Opinion
NO. 3-03-CV-1298-L
January 22, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Lenzell Brown, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was charged in separate indictments with two counts of aggravated assault with a deadly weapon. The cases were tried together and a jury found petitioner guilty of both offenses. Punishment was assessed at 13 years confinement in each case. His convictions and sentences were affirmed on direct appeal. Brown v. State, Nos. 05-01-01222-CR 05-01-01223-CR (Tex.App.-Dallas, Jan. 6, 2003, pet. ref'd). Petitioner then filed this action in federal court.
II.
Petitioner raises three broad issues in four grounds for relief. Succinctly stated, petitioner contends that: (1) the evidence was factually insufficient to support his convictions; (2) the jury charge was defective; and (3) the trial judge improperly commented on the weight of the evidence.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A"). See Pub.L. 104-132, 110 Stat.1214 (1996). Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may grant habeas relief only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law" or 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)(1) (2). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from the Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. See also Wiggins v. Smith, ___ U.S. ___; 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471(2003). Stated differently, "a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Id., 123 S.Ct. at 2535, quoting Lockyer v. Andrade, 538 U.S. 63, ___, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). In order for a federal court to find the state court's application of Supreme Court precedent "unreasonable," the state court decision must be more than incorrect or erroneous-the application of clearly established federal law must have been "objectively unreasonable." Id., citing Williams, 120 S.Ct. at 1523; see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).B.
Petitioner first contends that the evidence was factually insufficient to support his convictions for aggravated assault with a deadly weapon. In particular, petitioner claims that there was insufficient evidence to prove that he was the person who attacked Patricia Brown and her sister, Tina Holden, because there was no corroborating physical evidence and a defense witness testified that petitioner was somewhere else when the assault occurred.1.
Under Texas law, intermediate appellate courts have the authority to review fact questions in criminal cases. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). This "factual sufficiency" review of the evidence is broader than a "legal sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Instead of viewing the evidence in the light most favorable to the prosecution and determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," a factual sufficiency inquiry views all the evidence to determine whether the verdict "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, 2001 WL1115339 at * 13 (N.D. Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 128-29. The power of state appellate courts to review the factual sufficiency of the evidence derives from Texas statutory and constitutional authority. Id. at *14, citing Clewis, 922 S.W.2d at 129-30, and Bigby v. State, 892 S.W.2d 864, 874-75 (Tex.Crim.App. 1994). There is no corresponding right of review under the United States Constitution. Id. Consequently, a claim based on factually insufficient evidence does not implicate a federal constitutional right and is not cognizable under 28 U.S.C. § 2254. See id. (citing cases); see Warren v. Cockrell, 2002 WL 32167729 at *2 (N.D. Tex. Dec. 30, 2002); Cupples v. Cockrell, 2002 WL 1155826 at *5 (N.D. Tex. May 29, 2002); Osteen v. Cockrell, 2002 WL 356568 at * 7 (N.D. Tex. Feb. 28, 2002).
2.
Here, petitioner claims that the evidence was factually insufficient to support his conviction. He does not challenge the legal sufficiency of the evidence under Jackson. Nor was such a claim made on direct appeal. Therefore, petitioner is not entitled to federal habeas relief on this ground.
In rejecting petitioner's claim on direct appeal, the state appellate court wrote:
[T]hree eyewitnesses identified appellant as the person who entered the church and attacked Patricia and Tina. Although appellant tried to hide his identity, these witnesses were unequivocal in their certainty that he was the assailant. Tina, appellant's sister-in-law, recognized appellant by his eyes and by a mole on his face. Patricia, appellant's estranged wife, recognized appellant by his eyes and by the way he was standing. The class instructor, who had seen appellant on previous occasions, said he had no doubt that the assailant was appellant. In contrast, appellant presented alibi evidence from a family friend, which the jury apparently rejected. We may disagree with a fact finder's determination only when the record indicates that such a step is necessary "to arrest the occurrence of a manifest injustice." (Citation omitted). Reviewing all the evidence in this case, we conclude such a step is not warranted here.Brown, Nos. 05-01-01222-CR 05-01-01223-CR, op. at 3. Even if this court were to review petitioner's factual sufficiency claim, he has failed to show that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented [at trial]." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct. 2001 (2001).
C.
Petitioner also complains that the trial court incorrectly charged the jury on the culpable mental states applicable to aggravated assault. Although the charge defined the terms "intentionally," "knowingly," and "recklessly," petitioner points out that those definitions were not limited to the result of his conduct.
1.
Improper jury instructions in state criminal trials rarely justify federal habeas relief. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002). In examining such a claim, the "inquiry is not whether there was prejudice to the [petitioner], or whether state law was violated, but whether there was prejudice of constitutional magnitude." Galvan, 293 F.3d at 764, quoting Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986), cert. denied, 107 S.Ct. 1901 (1987). This, in turn, requires the petitioner to prove that the erroneous instruction "by itself so infected the entire trial that the resulting conviction violates due process." Id., at 764-65, quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct 396, 400, 38 L.Ed.2d 368 (1973). Moreover, there is a strong presumption that errors injury instructions are subject to a harmless error analysis. Id. at 765. A constitutional error is harmless unless it "had a substantial and injurious effect or influence in determining the jury's verdict." Id., quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993).
2.
Petitioner was charged with assaulting Tina Holden by causing bodily injury and assaulting Patricia Brown by threatening her with imminent bodily injury. (See St. App. Tr-I at 2; St. App. Tr-II at 2). Under Texas law, assault by causing bodily injury is a "result of the conduct" offense. See Sneed v. State, 803 S.W.2d 833, 835 n. 2 (Tex.App. — Dallas 1991, pet. ref'd). In such cases, the definitions of culpable mental states should be limited to the result of the conduct rather than the nature or circumstances surrounding the conduct. By contrast, assault by threat is a "nature of the conduct" offense. Id.; see also Guzman v. State, 988 S.W.2d 884, 887 (Tex.App. — Corpus Christi 1999, no pet.). Thus, the definitions in the charge concerning the applicable mental states for assault by threat should be limited to the nature of the conduct rather than the result of conduct.
Petitioner correctly notes, and the state appellate court found, that the jury charge did not limit the definitions of "intentionally" or "knowingly" to the relevant conduct element. Instead, the court instructed the jury:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct, when he is aware that his conduct is reasonably certain to cause the result.
(St. App. Tr-I at 11; St. App. Tr-II at 22) (emphases added). However, the application portion of the charge with the respect to the Tina Holden assault provides:
Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, LENZELL BROWN, on or about the 15th day of November, A.D., 2000, in the County of Dallas and State of Texas, did unlawfully, then and there intentionally or knowingly or recklessly cause bodily injury to TINA HOLDEN, hereinafter called complainant, by shooting said complainant with a firearm, and said defendant did use or exhibit a deadly weapon, to wit: a firearm, during the commission of the assault, or, further, said defendant did then and there intentionally or knowingly or recklessly cause serious bodily injury to another, namely TINA HOLDEN, hereinafter called complainant, by shooting said complainant with a firearm, a deadly weapon, then you will find the defendant guilty of the offense of aggravated assault with a deadly weapon . . .
(St. App. Tr-II at 24-25) (emphases added). Similarly, the application portion of the charge with respect to the Patricia Brown assault provides:
Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, LENZELL BROWN, on or about the 15th day of November, A.D., 2000, in the County of Dallas and State of Texas, did unlawfully, then and there intentionally or knowingly threaten PATRICIA BROWN with imminent bodily injury, and said defendant did use or exhibit a deadly weapon, to wit: a firearm, during the commission of the assault, then you will find the defendant guilty of the offense of aggravated assault with a deadly weapon . . .
(St. App. Tr-I at 13-14) (emphasis added). Because the applications paragraphs of each charge sufficiently limited the culpable mental states to their relevant conduct element, the state appellate court determined that petitioner was not harmed, much less egregiously so, by the failure to limit the definitions of "intentionally" and "knowingly" in the abstract portion of the charge. Brown, Nos. 05-01-01222-CR 05-01-012223-CR, op. at 6, citing Medina v. State, 1 S.W.3d 633, 640 (Tex.Crim.App. 1999) (where application paragraph correctly instructs jury, an error in the abstract instruction is not egregious). Petitioner has failed to show that this decision is contrary to clearly established federal law or otherwise unreasonable. Consequently, this ground for relief should be overruled.
D.
Finally, petitioner contends that the trial judge improperly commented on the weight of the evidence by instructing the jury that "[i]ntent may be inferred from acts done, words spoken, or both." (St. App. Tr-I at 12; St. App. Tr-II at 22). In a recent opinion, the Texas Court of Criminal Appeals held that such an instruction "marginally falls on the wrong side of the `improper judicial comment' scale because it is simply unnecessary and fails to clarify the law for the jury." Brown v. State, ___ S.W.3d ___; 2003 WL 22849864 at * 6 (Tex.Crim.App. Dec. 3, 2003). However, the court went on to hold that the instruction was so "benign" that no harm resulted. Id. at *7. Such is the case here. To the extent that petitioner has alleged a federal constitutional violation, the court determines that the challenged instruction did not have "a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 113 S.Ct. at 1714. This ground for relief should be overruled.
The Brown court held that an instruction allowing the jury to infer intent or knowledge "by acts done or words spoken" violated article 36.14 of the Texas Code of Criminal Procedure. This statute requires the trial judge to give the jury:
a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence; not summing up the testimony, discussing the facts, or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.
TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 1981) (emphasis added). Nowhere in its opinion does the court suggest that this improper jury instruction implicates a federal constitutional right.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.