United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. § 636(b) and
Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
is pro se and has paid the filing fee in this matter. Before
the Court are Petitioner's Application for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Docket Entry
“DE” 1), his Memorandum in support of his
application (DE 2), Respondent's Answer (DE 22), and
Petitioner's Traverse (DE 26) and Petitioner's
additional Traverse (DE 29). For the reasons set forth below,
the undersigned recommends that Petitioner's Application
for Writ of Habeas Corpus be denied.
OF THE CASE
has custody of Petitioner pursuant to a judgment and sentence
imposed by the 427th District Court of Travis County, Texas.
A jury found Petitioner guilty of capital murder and the
trial court sentenced him to a term of life imprisonment
without the possibility of parole. In his habeas petition
Petitioner asserts he was denied his right to due process and
a fair trial and that he was denied his right to the
effective assistance of trial and appellate counsel.
following facts are taken from the Texas Court of
Appeals' decision in Petitioner's appeal:
On January 6, 2010, Jonathan Stanchel drove his passenger,
Justin Mendez, to an address Mendez requested. They parked
and waited in the car. Appellant and another man, Daniel
Byrd, approached the car, but Mendez would not allow Byrd
into the car because Byrd had recently robbed him. Appellant
got into the backseat of the car on the driver's side,
behind Stanchel. What happened next is the subject of
Stanchel testified that the man who got into the car put a
gun against Stanchel's head and said, “Give it up,
” which Stanchel took to mean that he should surrender
property. Stanchel instead reached for the car door and heard
the gun fire. This shot apparently grazed Stanchel, as he had
a gunshot wound on the back of his head near his right ear.
He heard two more gunshots as he fled. Police responding to a
report found passenger Mendez dead in the car with two
Appellant testified that he did not have a gun that night. He
said that Mendez pulled a gun and threatened him. Appellant
said that he grabbed the gun, struggled with Mendez, and a
shot went off. Appellant testified that he pulled the gun
away from Mendez and shot twice, then returned to his
vehicle. Appellant said he was gripping the gun so tightly
that he bled. Appellant denied planning to rob Mendez and
said that the shooting happened in the moment.
Other witnesses who rode with appellant and Byrd to the
meeting place testified that appellant and Byrd had a
conversation that included whether appellant had a
“burner, ” which the witnesses took to mean a
gun. Joshua Dennis recalled appellant saying that he had a
burner, Justin Wilson recalled appellant nodding, and Jamal
Stevens remembered appellant indicating he had a gun. Dennis,
Wilson, and Stevens also recalled appellant and Byrd
discussing “hitting a lick, ” which they said can
mean many things including a drug deal or a robbery. Dennis
and Stevens said they did not take that discussion seriously,
however, because Byrd took money to the other car and they
did not see a gun beforehand. The three companions also
testified that, immediately after the shooting, Byrd returned
to the car saying that appellant had started shooting. Wilson
testified that appellant said, “I got nervous, I got
nervous, so I let off a couple shots.” Byrd feared that
people would seek revenge against him because he had
previously robbed Mendez.
Two men who were in jail with appellant testified that he
spoke to them about the incident. One said that appellant
told him that he and Byrd went to rob a man, the man moved,
and the gun went off. Another said that appellant told him he
shot a man when a drug deal and robbery went bad because the
man would not give up his stuff. Stanchel testified that
Mendez did not own or carry a gun and did not have a gun on
him the night he was killed.
King v. State, No. 03-12-00105-CR, 2014 WL 1691642,
at *1 (Tex. App.-Austin Apr. 25, 2014, pet ref'd).
Petitioner's state court criminal proceedings
jury indictment returned April 12, 2010, charged Petitioner
with one count of capital murder, alleging Petitioner caused
the death of Justin Mendez by shooting him with a firearm in
the course of committing or attempting to commit a robbery.
(DE 23-37 at 8). Petitioner was appointed counsel to
represent him in his criminal proceedings. (DE 23-37 at 9).
Mr. Stanchel testified for the State; Mr. Byrd did not
testify at Petitioner's trial. (DE 23-6 at 25-54; DE 23-8
at 59-63, 104-06). At the close of the State's
case-in-chief, Petitioner's counsel moved for a directed
verdict of acquittal based on a failure to identify the
victim. (DE 23-8 at 19-21). Petitioner testified at his
trial. (DE 23-8 at 25-49). Petitioner denied having a weapon
on the night in question and denied making a statement that he
intended to commit a robbery. (DE 23-8 at 29). Petitioner
testified that he shot the victim in self-defense with the
victim's gun. (DE 23-8 at 32-38).
jury returned a verdict of guilty on the charge of capital
murder as alleged in the indictment. (DE 23-37 at 20). The
trial court sentenced Petitioner to the statutory term of
life in prison without the possibility of parole. (DE 23-37
appealed his conviction through appointed counsel. Petitioner
asserted the trial court erred by denying his motion for a
new trial without conducting an evidentiary hearing; that his
right to a fair trial was compromised because he was in a leg
brace and a sheriff's deputy sat near him when he
testified; that the trial court erred by overruling his
objection to statements in the prosecutor's closing
argument; and that the trial court erred by failing to sua
sponte include a jury instruction on the lesser-included
offense of felony murder. (DE 23-16). The Texas Court of
Appeals denied relief and the Texas Court of Criminal Appeals
refused a petition for discretionary review. King v.
State, No. 03-12-00105-CR, 2014 WL 1691642, at *1 (Tex.
App.-Austin Apr. 25, 2014, pet ref'd).
filed an application for a state writ of habeas corpus. (DE
23-7 at 40-57). Petitioner asserted he was denied his right
to due process and a fair trial because “69
[prospective] jurors of 70 indicated they could not presume
the appellant innocent.” (DE 23-37 at 45). Petitioner
argued he was denied his right to due process and a fair
trial because the trial court denied his motion to include a
lesser-included offense instruction on voluntary
manslaughter. (DE 23-37 at 49). Petitioner also asserted he
was denied his right to due process and a fair trial because
the court “allowed the State to violate Rule of Evid.
614.” (DE 23-37 at 51). Petitioner asserted he was
denied his right to the effective assistance of counsel
because his attorney: “failed to object to the
presumptive inference instruction in the charge, ” (DE
23-37 at 53); failed to challenge the insufficiency of the
evidence by requesting a directed verdict, (DE 23-37 at 56);
failed to request a felony murder instruction, (DE 23-37 at
47); and because appellate counsel failed to raise
insufficiency of the evidence. (DE 23-37 at 57). Petitioner
further argued he was denied his right to due process because
the trial court improperly instructed the jury. (DE 23-37 at
state trial court made findings of fact and recommended that
the application for habeas relief be denied. (DE 23-37 at
151-52). The trial court found and concluded:
3. Stanchel testified that he and Mendez were sitting in
Stanchel's car when applicant got into the back seat,
said “Give it up, ” and fired three shots when
Stanchel tried to jump out of the car. One shot grazed
Stanchel's head, and Mendez was found dead in the car
with two bullet wounds.
4. Applicant claimed that Mendez had the gun and threatened
him with it, but applicant managed to take it away and shoot
him. He denied ever trying to rob anyone. However, some of
applicant's companions said he had the gun and planned a
5. Applicant contends his jury panel was biased because only
one member said that he could presume applicant was innocent,
that he should have received an instruction on the lesser
included offense of manslaughter, that the jury instruction
defining “intentionally” was incorrect, and that
the prosecution had violated The Rule. All of these
contentions needed to be raised on appeal since they depend
on the reporter's record.
6. Applicant contends his trial counsel was ineffective
because he did not request an instruction on felony murder,
should have objected to the jury charge definition of intent,
and did not challenge the sufficiency of the evidence to show
applicant intended to kill Mendez. The evidence did not
support an instruction on felony murder because it showed
applicant either intentionally fired the shots which killed
Mendez during a robbery, or was defending himself from
Mendez' use of unlawful deadly force. The instruction on
intent tracked the Penal Code definition, so was not
objectionable. Finally, Stanchel's testimony supported
the finding that applicant intentionally killed Mendez in the
course of a robbery.
7. Finally, Applicant contends appellate counsel should have
challenged the sufficiency of the evidence to show an intent
to kill. That evidence was sufficient, as set out previously.
(DE 23-37 at 151-52). The Texas Court of Criminal Appeals
denied relief without written order. (DE 23-34).
Petitioner's claims for federal habeas relief
federal habeas action, Petitioner asserts he is entitled to
1. He was denied his right to a fair trial by an impartial
2. The trial court denied his request for a jury instruction
on a lesser-included offense of manslaughter.
3. The trial court erred by permitting the State's
witnesses to testify in violation of Texas Rule of Evidence
4. The trial court erred “by including the invalid
presumptive/conclusive inference on intent” in the
charge to the jury.
5. There was insufficient evidence to sustain his conviction.
6. He was denied his right to the effective assistance of
(a) his trial counsel did not apprise the jurors of the
felony murder doctrine or request a jury instruction on
(b) trial counsel failed to object to the
presumptive/conclusive inference instruction in the charge to
(c) trial counsel failed to request a directed verdict based
on insufficient evidence of guilt; and
(d) his appellate counsel was unconstitutionally ineffective
because he failed to assert an insufficiency of the evidence
claim in Petitioner's appeal.
Petitioner seeks relief in the form of
“acquittal.” Alternatively, he asks the Court to
reverse his conviction and remand the matter for a new trial
or to “reform” his conviction to the
lesser-included offense of murder. (DE 1 at 7).
contends that some of Petitioner's claims are
procedurally barred and that all of his claims are without
merit. Specifically, Respondent argues that Petitioner's
claim regarding the sufficiency of the evidence is
unexhausted and procedurally defaulted because Petitioner did
not raise this claim in his appeal or in his state action for
habeas relief. (DE 22 at 2 n.1 & 5 & 7).
contends that Petitioner's claim regarding jury bias is
barred because he procedurally defaulted this claim in the
state courts by failing to raise the claim at trial and in
his appeal. (DE 22 at 14).
replies to the response to his petition, Petitioner allows:
“The petitioner would concur to the dismissal of Three,
Five, Six (a & c), & Seven [presumably claim 6(d)] at
this time.” (DE 26 at 1 & DE 29 at 1). In his
replies Petitioner argues only the merits of claims 1, 2, 4,
and 6(b). (DE 26 & DE 29). Because Petitioner allows that
his third and fifth claims, and portions of his ...