Opinion
No. 3:02-CV-1198-R.
July 6, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner challenges Respondent's custody of him pursuant to two jury convictions for injury to a child. State v. Tyson, Nos F98-02721-S and F98-48234-S (282nd Dist. Ct. Dallas County, Tex. Feb. 10, 1999). The court assessed punishment at thirty-five years in prison, and a $10,000 fine on one conviction and five years probation on the other. Petitioner appealed, and the state appellate court affirmed his convictions. Tyson v. State, Nos. 05-99-00374-CR and 05-99-0037 5-CR (Tex.App. — Dallas July 26, 2000, pet ref'd).
Petitioner filed a petition for discretionary review which was refused by the Texas Court of Criminal Appeals on May 22, 2002. Tyson v. State, PDR No. 1618-00. Petitioner filed his state application for writ of habeas corpus challenging the validity of his sentence and convictions on January 15, 2002. Ex parte Tyson, No. 52,255-01 (Tex.Crim.App. May 22, 2002). His writ was denied without written order. Id. Petitioner filed his petition pursuant to 28 U.S.C. § 2254 in this court on June 10, 2002.
Exhaustion of State Court Remedies
Petitioner has exhausted his state court remedies.
Claims
Petitioner raises the following claims:
1. The trial court's denial of his request for additional expert analysis deprived him of his right to put on his defense;
2. He was deprived of the effective assistance of counsel by the trial court's denial of his request for additional expert analysis;
3. The denial of access to an expert witness denied him the right to present a complete defense;
4. He was denied the right to a face-to-face confrontation with a critical state witness; and
5. The accumulation of errors denied him a fair trial.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact that courts review under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946 (2001).
Statement of Facts
The Fifth Court of Appeals of Texas summarized the facts surrounding the offense as follows:
The State charged [Tyson] by indictment with knowingly and intentionally causing serious bodily injury to his son, Jamar, seven years old at the time of his death. He was also indicted for knowingly and intentionally causing bodily injury to his son Dominique, six years old at the time of trial. Evelyn Torrence, who babysat [Tyson]'s sons, testified that Jamar was sometimes sent home from school with a note from his teacher for disrupting class or other minor infractions. When his father questioned him about the notes, Jamar would look uneasy and afraid. [Tyson] sometimes punched Jamar in the chest and back. He would occasionally hit Jamar hard enough to make him stumble. Other times, [Tyson] would hit Jamar in the temple area of his head. Torrence testified that [Tyson] had also kicked Dominique in the buttocks after hearing Dominique had soiled his pants. Dominique was born with a condition called "prune-belly syndrome," which caused him to have difficulty controlling his bowel movements.
Torrence never saw [Tyson] hug the children. One day, she noticed that Jamar had a black eye. When Torrence asked [Tyson]'s girlfriend what had happened, the girlfriend explained that [Tyson] had accidentally hit Jamar in the face when he was spanking him with a belt. [Tyson]'s girlfriend of three years testified that she remembered one or two times when she became concerned about the way [Tyson] had physically disciplined his children.
Approximately two weeks before Jamar's death, Torrence noticed some welts on Jamar's arm and asked Jamar to lift up his shirt. She saw old bruises on Jamar's back. When [Tyson] confronted Torrence about lifting up Jamar's shirt, she asked if it was true he had tied Jamar's hands and feet together when he disciplined him. [Tyson] admitted he had done so. He told Torrence he had joined a church and was getting his life together. He explained to her that he disciplined his sons in that way so they would respect him. Torrence called a cousin who worked for the county to see if she could get help for Jamar, but the cousin was unavailable.
On the last day Torrence saw Jamar, he had been sent home from school with a note. Jamar was withdrawn when he got to Torrence's apartment. As soon as he arrived, he went to a bedroom and took a nap, which was unusual for him. After dinner, he slept again. Torrence stated that Jamar did not appear to be sick that day; he did not vomit, he was not sluggish, and he did not appear to have a fever. She asked him if he was sick, but he told her he was not. That day, Torrence did not notice any bruises on Jamar's forehead or arms.
When [Tyson] got to the apartment, Jamar told him he had gotten in trouble at school. [Tyson] hit Jamar more than once in the chest. The blows were so strong that Jamar stumbled. [Tyson] told Jamar that "he couldn't wait for Jamar to get old enough where he could hit him like he wanted to." Jamar looked scared.
In a written statement to police, [Tyson] admitted he paddled Jamar that night. He stated that because Jamar had tried to struggle and fight back, he put out his leg to trip Jamar but accidentally kicked him instead. Then, according to [Tyson], when he tried to block Jamar's way by sticking the paddle in front of him, Jamar ducked and was hit in the head with the paddle. [Tyson] claimed that with the next blow he accidentally hit Jamar's back and the back of Jamar's head when the child moved his buttocks forward to avoid being hit. At the same time, [Tyson] claimed, Jamar tripped or was possibly knocked forward, and he hit his head on the table at the end of a bed then hit the back of his head against a door. [Tyson] concluded the paddling by slapping Jamar in the chest and back with his open hand and on his buttocks with the paddle.
A neighbor in [Tyson]'s apartment complex called security twice on the night of the beating. She heard a man yelling and a woman or child screaming in pain. She also heard the sound of a belt being snapped. The noise was so loud it woke the neighbor from her sleep.
In his statement, [Tyson] said Jamar did not start feeling sick until the morning after the beating. He acknowledged Jamar's fever was high that day, but he said the fever decreased during the day. According to [Tyson], Jamar's fever rose again the night after the beating. He vomited the water he had been drinking plus "some brown stuff." [Tyson] put Jamar in a bath with cold water, alcohol, and baking soda. Jamar's fever seemed to go down, so [Tyson] fed him crackers, a pinch of sugar, and "blessed olive oil." [Tyson] tested Jamar by making him count from one to one hundred, say how many fingers [Tyson] was holding up, and tell [Tyson] the time. Jamar continued to have an intermittent fever, and he again vomited "brown stuff."
[Tyson]'s supervisor at work testified that on the day of the beating, [Tyson] was reprimanded for listening to his radio at work. The following day, [Tyson] did not report to work. He telephoned his supervisor at approximately 3:30 p.m. When she returned his call at approximately 4:00 p.m., [Tyson] stated that he needed to take a vacation day for the following day because his son was very ill and running a high fever. The supervisor asked [Tyson] if he had taken the child to the hospital. [Tyson] replied he had not, but he told the supervisor that was his intention. The following morning, [Tyson] left a voice mail message at work. In the message, [Tyson] reported that his son had been running high fevers since the day before and that, although his son appeared to be getting better the night before, his fever was up and he had been convulsing.
[Tyson] admitted in his statement that by the morning of Jamar's death, Jamar's condition had deteriorated so much that he was not responding and seemed to be asleep. [Tyson] called his pastor to see if he would pray for Jamar. He took Jamar to the pastor's house for that purpose. The pastor testified that when [Tyson] arrived at his house, he was carrying Jamar in his arms. The pastor noticed a bruise in the center of Jamar's forehead when he tried to wake Jamar. He asked [Tyson] what had caused the bruise. [Tyson] said Jamar had fallen and bumped his head on a table. The pastor could tell Jamar's breathing was labored. He noticed another bruise on Jamar's arm. [Tyson] told the pastor he had accidentally hit Jamar in the arm when Jamar tried to get away as [Tyson] was spanking him.
Jamar's eyes opened occasionally, but they looked glassy, and Jamar did not appear to focus on anything. When Jamar would not wake up, the pastor knew "that he had a serious problem." Within fifteen minutes of [Tyson]'s arrival at his home, the pastor urged [Tyson] to take the child to a hospital. The pastor went with [Tyson] and Jamar to the hospital. On the way, it appeared to the pastor that Jamar was struggling to breathe.
An emergency room doctor who treated Jamar stated that the child had no pulse and was not breathing when he arrived at the hospital. He was not jaundiced. His pupils indicated that he had suffered severe brain injury. Efforts were made to resuscitate Jamar, but because he never showed any signs of revival, they were stopped after approximately twenty minutes. Jamar was declared dead. In the doctor's opinion, Jamar died between five and thirty minutes before he got to the hospital.
The doctor asked [Tyson] what had happened to Jamar. [Tyson] said he had used a paddle to give Jamar a whipping two nights earlier because the child had been disciplined at school. [Tyson] told the doctor he had instructed Jamar to "assume the position" and that Jamar's hands were injured when he used them to cover his behind. [Tyson] also said Jamar fell at least once as he tried to escape his father, hitting his head on a bed and a door in the process. [Tyson] reported that Jamar did not start vomiting the evening of the spankings, but he said he slept with his son that night because he was concerned about Jamar falling out of the bed. He told the doctor Jamar complained of a headache and started vomiting the night after the beating. He gave Jamar Tylenol that night.
In the treating doctor's medical opinion, Jamar would have had a much greater chance for recovery if he had been brought to the hospital earlier. The doctor testified that the most common areas for a child to have bruises are the front side of the legs from the knee to the ankle, the front side of the thigh, the elbows, and possibly the head. He stated that it is not typical of accidental injuries for a child to have scars or bruises on the back of the legs, the midportion of the back, the buttocks, or the ears.
After Jamar was declared dead, Rowlett Police Detective Ray Clark went to the pastor's home to retrieve Dominique. Dominique's upper legs and buttocks were marked with scars and sores. Dennis Williams, a detective with the Dallas Police Department, searched and photographed [Tyson]'s home. He photographed a carton for a four-ounce bottle of Children's Tylenol Elixir, a bag of sugar, and a bottle of olive oil on a coffee table in the living room. Also pictured in the photographs are a Bible on the sofa and a wastebasket in front of it. Williams did not recall any vomit or blood in the wastebasket. He photographed a paddle where it lay on the dining room table.
Dallas Police Officer Sabra Garibay was one of the officers who searched [Tyson]'s apartment after Jamar's death. She noticed a dark liquid in the wastebasket by the couch. Garibay was also present when [Tyson] was interviewed at the police department offices. Garibay observed [Tyson] when he was alone in a room. He said that he didn't "stomp" his baby; he just kicked him. Garibay also heard [Tyson] say he would not hit his child like a "grown up."
Dallas Police Officer Fred Rich also testified. He said [Tyson] admitted to him that he had paddled Jamar. [Tyson] told him Jamar began "bouncing off the furniture." [Tyson] did not mention that Jamar was ill before the beating or that Jamar had ingested something toxic.
[Tyson]'s son Dominique testified before the jury via closed circuit television. He said that his father had "whupped" Jamar with a board, a belt, and a switch. He explained that [Tyson] beat Jamar when he was bad and beat him when he "had accidents" on himself.
On the day of Jamar's final beating, Dominique explained, Jamar was sent home from school with a note from his teacher. As [Tyson], Jamar, and Dominique left Torrence's apartment, [Tyson] hit Jamar on the back of the head. That night, while his girlfriend was at work, [Tyson] told Dominique to bring him the board. He paddled Jamar on his bare buttocks. After Jamar tried to run away, [Tyson] told Dominique to bring him two belts. He tied Jamar's hands and feet with the belts. He continued to beat Jamar with the board. He also beat Jamar with a switch cut from a bush and a belt. When Jamar moved off the bed to the floor, [Tyson] kicked him. Jamar began bleeding from the head.
[Tyson] then paddled Dominique because he had soiled his pants. The next day, Dominique did not go to school because he could not sit down. A forensic DNA analyst testified that Dominique was a potential contributor of the human blood found on [Tyson]'s paddle. Only one in 110,000 Caucasians, one in 3,900 African Americans, and one in 97,000 Hispanics have that DNA type. After the beating, Dominique saw his brother vomit blood or some other dark substance. [Tyson] put a wastebasket by the couch to catch Jamar's vomit. That night, [Tyson] lay beside Jamar on the couch. He patted Jamar on the head. He read the Bible and put "yellow sticky stuff" on his head to "bless" him. Jamar was still vomiting the next day. Dominique testified that [Tyson] had beaten him with a switch and an extension cord in the past. Dominique never told his teacher [Tyson] beat him because [Tyson] told him not to tell anybody.
Dr. Karen Ross, the medical examiner who performed the autopsy on Jamar's body, testified that Jamar's body was marked by abrasions, contusions, and scars on his head, his right thigh, his left buttock, his left forearm, his face, his neck, his chest, and his back. On his head alone, there were six hemorrhaging impact sites from blunt force injuries. His eyes did not indicate jaundice. Fat emboli, which are released to move through the body to the lungs and other organs in crushing soft tissue injuries, were found in Jamar's brain. Jamar's heart had a lot of fat in it; this was a "reactive change" from not having enough oxygen. Some of the cells of the heart were dying or already dead. The tubules of Jamar's kidneys were also dying because they were not getting enough oxygen. The liver had an abnormal amount of fat in it; Ross believed this was also due to lack of oxygen. The cells in the mid-zonal region of Jamar's liver were dying. Ross explained that the liver is the organ most affected by loss of blood flow because the blood vessels around it clamp down to keep more oxygen going to the brain.
In Ross's opinion, blunt force injuries were the cause of Jamar's death. She stated that the blunt force injuries caused the death in several ways; the hemorrhaging, the fat embolization, and the vomiting that resulted from a likely concussion all contributed to a lack of oxygen delivered to Jamar's liver, kidneys, and heart. Seven other Dallas County medical examiners reviewed and agreed with Ross's findings. Testing done in Dallas County and elsewhere revealed that natural disease had not caused Jamar's condition.
Toxicology testing revealed that there was a small amount of acetaminophen, the drug found in Tylenol, in Jamar's system. Ross testified that certain toxins can cause liver failure over a few days. She stated that ingestion of an entire four-ounce bottle of Children's Tylenol would not be toxic enough to cause liver failure. In Ross's opinion, [Tyson]'s failure to get timely and adequate medical treatment caused serious bodily injury to Jamar. Ross also testified that Jamar's cutaneous scars and his recent injuries indicated he had been battered over a period of time.
Dr. Vincent DiMaio, chief medical examiner for Bexar County, testified for the defense. In his opinion, Jamar did not die from blunt force injuries. DiMaio conceded that Jamar had been battered over a period of time, but he opined that Jamar died of liver failure. He stated there was not enough hemorrhaging to cause death and that there were insignificant numbers of fat emboli in Jamar's body. According to DiMaio, children are three hundred times more resistant to fat emboli than adults. In his opinion, the fat emboli present in Jamar were released by his liver as it failed.
DiMaio testified that approximately seventy-five percent of the cells in Jamar's liver were dying or dead. In his opinion, Jamar suffered acute liver failure caused by ingesting some sort of toxin, possibly a large dose of Tylenol or several heavy doses over a period of days. With a heavy dose of Tylenol over a period of days, DiMaio explained, a person would not turn jaundiced because there is not enough time. He agreed that an entire four-ounce bottle of Children's Tylenol would not be at toxic amount in a child Jamar's size. He explained that in a case of Tylenol poisoning, an autopsy would reveal only therapeutic levels of Tylenol in the system because the body would have metabolized the rest. The toxin produced when Tylenol is metabolized is what destroys the liver. Fluorinated hydrocarbon, some mushrooms, carbon tetrachloride, and some herbal remedies can also cause liver failure.
In DiMaio's opinion, a parent would not know to get treatment for a child experiencing liver failure and exhibiting the symptoms of vomiting, fever, and dehydration because children show the same symptoms for the flu. He admitted that if the child was also having convulsions, a parent should take the child to get medical treatment. DiMaio believed Jamar did not suffer serious bodily injury as a result of the beating.
Dr. Jeffrey Barnard, chief medical examiner for Dallas County, testified that Jamar's mid-zonal liver damage did not indicate ingestion of toxins. Barnard testified that in the case of ingestion of a toxin like Tylenol, the cells in the central lobular area of the liver die. He also explained that a Tylenol overdose resulting in liver failure without the formation of jaundice would be impossible in the case of someone with a healthy liver. In Barnard's opinion, two days is too fast for a healthy child to die from a Tylenol overdose. Barnard did not agree with DiMaio's assessment that the fat embolization came from the fatty liver cells.
According to Barnard, if there had been a sufficient quantity of the type of hydrocarbons that cause liver disease in Jamar's body, the toxicology screen done by Dallas County probably would have detected them. He explained that carbon tetrachlorides are only rarely seen in the United States because the manufacture and import of materials containing carbon tetrachlorides is banned in this country.Tyson v. State, No. 05-99-00375-CR, slip op. at 2-10.
The Trial Court's Failure to Appoint a Second Expert
In his first three claims, Petitioner complains that the trial court's failure to appoint an expert laboratory to analyze sections of Jamar's liver denied him due process, equal protection, the effective assistance of counsel, and a fair trial.Petitioner raised these claims on direct appeal and the state appellate court held as follows:
In his first four issues, [Tyson] complains that the trial court's failure to appoint an expert laboratory to analyze sections of Jamar's liver denied [Tyson]'s rights to due process, equal protection, effective assistance of counsel, and a fair trial. Before [Tyson]'s trial, Dr. Vincent DiMaio testified that, in his opinion, the most likely cause of Jamar's death was liver failure. DiMaio testified that he believed there should have been more analysis done on the liver to determine whether a toxic substance or a natural disease caused Jamar's liver to fail. He suggested that the Dallas County medical examiner's office should have taken thinner microscopic sections of the liver and sent them to the Armed Forces Institute of Pathology in Washington, D.C., which sees numerous cases of liver injuries and disease. He stated that if the institute thought the disease was viral in origin, further studies could have been done to examine any viral antibodies. He testified that additional toxicology examinations would probably be of no benefit because the potential toxins would not be detectable in a toxicology analysis. At the conclusion of DiMaio's testimony, [Tyson]'s attorney requested that the trial court order microscopic sections of Jamar's liver to be sent to the Armed Forces Institute of Pathology to be examined. The request was denied.
By the time of trial, it had been determined that Jamar did not have hepatitis A, B, or C, the most likely viral causes of liver disease. DiMaio testified before the jury that he believed the most likely cause of Jamar's liver disease was Jamar's ingestion of a toxin.
In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court held that the State must provide a defendant with the basic tools to present his defense within our adversarial system. Id. at 77. Although Ake concerned the appointment of a psychiatrist, the Texas Court of Criminal Appeals has made clear that Ake requires the appointment of an expert regardless of the expert's field of expertise. See Griffith v. State, 983 S.W.2d 282, 286 (Tex.Crim.App. 1998), cert. denied, 120 S. Ct. 77 (1999). The State, however, need not "purchase for an indigent defendant all the assistance his wealthier counterparts might buy." Id. (quoting Ake, 470 U.S. at 77). The purpose of the appointment is simply to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense. Id.
The burden is on the defendant to make a sufficient threshold showing of his need for the expert's assistance. Id. Only after the defendant has made this threshold showing does the court also consider the private interest and the governmental interest that will be affected if the expert is provided. See Rey v. State, 897 S.W.2d 333, 337 (Tex.Crim.App. 1995). The key question is "whether there is a high risk of an inaccurate verdict absent the appointment of the requested expert." Busby v. State, 990 S.W.2d 263, 271 (Tex.Crim.App. 1999), cert. denied, 120 S. Ct. 803 (2000).
In this case, [Tyson] had already been appointed an expert to testify about the cause of Jamar's death. DiMaio's conclusion that a diseased liver caused Jamar to die was a complete contradiction of the State's assertion that blunt force injuries inflicted by [Tyson] caused the death. At best, the additional expert information may have clarified whether the damage to the liver was due to natural disease or ingestion of a toxic substance.
If Jamar had ingested something toxic, which DiMaio suggested at trial, the additional expert testing could not have determined what the toxic substance was. Additional expert testing would not have contradicted the State's expert testimony that [Tyson] likely caused Jamar to suffer a concussion. It also would not have contradicted the State's assertions that — regardless of the cause of Jamar's illness — [Tyson]'s failure to get medical care for Jamar caused the child's death. We conclude the trial court could have reasonably found that DiMaio was an adequate expert on the cause of Jamar's death and, therefore, additional expert information was unnecessary. See id. (concluding that the trial court did not err by denying Busby's request for a substance abuse expert because the court had already appointed a well-qualified psychiatrist). We resolve [Tyson]'s first four points of error against him.Tyson, No. 05-99-00375-CR, slip op. at 11-13.
The state court findings are entitled to a presumption of correctness. This Court cannot grant habeas corpus relief unless it determines that the state court's determination was in conflict with clearly-established federal laws, that it was an unreasonable application of United States Supreme Court precedent, or that it was based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). Petitioner has not met his burden under 28 U.S.C. § 2254(d) to show that he is entitled to relief. Petitioner's first three claims regarding the appointment of an expert witness are without merit.
Moreover, on habeas corpus review, the trial court held that all of Petitioner's claims were procedurally barred because he raised the same issues on direct appeal and in a petition for discretionary review. Ex parte Tyson at 57. Federal courts may not review a state court decision that rests on an adequate and independent state procedural default, unless the habeas petitioner shows cause for the default and "prejudice attributable thereto" or demonstrates that the failure to consider the federal claim will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989). When the last state court to review a claim clearly and expressly states that its judgment rests on a procedural bar, the procedural default doctrine generally bars federal review. Id; Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
It appears that Petitioner's claims are procedurally defaulted and not cognizable on federal habeas corpus review unless he can demonstrate cause and prejudice or a miscarriage of justice. Coleman, 501 U.S. at 750. Petitioner has failed to meet this standard.
Further, to the extent Petitioner has raised an ineffective assistance of counsel claim, he fails to satisfy the requirements of Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, Petitioner is required to prove that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. In Strickland, the United States Supreme Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. A petitioner must prove both deficient performance and prejudice. To prove such prejudice, a petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Strickland, 466 U.S. at 694. Petitioner has shown neither deficient performance nor prejudice. Accordingly, his claim of ineffective assistance of counsel is without merit.
Face-to-Face Confrontation
Petitioner claims that he was denied a face-to-face confrontation with his son, Dominique, who testified against him by way of closed-circuit television. Petitioner raised this claim on direct appeal and the state appellate court held as follows:
. . . [Tyson] complains that the trial court erred by allowing Dominique Tyson to testify outside the presence of [Tyson] via closed-circuit television. Before [Tyson]'s trial, a hearing was held to determine the competency of [Tyson]'s six-year-old son and to determine whether Dominique would be required to testify in [Tyson]'s presence. Dominique testified first. He said there was nothing about the courtroom that scared him or made him nervous. He admitted, however, that he was afraid of [Tyson] because he "hit people hard." Dominique said he would still be able to answer questions truthfully if he was in the courtroom with [Tyson]. He testified that he had not had any bad dreams or worries about being in court.
Cindy Alexander, Dominique's therapist, testified that Dominique had told her he was afraid his father was going to kill him like he killed his brother. He told Alexander he feared that [Tyson] would not be afraid to "whoop" him in front of the judge. Throughout the time Alexander had been seeing Dominique, he had expressed great fear that [Tyson] would find him and kill him. Dominique has recurrent nightmares, intrusive thoughts, flashbacks, and generalized anxiety.
Alexander explained that Dominique denied he had nightmares when questioned by defense counsel because he did not trust defense counsel. In Alexander's opinion, Dominique would be traumatized by having to testify in front of [Tyson]. She testified that Dominique is chronically and severely disturbed emotionally. She opined that Dominique would "give a truer picture of what did or didn't happen if the father was not present." The trial court granted the State's motion to allow Dominique to testify outside the presence of [Tyson] via closed-circuit television "based on three criteria listed in Gonzale[s] versus State."
The Sixth Amendment to the Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." This right was made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Marx v. State, 987 S.W.2d 577, 580 (Tex.Crim.App.), cert. denied, 120 S. Ct. 574 (1999). The Confrontation Clause reflects a preference for face-to-face confrontation at trial, but a defendant's right to confront accusatory witnesses may be satisfied absent a physical confrontation at trial when denial of such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. Id. In Maryland v. Craig, 497 U.S. 836 (1990), the United States Supreme Court held that "if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma in a child abuse case is sufficiently important to justify use of a special procedure that permits a child in such cases to testify at trial against the defendant in the absence of face-to-face confrontation with the defendant." Id. at 855. In Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App. 1991), the Texas Court of Criminal Appeals adopted the Craig analysis to determine if the Texas Constitution had been violated. Id. at 764.
The showing of necessity must be made on a case-by-case basis and requires the trial court to hear evidence to determine if: (1) the use of the closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness, excitement, or some reluctance to testify. Id. at 762. The requisite reliability of the child witness's testimony may be secured absent a face-to-face confrontation through the combined effect of the witness testifying under oath, subject to cross-examination, and the fact finder's ability to observe the child's demeanor, even if only on a video monitor. Marx, 987 S.W.2d at 580.
Applying these principles to [Tyson]'s case, we conclude [Tyson] was not denied his constitutional rights as guaranteed under either the Texas or federal constitution. The trial court's finding of necessity was supported by the testimony at the hearing, and Dominique, who testified under oath, was subject to extensive cross-examination and observed by the judge, the jury and [Tyson]. We resolve [this issue] against him.Tyson, No. 05-99-00375-CR, slip op. 13-15 (footnote omitted).
Again, the state court findings are entitled to the presumption of correctness. Petitioner has failed to overcome this presumption. Moreover, Petitioner has failed to prove that the state court proceedings 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. Additionally, he has failed to show the state court proceedings resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented there. 28 U.S.C.A. § 2254(d). Petitioner's claim that he was denied his constitutional right of confrontation should be denied.
Cumulative Error
Petitioner asserts that the accumulative effect of all of the errors deprived him of a full and fair trial. However, this Court has found that there were no errors committed by the trial court and that the evaluation of the state appellate court is not an unreasonable application of United States Supreme Court precedent. This Court has further found that the state proceedings did not result in an unreasonable determination of the facts in light of the evidence. Accordingly, this claim fails as well. There can be no cumulative effect of errors that did not occur. United States v. Moye, 951 F.2d 59, 63 n. 7 (5th Cir. 1992).