Opinion
NO. WR-83,135-01
05-17-2017
EX PARTE BARTHOLOMEW GRANGER
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. 13-16388 IN THE 58TH DISTRICT COURT JEFFERSON COUNTY Per curiam. ALCALA, J., concurs. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In April 2013, a jury convicted applicant of the capital murder of Minnie Ray Seboldt. See TEX. PENAL CODE ANN. § 19.03(a)(2). The State theorized that applicant caused Seboldt's death on March 14, 2012, while he was retaliating against and intending to kill Claudia Jackson for her service as a witness.
The record shows that, at the time of Seboldt's death, applicant was on trial for sexual assault of a child—his then-twenty-year-old brain-damaged and learning-disabled daughter, Samantha Jackson. Samantha and her mother, Claudia Jackson, had testified against applicant on Tuesday, March 13, 2012. Samantha's cross-examination was to begin when trial resumed at 1 p.m. on Wednesday, March 14, and Rebecca Richard, applicant's estranged wife, was under subpoena to testify.
Applicant arrived at the courthouse several hours early on Wednesday and parked his truck in a lot across the street. He periodically opened the truck's door and looked over it toward the street in front of the courthouse. When Samantha, Claudia, and Richard arrived and began walking toward the courthouse, applicant approached and began shooting at them with a semi-automatic rifle.
Richard fled toward the parking lot and was not hit. Samantha, however, froze in place when the shooting began. Applicant shot her multiple times and also ran over her with his truck before fleeing the scene. Nonetheless, Samantha survived. Claudia, who also survived the attack, was shot in the buttocks as she ran toward the courthouse. As she approached the courthouse, Claudia saw a bystander, later identified as Seboldt, lying on the ground in front of the courthouse doors. Sebolt suffered multiple gunshot wounds and died at the scene. Leslie King, another bystander who was in front of the courthouse, saw applicant turn his gun in her direction. King was wounded in the little finger as she heard bullets going past her.
Law enforcement officers shot and wounded applicant as he returned to his truck. Applicant fled a short distance, then abandoned his vehicle and took hostages at a nearby business. He made a number of statements in which he incriminated himself as the shooter and blamed Samantha, Claudia, and Richard for his actions. Law enforcement officers took applicant into custody after his hostages overpowered him. Applicant made additional incriminating statements while receiving medical care for his wounds.
Applicant testified at both phases of his capital murder trial. At the guilt-innocence phase, he admitted to shooting Samantha and to intentionally running over her with his truck. However, he denied causing Sebolt's death or Claudia's and King's wounds. Applicant claimed that he had not shot in the direction of the courthouse because he had used all of his bullets on Samantha. The jury found applicant guilty of capital murder as alleged in the indictment.
During the State's punishment case, the jury heard in graphic detail from Samantha that applicant began sexually molesting her when she was twelve years old because "he would rather show [her] how to have sex than let [her] go out on the streets and do it with someone else"; that he first had vaginal intercourse with her when she was about fourteen or fifteen; and that he also had anal intercourse with her. Samantha additionally testified that applicant was very controlling of her and that he physically and verbally abused both her and her younger brother, Bartholomew Jr. Samantha denied that her mother, Claudia, had told her to accuse applicant of molestation.
Richard testified that, before she and applicant separated, he asked her to take Samantha to the doctor. Applicant explained to Richard that Samantha had taken a shower while Richard was not home. "[H]e had a towel on the floor in the bedroom where he had ejaculated and [Samantha] came in and grabbed the towel and went to dry off," and so applicant was afraid that she was pregnant. Richard acknowledged that Samantha denied that anyone had touched her and that she had not turned out to be pregnant. However, Richard and applicant separated soon after the incident.
The State also presented testimony from three jail guards and a jail nurse who had interacted with applicant while he was incarcerated awaiting trial for capital murder. Collectively, these witnesses testified that applicant: was extremely verbally abusive, directing racist, misogynistic, and homophobic epithets at them; engaged in other disruptive behavior that required jailors use physical force and chemical measures to subdue him; and falsely alleged that other inmates had assaulted him by throwing their feces on him.
The jury additionally heard excerpts from numerous profanity-laced telephone calls applicant made from jail while awaiting trial. During these calls, applicant expressed threats, hatred, and a lack of remorse regarding virtually everyone associated with his sexual assault trial—especially Samantha and her mother—as well as hatred toward many other groups.
Evidence that Applicant's trial counsel presented at the punishment phase included the following. Dr. Edward Gripon, a forensic psychiatrist who examined applicant multiple times as the date of the capital murder trial approached, testified that applicant was not psychotic. However, Gripon agreed that applicant's thoughts and ideas were not always reasonable, logical, or coherent.
Gripon, who diagnosed applicant as having a paranoid personality disorder, testified that having a personality disorder was a factor that psychiatrists use when attempting to determine someone's risk of future dangerousness. Gripon also acknowledged that applicant's jail phone calls were filled with ranting, threats, name-calling, and cursing. But on balance, Gripon concluded, applicant "was mostly a lot of talk." Gripon acknowledged that the courthouse shooting was an exception and reflected the violence of which applicant could be capable in certain circumstances. However, Gripon opined that applicant's primary pattern was a verbal response to people and events he perceived negatively.
An inmate who had been housed near applicant while applicant was awaiting his capital murder trial testified that: applicant acted "normal" in jail; although applicant tried to leave other inmates alone, they harassed him; jail guards treated applicant badly; and applicant cursed at guards sometimes, but did not assault them. Another inmate who had been housed with applicant gave substantially similar testimony. However, on cross-examination, the second inmate acknowledged that he heard applicant admit to having sexually molested Samantha. The inmate's testimony about applicant's admission was consistent with Richard's punishment phase testimony.
According to the inmate, applicant admitted that he had called his daughter to come over to his house, had her take a shower, masturbated while she did so, and when she finished showering and he finished masturbating, he and one of his brothers molested her.
Through the testimony of a pastor who visited applicant weekly in jail, trial counsel presented evidence that applicant "hated what had happened to" Seboldt. However, the pastor acknowledged that applicant never admitted that he killed Seboldt and he continued to express hatred for Samantha, Claudia, and Richard.
Through his direct examination testimony and the testimony of his parents, applicant presented evidence of his social history from birth through adolescence and adulthood. Through their questions, trial counsel also traced applicant's educational, work, medical, and psychological history. At the end of his direct examination, applicant, who had testified at the punishment phase against trial counsel's advice, gave nonresponsive answers in which he stated that he wanted to receive the death penalty.
On cross-examination, applicant also stated that he wanted the death penalty. And, among other things, he denied having killed Seboldt and blamed the responding officers for her death; called Samantha a "liar" and "a whore"; and declared "[t]his is not a fucking court. This is a lynching of another nigger" by "a[n] all-white jury" with "one fucking jigaboo bitch." When the trial court called a recess and had him removed from the courtroom, applicant directed several mocking and profane remarks at the prosecutor while the jury was still present.
Applicant's testimony remained generally combative, profane, and mocking when his cross-examination resumed. He accused the State of having mounted a "witch hunt" against him with the sexual assault charges and "then when shit happens, then everybody want[s] to get upset with me." When his testimony ended, applicant continued to be obstreperous and mocking in the jury's presence, stating "Giving me liberty or give me death. That's what I want" and laughing aloud.
During the State's closing arguments, applicant displayed to the jury a legal pad with the word "Death" written on it. After he interrupted the State's argument several times and disregarded the trial judge's admonitions to remain quiet, applicant was removed from the courtroom and taken to a holding cell, where he stayed for the rest of the argument. While the prosecutor continued his argument, applicant made loud noises from the holding cell that were audible inside the courtroom and prompted a response from courtroom bailiffs.
The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Granger v. State, No. AP-77,017 (Tex. Crim. App. April 22, 2015) (not designated for publication). In his application, applicant presents ten challenges to the validity of his conviction and sentence. The trial court did not hold an evidentiary hearing. The trial court entered factual findings regarding all ten of applicant's habeas claims. However, although it entered conclusions of law recommending the denial of relief on Claims 1 and 2 and Claims 4 through 10, the trial court entered no conclusions of law or a recommendation regarding Claim 3.
Applicant filed his initial writ application in the trial court in October 2014. The parties subsequently filed proposed findings of fact and conclusions of law. The trial court signed the State's proposed findings and conclusions, which recommended that the Court deny habeas relief. This Court received the habeas record and the trial court's findings, conclusions, and recommendation in April 2015.
While the application was pending before this Court, the Jefferson County District Attorney sought to recuse himself and his office from representing the State during applicant's habeas proceedings. Per our remand order dated February 24, 2016, an attorney pro tem for the State filed a new response and proposed findings of fact and conclusions of law. The supplemental habeas record we received following the remand shows that the trial court adopted the attorney pro tem's proposed findings of fact and conclusions of law by an order signed in October 2016. The Court's instant order addresses the trial court's October 2016 findings and conclusions.
We have reviewed the record regarding applicant's allegations. Claims 7, 8, 9, and 10, in which applicant raises constitutional challenges to Texas's capital sentencing scheme, are procedurally barred because habeas is not a substitute for matters which should have been raised on direct appeal. See Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ("It is 'well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.'").
In Claims 1, 2, 3, 4, and 5, applicant alleges that his trial counsel were constitutionally ineffective for failing to: investigate and present readily available mitigating evidence (Claim 1); present an expert to explain the impact of applicant's social history (Claim 2); investigate and present Samantha's journal (Claim 3); object to the State's allegedly improper reference to applicant as a "murdering son of a bitch" and to other alleged improprieties (Claim 4); and object to the State's allegedly improper and inflammatory punishment phase closing arguments (Claim 5). However, applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
In Claim 6, applicant alleges that he was denied his due process right to an impartial jury when Juror Lynn Rivera committed misconduct by automatically "voting for death." However, applicant has not established a due process violation.
Turning to the trial court's findings and conclusions, we reject the second paragraph of factual finding number 5, in which the trial court addresses Claim 3 and states:
Based upon the Affidavits attached to the Writ, trial counsel extensively interviewed Rife Kimler, trial counsel in the underlying sexual assault case against Samantha. Kimler relayed the contents of the diary. Most importantly, tr[ia]l counsel cross-examined Samantha about the diary. She testified she was too young at the time to remember its contents.See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). Based upon our independent review of the record and consistent with our role as the ultimate factfinder in habeas corpus proceedings, we instead make our own finding, as follows:
Based on the affidavits attached to the State's response filed by its attorney pro tem, trial counsel extensively interviewed Rife Kimler, who represented applicant in the underlying sexual assault case. Kimler related the contents of the diary to trial counsel. During her punishment phase direct examination by the State, Samantha testified: "I do not remember. I was too young to - I was too young. I wrote it, but I really don't remember
. . . what I wrote."See id.
The trial court addresses Claims 4 and 5 in factual finding numbers 6 and 7 and conclusion of law number 4 and 5, respectively. We understand the trial court to find and conclude that Claims 4 and 5 are procedurally barred from review in this habeas proceeding and, moreover, lack substantive merit. Although it supports the findings and conclusions that Claims 4 and 5 lack merit, this record does not support the findings and conclusions that Claims 4 and 5 are procedurally barred. See, e.g., Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). We therefore reject: the sentence that appears in the final paragraph of factual finding number 6, in which the trial court states that "all facts necessary to develop [Claim 4] are contained in the Record on appeal"; the first sentence of conclusion of law number 4, in which the trial court states, "Applicant has waived [Claim 4] by failing to raise it on direct appeal"; the sentence in finding of fact number 7, in which the trial court states that "all the facts necessary to develop [Claim 5] are contained in the Record on appeal and could have been raised, but were not, on direct appeal"; and the first full paragraph of conclusion of law number 5. See Reed, 271 S.W.3d at 727.
The trial court addresses Claim 6 in finding of fact number 8 and conclusion of law number 6. We reject the second paragraph of finding of fact number 8, in which the trial court states:
The Court finds that the juror's Affidavit does not assert: 1) whether any outside influence was improperly brought to bear upon the juror, or 2) rebuttal of a claim that a juror is not qualified to serve. The Court further finds that the Affidavit does assert matters occurring during the jury's deliberations and the effect of "anything" on the juror's mind or emotions or mental processes influencing her assent to the verdict. The vote of the jury was unanimous on Special Issues One and Two." [sic]See id. We instead make our own finding, as follows:
In her affidavit dated October 24, 2014, attached to applicant's application as Exhibit 16, Juror Rivera does not: (1) assert that an outside influence was improperly brought to bear on any juror who served on applicant's capital murder jury; or (2) rebut a claim that a juror who served on applicant's capital murder jury was unqualified to serve. Rather, in her October 24, 2014 affidavit, Rivera discusses her mental processes in reaching her verdict at the guilt-innocence phase and in answering the special issues at the punishment phase of applicant's capital murder trial.See id.
We also reject conclusion of law number 6, which states:
Applicant's allegations under Ground Six are not cognizable as being in violation of Texas Rules of Evidence 606(b). Applicant has failed to establish, by a preponderance of the evidence, that a different result would have occurred but for the Affidavit. Texas Code of Criminal Procedure Art. 37.071, Sec. 2(d)(2) requires the vote of only ten jurors against the death penalty. Applicant's affidavit from Juror Rivera is incomplete. The subsequent Affidavit taken as a whole demonstrates that Juror Rivera was able to follow the law and considered mitigating evidence.See id. We instead make our own independent conclusion of law, as follows:
Juror Rivera's October 24, 2014 affidavit is inadmissible under Texas Rule of Evidence 606(b). Further, Rivera's subsequent affidavit, dated January 2, 2015, demonstrates that she was able to render a verdict and answer the special issues according to the law and evidence.See id.
We otherwise adopt the trial court's findings and conclusions. Based upon the trial court's findings and conclusions that we have adopted, our own review of the record, and our independent findings and conclusions, we deny relief.
IT IS SO ORDERED THIS THE 17TH DAY OF MAY, 2017. Do Not Publish