Brite v. Davis, No. 5:2016cv00540 - Document 23 (W.D. Tex. 2017)

Court Description: MEMORANDUM OPINION AND ORDER. No Certificate of Appealability shall issue in this case. Signed by Chief Judge Orlando L. Garcia. (aej)
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Britev.Davis Doc.23 F LE D UNITED STATES DISTRICT COURT 'P!DTT flTPT("P AW 'PWY SAN ANTONIO DIVISION Petitioner, V. LORIE DAVIS, Director, Texas Dep't Of Criminal Justice, Correctional Institutions Division, Respondent. Pursuant to U.S.C. 28 WI P TV CLERK CIVIL NO. SA-16-CA-005 Jim 2254, § AUG 312017 CLERK. U.S. OISTRICT COURT WESTERN DIS'rRIOT QEJEXAS * * * * * * * * * * * * * JIM BRITE, TDCJ No. 1471684, I Brite, -OLG "Jimmy a/k/a Acosta Brite," an inmate in the custody of the Texas Department of Justice-Correctional Criminal OlD"), filed has (DE underlying child convictions III II), who imprisonment 1) I, (Count Petitioner, for challenging 1), (Counts assault Motion was for the three and VI), ("TDCJ- Hearing (Docket writ of habeas count four his indecency of aggravated sexual and one count of sexual assault sentenced to of of counts one a constitutionality terms with years' maintains that he is actually innocent and trial counsel was ineffective ineffective objection to for failing to extraneous-offense raise evidence, a 2) for trial counsel collateral failing a (Count IV) twenty of and one term of life imprisonment, failing to challenge prosecutorial misconduct; was Division Evidentiary an along with his application for Entry "DE" 17), corpus a Institutions to estoppel know Dockets.Justia.com the regarding law jeopardy. second the on third and 1), Respondent's (DE 16 and 22), Answer opinion the (DE and 13 Petitioner's 21), applicable the Court the law, (DE 1) Brite was 2007, child a by aggravated sexual assault of assault Dist. 202) of child. was He given sexual Traverse is of the Petitioner's . (DE 17) State v. Brite, No. Tex., Nov. 2, twenty-year four three counts of one count of contact, and a all to run concurrently. sentence, convicted of child, Bexar County, Ct., . a (DE Procedural Background I. with double of the Rules Governing 4 Notion for an Evidentiary Hearing is also DENIED. indecency his 3) violated counts petition should be DENIED. and November and witness; the Having considered the habeas application the petition. In secure to the Court has conducted a preliminary review Section 2254 Cases, of material a As required by Rule (Id.). failing and age, Nary Ann Harris, testimony of prosecution victim's the one of sexual 2006-CR-5362 (186th 2007); count (DE sentences, Id. 11-15 at 192- and one life Brite's convictions and sentences were affirmed on direct appeal by the Fourth Court of Appeals in June of 2009. WL 1617741 Brite was (Tex. Brite v. State, App.San Antonio, June No. 10, 04-07-820-CR, 2009 2009, pet. subsequently granted the opportunity to file ref'd). an out- of-time petition for discretionary review by the Texas Court of Criminal Appeals ("TCCA"), which 2 the state court eventually Brite v. State, refused. 23, 2014) Supreme denied He . Court, then PD-1706-13 appealed to writ July App. United the States certiorari of Brite v. Texas, 2015. 12, for Crim. (Tex. case his petition his but January on No. 135 was 963 Ct. S. (2015) Almost year a Brite later, filed habeas state a Ex application challenging his convictions and sentences. Brite, two 79,647-02 No. separate Crim. (Tex. pleadings this to application on January filed his the prison mail-box. (DE 4, pgs. App.) Brite Court, 7, 12-17, (DE 394). pg. asserts In that he in DE 16, pg. 3) However, . provided by Respondent Davis indicate that Brite placed records his application in the prison mailing system on January (DE parte by depositing it 2016, 2-4; corpus 13-1, pg. 28) Brite's . state 2016. 8, petition habeas was subsequently denied without written order by the Texas Court of Criminal Appeals on June federal current habeas 2016. 1, petition (DE on Brite filed the 12-13) June 7, 2016. (DE 1, pg. by the 10) II. The Fourth 10, factual Court Factual Background background was of Appeals in its summarized as follows Memorandum Opinion, dated June 2009: At the time of trial, Nancy M., the mother of S.M., who was one of the complainants, was separated from her husband Rick M., who was S.M.'s father. Brite was the boyfriend of 3 initially liked grandmother. Nancy N. S.M.'s paternal Brite, and he attended numerous family outings. In October or November of 2005, Nancy N. and Rick M. were having marital problems, and Rick N. moved to his mother's house. their at and her siblings would visit Rick N. S.N. the night and they stayed grandmother's house, S.M.'s approximately five times. In December of 2005, younger sister, C.N., who was three or four years old, told Nancy M. something that made her concerned. Nancy N. asked about the S.M., who was approximately seven years old, information, and S.M. told her that "she was sleeping and that she woke up and [Brite] touched her middle." Nancy M. set up an appointment for S.M. to see a counselor, Mary Ann Harris, on December 28, 2005. After Harris spoke with S.M., she instructed Nancy N. that she needed to call child report. Harris protective services and make a police referred Nancy N. to Child Safe where S.M. was interviewed medically evaluated. S.N. started on videotape and and continued in counseling counseling with Marianne Torres for a little over a year. Nancy N. did not immediately call the police, but eventually both Nancy N. and S.M. gave statements to Detective Lisa Miller. Nancy N. testified that the incident made S.M. scared and angry and caused her admitted that her sleeping. Nancy N. to have trouble separation from Rick N. also could cause S.M. to be angry and have trouble sleeping. Nancy N. further stated that S.M. would express anger towards Rick N. because he would yell at S.M. and sometimes curse her with profanity. who was nine years old at the time of trial, testified that in October or November of 2005, she was sleeping on the couch at her grandmother's house, and Brite "put his hand in [her] pants" and touched her private part, which she stated was her vagina, underneath her pan ties [sic]. S.N. stated Brite's hand was touching the skin of her private part. Although S.M. told Brite to stop, he continued touching her. S.M. said when Brite touched her, his hand would stay still. S.M. did not tell anyone because she thought her mom would get mad at her. S.M. said Brite touched her about four times. S.N. recalled one time when Brite was eating hot wings, and "he touched [her] there and it started to burn." Brite told her to get a washcloth and put it on her "middle" so it would stop burning. S.M. said she told her little sister because she was afraid to tell her mom. S.N. testified that no one told her to say bad things about Brite or told her to make up stories about him because they were mad at him. In response to whether S.M., 4 Brite's "fingers were on the outside of her private part or something else," S.M. responded that she did not remember. Detective Lisa Miller took Nancy M.'s statement and sent S.M. to Child Safe for a medical evaluation and interview. On March 6, 2006, Detective Miller interviewed S.M. and later interviewed Brite on March 26, 2006. Detective Miller testified that Brite did not respond directly to her questions but qualified his answers. For example, Brite would respond that he "cannot see myself doing that" or "I don't remember doing that." During the interview, Brite did corroborate that the family ate hot wings on the night of one of the alleged incidents; however, Brite told Detective Miller that S.M. got the sauce on her hands when she cleaned up the kitchen and later complained that she was burning after she went to the restroom. Brite further stated that he examined S.M., determined that she must not have washed her hands before using the restroom, and instructed her to go wash her hands and clean herself with a wash rag. Brite explained that he examined her to see if something had bitten her. After Detective Miller turned S.M.'s case over to the district attorney's office for their review, she was contacted by Brite's daughter, A.B., who subsequently came to the station for an interview regarding sexual offenses Brite committed against her. Based on that interview, Detective Miller referred A.B.'s case to the district attorney for aggravated sexual assault of a child. Nancy Kellogg, a pediatrician who specializes in treating child sexual abuse victims, testified that S.M. told her she was asleep on the couch when Brite put his hand inside and it felt uncomfortable. S.M. was anxious and difficult to interview because she did not want to elaborate on details. Dr. Kellogg further stated that S.M. indicated through her gestures that Brite's hand was inside of her private. Dr. Kellogg testified that S.M.'s description of the burning also indicated to her that Brite had penetrated S.M. with his finger. Dr. Kellogg testified that S.M.'s physical exam was normal which is most common when examining children in this context. A.B. testified that when she was six years old, Brite, her father, placed his penis between her legs. Although Brite tried to place his penis inside her vagina, she told him it hurt, and he stopped. He continued, however, rubbing his penis in between her legs. A.B. testified that Brite 5 would do this to her at least three or four times a week. Brite also touched A.B.'s vagina with his fingers a lot and placed his mouth on her vagina at one point. These incidents continued after September 1, 1987, until her parents divorced when she was around fourteen years old. When A.B. was in third grade, she was called to the counselor's office and told the counselor about Brite's actions. Child protective services and the police were called. A.B. stated that the family went to counseling for about a year after she told the counselor. After the counseling, Brite started fondling A.B. again, and Brite continued placing his sexual organ between A.B.'s legs and touching her sexual organ with his sexual organ. After her parents' divorce, Brite attempted to touch A.B. when she was seventeen; however, she stopped him. A.B. was afraid to call the police because nothing happened the other time they were called. When asked why she finally decided to pursue charges against her father, A.B. stated Nancy N. told her about the incident involving S.M. A.B. further stated, "I just don't want him to do this to anybody anymore." at *1_3. Brite, 2009 WL 1617741, Standards of Review III. Review of State Court Adjudications A. Brite's federal petition governed is by heightened the standard of review provided by the Antiterrorism and Death Act Penalty 2254(d), a ("AEDPA") petitioner may 28 . not U.S.C.A. obtain Effective Under 2254. § federal habeas § corpus relief on any claim that was adjudicated on the merits in state court proceedings, (1) unless the adjudication of that claim either: resulted in a decision that was contrary to, unreasonable application of, determined by the resulted in a Supreme decision or involved an clearly established federal law, Court that of was the United based on States, an or as (2) unreasonable determination of the facts in light of the evidence presented in Brown the state court proceeding. (2005) of a complete bar already rejected in imposing Richter, 562 664 651, A U.S. was of proceedings. state Harrington v. (citing Felker (2011) court's habeas inquiry 518 unreasonableness into "objectively unreasonable" law was McDaniel erroneous. or Wiggins 132-33 (2010); Even a strong case Smith, v. habeas 562 not Brown, U.S. 510, 558 U.S. regardless have reached at 102. a U.S. state it 120, (2003) court's of whether the different Instead, whether 520-21 relief does not mean the for court would Richter, and v. 539 contrary conclusion was unreasonable, itself. Turpin, the state court's application of clearly established incorrect federal v. be objective rather than subjective, with a focus should always federal relitigation (1996)) federal on whether 102 86, 141 133, court federal on 544 U.S. standard stops just short This intentionally difficult . claims U.S. Payton, v. conclusion petitioner must a show that the decision was objectively unreasonable, which is a "substantially U.S. (2003) 473 465, . So correctness higher threshold." (2007); Lockyer v. Schriro Andrade, long as "fairminded jurists of the state court's Landrigan, v. U.S. 538 could disagree" decision, a determination that a claim lacks merit precludes relief. Richter, 562 U.S. at 7 101 63, (citing state 550 75-76 on the court's federal habeas Yarborough v. Alvarado, 541 U.s. federal habeas merits in 652, In other words, (2004)). 664 relief on a claim previously state court, Brite must to obtain adjudicated show that the state on the court's ruling "was so lacking in justification that there was an error understood well and comprehended existing in Richter, possibility for fairminded disagreement." see 103; also Bobby Furthermore, § 2254(e) (2), factual a v. Dixon, 562 any U.s. at (2011) 24 for the narrow exceptions contained in habeas petitioner precluded from further and rely on development federal in state Reasoning that is court "[i]t must court when challenging a Pinholster, Cullen v. finding. (2011). 23, beyond except evidence presented to the court 565 U.s. law would be 563 U.s. strange to the state 170, 181-82 ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court," claim has federal 2254 habeas Cd) (1) Thus, been adjudicated on petitioner must (1) explicitly held that "[i]f the merits overcome by a the state court, limitation review" in federal court and this record in existence at Court's the time [of a a of on the record that was before that state court." "evidence introduced 2254(d) i.e., Pinholster § Id. has no bearing on § review "is limited to the the state court decision], the record before the state court." Id. Review of Sixth amendment Claims B. Court The reviews Sixth Amendment alleged ineffective assistance Washington, 466 U.S. establish counsel unless deficient and U.S. 668 of ("IATC" counsel's (1) this deficiency prejudiced (2) According 690. Strickland's high to bar determining whether v. petitioner a right performance his defense. to was 466 Supreme Court, an the never is the claims) Strickland Amendment Sixth his Kentucky, 559 U.S. 356, 371 v. In counsel Under Strickland, . demonstrates he "[s]urmounting (1984) violation a 687-88, at Padilla concerning familiar two-prong test established in under the cannot of trial claims task." easy (2010) counsel performed deficiently, courts "must be highly deferential" to counsel's conduct, and a petitioner must show that counsel's performance fell beyond the bounds of Strickland, to prevailing 466 U.S. rendered have at objective professional Counsel 687-89. adequate assistance is standards. "strongly presumed and made significant all decisions in the exercise of reasonable professional Burt Titlow, v. 466 U.S. tactics at and ineffective that . v. 5. cannot assistance Cockrell, 10, Ct. (2013) 17 (quoting Strickland, "A conscious and informed decision strategy permeates it Cotton 690) 134 judgment." the 343 of be counsel entire basis the unless trial F.3d 746, with 752-53 for it constitutionally is so obvious (5th on trial Cir. ill chosen unfairness." 2003). As the Supreme Court explained, that competent tactician, counsel miscalculation may be not flawless a faulted be foresight lack of or or For this reason, Yarborough benefit the Accordingly, there is 540 U.S. 1, a is to demonstrate a (citations v. that range Thaler, prejudice, a omitted) an alleged reasonable of F.3d 372, 695 378 petitioner "must show reasonable probability that, unprofessional errors, been Feldman Sixth (quoting Strickland, 466 U.S. at 689) (5th Cir. 2012) that there wide the at not perfect advocacy presumption strong professional assistance." Further, 562 U.s. ("The (2003) 6 hindsight.") of within "falls deficiency Richter, prepare Strickland, 466 U.S. Amendment guarantees reasonable competence, judged with to every effort must be made to eliminate Gentry, v. or reasonable a failing for the "distorting effects of hindsight." 689; strategist for remote possibilities." for what appear to be at 110. will attorney an "{j]ust as there is no expectation different. A the result reasonable of for counsel's but the proceeding would have probability is a sufficient to undermine confidence in the outcome." probability Strickland, 466 U.S. at 694. IV. Analysis Respondent initially contends that Brite's is barred 2244(d) by the by one day. one-year period limitation Under the AEDPA, 10 a federal petition of 28 U.S.C. § state prisoner has one year to file a federal petition for habeas corpus, this case, from "the date on which the judgment became final by the conclusion of direct for seeking such Stephens, a review." 28 604 petitioner who Supreme court, pursues review'when merits or denies 565 (5th the of § 2244(d) (1) (A); U.S.C. direct court [the] petition a U.s. 150 134, became final January 12, petition the expiration or Cir. 2013) review Palacios In the case of . all time way the to the the judgment becomes final at the "'conclusion of direct his review 723 F.3d 600, v. Thaler, beginning, in limitations period under Here, conviction on Gonzales Brite's the v. conviction the date the Supreme court denied certiorari. of § a certiorari." for (2012). 2015, writ for affirms 2244(d) As a result, the for filing his federal habeas petition expired a year later on January 12, 2016, unless it is subject to either statutory or equitable tolling. Brite does satisfy not provisions set out in of an impediment § 2244 (d) (1) of timely petition. 28 the statutory government that violated law and prevented Brite from filing u.s.c. § 2244(d)(1)(B). There has also been no showing of a newly recognized constitutional which the petition is based, claims could not have exercise of due diligence. tolling There has been no showing . created by the state the constitution or federal a any right upon and there is no indication that the been discovered 28 u.s.c. 11 § earlier 2244(d) (1) through (c)-(D). the While Brite has not demonstrated that any of the statutory tolling provisions apply, which during a 2244(d) § properly provides that "[t]he time (2) application filed conviction or other collateral review counted be toward subsection." 573, se 578-79 (5th Cir. prison authorities) the 2013) limitations corpus as in 6, the for opposed Lookingbill 2002) (emphasizing Ott v. that to trigger Johnson, 192 state habeas application 146 days, his 339 F.3d 238 making Brite's application for writ of January 8, 2016, the § 2016 7, date as he Respondent 2254 petition is, therefore, relief should be barred under v. Cockrell, 293 F.3d 256, the "AEDPA relies on 265 (5th Cir. precise filing specific accrual and tolling provisions"); F.3d 510, 513 (5th petition filed four days late was untimely); Lee, of pro 2016. deposited to 8, are delivered to the prison mail-box on January nevertheless, untimely; deadlines this 710 F.3d Thaler, time they the maintains it was actually deposited, Brite's the AEDPA. under the pleadings (holding that period Even assuming Brite maintains, limitation of Accordingly, . federal petition due on June habeas is pending shall not . See Richards v. 2016. 1, are deemed filed at inmates tolled period . post- Brite's state habeas petition was filed January and denied June 2016, any . State for (4th Cir. 2003) (habeas late in a death penalty case was untimely) 12 Cir. 1999) (habeas see also Rouse v. petition filed one day Although likewise this fails may seem merits the on since petition Brite's harsh, Brite result did make not "a substantial showing of the denial of a federal right" and cannot showing that this Court's procedural rulings make a substantial are incorrect as required by FED.R.APP.P. appealability. Slack See v. for a certificate of 22 McDaniel, U.S. 529 483-84 473, (2000). A. Brite's claims of ineffective assistance The Cockrell, v. Dowthitt 2006) (citing Cir.2000), seeks Foster innocence. "actual objects to petitioner's claims State initially extent petitioner cert. Quarterman, (2001); 915 (5th Cir.2003)). 151 with F.3d 230 respect 367 Cir. 741-42 733, (5th (5th see also Graves v. Petitioner alleges the to the to claims of actual F.3d 359, 466 Johnson, v. denied, 532 U.S. innocence" stand-alone assert to 351 F'.3d 143, (Claims 1-5) first two grounds, contending that he was denied effective assistance because trial counsel instructed challenge Mauser Erna not misconduct prosecutorial after allegedly told Erna Mauser not to testify, when the state violated entirety due testimony in Insurance Portability Petitioner appears deficiencies its in an and to allowing order to its Dr. that Kellogg's 13 to Miller and failed to object violation but failed Detective suppressing Accountability argue testify, to Act for of Kellogg's Dr. of the 1996 trial Health (HIPAA) counsel's testimony and excluding Erna Mauser's Accordingly, testimony, the Court Brite would have been found addresses these claims innocent. pursuant the to Sixth Amendment. 1. Failure to challenge prosecutorial misconduct In his first ground, petitioner maintains trial counsel was ineffective in failing challenge to instructing Erna Mauser not prosecutorial Mauser not to maintains would have Erna Mauser previously abused by S.M. after for Detective Petitioner testify. testified and that was S.M. notwithstanding the testimony of teacher, and her mother who both maintained that S.M. had never been abused before. the a testify misconduct Miller allegedly told Erna that to fact that Petitioner contends that S.M. had not been abused Dr. Kellogg before relied on making in her diagnosis and that Brite would not have been convicted had Erna Mauser been permitted to testify. Brite's claims are conclusory and lacking any support. in Nothing in the record demonstrates that the prosecution knew or was involved testifying. 2015, in any Further, attempt Erna relies on hearsay, is to Mauser's prevent Erna affidavit, Mauser dated from April 1, contradictory at best and fails to clearly establish that counsel told Erna Mauser not to testify. When asked whether she told trial counsel "about the allegations that were told to Nancy Mauser that her daughter abused by a teacher and that '[N]ancy 14 took care . . of . had been this', and that closed school the affirmatively. or anyone else ever ask[ed] not clarify who Mauser Ms. responded when asked whether "Detective Liza Miller Also, by the teacher?" Ms. down?" not to testify about the abuse [her] Mauser again answered affirmatively but did allegedly told her not to testify. Further, when asked "[d]id the District Attorney or anyone else ask you not to testify in "your ever answered, advised to establish not her These "no." when However, attorney." counsel my behalf?" Ms. Mauser responded "yes," [sic] asked directly testify to at whether trial, contradictory responses trial Mauser Ms. are insufficient Detective Miller told Erna that either counsel or Mauser not to testify. Further, even assuming trial counsel decided Mauser should not testify and told her as much, and informed decision trial tactics on and "[a] strategy that Ms. conscious cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill with obvious unfairness." counsel permeates the chosen that it Cotton, noted in his affidavit, entire 343 F.3d at 752-53. trial As trial "[a]pplicant makes a great buzz that the child had previously been molested by another person. Even that if admissibility were in the [light] of evidence such case, Texas Rule of is Evidence other person does not go to the issue of consent Indeed, Judge Teresa Herr, the judge 15 in Mr. of doubtful 412. The in this case. Brite's case, has such evidence under Rule excluded mine." a subsequent case of 12-17, pg. 441). (DE In in 412 addition failing to show to that his trial counsel instructed Erna Mauser not to testify and was deficient in doing petitioner so, also probability that, result Strickland, have 466 U.s. at that S.M. two victims, reasonable a errors, been previously was his child sex offenses involvement, statements such as: different." abused by am not going I can't see my[self] Brite to admit to doing testimony when questioned various made ambivalent probability that, but something I didn't do."; for regarding 12-17, find that there counsel's 5.M. I pgs. failure 441; is a to being previously result of the proceeding would have been different. 16 I do am guilty as did, (DE by and the viewing I it." the Court does not testify which, in Brite was If [S.M.]. Accordingly, to following another "Let me go search my heart and mind. not recall doing anything hell. interview police the Mauser's testimony would of whom was his own daughter, one video-taped regarding Mauser is As trial counsel stated in his affidavit, Mr. convicted of various his have Here Ms. 694. there unprofessional would proceeding demonstrated person. of counsel's for but the of show "that fails to and "I 412-15) reasonable permit abused, Erna the Failure order 2. In second his failed counsel suppressing violation object to ground for object when to HIPAA. However, repeatedly counsel objected Counsel testimony. petitioner relief, suppression alleges violated state the of that order an Kellogg's testimony in its entirety due to its Dr. of violation state's to record the initially filed that trial of this introduction the to reflects pre-trial a motion and argued against the admissibility of this evidence during a pretrial hearing. requested written (Id., pg. 354). State sought and conclusions in . law of throughout DE 11-19, counsel's pgs. Dr. and counsel also conclusions counsel again of law. objected when the Kellogg's testimony. and (DE favor, . this was requested further, Kellogg's 869-71) performance counsel's Trial . 11-17, Counsel again requested written findings of fact 472-73) 479; trial, 349) fact of introduce Dr. to 345, pg. findings During pgs. objection 11-15, (DE testimony. running a (DE 11-17, pg. While the trial court did not rule hardly deficient, demonstrates that particularly trial given the strong presumption that an alleged deficiency "falls within the Feldman, wide range of reasonable professional assistance." F.3d at given 378 the (quoting Strickland, remaining testimony 466 U.S. supporting at 689) Brite's . 695 Moreover, conviction, Brite has not and cannot establish that but for the introduction 17 he would not have been convicted. of this evidence, 466 U.S. 3. Strickland, at 694. Failure to raise a collateral estoppel objection petitioner Next, claims that his trial counsel was ineffective for failing to raise a collateral estoppel objection to testimony related extraneous to Petitioner maintains that during agreed to initially the quash a pre-trial from 1985. hearing the State based on involving A.B. counts five offenses statute of limitations but subsequently introduced testimony relating to counsel was these offenses. ineffective arguing introduced, permitting in that maintains Petitioner trial testimony the counsel his objected trial be to this to testimony based on the Sixth, rather than the Fifth 1mendment. However, Brite's counts, A.B.'s addition in trial testimony follows: estoppel" 1) regarding that because a motion raised incidents running testimony "barred limitations from bringing was was prevented charges related and had voluntarily dismissed the charges; estopped by the "due process cause of to 2) the outside counsel by these objections occurring trial State quash to In particular, the the filing counsel statute of limitations. as to by the the to the objected common statute law of 1985 offenses that the State was Texas Constitution" and the "Fifth and Fourteen Amendment due process clause of the U.S. Constitution;" and, 3) that the State was "collaterally estopped under jeopardy clause." admitted 2 § 11-20, (DE Fourteenth pg. evidence pursuant the 38.37, and Sixth the (Vernon Supp. DE 8; to Amendments 12-1) TEX.CODE under the The trial court . PROC. CRIM. art. ANN. which provides that evidence of 2014), other crimes, wrongs, or acts committed by a defendant against a child who is a victim of an alleged offense under Chapter 21 or Chapter bearing response in sexual assault indecency with or a evidence of could only be used as the pgs. 13-14; objections failed and the show to deficient DE 12-1, or that he pg. court's that his and in acts of 1987, 11). and child. trial court reading the aggravated of child by contact, and those that this evidence prior relationship between a In limiting trial (DE 11- light of trial counsel's instruction, counsel's prejudiced. was of the the and for no other purpose. child and the defendant 20, and objections, 1st acts occurred prior to September previous the defendant the testimony heard admitted for its be both during the trial they if shall including counsel's to instructed the jury, that Code between relationship subsequent charge, Penal matters, relevant on Further, the Texas of 22 Brite has performance was Strickland, 466 U.S. at evidence on 694. Brite direct also appeal, uncharged challenged arguing offenses was the that admission A.B.'s inadmissible 19 of this testimony because regarding the statute the of limitations had Brite, run. 2009 overruling Brite's objections, the WL 1617741 Court Fourth at *6. In found that the evidence was properly admitted for a limited purpose pursuant to TEX.CODE CRIM. PROC. ANN. instructed that it 1, 1987. 38.37, § and that 2, could only consider the jury was acts prior to performance was particularly deficient, the strong presumption that an alleged deficiency "falls the wide range of reasonable professional assistance." within Feldman, Failure to know law as to counts four, five and six Petitioner next maintains that trial counsel ineffective in failing to know the law as to counts However, count demonstrate at 690. 5 was dismissed and, therefore, he was prejudiced in any way. In count 4, 4, 5 was and 6. petitioner cannot Strickland, 466 U.S. Brite was charged with and convicted of the sexual assault of A.B., age, given (quoting Strickland, 466 U.S. at 689) 695 F.3d at 378 4. September Brite raises the same issue here but fails to show how counsel's trial art. a child younger than seventeen years of on or about the 26th Day of September, In count six, 1993. Brite was charged with and convicted of indecent contact with A.B., a female defendant, child younger than seventeen and not the spouse of the on or about the 26th day of September, 1993. Petitioner maintains that A.B. turned fourteen on September 27, 1992 and would have still been fourteen on September 26, date alleged in the indictment. 20 Petitioner contends, 1993, the however, that the after state was turned A.B. committed any acts alleging that Brite not fourteen therefore, and, Additionally, allegation does not apply. the "on or about" petitioner claims that he was no longer living in the house with A.B. after August 12, could not have committed these offenses after that therefore, and, 1992 date. Brite argued on direct appeal that the evidence was legally and insufficient factual 1617741. noted in language, overruling In opinion its . . . convict to Brite's that Brite, him. objections, the Fourth indictment's "[t]he 2009 or 'on WL Court about' allows the State to prove a date other than one alleged in the indictment as long as the date is anterior to the presentment limitation the of period." indictment at Id. within and *4 Further, statutory the notwithstanding Brite's contention that there was no evidence that Brite engaged in offensive contact after A.B. turned moved out of the family home on August 12, the offensive that until her old. Id. 5. parents fourteen 1992, divorced when she was around counsel was he testified A.B. contacts continued after September 1, 1987, fourteen years at *3 Failure to secure a witness Petitioner also alleges that ineffective failing to secure the testimony of Mary Ann Harris. does after or not state the nature of Ms. 21 for Petitioner Harris's proposed testimony. trial Further, counsel indicated that chose he not call to Harris for the following reasons: She was a private therapist whom the victim saw. She was an outcry witness. Her testimony would have repeated and corroborated in part the child's testimony. She was not called as a defense witness as a matter of strategy. Her testimony would only have reinforced the complainant's testimony. I am not going to call a witness who will only help the State in its prosecution. 12-17, (DE appears to tactics Counsel's decision not to call Harris 440-41). pgs. be conscious "[a] which strategy" and informed and "cannot decision be basis the constitutionally ineffective assistance of counsel so ill chosen that it permeates Cotton, unfairness." failing show to F.3d 343 trial the entire counsel's because he did not call Harris as witness, addition to deficient was Brite also fails to prejudiced by this alleged deficiency. show how he was does a is with obvious In performance for unless it trial 752-53. at trial on Brite testified to, stating not indicate what Harris would have This is insufficient only that Harris was the first to see S.M. to establish petitioner's burden. Finally, ineffective TCCA's the TCCA assistance implicit determinations and are denied of Brite counsel explicit entitled claims factual to a relief each on the on findings presumption of merits. and of § 2254(e) (1); Marshall v. Lonberger, 22 459 The credibility correctness, which may be overcome only by clear and convincing evidence. U.S.C. his U.S. 422, 28 433 Neal (1983); Puckett, v. F.3d 239 696 683, (5th Cir. 2001). Brite has not shown that the TCCA's decision was an unreasonable application of either clearly established federal law facts in light of the evidence presented. Consequently, ineffective should assistance counsel of claims the or Brite's denied and be dismissed with prejudice. B. Brite's claim of double jeopardy (claim Lastly, second and jeopardy.1 petitioner third More contends that violated counts specifically, his his 6) prosecution rights petitioner against maintains on the double that the state relied on evidence of the same act to prove a violation of two separate penal statutes. The Fifth Amendment's proscription against double jeopardy protects a defendant from receiving more than one punishment for the same offense. U.S. CONST. AI1END violation V. Where the same act or transaction constitutes provisions, the test applied to determine whether there are two offenses or one fact 284 which the U.s. 299, occurred at is a separate two statutory whether each provision requires proof of a other does not. 304 of (1999) . Blockburger separate different timeseven 1 if and v. United States, distinct committed acts that against the same Petitioner also alleges that the State should have elected between counts 4 and 6; however, because petitioner is raising this issue for the first time, he has failed to exhaust his remedies and is procedurally barred. 23 personmay constitute offenses independently punishable under See single statute. e.g., id. a at 301-302. Brite was convicted of aggravated sexual assault of a child in count knowingly by his child two which that Brite contact in was also count convicted three intentionally Brite caused the penetration of S.M.'s finger. by charged which female of sexual and organ indecency with charged that a Brite intentionally and knowingly engaged in sexual contact with S.M. by touching part of S.M.'s genitals with the intent to arouse or gratify someone's sexual desire. Brite's double jeopardy claims were previously reviewed on direct appeal by the Fourth Court of Appeals which held the following: order to prevail on a double jeopardy claim, the evidence must show that the two offenses at issue necessarily arose from 'one act which could be subject to two different interpretations.'" Martinez v. State, 212 S.W.3d 411, 422 (Tex. App.Austin 2006, pet. ref'd) (quoting Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998)) In this case, Brite alleges that his conviction for indecency with a child by contact was based on the same conduct underlying his conviction for aggravated sexual assault of a child because both offenses arose from the "hot wing' allegation." S.M. testified, however, that Brite touched her genital area four times including Although the "hot wing' allegation." the indictment alleged two offenses that occurred "on or about" the same date, it is well settled that the "on or about" language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is prior to the presentation of the indictment and not so remote that prosecution is barred by the statute of limitations. See Sledge v. State, 953 S.W.2d at 256. In this case, S.M.'s testimony established three offenses "In . 24 separate from the "hot wing' allegation" each of which occurred prior to the presentation of the indictment and period. limitations statute of applicable within the Accordingly, Brite's double jeopardy challenge fails, and his seventh issue is overruled. See Cabral v. State, 170 S.W.3d 761, 764-65 (Tex. App.Fort Worth 2005, pet. ref'd) (concluding no double jeopardy violation occurred where complainant testified regarding two separate and distinct incidents of abuse) 2009 WL 1617741, Brite, *9 at Subsequently, the TCCA ruled on the merits of this claim in refusing Brite's PDR. adjudication Brite has not demonstrated that the TCCA's of his double jeopardy claim resulted in a decision that was either contrary to, or involved an unreasonable application of, established federal the United States, law, as determined by the Supreme clearly Court of or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown, U.S. 544 Accordingly, 141. at Brite's double jeopardy claim should be denied with prejudice. Certificate of Appealability V. The Court next determines whether appealability 2254 Proceedings; (2003) a (COA) See Rule 11(a) . Miller-El (citing 28 U.S.C. petitioner makes "a constitutional right." court merits, rejects a § v. of Cockrell, 2253(c)(1)). U.S.C. § 537 2253(c) the petitioner must demonstrate 25 U.S. § 335-36 322, A COA may issue only if (2) constitutional petitioner's Governing the Rules showing of substantial 28 to issue a certificate of the . denial If a claims of a district on the "that reasonable jurists would find the district court's assessment of the constitutional debatable claims 484 (2000) v. McDaniel, U.s. 529 473, This requires a petitioner to show "that reasonable . whether debate could jurists Slack wrong." or should petition the have been resolved in a different manner or that the issues presented were to Miller-El, 537 U.s. district A Johnson, forth above, the may briefing 211 F.3d 895, 898 Court further.'" proceed to (citation omitted) at 336 court further requiring encouragement deserve 'adequate deny or concludes See argument. (5th Cir. 2000) that sponte sua COA a without Alexander v. For the reasons set . reasonable jurists would not debate the conclusion that Brite was not entitled to federal As such, a COA will not issue. habeas relief. VI. Conclusion and Order failed to establish that the Petitioner has court's state rejection of the aforementioned claims on the merits during his state habeas involved an federal law, 5tates, or unreasonable as (2) light facts in state trial, result, corpus proceedings Jim was either application (1) contrary to, clearly of, or established determined by the supreme Court of the United based on of the appellate, Brite's an unreasonable evidence and federal determination presented habeas habeas warrant federal habeas corpus relief. corpus corpus in the of the petitioner's proceedings. petition does As a not Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that: 1. Federal habeas corpus relief is DENIED and Petitioner Jim Brite's Petition for Writ of Habeas Corpus pursuant to 28 DISMISSED WITH is (DE 1) 2254 petition U.S.C. § PREJUDICE; 2. No Certificate of Appealability shall issue in this case; and 3. including remaining motions, All other Hearing (DE 17), Motion for an Evidentiary and this case is now CLOSED. Petitioner's are DENIED, It is so ORDERED. SIGNED thIsb day of August, 2017. ORLANDO L. GARCIA Chief United States District Judge 27