United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE.
above-entitled and numbered civil action was referred to
United States Magistrate Judge Christine A. Nowak. The Report
and Recommendation of the Magistrate Judge (“the
Report”) (Dkt. 13), which contains proposed findings of
fact and recommendations for the disposition of such action,
has been presented for consideration. The Report recommends
that the Court deny Bruton's Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1),
dismiss the case with prejudice, and deny a certificate of
appealability. Bruton has filed written Objections (Dkt. 14).
Having made a de novo review of the Objections, the
Court concludes that the findings and conclusions of the
Magistrate Judge are correct and adopts the same as the
findings and conclusions of the Court.
was indicted and subsequently convicted of aggravated sexual
assault of a child and indecency with a child by sexual
contact, pursuant to Texas law. Prior to trial, his lawyer
made a motion in limine intended to restrict the discussion
of unindicted wrongful conduct in the jury's presence.
The defense motion in limine requested, inter alia,
that the trial court:
[ ]hold a hearing outside the presence of the jury and
instruct the Attorney for the State not to mention or allude
to the following without said hearing:
Any extraneous offenses, crimes, wrongs or acts that the
Defendant is alleged to have engaged in either as a principal
or a party, including but not limited to those identified by
the State in any response pursuant to Texas Rule of Evidence
404(b) or Tex. Code of Crim. Proc. Art. 37.07[.]
Any prior convictions, if any, of the Defendant if the State
intends to introduce them either at the punishment phase [or
for] impeachment purposes.
Any additional unindicted offenses involving the Defendant,
if any, in this case.
Dkt. 10-1 at 121-22. As the Magistrate Judge observed in her
[T]he trial court considered the parties' arguments on
the motion [in limine]. The prosecutor indicated that
“there [would] be a good number of extraneous offenses
involving the victim.” Dkt. 10-22 at 8. He further
informed the court that “[t]here's other
victims that we have evidence of, but we would certainly
approach before we mentioned that in any way, so I have no
objection to a motion in limine as to other victims.
But we do intend on getting other instances of sexual abuse
with this victim that is not mentioned in the
indictment.” Id. (emphasis added). Defense
counsel argued that the State should be required to obtain an
admissibility ruling outside the jury's presence before
introducing unindicted instances of sexual abuse with either
the victim in the case or with any other alleged victim.
Id. The trial court denied the defense motion in
limine as to unindicted instances of sexual abuse with the
victim in the case. See Id. However, the court
granted the motion as to conduct with “any other person
other than the victim in this case.” Id.
Dkt. 13 at 7-8.
case proceeded to trial and, during the State's closing
argument in the guilt phase, the following exchange occurred:
[The prosecutor]: And it's crucial that you hold him
accountable for his actions, because if you don't,
you're putting other children at risk. You simply are. I
know you don't want to hear that, but you are because of
the way this man's mind works. If you let him get away
with it, it's going to progress. He has proven that. When
he got away with it before, it continued because no one
stopped him. And if he's not held accountable, it's
going to continue. He's going to feel bullet proof.
He's going to know no one is going to believe these
kids. I can do what I want. I can continue ...