Opinion
Civil Action No. 3:98-CV-0409-L
December 31, 2001
ORDER
After making an independent review of the pleadings; files and records in this case; the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, filed July 25, 2000; and Petitioner's Objections to Findings, Conclusions, and Recommendation of the United States Magistrate Judge ("Petitioner's Objections"), filed August 4, 2000; the court concludes that the findings and conclusions of the United States Magistrate Judge are correct, and they are therefore accepted as those of the court. Petitioner's Objections are overruled.
Petitioner made objections regarding the Magistrate Judge's findings that Petitioner did not have the right to represent himself on appeal; that no conflict of interest existed between Petitioner and his appellate counsel; that Petitioner's appellate counsel was effective, although he (counsel) chose not to raise as grounds for appeal that: 1) the trial court struck two venirewomen for cause, 2) the trial court limited Petitioner's voir dire questions, 3) the trial court allegedly failed to follow proper jury selection procedures, 4) the trial court admitted hearsay testimony, 5) a state expert was permitted to give opinion testimony, and 6) a defense witness was allegedly improperly impeached. Petitioner further objected to the Magistrate Judge's findings that evidence admitted during the punishment phase of Petitioner's trial did not violate the Eighth and Fourteenth Amendments, that Texas's appellate review of death penalty convictions is constitutional, and that Petitioner was not entitled to a jury instruction on parole. Upon de novo review of the Magistrate Judge's findings and conclusions to which these objections pertain, it is fairly apparent that the objections regarding self-representation on appeal, the alleged conflict of interest, jury selection procedures, the expert's opinion testimony, the defense witness's impeachment, evidence admitted during the punishment phase of trial, Texas's death penalty appellate review, and the lack of a jury instruction on parole are without merit and should be overruled without further discussion.
The objections regarding whether Petitioner's appellate counsel was ineffective when he did not appeal the trial court's disqualification of the venirewomen, the limitations placed on Petitioner's voir dire questions, and the admission of hearsay testimony appear, at first blush, to have possible merit; however, a more detailed analysis reveals that they also lack merit. Because the lack of merit is not apparent initially, the court deems it appropriate to discuss the bases for overruling these objections. Accordingly, the court makes the following findings and conclusions regarding these three areas of objections.
I. Standard of Review
A habeas corpus petition is reviewed in light of standards set forth by 28 U.S.C. § 2254(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 the State court proceeding.28 U.S.C. § 2254(d). The Supreme Court has construed federal law to guarantee a criminal defendant effective assistance of counsel, which includes the right to effective assistance of counsel on a defendant's first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 396 (1985).
The court evaluates whether counsel was effective by using the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Williams v. Taylor, 529 U.S. 362, 390-91. (2000). Under the Strickland test, in order to prove that counsel was ineffective, a Petitioner must prove that counsel's performance was deficient and that this deficient performance prejudiced his defense to the point that his trial was unfair and unreliable. 466 U.S. at 687. The prejudice requirement dictates that, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside [a] judgment [in] a criminal proceeding if the error had no effect on the judgment." Id. at 691. Thus, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
II. Application
Petitioner's habeas corpus petition asserts that he is entitled to habeas relief because his appellate counsel was ineffective in violation of Evitts v. Lucey. Petition for Writ of Habeas Corpus at 15. Petitioner argues that his appellate counsel was ineffective because, among other things, counsel did not raise on appeal that: 1) the trial court struck two venirewomen for cause; 2) during voir dire, the trial court denied Petitioner's counsel an opportunity to rehabilitate a venirewoman with a rebuttal question; and 3) the trial court admitted hearsay testimony during the punishment phase of Petitioner's trial. Petition for Writ of Habeas Corpus at 15-36.
In ruling on Petitioner's other objections, the court has already addressed his other bases for habeas relief and finds it unnecessary to further discuss them.
1. Strikes for Cause
With respect to the strikes for cause, the Magistrate Judge concluded that the Supreme Court permits venirewomen to be stricken if their views on the death penalty are such that they would `"prevent or substantially impair the performance of [their] duties as a juror in accordance with [their] instructions and . . . oath.'" Findings and Conclusions at 12 (citing Wainwright v. Witt, 469 U.S. 412, 420 (1985)). The Magistrate Judge further concluded that the venirewomen were stricken because they gave voir dire testimony that revealed they held views on the death penalty which would have substantially impaired their ability to perform as jurors. Id. at 14. The Magistrate Judge then cited Broxton v. State, 909 S.W.2d 912, 916 (Tex.Crim.App. 1995), to illustrate that Petitioner was not prejudiced by his counsel's failure to raise this issue on appeal, because a Texas appellate court would have concluded the trial court acted within its discretion when it found that the venirewomen's ability to perform as jurors was substantially impaired. Findings and Conclusions at 14. The Magistrate Judge therefore concluded that an appellate court would not have reversed the trial court's decision to strike the venirewomen for cause. Id.
The relevant language in Wainwright is actually found at page 424.
Petitioner objects to this conclusion by asserting "the [M]agistrate [J]udge failed to consider Texas law on the exclusion of jurors [and] [w]ithout doing so, [P]etitioner suggests [he] could not make a determination of whether this claim would have been successful on direct appeal." Petitioner's Objections at 8. This objection is unfounded. The Magistrate Judge relied on Broxton, and Broxton illustrates that Texas appellate courts show deference to trial courts' determinations that venirepersons' views will substantially impair their ability to perform as jurors. 909 S.W.2d at 916-17. Thus, the Magistrate Judge did consider Texas law, and his findings reveal that under such law, the outcome of Petitioner's appeal would not have changed if his appellate counsel had raised the strikes for cause. Additionally, even if the Magistrate Judge did not consider Texas law, this court has considered such law and concludes that the Magistrate Judge's findings were correct. See Rachal v. State, 917 S.W.2d 799, 810-11 (Tex.Crim.App. 1996) (en banc) (discussing voir dire testimony analogous to the testimony of the stricken venirewomen, and concluding that such testimony presents a situation where an appellate court must defer to the trial court). Accordingly, the Magistrate Judge correctly held that Petitioner was not prejudiced when his appellate counsel did not raise the strikes for cause on appeal, because the outcome would have been no different if this issue had been raised. Petitioner has therefore failed to show that his appellate counsel was ineffective.
2. Voir Dire of Venirewoman
With respect to rehabilitating one of the venirewomen, Petitioner's trial counsel wanted to ask, "whether, irrespective of [your] personal beliefs, if [you take] an oath, whether [you can] follow the law and decide the questions based upon the evidence." Findings and Conclusions at 15. The trial court did not allow Petitioner's trial counsel to ask this question. The Magistrate Judge concluded that this was within the trial court's discretion, because the question was duplicative of questions that had already been asked. Id. (citing Allridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040 (1989)). The Magistrate Judge then concluded that counsel was not ineffective when he did not appeal this issue, because it had no merit. Findings and Conclusions at 16.
Petitioner objects to this conclusion and argues that Texas authority required the trial court to permit Petitioner's trial counsel to ask the question. Petitioner's Objections at 11-12. The initial flaw in Petitioner's objection is that — assuming Texas authority requires the foregoing question — Petitioner merely complains that he was not allowed to clearly ask the question. Petitioner's Objections at 11-12. This does not adequately challenge the Magistrate Judge's finding that the trial court prohibited the question only after similar questions had been asked, because Allridge protects the court's discretion in this regard. In fact, Allridge holds that "[a]s a trial court may impose reasonable restrictions on exercise of the voir dire, it may cut off duplicitous questioning, and if the prospective juror states his or her position clearly, unequivocally and without reservation, the court may properly refuse to permit further questioning." 762 S.W.2d at 168.
Additionally, Petitioner is mistaken that the trial court was even obligated to allow counsel to ask the question. See Colella v. State, 915 S.W.2d 834, 841-42 (Tex.Crim.App. 1995) (en banc) (holding that before a venireperson is disqualified, Texas courts no longer require that she be asked whether she can "give honest answers to questions of fact, even if it meant that the death penalty might be assessed as a result"). The question proposed by Petitioner's trial counsel tracks the question the Colella court held is no longer required before a venireperson is disqualified. Accordingly, Petitioner was not prejudiced when his counsel did not appeal this issue, because it would not have changed the appeal's outcome. Petitioner therefore cannot rely on this argument to demonstrate that his counsel was ineffective.
3. Hearsay Testimony
With respect to the hearsay testimony, the Magistrate Judge found that the trial court allowed several hearsay statements to be admitted during the punishment phase of Petitioner's trial. Findings and Conclusions at 18-19. The hearsay consisted of statements that Petitioner abused his wife and that Petitioner had once said he would trade his daughter for the family VCR. Id. Regarding abuse, Petitioner's wife gave direct testimony that Petitioner never abused her and that she never told anyone that Petitioner abused her. Id. at 18. The state then called two rebuttal witnesses who testified that Petitioner's wife made statements that Petitioner abused her. Id. at 18-19. The Magistrate Judge concluded that the rebuttal witnesses' testimony was used to impeach Petitioner's wife's testimony. Id. at 19. The Magistrate Judge then concluded that Texas evidentiary rules permit the use of hearsay in this fashion. Id. (citing Tex. R. Evid. 613(a)). The Magistrate Judge therefore concluded that, on appeal, Petitioner's counsel was not ineffective when he did not raise this issue. Findings and Conclusions at 19.
The Judge also found that the content of several hearsay statements overlapped the testimony of two witnesses who based their testimony on direct observations, as opposed to hearsay. Findings and Conclusions at 19. Thus, even if these hearsay statements were inadmissible, they caused no prejudice to Petitioner because the content of the statements was presented to the jury in an admissible form.
Regarding the "VCR statement," the Magistrate Judge concluded that it could not be used for impeachment purposes. Id. at 20. It therefore was not admissible hearsay. Id. The Magistrate Judge nevertheless found that Petitioner was not prejudiced when his appellate counsel did not raise this issue, because the statement was insignificant given the wealth of admissible testimony regarding the nature of Petitioner's relationship with his wife and children. Id. Accordingly, the Magistrate Judge concluded that admission of the "VCR statement" was harmless error. Id. at 20-21. The admission therefore was not subject to reversal on appeal.
Petitioner does not object to the Magistrate Judge's conclusion that he was not prejudiced when his appellate counsel did not appeal the "VCR statement." Petitioner instead objects to the Magistrate Judge's conclusion that his wife was properly impeached. Findings and Conclusions at 13. He argues that although hearsay may be used to impeach a witness, the state cannot call a witness solely for impeachment purposes. Id. Petitioner cites Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999), to support this argument. Findings and Conclusions at 13. Hughes is not controlling, however, because there is no evidence that the state called Petitioner's wife solely for impeachment purposes. The court has not been directed to facts that indicate the state knew Petitioner's wife would deny being abused by Petitioner. Thus, the court will not assume the state called Petitioner's wife solely to later impeach her abuse testimony with the hearsay statements. Additionally, even if the state knew that it would impeach her abuse testimony, the state nevertheless elicited testimony that did not relate to the abuse. Accordingly, the state did not call Petitioner's wife solely to impeach her; it also elicited evidence that independently supported its case. Petitioner's reliance on Hughes is therefore misplaced. As such, the trial court did not err when it admitted the hearsay statements for impeachment purposes, and the outcome of Petitioner's appeal would not have changed if his counsel had raised this issue. Petitioner therefore was not prejudiced, and his appellate counsel was not ineffective.
Petitioner's wife gave testimony related to: 1) Petitioner's criminal history, 2) tattoos that Petitioner had on his body, and 3) insurance payments that were related to Petitioner's crime. See Respondent Johnson's Answer, Motion for Summary Judgment, and Supporting Brief at 10.
The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are therefore correct, and they are accepted as those of the court. Respondent's Motion for Summary Judgment, filed July 1, 1998 is hereby granted, and Petitioner's Petition for Writ of Habeas Corpus, filed April 21, 1998 is hereby denied. This action is therefore dismissed with prejudice.
It is so ordered.