Opinion
No. 3-02-CV-1441-P
November 21, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner James Warren, Jr., appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was charged by indictment with aggravated sexual assault of a child under 14 years of age. He was convicted by a jury and sentenced to nine years confinement. His conviction and sentence were affirmed on direct appeal. Warren v. State, No. 05-99-01951-CR (Tex.App. — Dallas, Jan. 4, 2001, pet. ref'd). Petitioner also filed an application for state post-conviction relief. His application was denied without written order. Ex parte Warren, No. 49,809-01 (Tex.Crim.App. Aug. 15, 2001). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner contends that: (1) the evidence was factually insufficient to support his conviction; (2) the trial court improperly excluded evidence that the victim had falsely accused another individual of sexual misconduct; and (3) the trial judge misinterpreted a jury note requesting that certain testimony be re-read.
A.
The standard of review in federal habeas cases is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; 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. 28 U.S.C. § 2254 (d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An unreasonable application of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 121 S.Ct 2001 (2001). A presumption of correctness attaches to factual determinations made by a state court. 28 U.S.C. § 2254(e)(1). A habeas petitioner must rebut this presumption by clear and convincing evidence. Id.; Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998), cert. denied, 119 S.Ct. 1339 (1999).
B.
Petitioner first contends that the evidence was factually insufficient to support his conviction for aggravated sexual assault of a child. In particular, he claims that there was "no testimony presented by the state to link the petitioner to such offense, other then [sic] the testimony of the complainant, who was shown to be not credible." (Hab. Pet. at 7, ¶ 20(A)).
1.
Under Texas law, intermediate appellate courts have the authority to review fact questions in criminal cases. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). This "factual sufficiency" review of the evidence is broader than a "legal sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Instead of viewing the evidence in the light most favorable to the prosecution and determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," a factual sufficiency inquiry views all the evidence to determine whether the verdict "is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, 2001 WL 1115339 at * 13 (N.D. Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 128-29. The power of state appellate courts to review the factual sufficiency of the evidence derives from Texas statutory and constitutional authority. Id. at *14, citing Clewis, 922 S.W.2d at 129-30 and Bigby v. State, 892 S.W.2d 864, 874-75 (Tex.Crim.App. 1994). There is no corresponding right of review under the United States Constitution. Id. Consequently, a claim based on factually insufficient evidence does not implicate a federal constitutional right and is not cognizable under 28 U.S.C. § 2254. Id. (citing cases); see also Cupples v. Cockrell, 2002 WL 1155826 at *5 (N.D. Tex. May 29, 2002); Osteen v. Cockrell, 2002 WL 356568 at * 7 (N.D. Tex. Feb. 28, 2002).
Here, petitioner claims that the evidence was factually insufficient to support his conviction. He does not challenge the legal sufficiency of the evidence under Jackson. Nor was such a claim made on direct appeal. Therefore, petitioner is not entitled to federal habeas relief. Cupples, 2002 WL 1155826 at *5; Osteen, 2002 WL 356568 at * 7; Pruitt, 2001 WL 1115338 at *14.
In rejecting petitioner's claim on direct appeal, the state appellate court cited the following testimony as unequivocal evidence that petitioner had committed the offense as alleged:
At trial, [the child] testified that on the date of the assault, appellant picked her up from her babysitter "Ms. Mozell's" house. Appellant had been at a barbeque and appeared intoxicated. When [the child] got home, appellant called her into his bedroom. [The child] testified that appellant pushed her down onto the bed and took off the shorts and panties that she was wearing under her dress. [The child] stated that appellant unzipped his pants and then put his "privacy" in her "privacy." Appellant then "licked" [the child's] "privacy."Warren, No. 05-99-01951-CR, op. at 2. Based on this testimony and the record as a whole, the appellate court concluded that the evidence was not so weak nor the verdict so against the overwhelming weight of evidence as to be clearly wrong or unjust. Id. at 5, citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Grim. App. 2000). Even if this court were to review petitioner's factual sufficiency claim, he has failed to show that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented [at trial]." Hill, 210 F.3d at 485.
C.
Petitioner also complains that the trial court: (1) improperly excluded evidence that the victim had falsely accused another individual of sexual misconduct; and (2) misinterpreted a jury note requesting that certain testimony be re-read. Like petitioner's factual sufficiency claim, these grounds for relief are not cognizable under 28 U.S.C. § 2254.
1.
Federal habeas relief is only available to correct errors of constitutional dimension. 28 U.S.C. § 2254(a); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 104 S.Ct. 2367 (1984). State law issues, such as improper evidentiary rulings and the misapplication of state procedural rules, are not cognizable in a federal habeas proceeding unless the rulings were "so extreme as to result in a denial of a constitutionally fair [trial]." Jackson v. Johnson, 194 F.3d 641, 656 (5th Cir. 1999), cert. denied, 120 S.Ct. 1437 (2000). Even the erroneous admission of prejudicial evidence does not justify habeas relief "unless the evidence played a `crucial, critical, and highly significant' role in the [verdict]." Id., quoting Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 119 S.Ct. 1768 (1999).
2.
Petitioner has failed to show that the rulings at issue deprived him of a fair trial. With respect to petitioner's first claim, the trial judge held a sub rosa hearing to determine whether to admit evidence that the child victim had falsely accused another individual of sexual misconduct. At this hearing, counsel for petitioner questioned the child about an incident involving her cousin "George." The child initially indicated that George "whipped" her, but denied any sexual misconduct. (SF-III 85-86). Although she later testified that George "fel[t] on" her, the child said she was wearing clothes at the time and could not remember exactly what transpired. ( Id. at 88-89, 91-92). The child's mother denied any prior complaints of sexual misconduct involving the cousin and testified she did not believe any such misconduct occurred. ( Id. at 97-98). Based on this evidence, the trial court excluded any testimony that the child had falsely accused her cousin of sexual misconduct. ( Id. at 110). On direct appeal, the state appellate court wrote:
After reviewing the record, we conclude appellant failed to show the child made prior accusations of sexual misconduct. Furthermore, even if appellant proved such allegations were made, he did not prove they were false. Specifically, the mere fact that Mother did not believe the alleged accusations is insufficient to prove falsity. (Citations omitted). Therefore, we cannot conclude the trial court erred in excluding the evidence.Warren, No. 05-99-01951-CR, op. at 6. There is absolutely nothing in the record to suggest that petitioner was deprived of a fair trial as a result of this ruling. This ground for relief should be overruled.
3.
Nor has petitioner shown that the trial judge violated his constitutional right to a fair trial by failing to read back certain testimony to the jury. During deliberations, the jury sent multiple notes to the court. Two of the notes read:
We are in disagreement about the words [the child] used to describe the incident with [petitioner]. We need to see the words [the child] used in the court to describe exactly what [petitioner] did to her in the bedroom.
We the jury disagree on the details of [the child's] testimony. Some of us recall that she said he "tried to" put his privacy in hers and "tried to" lick her. Others recall that she never used the words "tried to" in her testimony. Please provide the relevant portion of her testimony.
(St. App. Tr. 95-96). The judge responded by providing the jury with the child's testimony that petitioner had "put his privacy in hers" and "licked her." ( Id. at 98-101). Although petitioner's counsel requested additional testimony, including the child's statement that petitioner had tried to "rape" her, the court refused that request. (SF-IV 132-33). Petitioner now contends that this additional testimony should have been read to the jury.
Assuming arguendo that the trial judge misinterpreted the jury note, this does not amount to constitutional error. Petitioner's claim arises solely under state law. He has failed to even articulate, much less prove, how the failure to re-read other portions of the child's testimony deprived him of a fair trial. Accordingly, this ground for relief should be overruled.
Article 36.28 of the Texas Code of Criminal Procedure provides, in pertinent part:
In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the point in dispute, and no other . . .
TEX. CODE GRIM. PROC. ANN. art. 36.28 (Vernon 1981).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.