Opinion
No. 3-03-CV-1777-M.
June 7, 2004
SUPPLEMENTAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order filed on May 5, 2004, remanding the petition to the magistrate judge for further consideration in light of Petitioner's objections filed on March 12, 2004, and his supplementary objection filed on March 16, 2004, the magistrate judge finds and recommends as follows:
The magistrate judge is of the opinion that the prior recommendation filed on February 27, 2004, is correct and that Wilborn's objections should be overruled. However, the magistrate judge deems it appropriate to address further certain of his objections as they relate to sufficiency of the evidence claims.
1. Sufficiency of the evidence to support Petitioner's conviction for aggravated robbery. Wilborn claims that there was no finding that the knife used when he assaulted the victim was a "deadly weapon" and further that the evidence was insufficient to show that the knife was a deadly weapon as used.
Although neither the jury's verdict, See Appeal No. 05-00-0721-CR [F-99-53764-JL] Record, Vol. 1 at 42, nor the judgment, Id. at 60, contain an express finding that a deadly weapon was used, under Texas state law — given the express language of the indictment, Id. at 02, alleging that "defendant did then and there use and exhibit a deadly weapon, to wit: a knife" — the jury's verdict constituted an implicit finding that Wilborn used and exhibited a deadly weapon in the course of the robbery. See Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985) — holding that an affirmative finding of the use of a deadly weapon may be found where such use has been specifically pled in the indictment and the jury verdict reads "guilty as charged in the indictment." See also La Fleur v. State, 106 S.W.3d 91, 95 and n. 23 (Tex.Crim.App. 2003).
Wilborn further asserts that the evidence was insufficient to support the jury's implicit finding that the knife as used was a deadly weapon. In support of this assertion in his objection he cites an alleged finding by the trial judge and cites several Texas court opinions in which courts — in some instances — reversed findings at the trial court level that a deadly weapon was used. See Wilborn's objections at 5 and 6 and his supplementary objection at 5 and 6.
Wilborn apparently makes reference to the "no finding" notation on the judgment. Appeal No. 05-00-0721-CR, supra, Record, Vol. 1 at 60. For the reasons stated above, this absence constitutes a clerical oversight in light of the jury's implicit finding that a deadly weapon was used. Moreover, the presence or absence of a finding that a deadly weapon was used only affects parole eligibility. The restriction on parole eligibility on a use of deadly weapon conviction is identical to that which applies to a person convicted of aggravated robbery. See Tex. Gov't Code § 508.145(d) and art. 42.12 § 3(g)(1)(F), Tex.C.Crim.P.
As previously noted, Wilborn raised a sufficiency of the evidence issue in his direct appeal which was rejected by the Fifth Court of Appeals at Dallas, after applying the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). The Texas Court of Criminal Appeals in turn refused his petition for discretionary review in which he re-urged his insufficiency of the evidence claim.
In Hester v. State, 909 S.W.2d 174, 179 (Tex.App.-Dallas 1995) the court stated: "We examine each case on its own facts to determine whether a rational trier of fact could have concluded from the surrounding circumstances that an instrument was used as a deadly weapon. Brown v. State, 716 S.W.2d 939, 947 (Tex.Crim.App. 1986)." Thus, the fact that under certain facts and circumstances Texas state courts have found evidence to be insufficient to establish that a deadly weapon was used does not inform disposition of Wilborn's claim. Moreover, given the limitations imposed under the Antiterrorism and Effective Death Penalty Act (AEDPA) a federal habeas courts is not free to make ade novo review of a state court's applications of Supreme Court law and may only grant relief when the state court's decision was based on an unreasonable determination of facts in light of evidence presented. 28 U.S.C. § 2254(d)(2). Wilborn has not demonstrated that the state court's determination of the facts was unreasonable.
2. Sufficiency of the evidence to support enhancement of punishment. A defendant in a Texas state criminal action is subject to sentence enhancement if it be proved that he has prior felony convictions. See § 12.42(d), Texas Penal Code. In his answer Respondent asserted that merits review of this claim was procedurally barred, See answer at 16-18. In the magistrate judge's prior recommendation, it was recommended that the District Court find that Wilborn was procedurally barred from asserting this ground for relief. While the magistrate judge remains of the opinion that such a disposition is correct, even if the District Court decides to consider the claim on the merits, no basis for relief is shown.
The indictment in F-99-53764-JL alleged two prior felony convictions, to wit: No. F-91-33662-WP and No. F-88-70310-PL. Appeal No. 05-00-07210Cr, supra, Record Vol. 1 at 04. At the punishment phase of Petitioner's trial the State presented pen packets into evidence. See State's Exhibits 13 and 14. Exhibit 13 relates to Wilborn's conviction and incarceration in No. F-88-70310-PL and reflects that he was sentenced on June 22, 1988, to probation, which was revoked on June 13, 1989. State's Exhibit 14 relates to Wilborn's conviction in No. F-91-33662-WP. The contents of this exhibit show that the offense was committed on February 20, 1991, and that he was sentenced on May 29, 1991. He committed the aggravated robbery on October 19, 1999. The evidence presented clearly shows that the requirements of § 12.42(d) were satisfied.
RECOMMENDATION:
For the reasons stated in the recommendation filed on February 27, 2004, and as set out above, it is recommended that the petition be denied.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.