Opinion
No. 2:01-CV-0414.
June 10, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner JIMMY MURRELL OWEN has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 47TH Judicial District Court of Randall County, Texas, for the felony offense of retaliation. For the reasons hereinafter expressed, the United States Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief should be DENIED.
I. PROCEDURAL HISTORY
On September 2, 1998, in Cause No. 11,767-A, styled The State of Texas vs. Jimmy Murrell Owen, petitioner was convicted of the third degree felony offense of retaliation and was sentenced to 8 (eight) years imprisonment in the Texas Department of Criminal Justice, Institutional Division.
Petitioner appealed his conviction to the Court of Appeals for the Seventh District of Texas who affirmed petitioner's conviction in an unpublished opinion on November 3, 2000. Owen v. State, No. 07-98-0423-CR (Tex.App.-Amarillo 2000, pet ref'd). Petitioner filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on May 9, 2001.
On July 11, 2001, petitioner filed a state application for a writ of habeas corpus challenging the instant conviction. Ex parte Owen, No. 50,145-01. On September 12, 2001, the Texas Court of Criminal Appeals denied petitioner's application without written order.
On November 13, 2001, petitioner filed the instant application for federal habeas relief in this Court.
II. PETITIONER'S ALLEGATIONS
Petitioner appears to contend he is being held in violation of the Constitution and laws of the United States for the following reasons:
1. The trial court abused its discretion and violated petitioner's 6th and 14th Amendment rights when it allowed the admission of prejudicial evidence regarding petitioner's bad character and of extraneous offenses through the testimony of witnesses Hailey and Rogers about petitioner's drug world connections;
2. Petitioner's counsel was ineffective because he failed to object under Rule 404(b) to the testimony of Hailey and Rogers regarding petitioner shooting at cars from a field and to the testimony about drug world connections. Petitioner further alleges counsel failed to object to the testimony concerning surveillance of petitioner's home, and failed to file a motion to quash the indictment; and
3. The evidence was insufficient to convict petitioner of the offense charged.
III. FACTS OF THE OFFENSE
The state court of appeals summarized the trial evidence as follows:In early August 1997, appellant spoke with his longtime friend, Charles Hailey, about his legal troubles and his dissatisfaction with then Randall County Court at Law Judge Darrell Carey. Judge Carey had presided over several matters involving appellant, and appellant expressed a belief that Judge Carey was part of a conspiracy or a cover-up that caused appellant's legal problems. Appellant told Hailey that Judge Carey attended the First Baptist Church in Canyon on Sunday mornings, and that appellant was going there to either kidnap or shoot the judge. Hailey subsequently related this information to another friend, and the friend contacted the police. Appellant was indicted for intentionally and knowingly threatening to harm Judge Carey by killing him in retaliation for and on account of services performed by Judge Carey as a public servant. Appellant pled not guilty. A jury found appellant guilty and assessed his punishment at confinement for eight years.
IV. EXHAUSTION AND PROCEDURAL BAR
Respondent contends petitioner is procedurally barred from obtaining consideration and/or relief under ground one, and that petitioner failed to exhaust his state court remedies with respect to some of his allegations of ineffective assistance of counsel.A. Procedural Bar
Respondent avers that while petitioner presented his claim under federal ground one in his direct appeal, i.e., that the trial court abused its discretion by allowing the introduction of prejudicial evidence i.e. the testimony of Hailey and Rogers regarding drug world connections, the state appeals court found such claim to be waived because petitioner did not make a contemporaneous objection at trial when either of these men was called to testify. Failure to make a contemporaneous objection required by state law will preclude federal habeas review unless a petitioner can show sufficient cause for the failure to object and actual prejudice. Marks v. Estelle, 691 F.2d 730, 734 (5th Cir. 1982), cert. denied, 462 U.S. 1121, 103 S.Ct. 3090, 77 L.Ed. 1351 (1983). The state court of appeals clearly found no contemporaneous objection to have been made to Hailey's testimony regarding drug world connections. Ex Parte Owen, App. No. 50,145-01 at 228. Since, according to the appellate court, no specific objection was made during this portion of Hailey's testimony, error was not preserved. Ex parte Owen, App. No. 50,145-01 at 228-229. For these reasons, petitioner's first ground is procedurally barred from federal habeas review.
B. Exhaustion
Section 28 U.S.C. § 2254 states, as relevant to this proceeding:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) . . .
c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989). The doctrine serves "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).
Under our federal system, the federal and state courts are equally bound to guard and protect rights secured by the Constitution. Because it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, federal courts apply the doctrine of comity, which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.
Respondent avers two of petitioner's ineffective assistance claims are procedurally barred. Specifically, petitioner's allegation that counsel failed to object to the testimony of Hailey and Rogers regarding petitioner shooting at cars from a field and failure to object to testimony that petitioner's home was under surveillance. Respondent argues that because petitioner failed to raise either of these claims in his petition for discretionary review or his state habeas application, they are barred from federal review. As set forth below, the Court finds the claim about surveillance unexhausted, but not the claim about shooting at cars.
The only claims presented in the state habeas petition regarding a failure to object to the testimony of witness Hailey or Rogers were references to the appeals court decision. The petition cited the following pages of the appeals court opinion: page 11, footnote 3 as to Rogers, page 13 as to Hailey, and p. 14 as to testimony regarding drug world connections.
Page 11, footnote 3 of the appellate opinion concerns Rogers' testimony about what Hailey had reported to him (Rogers was a police officer at the time). Petitioner alleges counsel's hearsay upon hearsay objection constituted ineffective assistance. The hearsay upon hearsay objection was made during Rogers' testimony about a conversation by Hailey with a witness named Oldfield. The objection was overruled not because it was an improper hearsay objection, but because the testimony related to earlier testimony elicited by the defense as to certain matters Hailey had reported to then police officer Rogers, and constituted part of the incident report prepared by Rogers.
Page 13 of the appellate opinion concerned Hailey's testimony that (1) he thought Owen was "well connected to the drug world," and (2) what Owen had told Hailey about hiding and shooting at passing cars.
Page 14 of the appellate opinion contains no specific references to testimony. Based upon the above, it appears petitioner has exhausted his ineffective assistance of counsel claims regarding a failure to object to the testimony of either witness Hailey or witness Rogers about drug world connections and about the admission by Owen that he was going to shoot at passing vehicles. The remainder of petitioner's allegations of ineffectiveness for failing to object are unexhausted.
Because petitioner has filed a federal petition raising both exhausted and unexhausted grounds, it is a mixed petition and is subject to summary dismissal in order that petitioner may present the unexhausted grounds to the Texas Court of Criminal Appeals. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Wilder v. Cockrell, 274 F.3d 255 n. 2 (5th Cir. 2001); Graham v. Johnson, 168 F.3d 762, 777-78 (5th Cir. 1999), cert. denied, 529 U.S. 1097, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000). If, however, petitioner were to return to the Texas Court of Criminal Appeals to present his unexhausted grounds, that court would dismiss petitioner's state habeas application without review of the merits for abuse-of-the-writ. See Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994) (announcing the state's strict application of abuse-of-the-writ doctrine). The Fifth Circuit has ruled that the Texas courts' application of the abuse of writ doctrine is an adequate, independent state ground barring federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603, 132 L.Ed.2d 847 (1995). Federal review of a habeas claim is procedurally barred when the last state court to consider the claim denies relief based on a state procedural bar. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). Moreover, where a state court relies on a procedural bar to deny relief, a prisoner may not thereafter obtain federal habeas relief without showing cause for the default, and prejudice resulting therefrom. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). In order to show prejudice, petitioner must show the result of the proceeding would have been different. Smith v. Dixon, 14 F.3d 956, 974 (5th Cir. 1994), cert. denied 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1995). Petitioner has not made such a showing and thus some of his claims of ineffective assistance of counsel are procedurally barred from federal corpus review. See Vega v. Johnson, 149 F.3d 354, 362 (5th Cir. 1998), cert. denied, 119 S.Ct. 899 (1999).
This ruling came after the Texas Court of Criminal Appeal's decision in Ex Parte Barber, 879 S.W.2d 889, 892 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). Prior to the decision in Barber, the Texas abuse doctrine was not regularly and strictly applied. Lowe v. Scott, 48 F.3d 873, 876 (5th Cir.), cert. denied, 515 U.S. 1123, 115 S.Ct. 2278, 132 L.Ed.2d 282 (1995), cited in Fearance, 56 F.3d at 642.
It is acknowledged that the state court has not dismissed a habeas petition presented by petitioner on the unexhausted grounds presented herein. However, based upon the holdings of Ex parte Barber and Fearance, this Court assumes such would occur. The only other alternative would be to dismiss the instant mixed petition because it presents both exhausted and unexhausted claims but to do so would be more detrimental to petitioner in that no ruling on his exhausted grounds would be reached.
Therefore, it is the opinion of the Magistrate Judge that while petitioner has not exhausted, in state court, some of the issues presented herein, this cause should not be dismissed for failure to exhaust, but instead, should be decided on the merits as to the exhausted claims. The claim relating to the trial court's admission of prejudicial evidence, and the unexhausted ineffective assistance of counsel claims, the undersigned finds to be procedurally barred.
V. STANDARD OF REVIEW
This case was filed subsequent to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and so the standards of review set forth in the AEDPA apply to this case. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently, petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court shall be presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Petitioner has filed one (1) state habeas application in the Texas Court of Criminals Appeals relating to Cause No. 11,767-A. The Court of Criminal appeals denied Ex parte Owen, App. No. 50,145-01 on September 12, 2001, without written order. The ruling of the Texas Court of Criminal Appeals on the grounds presented constitute an adjudication of petitioner's claims on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999).
VI. MERITS OF PETITIONER'S EXHAUSTED ALLEGATIONS
Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In determining whether an error was so extreme or a trial so fundamentally unfair, this Court must review the putative error at issue, looking at the totality of the circumstances surrounding the error for a violation of the petitioner's constitutional rights. Based upon a review of the state court records the pleadings of record with this Court, it is the opinion of the Magistrate Judge that petitioner has failed to show he is being unlawfully detained in violation of the Constitution and laws of the United States.
A. Effectiveness of Counsel
Petitioner's remaining claims that he received ineffective assistance of counsel include the allegation his attorney failed to file a motion to quash the indictment, and failed to object to certain testimony of Hailey and Rogers.
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish this prong, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different or that the errors were so serious as to deprive the petitioner of a fair trial with a reliable result." Id. at 694.
In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Id. at 689. A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
The burden of proof in a habeas corpus proceeding attacking the effectiveness of trial counsel is upon the petitioner, who must demonstrate that ineffectiveness by a preponderance of the evidence. Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977 (1993).
Failure to Move to Quash
In response to petitioner's allegations, trial counsel William R. McKinney, Jr. submitted an affidavit during the course of the state habeas proceeding. Ex parte Owen, App. No. 50,145-01, at 70-73. In his affidavit, trial counsel testified,
I was on fair notice of what the allegations against Applicant were and, based on my conversations with Mr. Charles Hailey and based on my review of the case law previously referred to, I did not want the indictment quashed because I felt it would give the District Attorney's Office the opportunity to clean up the language and take away my approach to the variance between the indictment and the evidence.Id. At 72. Such statement demonstrates a reasonable trial strategy supporting the decision not to file a motion to quash. As argued by respondent, the Strickland analysis presumes counsel's strategic decisions were not ineffective. Unless such a strategic decision were, "so ill chosen that it permeates the entire trial with obvious unfairness," it cannot be the basis for a constitutional claim of ineffective assistance. Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (internal cite omitted). In the case at bar, petitioner has provided nothing to support his allegation that trial counsel's actions were anything but sound trial strategy. For these reasons, his claim in this regard must fail.
Failure to Object
Petitioner next avers he received ineffective assistance because counsel failed to object under Rule 404(b) to the testimony of Hailey and Rogers concerning Owen's drug world connections.
Respondent contends the question involving drug world connections was not truly an extraneous offense under Rule 404(b) in that it was not evidence of a specific crime or act covered by the rule. In response to this Court's Briefing Order, respondent alternatively argues that petitioner's failure to allege with specificity the particular objection he contends trial counsel should have made and why such objection would have been successful, is fatal to his ineffective assistance claim in that the claim is merely a general and conclusory allegation. Respondent then states that the context of the drug world connection testimony was, in any event, relevant as tending to show that petitioner's threats were to be taken serious and that they were not idle comments.
Analysis
After reading the transcript of the trial testimony, particularly the testimony petitioner complains about, and considering the context in which such was offered, the undersigned finds petitioner is not entitled to relief.
The trial evidence reflects that after petitioner told his friend Hailey of his (Owen's) plan to kidnap or shoot Judge Carey, Hailey told another individual (Oldfield) about Owen's threats. Oldfield then told the police. The police then contacted Hailey. Hailey spoke to Canyon police officer Les Rogers and told him about Owen's threats. Hailey also told Rogers a number of other things about Owen including the fact that he (Hailey) was concerned because he thought Owen had connections to the drug world and that Owen had told him about his (Owen's) concern that people driving by his house were a threat and that he (Owen) could hide and shoot them.
As set forth previously, the state appellate court held no specific objection to this testimony was lodged by petitioner's trial counsel. The trial record reflects, however, that counsel did object during the direct testimony of Mr. Hailey to any effort by the state to elicit extraneous offenses (RR, Vol. 2 of 4, p. 136). The court overruled that objection indicating the testimony was contextual. Defense counsel then stated "just so the record may be clear, I want to make a 404(b) objection." The 404(b) objection was overruled, as well as a subsequent 403 objection. Hailey was not questioned further on direct about connections to the drug world of petitioner or of petitioner having stated he was going to shoot at passing cars.
During cross examination of Mr. Hailey, however, defense counsel questioned Hailey about the report he had made to the police, and specifically questioned him about whether he had, as reflected in the report, told the police that petitioner Owen felt like Judge Carey, Dr. Williams, and an attorney were involved in some sort of pornography ring (RR, Vol. 2, p. 151).
The prosecution then, on redirect, questioned Hailey about the remainder of the police report and what Hailey had said to the police. Hailey was questioned about whether he told the police he thought petitioner Owen was unstable, whether he told the police about inconsistent or different information regarding arrests, about a conspiracy between Judge Carey, Dr. Williams, and an attorney, Kline, about whether petitioner felt like officials were attempting to set him up and illegally search his house. The prosecution then asked whether Hailey told the police that one of the reasons Hailey was concerned about the threats was because the petitioner had changed, i.e., was not the same individual with whom Hailey had had a relationship in the past, and that Hailey feared for his own safety because he felt Owen was connected in the drug world (RR, Vol. 2, p. 158). Finally, Hailey was questioned by the prosecution as to whether he told the police Owen had told him about a vehicle driving around his house and that Owen felt that to be a threat and went and hid out with a rifle in order to shoot them. Hailey then testified Owen did own and possess firearms.
Petitioner's counsel objected to this during Les Rogers' testimony, but the trial court overruled based upon the "doctrine of completeness."
The trial court found this testimony to be relevant and that its prejudicial effect, if any, did not outweigh its probative value. Petitioner has not established that the complained-of testimony was, in fact, inadmissible. If, however, it is assumed, solely for purposes of argument, that counsel did not properly object to this testimony, that counsel should have objected and that such an objection would have been sustained, the complained-of testimony did not have a prejudicial effect on petitioner. In order to be entitled to federal habeas relief, petitioner must show not only that counsel's failure to object was ineffective, but would also have to show prejudice, that is, but for the failure to object, there is a reasonable probability that the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed2d 389 (2000). The other evidence of petitioner's guilt offered during this trial was more than sufficient to convict petitioner. The most significant evidence offered against petitioner Owen was the testimony from witness Hailey that Owen indicated not only that he was going to kidnap or shoot Judge Carey, but Hailey's testimony about his prior contact with Judge Carey, his dissatisfaction with Judge Carey's rulings, and Owen's statement that he was going to execute the kidnaping or shooting of Judge Carey at the First Baptist Church in Canyon, where he knew Judge Carey regularly attended. Petitioner's prior counsel also testified that Owen was very upset with Judge Carey's rulings over the years and had made a statement that he was going to get the "m.f."
Therefore, petitioner has failed to show the complained-of testimony, even if admissible, rendered his trial constitutionally infirm and he is not entitled to relief.
For the reasons set forth above, the Court would find no prejudice on any of petitioner's unexhausted failure to object claims.
B. Sufficiency of the Evidence
The state appellate court considered the sufficiency of the evidence issue on direct appeal and ruled against petitioner. For the purposes of a federal habeas review, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Petitioner in the instant case, has not shown the state appellate court opinion to be erroneous much less unreasonable and/or contrary to clearly established federal law. The opinion of the appellate court summarized the trial evidence including the testimony of a friend of petitioner's (Hailey), petitioner's former attorney Mr. Hale, the assistant of attorney Hale, and Randall County Deputy Sheriffs Stan McNutt and Ronald Bradburn as follows:
During the State's case-in-chief, Hailey testified that he was a longtime friend of appellant. Hailey spoke to appellant in early August 1997, and appellant told him of his legal troubles, as well as his belief that Judge Carey was involved in some type of cover-up or conspiracy that caused appellant's problems. Appellant was upset with Judge Carey's judicial performance on several legal matters involving appellant. Hailey testified that appellant's attitude was desperate, because he believed "nobody was listening to anything that he was saying." Appellant told Hailey that "he might go on and do something to the Judge." Part of Hailey's direct examination on what appellant said was as follows:
Q: Now, when you say that he might go and do something to the Judge, do you recall what he said he was going to do to the Judge?
A: Well, he indicated that — that the Judge went to church at First Baptist Church in Canyon, on Sunday mornings, and that he was going to go down there, and he would either kidnap or shoot the Judge.
Q: Do you recall talking with the Grand Jury about this, sir?
A: Yes.
Q: Do you remember indicating to the Grand Jury that in fact he said that he was going to kidnap and kill the Judge and shoot the Judge?
A: I said "and/or."
Hailey testified that after appellant told Hailey of his plan, Hailey became concerned and told another friend about his conversation with appellant. Hailey's friend subsequently contacted the Canyon Police Department. Hailey was later contacted by the police. Hailey was aware that appellant owned some firearms, and he also feared for his safety. During cross-examination, Hailey acknowledged that he did not hear appellant say that appellant was going to kill Judge Carey:
Q: [S]pecifically, what is it that you heard him say as far as Judge Carey was concerned?
A: He said that uh — he was going to go down there Sunday, at First Baptist Church, that is where he went to church at. He was either going to kidnap or shoot him.
Q: He was going to do what?
A: Kidnap or shoot him.
Q: Okay. Did you hear him say anything about killing anybody?
A: I don't know exactly the specific words. Shoot, kill, shoot, it's about all the same to me.
Q: Well, okay. Did you hear him say that he was going to kill anybody?
A: I just — I just — only thing I said, that he was going to shoot or kidnap, that's all I heard.
Q: You didn't hear him say anything about killing, did you?
A: I don't recall hearing anything about killing.
Appellant's former attorney, Selden Hale, testified that he had known appellant since 1993, and had represented him on various legal matters in Randall County. During Hale's representation of appellant, appellant had five or six matters before Judge Carey. Hale stated that in 1995, appellant began expressing hostile feelings toward Judge Carey as a result of a custody matter where the judge sent appellant's children back to their mother. Hale testified that in 1997, appellant became increasingly hostile toward Judge Carey, and Hale withdrew from representing appellant in March or April of 1997. Then, in the summer of 1997, but prior to August 5th, appellant visited Hale's office to look at his legal files. Hale's recollection of his conversation with appellant reflected appellant's apparent frustrations with Judge Carey:
A: [I] showed him his file. And at some point, five or ten minutes after that, he — made a direct threat to — about Judge Carey.
Q: Do you — do you recall what he said in this direct threat?
A: Yeah.
Q: What did he say?
A: He said, I'm going to get the M.F.
Hale's legal assistant, Suzanne Stahl, testified that during the latter period of Hale's representation, appellant became more frantic and was "very scary to me, to deal with." She also stated that "He [appellant] began to say that his problems were the result of Judge Carey. Everything in his life was turning bad, because of the rulings that Judge Carey was making. And that — then at some point, it may have been later, that he began to talk about a conspiracy." As to appellant's summer, 1997, office visit, Stahl testified:
A: [M]r. Hale took him in the library, and got all of the files out, and let him look at the files. And I think he was looking then for evidence of a conspiracy, or — that we — even including Selden, that had done things against him, but it was mainly always directed at Judge Carey. He was — he was going to have to get him.
Q: [D]id he include you and Selden Hale, and the others in the conspiracy. . . .
A: At the end he did, yes. The last time I talked to him is when — I felt threatened me, too.
Q: Do you recall — if you recall, how he threatened you, what he said he was going to do, if you remember?
A: He just said that he was going to have to get us all, because we had ruined his life.
Stan McNutt, a Randall County deputy sheriff, testified that he came in contact with appellant on a Randall County road on August 10, 1997, at approximately 9:44 a.m. Appellant flagged down McNutt, indicating that he wanted McNutt to stop. McNutt stopped to speak with appellant, and appellant told him of his problems with law enforcement, the Randall County District Attorney's office, and Judge Carey. Appellant mentioned that he had been to the First Baptist Church that morning looking for Judge Carey, but did not find him. McNutt was able to view the inside of appellant's vehicle and did not see any weapons; however, he did not pat down appellant or search his truck.
Ronald Bradburn, a Randall County deputy sheriff, testified that he was in the same vicinity as Deputy McNutt on the morning of August 10, 1997. Bradburn also stopped to speak with appellant during appellant's encounter with Deputy McNutt. Appellant also expressed his dissatisfaction with Judge Carey to Bradburn, and Bradburn testified that in his opinion, appellant was angry enough to carry out the alleged threat against Carey.
Based upon the evidence the State Court of Appeals then found as follows:
The evidence is legally sufficient to support appellant's conviction. Although it is unclear whether appellant actually used the word "kill" as the manner in which he would carry out his threat against Judge Carey, the testimony reflected that appellant threatened to "kidnap or shoot" Judge Carey. The term "shoot" is defined as "to strike with something shot; to hit, wound, or kill, with a missile discharged from a weapon. The term generally implies the use of firearms." BLACK'S LAW DICTIONARY 1378 (6th ed. 1990) (emphasis added). Intent to kill may be inferred from the use of a firearm, which is considered a deadly weapon. See Garcia v. State, 887 S.W.2d 862, 869 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Intent to kill may also be inferred from the surrounding facts and circumstances. Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App. 1986); Martinez v. State, 699 S.W.2d 910, 913 (Tex.App.-Amarillo 1985, no pet.). When considering appellant's use of the term "shoot" in conjunction with appellant's assertions that he was "going to get" Judge Carey, a rational jury could have found that appellant's threat was to kill Judge Carey. The failure of appellant to use the specific word "kill" instead of the word "shoot" in connection with the other circumstances proved by the State did not preclude the jury from finding a threat to kill, anymore than the evidence would have been legally insufficient for a rational jury to find a threat to kill the judge if the threat had been to tie him up, put his feet in cement, and drop him in a twenty-foot deep lake. A jury is entitled to draw reasonable inferences from the evidence. From the evidence presented, a rational jury could have found all of the essential elements of retaliation beyond a reasonable doubt. We overrule appellant's first issue.Owen v. State, No. 07-98-0423-CR (Tex.App.-Amarillo 2000, pet ref'd).
After reviewing the evidence offered at trial in a light most favorable to the verdict, the undersigned is of the opinion that the Court of Appeals' finding of sufficient evidence was correct, and finds the evidence sufficient to support the verdict of guilty in this case.
This suffices for the purposes of a federal habeas review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).
Petitioner's sufficiency claim is without merit and should be DENIED.
VII. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner JIMMY MURRELL OWEN be DENIED.
VIII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested, and to respondent's attorney of record by regular U.S. mail or other agreed means.Petitioner may object to the findings, conclusions, and recommendation set forth herein within fourteen (14) days after the "filed" date indicated on the first page of this Report and Recommendation. Any such objections shall be made in a written document entitled "Petitioner's Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Petitioner shall file the written objections with the United States District Clerk. Petitioner's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.