
of
material
a
As required by Rule
(Id.).
failing
and
age,
Nary Ann Harris,
testimony of
prosecution
victim's
the
one
of
sexual
2006-CR-5362
(186th
2007);
count
(DE
sentences,
Id.
11-15 at 192-
and
one
life
Brite's convictions and
sentences were affirmed on direct appeal by the Fourth Court of
Appeals in June of 2009.
WL
1617741
Brite was
(Tex.
Brite v. State,
App.San Antonio, June
No.
10,
04-07-820-CR, 2009
2009,
pet.
subsequently granted the opportunity to file
ref'd).
an
out-
of-time petition for discretionary review by the Texas Court of
Criminal
Appeals
("TCCA"),
which
2
the
state
court
eventually
Brite v. State,
refused.
23,
2014)
Supreme
denied
He
.
Court,
then
PD-1706-13
appealed
to
writ
July
App.
United
the
States
certiorari
of
Brite v. Texas,
2015.
12,
for
Crim.
(Tex.
case
his
petition
his
but
January
on
No.
135
was
963
Ct.
S.
(2015)
Almost
year
a
Brite
later,
filed
habeas
state
a
Ex
application challenging his convictions and sentences.
Brite,
two
79,647-02
No.
separate
Crim.
(Tex.
pleadings
this
to
application on January
filed his
the prison mail-box.
(DE 4,
pgs.
App.)
Brite
Court,
7,
12-17,
(DE
394).
pg.
asserts
In
that
he
in
DE 16,
pg.
3)
However,
.
provided by Respondent Davis indicate that Brite placed
records
his application in the prison mailing system on January
(DE
parte
by depositing it
2016,
2-4;
corpus
13-1,
pg.
28)
Brite's
.
state
2016.
8,
petition
habeas
was
subsequently denied without written order by the Texas Court of
Criminal Appeals on June
federal
current
habeas
2016.
1,
petition
(DE
on
Brite filed the
12-13)
June
7,
2016.
(DE
1,
pg.
by
the
10)
II.
The
Fourth
10,
factual
Court
Factual Background
background was
of Appeals
in
its
summarized
as
follows
Memorandum Opinion,
dated
June
2009:
At the time of trial, Nancy M., the mother of S.M., who
was one of the complainants, was separated from her husband
Rick M., who was S.M.'s father. Brite was the boyfriend of
3
initially liked
grandmother.
Nancy N.
S.M.'s paternal
Brite, and he attended numerous family outings. In October
or November of 2005, Nancy N. and Rick M. were having
marital problems, and Rick N. moved to his mother's house.
their
at
and her
siblings would visit Rick N.
S.N.
the
night
and
they
stayed
grandmother's
house,
S.M.'s
approximately five times. In December of 2005,
younger sister, C.N., who was three or four years old, told
Nancy M. something that made her concerned. Nancy N. asked
about the
S.M., who was approximately seven years old,
information, and S.M. told her that "she was sleeping and
that she woke up and [Brite] touched her middle." Nancy M.
set up an appointment for S.M. to see a counselor, Mary Ann
Harris, on December 28, 2005. After Harris spoke with S.M.,
she instructed Nancy N. that she needed to call child
report.
Harris
protective services and make a police
referred Nancy N. to Child Safe where S.M. was interviewed
medically
evaluated.
S.N.
started
on
videotape
and
and continued in counseling
counseling with Marianne Torres
for a little over a year. Nancy N. did not immediately call
the police, but eventually both Nancy N. and S.M. gave
statements to Detective Lisa Miller. Nancy N. testified
that the incident made S.M. scared and angry and caused her
admitted that her
sleeping.
Nancy N.
to have trouble
separation from Rick N. also could cause S.M. to be angry
and have trouble sleeping. Nancy N. further stated that
S.M. would express anger towards Rick N. because he would
yell at S.M. and sometimes curse her with profanity.
who was nine years old at the time of trial,
testified that in October or November of 2005, she was
sleeping on the couch at her grandmother's house, and Brite
"put his hand in [her] pants" and touched her private part,
which she stated was her vagina, underneath her pan ties
[sic]. S.N. stated Brite's hand was touching the skin of
her private part. Although S.M. told Brite to stop, he
continued touching her. S.M. said when Brite touched her,
his hand would stay still. S.M. did not tell anyone because
she thought her mom would get mad at her. S.M. said Brite
touched her about four times. S.N. recalled one time when
Brite was eating hot wings, and "he touched [her] there and
it started to burn." Brite told her to get a washcloth and
put it on her "middle" so it would stop burning. S.M. said
she told her little sister because she was afraid to tell
her mom. S.N. testified that no one told her to say bad
things about Brite or told her to make up stories about him
because they were mad at him. In response to whether
S.M.,
4
Brite's "fingers were on the outside of her private part or
something else," S.M. responded that she did not remember.
Detective Lisa Miller took Nancy M.'s statement and sent
S.M. to Child Safe for a medical evaluation and interview.
On March 6, 2006, Detective Miller interviewed S.M. and
later interviewed Brite on March 26, 2006. Detective Miller
testified that Brite did not respond directly to her
questions but qualified his answers. For example, Brite
would respond that he "cannot see myself doing that" or "I
don't remember doing that." During the interview, Brite did
corroborate that the family ate hot wings on the night of
one of the alleged incidents; however, Brite told Detective
Miller that S.M. got the sauce on her hands when she
cleaned up the kitchen and later complained that she was
burning after she went to the restroom.
Brite further
stated that he examined S.M., determined that she must not
have washed her hands before using the restroom,
and
instructed her to go wash her hands and clean herself with
a wash rag. Brite explained that he examined her to see if
something had bitten her.
After Detective Miller turned S.M.'s case over to the
district
attorney's
office for their
review,
she was
contacted by Brite's daughter, A.B., who subsequently came
to the station for an interview regarding sexual offenses
Brite committed against her.
Based on that interview,
Detective Miller referred A.B.'s case to the district
attorney for aggravated sexual assault of a child.
Nancy Kellogg, a pediatrician who specializes in treating
child sexual abuse victims, testified that S.M. told her
she was asleep on the couch when Brite put his hand inside
and it felt uncomfortable. S.M. was anxious and difficult
to interview because she did not want to elaborate on
details.
Dr.
Kellogg further stated that S.M. indicated
through her gestures that Brite's hand was inside of her
private. Dr. Kellogg testified that S.M.'s description of
the burning also indicated to her that Brite had penetrated
S.M. with his finger. Dr.
Kellogg testified that S.M.'s
physical
exam
was
normal
which
is
most
common when
examining children in this context.
A.B. testified that when she was six years old, Brite,
her father, placed his penis between her legs. Although
Brite tried to place his penis inside her vagina, she told
him it hurt, and he stopped. He continued, however, rubbing
his penis in between her legs. A.B. testified that Brite
5
would do this to her at least three or four times a week.
Brite also touched A.B.'s vagina with his fingers a lot and
placed his mouth on her vagina at
one point.
These
incidents continued after September 1,
1987,
until her
parents divorced when she was around fourteen years old.
When A.B. was in third grade,
she was called to the
counselor's office and told the counselor about Brite's
actions. Child protective services and the police were
called. A.B. stated that the family went to counseling for
about a year after she told the counselor. After the
counseling, Brite started fondling A.B. again, and Brite
continued placing his sexual organ between A.B.'s legs and
touching her sexual organ with his sexual organ. After her
parents' divorce, Brite attempted to touch A.B. when she
was seventeen; however, she stopped him. A.B. was afraid to
call the police because nothing happened the other time
they were called. When asked why she finally decided to
pursue charges against her father, A.B. stated Nancy N.
told her about the incident involving S.M. A.B. further
stated, "I just don't want him to do this to anybody
anymore."
at *1_3.
Brite, 2009 WL 1617741,
Standards of Review
III.
Review of State Court Adjudications
A.
Brite's
federal
petition
governed
is
by
heightened
the
standard of review provided by the Antiterrorism and
Death
Act
Penalty
2254(d),
a
("AEDPA")
petitioner
may
28
.
not
U.S.C.A.
obtain
Effective
Under
2254.
§
federal
habeas
§
corpus
relief on any claim that was adjudicated on the merits in state
court proceedings,
(1)
unless the adjudication of that claim either:
resulted in a decision that was contrary to,
unreasonable application of,
determined by the
resulted
in
a
Supreme
decision
or
involved an
clearly established federal law,
Court
that
of
was
the United
based
on
States,
an
or
as
(2)
unreasonable
determination of the facts in light of the evidence presented in
Brown
the state court proceeding.
(2005)
of
a
complete
bar
already
rejected
in
imposing
Richter,
562
664
651,
A
U.S.
was
of
proceedings.
state
Harrington
v.
(citing Felker
(2011)
court's
habeas
inquiry
518
unreasonableness
into
"objectively unreasonable"
law was
McDaniel
erroneous.
or
Wiggins
132-33
(2010);
Even a
strong case
Smith,
v.
habeas
562
not
Brown,
U.S.
510,
558
U.S.
regardless
have reached
at
102.
a
U.S.
state
it
120,
(2003)
court's
of whether the
different
Instead,
whether
520-21
relief does not mean the
for
court would
Richter,
and
v.
539
contrary conclusion was unreasonable,
itself.
Turpin,
the state court's application of clearly established
incorrect
federal
v.
be objective rather than subjective, with a focus
should always
federal
relitigation
(1996))
federal
on whether
102
86,
141
133,
court
federal
on
544 U.S.
standard stops just short
This intentionally difficult
.
claims
U.S.
Payton,
v.
conclusion
petitioner must
a
show that the decision was objectively unreasonable, which is a
"substantially
U.S.
(2003)
473
465,
.
So
correctness
higher
threshold."
(2007);
Lockyer
v.
Schriro
Andrade,
long as "fairminded jurists
of
the
state
court's
Landrigan,
v.
U.S.
538
could disagree"
decision,
a
determination that a claim lacks merit precludes
relief.
Richter,
562
U.S.
at
7
101
63,
(citing
state
550
75-76
on the
court's
federal habeas
Yarborough
v.
Alvarado,
541
U.s.
federal habeas
merits
in
652,
In other words,
(2004)).
664
relief on a claim previously
state
court,
Brite must
to obtain
adjudicated
show that
the
state
on the
court's
ruling "was so lacking in justification that there was an error
understood
well
and
comprehended
existing
in
Richter,
possibility for fairminded disagreement."
see
103;
also Bobby
Furthermore,
§
2254(e) (2),
factual
a
v. Dixon,
562
any
U.s.
at
(2011)
24
for the narrow
exceptions contained in
habeas
petitioner
precluded
from
further
and
rely
on
development
federal
in
state
Reasoning that
is
court
"[i]t
must
court when challenging a
Pinholster,
Cullen v.
finding.
(2011).
23,
beyond
except
evidence presented to the
court
565 U.s.
law
would be
563
U.s.
strange
to
the
state
170,
181-82
ask
federal
courts to analyze whether a state court's adjudication resulted
in a decision that unreasonably applied federal law to facts not
before the state court,"
claim has
federal
2254
habeas
Cd) (1)
Thus,
been
adjudicated
on
petitioner
must
(1)
explicitly held that "[i]f
the merits
overcome
by a
the
state
court,
limitation
review"
in federal court
and this
record in existence at
Court's
the time
[of
a
a
of
on the record that was before that state court."
"evidence introduced
2254(d)
i.e.,
Pinholster
§
Id.
has no bearing on §
review
"is
limited
to
the
the state court decision],
the record before the state court."
Id.
Review of Sixth amendment Claims
B.
Court
The
reviews
Sixth
Amendment
alleged ineffective assistance
Washington,
466 U.S.
establish
counsel
unless
deficient and
U.S.
668
of
("IATC"
counsel's
(1)
this deficiency prejudiced
(2)
According
690.
Strickland's
high
to
bar
determining
whether
v.
petitioner
a
right
performance
his defense.
to
was
466
Supreme
Court,
an
the
never
is
the
claims)
Strickland
Amendment
Sixth
his
Kentucky, 559 U.S. 356, 371
v.
In
counsel
Under Strickland,
.
demonstrates
he
"[s]urmounting
(1984)
violation
a
687-88,
at
Padilla
concerning
familiar two-prong test established in
under the
cannot
of trial
claims
task."
easy
(2010)
counsel
performed
deficiently,
courts "must be highly deferential" to counsel's conduct,
and a
petitioner must show that counsel's performance fell beyond the
bounds
of
Strickland,
to
prevailing
466 U.S.
rendered
have
at
objective
professional
Counsel
687-89.
adequate assistance
is
standards.
"strongly presumed
and made
significant
all
decisions in the exercise of reasonable professional
Burt
Titlow,
v.
466 U.S.
tactics
at
and
ineffective
that
.
v.
5.
cannot
assistance
Cockrell,
10,
Ct.
(2013)
17
(quoting Strickland,
"A conscious and informed decision
strategy
permeates
it
Cotton
690)
134
judgment."
the
343
of
be
counsel
entire
basis
the
unless
trial
F.3d 746,
with
752-53
for
it
constitutionally
is
so
obvious
(5th
on trial
Cir.
ill
chosen
unfairness."
2003).
As
the Supreme Court explained,
that
competent
tactician,
counsel
miscalculation
may
be
not
flawless
a
faulted
be
foresight
lack of
or
or
For this reason,
Yarborough
benefit
the
Accordingly,
there
is
540
U.S.
1,
a
is
to demonstrate
a
(citations
v.
that
range
Thaler,
prejudice,
a
omitted)
an
alleged
reasonable
of
F.3d 372,
695
378
petitioner "must show
reasonable probability that,
unprofessional errors,
been
Feldman
Sixth
(quoting Strickland, 466 U.S. at 689)
(5th Cir. 2012)
that there
wide
the
at
not perfect advocacy
presumption
strong
professional assistance."
Further,
562 U.s.
("The
(2003)
6
hindsight.")
of
within
"falls
deficiency
Richter,
prepare
Strickland, 466 U.S.
Amendment guarantees reasonable competence,
judged with
to
every effort must be made to eliminate
Gentry,
v.
or
reasonable
a
failing
for
the "distorting effects of hindsight."
689;
strategist
for
remote possibilities."
for what appear to be
at 110.
will
attorney
an
"{j]ust as there is no expectation
different.
A
the result
reasonable
of
for counsel's
but
the proceeding would have
probability
is
a
sufficient to undermine confidence in the outcome."
probability
Strickland,
466 U.S. at 694.
IV.
Analysis
Respondent initially contends that Brite's
is
barred
2244(d)
by
the
by one day.
one-year
period
limitation
Under the AEDPA,
10
a
federal petition
of
28
U.S.C.
§
state prisoner has one
year to file a federal petition for habeas corpus,
this
case,
from "the date on which the judgment became final by
the
conclusion of direct
for
seeking such
Stephens,
a
review."
28
604
petitioner
who
Supreme court,
pursues
review'when
merits
or
denies
565
(5th
the
of
§ 2244(d) (1) (A);
U.S.C.
direct
court
[the]
petition
a
U.s.
150
134,
became final January 12,
petition
the expiration
or
Cir.
2013)
review
Palacios
In the case of
.
all
time
way
the
to
the
the judgment becomes final at the "'conclusion of
direct
his
review
723 F.3d 600,
v.
Thaler,
beginning, in
limitations period under
Here,
conviction
on
Gonzales
Brite's
the
v.
conviction
the date the Supreme court denied
certiorari.
of
§
a
certiorari."
for
(2012).
2015,
writ
for
affirms
2244(d)
As
a
result,
the
for filing his federal habeas
petition expired a year later on January 12,
2016,
unless it is
subject to either statutory or equitable tolling.
Brite
does
satisfy
not
provisions set out in
of
an impediment
§
2244
(d) (1)
of
timely petition.
28
the
statutory
government that violated
law and prevented Brite from filing
u.s.c.
§
2244(d)(1)(B).
There has also
been no showing of a newly recognized constitutional
which the petition is based,
claims
could
not
have
exercise of due diligence.
tolling
There has been no showing
.
created by the state
the constitution or federal
a
any
right upon
and there is no indication that the
been
discovered
28 u.s.c.
11
§
earlier
2244(d)
(1)
through
(c)-(D).
the
While Brite has not demonstrated that any of the statutory
tolling provisions apply,
which
during
a
2244(d)
§
properly
provides that "[t]he time
(2)
application
filed
conviction or other collateral review
counted
be
toward
subsection."
573,
se
578-79
(5th
Cir.
prison authorities)
the
2013)
limitations
corpus
as
in
6,
the
for
opposed
Lookingbill
2002) (emphasizing
Ott
v.
that
to trigger
Johnson,
192
state habeas application
146
days,
his
339
F.3d 238
making
Brite's
application for writ of
January
8,
2016,
the
§
2016
7,
date
as
he
Respondent
2254 petition is,
therefore, relief should be barred under
v.
Cockrell, 293 F.3d 256,
the
"AEDPA
relies
on
265
(5th Cir.
precise
filing
specific accrual and tolling provisions");
F.3d
510,
513
(5th
petition filed four days late was untimely);
Lee,
of pro
2016.
deposited
to
8,
are delivered to
the prison mail-box on January
nevertheless, untimely;
deadlines
this
710 F.3d
Thaler,
time they
the
maintains it was actually deposited, Brite's
the AEDPA.
under
the pleadings
(holding that
period
Even assuming Brite
maintains,
limitation
of
Accordingly,
.
federal petition due on June
habeas
is pending shall not
.
See Richards v.
2016.
1,
are deemed filed at
inmates
tolled
period
.
post-
Brite's state habeas petition was filed January
and denied June
2016,
any
.
State
for
(4th Cir.
2003) (habeas
late in a death penalty case was untimely)
12
Cir.
1999) (habeas
see also Rouse
v.
petition filed one day
Although
likewise
this
fails
may
seem
merits
the
on
since
petition
Brite's
harsh,
Brite
result
did
make
not
"a
substantial showing of the denial of a federal right" and cannot
showing that this Court's procedural rulings
make a substantial
are incorrect as required by FED.R.APP.P.
appealability.
Slack
See
v.
for a certificate of
22
McDaniel,
U.S.
529
483-84
473,
(2000).
A.
Brite's claims of ineffective assistance
The
Cockrell,
v.
Dowthitt
2006) (citing
Cir.2000),
seeks
Foster
innocence.
"actual
objects to petitioner's claims
State initially
extent petitioner
cert.
Quarterman,
(2001);
915
(5th Cir.2003)).
151
with
F.3d
230
respect
367
Cir.
741-42
733,
(5th
(5th
see also Graves
v.
Petitioner alleges
the
to
the
to
claims of actual
F.3d 359,
466
Johnson,
v.
denied, 532 U.S.
innocence"
stand-alone
assert
to
351 F'.3d 143,
(Claims 1-5)
first
two
grounds,
contending that he was denied effective assistance because trial
counsel
instructed
challenge
Mauser
Erna
not
misconduct
prosecutorial
after
allegedly told Erna Mauser not to testify,
when
the
state
violated
entirety due
testimony
in
Insurance
Portability
Petitioner
appears
deficiencies
its
in
an
and
to
allowing
order
to
its
Dr.
that
Kellogg's
13
to
Miller
and failed to object
violation
but
failed
Detective
suppressing
Accountability
argue
testify,
to
Act
for
of
Kellogg's
Dr.
of
the
1996
trial
Health
(HIPAA)
counsel's
testimony and excluding
Erna Mauser's
Accordingly,
testimony,
the
Court
Brite would have been found
addresses
these
claims
innocent.
pursuant
the
to
Sixth Amendment.
1.
Failure to challenge prosecutorial misconduct
In his
first ground, petitioner maintains trial counsel was
ineffective
in
failing
challenge
to
instructing
Erna Mauser not
prosecutorial
Mauser not to
maintains
would have
Erna Mauser
previously abused by
S.M.
after
for
Detective
Petitioner
testify.
testified
and
that
was
S.M.
notwithstanding the testimony of
teacher,
and her mother who both maintained that S.M. had never been
abused before.
the
a
testify
misconduct
Miller allegedly told Erna
that
to
fact
that
Petitioner contends that
S.M.
had not
been
abused
Dr.
Kellogg
before
relied on
making
in
her
diagnosis and that Brite would not have been convicted had Erna
Mauser been permitted to testify.
Brite's
claims
are conclusory and lacking
any support.
in
Nothing in the record demonstrates that the prosecution knew or
was
involved
testifying.
2015,
in
any
Further,
attempt
Erna
relies on hearsay,
is
to
Mauser's
prevent
Erna
affidavit,
Mauser
dated
from
April
1,
contradictory at best and fails to
clearly establish that counsel told Erna Mauser not to testify.
When asked whether she told trial counsel "about the allegations
that were told to Nancy Mauser that her daughter
abused by a teacher and that
'[N]ancy
14
took care
.
.
of
.
had been
this',
and
that
closed
school
the
affirmatively.
or anyone else ever ask[ed]
not
clarify
who
Mauser
Ms.
responded
when asked whether "Detective Liza Miller
Also,
by the teacher?" Ms.
down?"
not to testify about the abuse
[her]
Mauser again answered affirmatively but did
allegedly told her not
to
testify.
Further,
when asked "[d]id the District Attorney or anyone else ask you
not to testify in
"your
ever
answered,
advised
to establish
not
her
These
"no."
when
However,
attorney."
counsel
my behalf?" Ms. Mauser responded "yes,"
[sic]
asked
directly
testify
to
at
whether
trial,
contradictory responses
trial
Mauser
Ms.
are insufficient
Detective Miller told Erna
that either counsel or
Mauser not to testify.
Further,
even
assuming
trial
counsel
decided
Mauser should not testify and told her as much,
and informed
decision
trial tactics
on
and
"[a]
strategy
that
Ms.
conscious
cannot
be
the basis for constitutionally ineffective assistance of counsel
unless it
is
so
ill
with obvious unfairness."
counsel
permeates the
chosen that it
Cotton,
noted in his affidavit,
entire
343 F.3d at 752-53.
trial
As trial
"[a]pplicant makes a great buzz
that the
child had previously been molested by another person.
Even
that
if
admissibility
were
in
the
[light]
of
evidence
such
case,
Texas
Rule
of
is
Evidence
other person does not go to the issue of consent
Indeed,
Judge Teresa Herr,
the
judge
15
in Mr.
of
doubtful
412.
The
in this case.
Brite's case,
has
such evidence under Rule
excluded
mine."
a
subsequent case
of
12-17, pg. 441).
(DE
In
in
412
addition
failing
to
show
to
that
his
trial
counsel
instructed Erna Mauser not to testify and was deficient in doing
petitioner
so,
also
probability that,
result
Strickland,
have
466 U.s.
at
that
S.M.
two victims,
reasonable
a
errors,
been
previously was
his
child sex offenses
involvement,
statements such as:
different."
abused by
am not going
I
can't
see
my[self]
Brite
to
admit
to
doing
testimony
when
questioned
various
made
ambivalent
probability
that,
but
something
I
didn't do.";
for
regarding
12-17,
find that there
counsel's
5.M.
I
pgs.
failure
441;
is a
to
being previously
result of the proceeding would have been different.
16
I
do
am guilty as
did,
(DE
by
and the viewing
I
it."
the Court does not
testify
which,
in
Brite was
If
[S.M.].
Accordingly,
to
following
another
"Let me go search my heart and mind.
not recall doing anything
hell.
interview
police
the
Mauser's testimony would
of whom was his own daughter,
one
video-taped
regarding
Mauser
is
As trial counsel stated in his affidavit, Mr.
convicted of various
his
have
Here Ms.
694.
there
unprofessional
would
proceeding
demonstrated
person.
of
counsel's
for
but
the
of
show "that
fails to
and "I
412-15)
reasonable
permit
abused,
Erna
the
Failure
order
2.
In
second
his
failed
counsel
suppressing
violation
object
to
ground
for
object
when
to
HIPAA.
However,
repeatedly
counsel
objected
Counsel
testimony.
petitioner
relief,
suppression
alleges
violated
state
the
of
that
order
an
Kellogg's testimony in its entirety due to its
Dr.
of
violation
state's
to
record
the
initially
filed
that
trial
of
this
introduction
the
to
reflects
pre-trial
a
motion
and
argued against the admissibility of this evidence during a pretrial
hearing.
requested
written
(Id.,
pg.
354).
State
sought
and
conclusions
in
.
law
of
throughout
DE 11-19,
counsel's
pgs.
Dr.
and
counsel also
conclusions
counsel again
of
law.
objected when the
Kellogg's testimony.
and
(DE
favor,
.
this
was
requested
further,
Kellogg's
869-71)
performance
counsel's
Trial
.
11-17,
Counsel again requested written findings of fact
472-73)
479;
trial,
349)
fact
of
introduce Dr.
to
345,
pg.
findings
During
pgs.
objection
11-15,
(DE
testimony.
running
a
(DE
11-17,
pg.
While the trial court did not rule
hardly
deficient,
demonstrates
that
particularly
trial
given
the
strong presumption that an alleged deficiency "falls within the
Feldman,
wide range of reasonable professional assistance."
F.3d at
given
378
the
(quoting Strickland,
remaining
testimony
466
U.S.
supporting
at
689)
Brite's
.
695
Moreover,
conviction,
Brite has not and cannot establish that but for the introduction
17
he would not have been convicted.
of this evidence,
466 U.S.
3.
Strickland,
at 694.
Failure to raise a collateral estoppel objection
petitioner
Next,
claims
that
his
trial
counsel
was
ineffective for failing to raise a collateral estoppel objection
to
testimony
related
extraneous
to
Petitioner maintains that during
agreed to
initially
the
quash
a
pre-trial
from
1985.
hearing the State
based on
involving A.B.
counts
five
offenses
statute of limitations but subsequently introduced testimony
relating
to
counsel
was
these
offenses.
ineffective
arguing
introduced,
permitting
in
that
maintains
Petitioner
trial
testimony
the
counsel
his
objected
trial
be
to
this
to
testimony based on the Sixth, rather than the Fifth 1mendment.
However,
Brite's
counts,
A.B.'s
addition
in
trial
testimony
follows:
estoppel"
1)
regarding
that
because
a
motion
raised
incidents
running
testimony
"barred
limitations from bringing
was
was
prevented
charges related
and had voluntarily dismissed the charges;
estopped
by
the "due
process
cause of
to
2)
the
outside
counsel
by
these
objections
occurring
trial
State
quash
to
In particular,
the
the
filing
counsel
statute of limitations.
as
to
by
the
the
to
the
objected
common
statute
law
of
1985 offenses
that the State was
Texas
Constitution"
and the "Fifth and Fourteen Amendment due process clause of the
U.S.
Constitution;"
and,
3)
that
the
State
was
"collaterally
estopped
under
jeopardy clause."
admitted
2
§
11-20,
(DE
Fourteenth
pg.
evidence pursuant
the
38.37,
and
Sixth
the
(Vernon Supp.
DE
8;
to
Amendments
12-1)
TEX.CODE
under
the
The trial court
.
PROC.
CRIM.
art.
ANN.
which provides that evidence of
2014),
other crimes, wrongs, or acts committed by a defendant against a
child who is a victim of an alleged offense under Chapter 21 or
Chapter
bearing
response
in
sexual assault
indecency with
or
a
evidence of
could only be used as
the
pgs.
13-14;
objections
failed
and
the
show
to
deficient
DE 12-1,
or
that
he
pg.
court's
that
his
and
in
acts
of 1987,
11).
and
child.
trial
court
reading
the
aggravated
of
child by contact,
and those
that this evidence
prior relationship between
a
In
limiting
trial
(DE
11-
light of trial counsel's
instruction,
counsel's
prejudiced.
was
of
the
the
and for no other purpose.
child and the defendant
20,
and
objections,
1st
acts occurred prior to September
previous
the
defendant
the
testimony
heard
admitted for its
be
both during the trial
they
if
shall
including
counsel's
to
instructed the jury,
that
Code
between
relationship
subsequent
charge,
Penal
matters,
relevant
on
Further,
the Texas
of
22
Brite
has
performance
was
Strickland,
466 U.S.
at
evidence
on
694.
Brite
direct
also
appeal,
uncharged
challenged
arguing
offenses
was
the
that
admission
A.B.'s
inadmissible
19
of
this
testimony
because
regarding
the
statute
the
of
limitations
had
Brite,
run.
2009
overruling Brite's objections,
the
WL
1617741
Court
Fourth
at
*6.
In
found that
the
evidence was properly admitted for a limited purpose pursuant to
TEX.CODE CRIM.
PROC.
ANN.
instructed that it
1,
1987.
38.37,
§
and that
2,
could only consider
the jury was
acts prior to
performance
was
particularly
deficient,
the strong presumption that an alleged deficiency
"falls
the wide range of reasonable professional assistance."
within
Feldman,
Failure to know law as to counts four, five and six
Petitioner
next
maintains
that
trial
counsel
ineffective in failing to know the law as to counts
However,
count
demonstrate
at 690.
5
was dismissed and, therefore,
he was prejudiced in any way.
In count 4,
4,
5
was
and
6.
petitioner cannot
Strickland,
466 U.S.
Brite was charged with and convicted of the
sexual assault of A.B.,
age,
given
(quoting Strickland, 466 U.S. at 689)
695 F.3d at 378
4.
September
Brite raises the same issue here but fails to show how
counsel's
trial
art.
a
child younger than seventeen years of
on or about the 26th Day of September,
In count six,
1993.
Brite was charged with and convicted of indecent contact with A.B.,
a
female
defendant,
child
younger
than seventeen
and not
the
spouse
of
the
on or about the 26th day of September, 1993.
Petitioner maintains that A.B. turned fourteen on September 27,
1992
and would have still been fourteen on September 26,
date alleged
in
the
indictment.
20
Petitioner contends,
1993,
the
however,
that
the
after
state was
turned
A.B.
committed any acts
alleging that Brite
not
fourteen
therefore,
and,
Additionally,
allegation does not apply.
the
"on
or
about"
petitioner claims that
he was no longer living in the house with A.B. after August 12,
could not have committed these offenses after that
therefore,
and,
1992
date.
Brite argued on direct appeal that the evidence was legally
and
insufficient
factual
1617741.
noted
in
language,
overruling
In
opinion
its
.
.
.
convict
to
Brite's
that
Brite,
him.
objections,
the
Fourth
indictment's
"[t]he
2009
or
'on
WL
Court
about'
allows the State to prove a date other than one
alleged in the indictment as long as the date is anterior to the
presentment
limitation
the
of
period."
indictment
at
Id.
within
and
*4
Further,
statutory
the
notwithstanding
Brite's contention that there was no evidence that Brite engaged
in
offensive
contact
after
A.B.
turned
moved out of the family home on August 12,
the offensive
that
until
her
old.
Id.
5.
parents
fourteen
1992,
divorced
when she
was
around
counsel
was
he
testified
A.B.
contacts continued after September
1,
1987,
fourteen years
at *3
Failure to secure a witness
Petitioner also
alleges
that
ineffective
failing to secure the testimony of Mary Ann Harris.
does
after
or
not
state
the
nature
of
Ms.
21
for
Petitioner
Harris's proposed testimony.
trial
Further,
counsel
indicated
that
chose
he
not
call
to
Harris for the following reasons:
She was a private therapist whom the victim saw. She was an
outcry witness. Her testimony would have repeated and
corroborated in part the child's testimony. She was not
called as a defense witness as a matter of strategy. Her
testimony would only have reinforced the complainant's
testimony. I am not going to call a witness who will only
help the State in its prosecution.
12-17,
(DE
appears
to
tactics
Counsel's decision not to call Harris
440-41).
pgs.
be
conscious
"[a]
which
strategy"
and
informed
and
"cannot
decision
be
basis
the
constitutionally ineffective assistance of counsel
so
ill
chosen
that it permeates
Cotton,
unfairness."
failing
show
to
F.3d
343
trial
the entire
counsel's
because he did not call Harris as
witness,
addition
to
deficient
was
Brite also fails to
prejudiced by this alleged deficiency.
show how he was
does
a
is
with obvious
In
performance
for
unless it
trial
752-53.
at
trial
on
Brite
testified to,
stating
not indicate
what Harris would have
This is insufficient
only that Harris was the first to see S.M.
to establish petitioner's burden.
Finally,
ineffective
TCCA's
the
TCCA
assistance
implicit
determinations
and
are
denied
of
Brite
counsel
explicit
entitled
claims
factual
to
a
relief
each
on
the
on
findings
presumption
of
merits.
and
of
§
2254(e) (1);
Marshall v. Lonberger,
22
459
The
credibility
correctness,
which may be overcome only by clear and convincing evidence.
U.S.C.
his
U.S.
422,
28
433
Neal
(1983);
Puckett,
v.
F.3d
239
696
683,
(5th
Cir.
2001).
Brite has not shown that the TCCA's decision was an unreasonable
application
of
either
clearly
established
federal
law
facts in light of the evidence presented.
Consequently,
ineffective
should
assistance
counsel
of
claims
the
or
Brite's
denied and
be
dismissed with prejudice.
B.
Brite's claim of double jeopardy (claim
Lastly,
second
and
jeopardy.1
petitioner
third
More
contends
that
violated
counts
specifically,
his
his
6)
prosecution
rights
petitioner
against
maintains
on
the
double
that
the
state relied on evidence of the same act to prove a violation of
two separate penal statutes.
The
Fifth Amendment's proscription against
double
jeopardy
protects a defendant from receiving more than one punishment for
the
same
offense.
U.S.
CONST.
AI1END
violation
V.
Where
the
same
act
or
transaction
constitutes
provisions,
the test applied to determine whether there are two
offenses or one
fact
284
which the
U.s.
299,
occurred at
is
a
separate
two
statutory
whether each provision requires proof of a
other does not.
304
of
(1999)
.
Blockburger
separate
different timeseven
1
if
and
v.
United States,
distinct
committed
acts
that
against the same
Petitioner also alleges that the State should have elected between counts 4
and 6; however, because petitioner is raising this issue for the first time,
he has failed to exhaust his remedies and is procedurally barred.
23
personmay constitute offenses independently punishable under
See
single statute.
e.g., id.
a
at 301-302.
Brite was convicted of aggravated sexual assault of a child
in
count
knowingly
by
his
child
two
which
that
Brite
contact
in
was
also
count
convicted
three
intentionally
Brite
caused the penetration of S.M.'s
finger.
by
charged
which
female
of
sexual
and
organ
indecency with
charged
that
a
Brite
intentionally and knowingly engaged in sexual contact with S.M.
by touching part of S.M.'s genitals with the intent to arouse or
gratify someone's sexual desire.
Brite's double jeopardy claims were previously reviewed on
direct
appeal
by
the
Fourth
Court
of
Appeals
which held
the
following:
order to prevail on a double jeopardy claim, the
evidence
must
show
that
the
two
offenses
at
issue
necessarily arose from 'one act which could be subject to
two different interpretations.'" Martinez v.
State, 212
S.W.3d
411,
422
(Tex.
App.Austin 2006, pet.
ref'd)
(quoting Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim.
App.
1998))
In
this
case,
Brite
alleges
that
his
conviction for indecency with a child by contact was based
on
the
same
conduct
underlying
his
conviction
for
aggravated sexual assault of a child because both offenses
arose from the "hot wing' allegation." S.M. testified,
however, that Brite touched her genital area four times
including
Although
the
"hot wing'
allegation."
the
indictment alleged two offenses that occurred "on or about"
the same date, it is well settled that the "on or about"
language of an indictment allows the State to prove a date
other than the one alleged in the indictment as long as the
date is prior to the presentation of the indictment and not
so remote that prosecution is barred by the statute of
limitations. See Sledge v. State, 953 S.W.2d at 256. In
this
case,
S.M.'s testimony established three offenses
"In
.
24
separate from the "hot wing' allegation" each of which
occurred prior to the presentation of the indictment and
period.
limitations
statute of
applicable
within
the
Accordingly, Brite's double jeopardy challenge fails, and
his seventh issue is overruled. See Cabral v. State, 170
S.W.3d 761, 764-65 (Tex. App.Fort Worth 2005, pet. ref'd)
(concluding no double jeopardy violation occurred where
complainant testified regarding two separate and distinct
incidents of abuse)
2009 WL 1617741,
Brite,
*9
at
Subsequently,
the TCCA ruled on
the merits of this claim in refusing Brite's PDR.
adjudication
Brite has not demonstrated that the TCCA's
of
his double jeopardy claim resulted in a decision that was either
contrary to,
or involved an unreasonable application of,
established federal
the United States,
law,
as
determined by the Supreme
clearly
Court of
or based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding.
Brown,
U.S.
544
Accordingly,
141.
at
Brite's
double jeopardy claim should be denied with prejudice.
Certificate of Appealability
V.
The Court next determines whether
appealability
2254
Proceedings;
(2003)
a
(COA)
See Rule 11(a)
.
Miller-El
(citing 28 U.S.C.
petitioner makes
"a
constitutional right."
court
merits,
rejects
a
§
v.
of
Cockrell,
2253(c)(1)).
U.S.C.
§
537
2253(c)
the petitioner must demonstrate
25
U.S.
§
335-36
322,
A COA may issue only if
(2)
constitutional
petitioner's
Governing
the Rules
showing of
substantial
28
to issue a certificate of
the
.
denial
If
a
claims
of
a
district
on
the
"that reasonable jurists
would find the district court's assessment of the constitutional
debatable
claims
484
(2000)
v.
McDaniel,
U.s.
529
473,
This requires a petitioner to show "that reasonable
.
whether
debate
could
jurists
Slack
wrong."
or
should
petition
the
have
been
resolved in a different manner or that the issues presented were
to
Miller-El,
537 U.s.
district
A
Johnson,
forth above,
the
may
briefing
211 F.3d 895,
898
Court
further.'"
proceed
to
(citation omitted)
at 336
court
further
requiring
encouragement
deserve
'adequate
deny
or
concludes
See
argument.
(5th Cir.
2000)
that
sponte
sua
COA
a
without
Alexander v.
For the reasons set
.
reasonable
jurists would
not debate the conclusion that Brite was not entitled to federal
As such, a COA will not issue.
habeas relief.
VI. Conclusion and Order
failed to establish that the
Petitioner has
court's
state
rejection of the aforementioned claims on the merits during his
state
habeas
involved
an
federal
law,
5tates,
or
unreasonable
as
(2)
light
facts
in
state
trial,
result,
corpus proceedings
Jim
was either
application
(1)
contrary to,
clearly
of,
or
established
determined by the supreme Court of the United
based on
of
the
appellate,
Brite's
an
unreasonable
evidence
and
federal
determination
presented
habeas
habeas
warrant federal habeas corpus relief.
corpus
corpus
in
the
of
the
petitioner's
proceedings.
petition
does
As
a
not
Accordingly,
based on the
foregoing reasons,
IT IS
HEREBY
ORDERED that:
1.
Federal habeas corpus relief is DENIED and Petitioner Jim
Brite's Petition for Writ of Habeas Corpus pursuant to 28
DISMISSED WITH
is
(DE
1)
2254
petition
U.S.C.
§
PREJUDICE;
2.
No Certificate of Appealability shall issue in this case;
and
3.
including
remaining motions,
All
other
Hearing (DE 17),
Motion for an Evidentiary
and this case is now CLOSED.
Petitioner's
are
DENIED,
It is so ORDERED.
SIGNED
thIsb
day of August,
2017.
ORLANDO L. GARCIA
Chief United States District Judge
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?