The opinion of the court was delivered by: Andrew W. Austin United States Magistrate Judge
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
The undersigned Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1 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 States Magistrate Judges, as amended.
Before the Court are Petitioner Louis Castro Perez's Amended Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Clerk's Docket No. 15),*fn1 Respondent Director of the Texas Department of Criminal Justice Nathaniel Quarterman's Answer (Clerk's Docket No. 23) and Petitioner's Reply Brief (Clerk's Docket No. 30).
A. Factual Background*fn2
Michele Fulwiler ("Fulwiler"), a senior juvenile probation officer with Travis County Juvenile Court, met Louis Castro Perez ("Perez") in 1997 while Fulwiler was dating one of Perez's friends. Fulwiler and Perez became friends and began an "on again/off again" casual romantic relationship which consisted of going out for drinks, hanging out at Fulwiler's house, drinking alcohol, snorting cocaine and having sex. 14 Tr. 231.*fn3 In the Spring of 1998, Fulwiler and Perez ended their intimate relationship, but remained friends and continued to see each other socially. 15 Tr. 129.
On Tuesday, September 8, 1998, a month or so after the couple broke off their romantic relationship, Fulwiler telephoned Perez and invited him out to dinner. At approximately 6:00 p.m., Fulwiler picked Perez up from his parents' house-where he was residing at that time-and the two went to a local bar and had a few drinks.*fn4 15 Tr. 175. After spending a couple of hours at the bar, Fulwiler and Perez went back to Fulwiler's house to watch television, talk, drink and snort cocaine.*fn5
14 Tr. 209-210; 21 Tr. 110-120. At approximately 11:30 p.m., Fulwiler's roommate and co-worker, Cinda Barz, returned to the house. Barz's nine year-old daughter, Staci Mitchell ("Staci'), who also lived at the house, was already asleep in her room. Shortly thereafter, Catherine Clayton, a friend of Fulwiler's, arrived at Fulwiler's house. Fulwiler had told Clayton earlier that day to stop by her house after Clayton's date that evening. Clayton testified that Fulwiler and Perez -who both appeared to be intoxicated-were sitting in the living room, drinking beer and watching television. 14 Tr. 214, 218. After chatting with her friends for about an hour or so, Clayton said that Perez got up from the couch and went into Fulwiler's room, presumably to go to sleep. Clayton left Fulwiler's house at approximately 1:00 a.m., on Wednesday, September 9th. 14 Tr. 222.
Perez testified that he and Fulwiler stayed up most of the night drinking and snorting cocaine. Perez stated that he did not have sexual intercourse with Fulwiler because "she did not want to."*fn6 At approximately 8:15 a.m., Fulwiler called her supervisor to inform him that she was sick and would not be showing up for work. 14 Tr. 242. This was the last time Fulwiler was heard from. Friends and co-workers tried unsuccessfully to call and page Fulwiler throughout the remainder of the day. 14 Tr. 202, 203, 225.
Unlike Fulwiler, Barz did show up for work on Wednesday. However, after her daughter, Staci, failed to telephone her that afternoon, as she routinely did, Barz became concerned and headed for home at approximately 5:00 p.m. 15 Tr. 18. Earlier that day, Barz had made plans with a co-worker, Dana McBee, to bring Staci over to McBee's house after work so that Staci could sell her some items for a school fund raiser. 15 Tr. 29. After Barz and Staci failed to show up at McBee's house, McBee called Barz at home and paged her, but Barz never responded. 15 Tr. 29-32. Barz's boyfriend, Melvin Jones, was also unable to reach Barz that evening and began to worry since Barz did not usually stay out late on school nights. 15 Tr. 83-84. Jones called his friend, Jerome Jones, and asked him to drive by Barz's house on the way home from work to check on Barz. 15 Tr. 91. Jerome arrived at the house at about 2:00 a.m. (on Thursday, September 10th). Although both Fulwiler and Barz's cars were in the driveway, noone answered the door. 15 Tr. 93. After Jerome relayed this news to Jones, Jones called 911. 15 Tr. 94.
Police officers arrived at Fulwiler's house at approximately 3:40 a.m. that same day and discovered a gruesome scene. As the officers entered the house, they found the body of Cinda Barz -still in her work clothes-lying in a pool of blood in the hallway. 14 Tr. 163. The autopsy revealed that Barz had died from blunt force injuries, multiple incised wounds, and a skull fracture. 17 Tr. 76-77. She had defensive wounds on both of her hands. Id. The body of Michelle Fulwiler was found in the master bedroom; she also appeared to have been beaten to death. Fulwiler's autopsy showed that she had died of blunt force injures and ligature strangulation. 17 Tr. 79; 14 Tr.
57. Fulwiler also had multiple incised wounds and lacerations on her head and scalp, as well as defensive wounds on both hands. Finally, the officers discovered the body of Barz's nine year-old daughter, Staci Mitchell, who was found partially dressed and tied to her mother's bed with a pair of pantyhose. 14 Tr. 165. Staci's autopsy revealed that she had died from ligature strangulation. 17 Tr. 79. At the time of their murders, Michelle Fulwiler was 30 years-old, Cinda Bartz was 38 years-old, and Staci Mitchell was nine years-old. 14 Tr. 5, 191.
At about 9:15 p.m. on Wednesday evening, approximately four hours after Barz was murdered, Perez knocked on the apartment door of Minerva Hall, who lived in an apartment complex near the Barton Creek Greenbelt, about one mile from Fulwiler's house. 16 Tr. 7. Perez had met Hall through a friend of his who lived in the same apartment complex. According to Hall, when she looked out her kitchen window to see who was at the door, she did not recognize Perez because he was sitting down on her front porch, covering his face with his hands. 16 Tr. 13. After Perez identified himself, Hall opened the door to find Perez barefoot, disheveled, with several scratches on his neck that were "deep and fresh." 16 Tr. 14, 17. Perez told Hall that he had just been in an argument with his father and that he must have scratched his face while running down the Greenbelt. Perez asked Hall if he could spend the night with her and she obliged. 16 Tr. 14-15. As Perez entered Hall's apartment, her son, Perry Hall, also noticed that Perez had several scratches on his hands and arms. 16 Tr. 15, 54
The next morning, on Thursday, September 9th, Perez asked Hall if he could stay a bit longer and Hall agreed. 16 Tr. 20. When Hall returned to her apartment later that morning, Hall informed Perez that he would have to leave that afternoon but offered to give him a ride to wherever he needed to go. 16 Tr. 21. After she returned from work that afternoon, Hall mentioned to Perez that she had just heard on the radio that there had been a triple homicide in the neighborhood, to which Perez replied: "Really? Where?" and then continued to watch television. 16 Tr. 26. Hall then said to Perez, in jest, "I sure hope I don't see you profiled in tomorrow morning's news connected to this homicide." 16 Tr. 27. They both laughed at that point and Perez told Hall in Spanish, "You're going to give me the evil eye." 16 Tr. 27. Perez then asked Hall to drop him off at "Joe's Bakery" in East Austin. Hall noticed several more scratches on Perez's face in the car ride over to East Austin. 16 Tr. 31. As Hall approached Texas Discount Furniture on East Seventh Street, Perez asked Hall to drop him off in the parking lot. Perez got out of the car -- still barefoot -- and walked toward the entrance of the furniture store. 16 Tr. 32.*fn7
Perez's friend, Tommy Recio, was the manager of the furniture store. Earlier that day, Perez had called Recio to ask if he could stay with him for a couple of days. 16 Tr. 63, 67. Perez told Recio that he had been in a fight with his ex-wife and that she had hit him. *fn8 16 Tr. 69. Like Hall, Recio noticed that Perez was barefoot and had several scratches on his face. 16 Tr. 70. Recio agreed to let Perez stay with him and the two friends spent the evening talking and watching television. 16 Tr. 74. After arriving at work the next morning (on Friday, September 10th) Recio discovered that Perez was a suspect in the triple homicide. Recio then called his attorney, who in turn called the police. When Recio took the police back to his apartment later that morning, Perez was no longer there. 16 Tr. 86.
After ruling out other potential suspects in the case, police began to narrow in on Perez after discovering that he was the last person to be seen with Fulwiler.*fn9 After discovering that the bloody palm print found next to Barz's body matched Perez's finger prints (which were already on file with the Austin Police Department) police issued a warrant for Perez's arrest just before the 10:00 p.m. nightly news on Thursday, September 9, 1998. The police arrested Perez at 6:30 p.m. on Friday, September 10, 1998, at a South Austin convenience store. 16 Tr. 110, 188. Perez alleged that he was on the phone with his attorney at the time he was arrested. Police also observed scratches on Perez's face, neck, chest, arms and hands at the time he was arrested. 16 Tr. 192-94.
The State introduced evidence from a number of witnesses linking Perez to the triple homicide. The State's blood spatter and crime scene reconstruction expert, Tom Bevel, testified as to how he believed the victims were killed. First, Bevel testified that the evidence supported the conclusion that Fulwiler had been the first victim killed. Bevel stated that Fulwiler's injuries revealed that she had struggled for some time with her attacker before being beaten and strangled to death. 18 Tr. 109. Bevel testified that the killer remained in the house for several hours and was still there when Staci returned from school that afternoon. 18 Tr. 112. The evidence shows that Staci received several blunt force blows to her face before she was strangled to death with a pair of pantyhose and tied to her mother's bed post. 18 Tr. 113-114. Bevel testified that Barz was killed after she returned home from work that day at approximately 5:30 p.m. 18 Tr. 115. He stated that the evidence at the scene showed that Barz had struggled with her attacker and had attempted to flee but that she had been repeatedly beaten with an iron skillet until she died. 18 Tr. 116-132. Bevel also testified that finger and palm prints found in the blood stains near Barz's body were created approximately two to five minutes after Barz began bleeding. 18 Tr. 135.
Bevel futher testified that evidence at the scene suggested that the murderer knew the victims. For example, it appeared that the killer had stayed in the house for a long period time after the first murder and the killer had used convenient items already present in the house as weapons. In addition, the attacker had covered up the bodies of Fulwiler and Barz with blankets and had closed the door to the room where Staci's body was found. 18 Tr. 109-10, 142-43.
The State's fingerprint examiner testified that the bloody palm print found next to Barz's body matched the palm print of Perez's left palm. 18 Tr. 207. In addition, there were numerous fingerprints lifted at the scene that matched Perez's prints. Moreover, DNA found underneath Staci Mitchell's fingernails was consistent with Perez's DNA. 19 Tr. 44-45. Similarly, Perez could not be excluded from contributing to the DNA found underneath Barz's fingernails. 19 Tr. 48-51. DNA on the towel found next to Barz's body was consistent with Perez's DNA. 19 Tr. 36. In addition, the rag wrapped around the knife found on the kitchen table was also consistent with Perez's DNA. The crime scene reconstruction expert also testified that the scrapings found underneath the victims' fingernails were consistent with the scratches found on Perez's face, neck and arms when he was arrested. 19 Tr. 137.
The trial testimony also revealed that Perez failed to show up for two
separate construction jobs on the morning of September
9th. Perez's friend, Steve Jackson, who had
supplied Perez with the cocaine he and Fulwiler had used on the night
of September 8th, testified that Perez never
showed up to perform carpentry work at a client's house on Wednesday
September 9, 1998, as he had said he would.*fn10
Jackson testified that he paged and called Perez several times that
morning but was unable to reach Perez. 15 Tr. 137.*fn11
Perez also failed to show up for an important construction
job at Barton Creek Mall later that morning as well. 22 Tr. 220. Mike
Farsi, the owner of the construction company who had hired Perez,
testified that Perez failed to show up for work that day and that he
was unable to get a hold of Perez on September
8th and 9th. Farsi
also testified that Perez had been anxious to begin work on the job
since he needed the money. 15 Tr. 225.
Perez took the stand in his own defense and testified that he was innocent of the charges against him. Although Perez admitted that he had spent the previous night at Fulwiler's house, he testified that he had left her house the next morning at about 8:00 a.m. and never saw again. He testified that he had asked Fulwiler to borrow some money but that after he began looking through her wallet, she told him that she would give him some money later. Perez stated that after leaving Fulwiler's house, he walked to a nearby convenience store and called a drug dealer named Alex Gutierrez.*fn12 21 Tr. 217, 234. Perez testified that he had a piece of paper with Gutierrez' phone number on it in his jeans pocket.*fn13 Perez testified that after Gutierrez picked him up from the convenience store, he hung out with Gutierrez the rest of the day, driving around, doing drug deals and hanging out at Zilker Park "drinking beer, snorting cocaine, bullshitting and watching pretty girls play volleyball." 21 Tr. 134. Perez stated that Gutierrez dropped him back off at the convenience store at approximately 5:00 p.m., at which point he bought some cocaine from Gutierrez and proceeded to walk back to Fulwiler's house. 21 Tr. 138.
Perez testified that after he arrived back at Fulwiler's house, he noticed that Fulwiler and Bartz' cars were still in the driveway. Before entering the house, Perez said that he took off his shirt and shoes because "it was hot" and he wanted to take a shower. Perez testified that he then opened the door to find Barz lying on the floor with her arms in the air, gasping and choking. 21 Tr. 140. Perez alleges that he then threw his shirt and shoes on the floor and approached Barz who then grabbed/scratched him and then "went limp." 21 Tr. 140-141. Perez said that he then grabbed his shirt (leaving his shoes) and fled the scene. 21 Tr. 270. Perez said that he did not call 911 because "I just didn't want to be involved." 21 Tr. 276. Perez explained that he wanted to avoid the police since there was a warrant out for his arrest (for failure to pay child support) and he was in possession of cocaine at the time. 21 Tr. 141.
After leaving Fulwiler's house, Perez claims that he walked around aimlessly until he arrived at Minerva Hall's apartment. 21 Tr. 149. Perez said that he did not tell Hall about what he had just seen because he did not want to get her involved. Perez testified that he did not find out he was a suspect in the case until the next day when he was at his friend Recio's house watching television.
Perez also testified about his past legal problems. He admitted that he repeatedly has failed to pay child support for his four children and that he was incarcerated for failing to comply with court orders directing him to pay child support. 21 Tr. 88-89. Perez also admitted that he routinely hid from authorities to avoid being arrested and changed jobs in an attempt to avoid wage garnishment. 21 Tr. 160, 167. Perez also admitted that he used marijuana and cocaine on a regular basis from 1993 to 1998 and that he had sold drugs in the past. 21 Tr. 90-91.
C. The Verdict and Subsequent Appeals
On September 23, 1999, the jury in the 229th District Court of Travis County, Texas convicted Perez of the offense of Capital Murder for the murders of Barz, Mitchell and Fulwiler. Pursuant to the jury's answers to the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, the trial judge sentenced Petitioner to death. The Court of Criminal Appeals affirmed Perez's conviction and sentence on direct appeal and the United States Supreme Court denied certiorari. Perez v. State, slip op., No. AP-73,738 (Tex. Crim. App. May 29 2002), cert. denied, 546 U.S. 962 (2005). Pursuant to Article 11.071, Perez filed a State Application for Writ of Habeas Corpus, which the Court of Criminal Appeals subsequently denied. Ex Parte Perez, slip op., No. WR-56,440-01 (Tex. Crim. App. Oct. 8, 2008). Having exhausted his State Court remedies, Perez filed the instant writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
In his petition Perez asserts fifteen separate claims. The claims are: Claim Number One: The State violated Perez's right to Due Process under the 14th Amendment to the United States Constitution by creating a false impression that the Texas prison system was excessively violent and that Perez would likely engage in violence if assessed a life sentence.
Claim Number Two: Perez received ineffective assistance of counsel at trial resulting from trial counsel's failure to object to irrelevant testimony by the State's prison's condition witness, Royce Smithy.
Claim Number Three: Perez received ineffective assistance of counsel at trial resulting from trial counsel's failure to request a proper limiting instruction on Royce Smithy's objectionable comment on Perez's peaceable nature in the Travis County Jail pending trial.
Claim Number Four: Trial counsel rendered ineffective assistance of counsel during the punishment phase of trial by failing to challenge the State's future dangerousness evidence through the use of a violence risk assessment expert.
Claim Number Five: Trial counsel rendered ineffective assistance of counsel during the guilt-innocence phase of trial by failing to call witness Richard Mojica to corroborate a portion of Perez's alibi defense.
Claim Number Six: Trial counsel rendered ineffective assistance of counsel during the guilt-innocence phase of trial by failing to impeach witness Steve Jackson with a prior inconsistent statement made before the Grand Jury.
Claim Number Seven: Trial counsel rendered ineffective assistance of counsel during the guilt-innocence phase of trial by failing to object to testimony by the State's crime scene reconstructionist that was outside his expertise.
Claim Number Eight: Perez was denied the effective assistance of counsel when his attorney failed to object to a blood spatter expert's testimony about psychological matters that were beyond the scope of the witness' expertise.
Claim Number Nine: The trial court erred in failing to grant Perez's challenge for cause to veniremember Hertel.
Claim Number Ten: The trial court erred in granting the State's challenge for cause to veniremember Falbo.
Claim Number Eleven: The trial court erred in failing to grant a motion for new trial after a bystander outburst during the guilt-innocence phase of the trial.
Claim Number Twelve: The trial court erred in failing to sustain Perez's objection to the State's comment on Perez's right to remain silent.
Claim Number Thirteen: The trial court erred in failing to instruct the jury at punishment regarding parole eligibility.
Claim Number Fourteen: Mr. Perez is actually innocent of the offense.
Claim Number Fifteen: The DNA investigation into the instant case needs to be entirely redone because of new and expanding technology.
Perez's federal habeas petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). 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 the prior adjudication "(1) resulted in a decision 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).
Under the first prong, a decision is contrary to "clearly established federal law," if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision involves an "unreasonable" application of clearly established Supreme Court precedent if the state court "correctly identifies the correct governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, as the Supreme Court has recently explained, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Renico v. Lett, -- U.S.-- , 130 S.Ct. 1855, 1862 (2010) (quoting Williams, 529 U.S. at 411). "Rather, that application must be 'objectively unreasonable.'" Id. Thus, the AEDPA "imposes a highly deferential standard for evaluating state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." Id. (internal citations omitted).
In order to establish that habeas relief is warranted under the second prong-that the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings-"a petitioner must rebut by clear and convincing evidence the § 2254(e)(1) presumption that a state court's factual findings are correct." Foster v. Johnson, 293 F.3d 766, 776-77 (5th Cir. 2002), cert. denied, 537 U.S. 1098 (2003). See also, 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence").
Finally, a petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5th Cir. 2001), cert. denied, 534 U.S. 1163 (2002); Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). A federal court may not grant federal habeas relief on an unexhausted claim, but relief may be denied on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
In his first point of error, Perez alleges that the State violated his rights to due process under the Fourteenth Amendment by offering false and misleading testimony from prosecution witness Royce Smithey regarding the extent of violence in the Texas prison system.
During the punishment phase of Perez's trial and in accordance with the Texas Code of Criminal Procedure, the jurors were asked to answer the special issue of whether there was a probability that Perez would commit criminal acts of violence that would constitute a continuing threat to society. See TEX.CODE CRIM. PROC. ANN., Art. 37.071 (Vernon 2006). This special issue relates to whether the defendant will "more likely than not, commit violent criminal acts in the future so as to constitute a continuing threat to society whether in or out of prison." Muniz v. State, 851 S.W.2d 238, 250 (Tex. Crim. App. 1993) (emphasis added), cert. denied, 510 U.S. 837 (1993). In support of its argument that Perez would constitute a continuing threat to society if he was imprisoned, the State offered the testimony of Royce Smithey, an investigator with the Special Prison Prosecutions Unit. Smithey testified generally about inmate violence within the Texas prison system and the State's difficulty in controlling such violence. Perez alleges that Smithy's testimony was false and misleading "as a result of his exaggeration of the quantity and quality of the violence within the TDCJ-ID system, his under-explanation of TDCJ-ID's classification and administrative segregation system, and his omission of details which would have been necessary to place his testimony regarding the prison system in proper perspective." Perez's Amended Petition at 19-20.
1. Summary of Smithey's Testimony
In support of his contention that Smithey's testimony was false and misleading, Perez relies on an affidavit from Dr. Mark Cunningham, a forensic psychologist, who takes issue with much of Smithey's testimony. Cunningham first contends that Smithey overstated in absolute numbers the instances of assaults committed within TDCJ-ID on staff and other inmates. Smithey testified that Texas prisons were inherently violent and testified that there were 1,700 inmate-on-staff assaults and 1,600 inmate-on-inmate assaults within TDCJ-ID in the year 1998. Cunningham complains that Smithey's figures were erroneous because statistical data from TDCJ shows that there were actually only 1,510 inmate-on-inmate assaults and 1,442 inmate-on-staff assaults in TDCJ-ID in 1998. In response to Cunningham's criticism, Smithey submitted an affidavit to the CCA, in which he stated the following:
The numbers that I used in this testimony were obtained from the Emergency Action Center, Texas Department of Criminal Justice . . . which is in fact the same location that Mr. Cunningham's numbers came from.
I testified that there were 1700 assaults on staff members in1998. The EAC report listed 1,674, not the 1,442 that was reported by Mr. Cunningham. His figures came from the total assaults on offenders in 1997.
I testified that there were 1600 inmate assaults on inmates in 1998. The EAC report listed 1,510 offenders assaults and 89 alleged sexual assaults, for a total of 1599. Mr. Cunningham did not add in the sexual assaults and obviously did not feel that sexual assaults were assaults on the offenders.
When I testified to these numbers I rounded them off. I was not trying to give a specific number, but just wanted the jury to have an understanding of the amount of violence in the prison in that given year. To the best of my memory, I did not have these figures in hand at the time of my testimony and was relying on my memory. My intention was not to mislead anyone for any reason. I did not intentionally misrepresent these numbers, exaggerat[e] the information or give the jury a misconception of the actual amount of violence in the prison system. As you clearly see, I was only off by one (1) offender assaults and twenty six (26) on the employee assaults, as compared to Mr. Cunningham's misrepresentation of employee assaults (off by 232).
Cunningham further contends that Smithey's testimony regarding the incidents of violence within TDCJ was "substantially misleading because it did not place these numbers in context to the absolute prison population." For example, Cunningham points out that Smithey failed to mention the total Texas prison population when he discussed the number of assaults in Texas' prisons. Cunningham explains that although there were 3,184 assaults which took place in Texas' prisons, that figure only accounted for 2.2 percent of the total inmate population since there were 144,119 inmates in Texas in 1998. Similarly, Cunningham noted that Smithey failed to acknowledge that the homicide rate in the prison population in 1998 was quite low, about 4.16 per 100,000 inmates, and in fact was lower than the rate in the outside community. Cunningham also points out that Smithey failed to note in his testimony that ...