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Sherry v. Davis

United States District Court, W.D. Texas, Austin Division

April 20, 2017

JERRY WAYNE SHERRY
v.
LORIE DAVIS

          ORDER

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has paid the applicable filing fee. For the reasons set forth below, the undersigned orders that Petitioner's application for writ of habeas corpus is denied.

         DISCUSSION

         Petitioner is in custody pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas. Petitioner was convicted of driving while intoxicated third or more habitual and sentenced to a term of fifty years' imprisonment. In this habeas action Petitioner alleges he was denied his right to the effective assistance of both trial and appellate counsel; that the statute under which he was convicted, Texas Transportation Code § 724.012, is unconstitutional; that he was denied his right to due process of law because the court reporter's transcript failed to include the substance of a bench conference; and that prosecutorial misconduct deprived him of his right to due process of law.

         STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         Respondent avers she has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas. Petitioner was charged by indictment with driving while intoxicated third or more offense, with two prior consecutive felony convictions alleged for the purpose of enhancing his punishment. A jury found Petitioner guilty of the charge and the enhancements stated in the indictment, and he was sentenced to a term of fifty years' imprisonment on February 6, 2013. Petitioner's appellate counsel filed a timely motion seeking a new trial, which motion was denied.

         Petitioner's conviction and sentence were affirmed by the Texas Third Court of Appeals on August 1, 2013. Sherry v. State, No. 03-13-00126-CR, 2013 WL 4487559 (Tex. App.-Austin 2013, pet. ref'd). A petition for discretionary review was refused by the Texas Court of Criminal Appeals on March 12, 2014. Sherry v. State, No. PD-1494-13. Petitioner filed an application for a state writ of habeas corpus on April 21, 2015, which was denied without written order by the Texas Court of Criminal Appeals. Document 12, Exh. 30 at 59.

         B. Factual Background

         The factual background of this case is found in the Texas Third Court of Appeals' opinion:

[Petitioner] was stopped by Department of Public Safety Trooper Christopher Wray for failure to wear his seatbelt. After detecting the odor of an intoxicating beverage, Trooper Wray asked appellant to step out of the vehicle to perform a “horizontal gaze nystagmus” test; during testing, Trooper Wray observed six possible indicators of intoxication. [Petitioner] subsequently failed to complete the walk and turn field sobriety test, failed to recite the alphabet, failed to count from one to forty, and declined to submit to a breath test. Following [Petitioner's] refusal of a breath test, Trooper Wray arrested [Petitioner] and took him to Smithville Regional Hospital for a blood draw as authorized by Texas Transportation Code section 724.012. See Tex. Transp. Code § 724.012(b)(3)(B).[1]
At trial, Trooper Wray testified that the blood evidence was statutorily obtained on the basis of his knowledge that [Petitioner] had prior convictions for driving while intoxicated, which he obtained from the Department of Public Safety database. Forensic chemist James Burris also testified that he examined [Petitioner's] blood and found it to contain .152 grams of alcohol per 100 milliliters of whole blood, which is nearly twice the legal limit. See Tex. Penal Code § 49.01(2)(B).

Sherry v. State, No. 03-13-00126-CR, 2013 WL 4487559, at *1.

         At Petitioner's trial, the jury was shown a video recording of Petitioner's attempts to complete the field sobriety tests. Document 12, Exh. 9 at 44. Trooper Wray testified that Petitioner was placed under arrest on suspicion of driving while intoxicated, based on his observations of Petitioner, including slurred speech and a “remarkable loss of balance” when Petitioner got out of his truck, id., Exh. 9 at 31, and the results of the field sobriety tests. Id., Exh. 9 at 44.

         The transcript is somewhat contradictory with regard to Petitioner's consent to a breath test of his blood alcohol level. Trooper Wray testified:

A. After I read him the DIC 24 Statutory Warning and requested a specimen of his breath, he consented to have a voluntary specimen blown into the portable breath tester.
Q. What about blood? Did he want a blood test?
A. No, sir, that was not discussed.
Q. Okay. So he did not want to do the Intoxilyzer 5000?
A. Correct.

Id., Exh. 9 at 46.

         After placing Petitioner under arrest and reading him the statutory warning, Trooper Wray determined to acquire a blood sample from Petitioner for the purpose establishing his blood alcohol level. Id., Exh. 9 at 47. Petitioner's car was inventoried and towed and he was transported to a medical facility for the purpose of acquiring a blood sample. Id., Exh. 9 at 47. Trooper Wray did not seek a warrant for the blood sample.

         C. Petitioner's Grounds for Relief

         Petitioner asserts he is entitled to federal habeas relief because:

         1. He was denied his right to the effective assistance of counsel because his trial counsel failed to object to the admission of the evidence of his blood alcohol content, thereby preserving a Fourth Amendment issue for appellate review.

         2. He was denied his right to the effective assistance of counsel because his trial counsel failed to strike two jurors for cause.

         3. He was denied his right to the effective assistance of counsel because his trial counsel failed to object to improper enhancements stated in the indictment.

         4. His conviction was obtained by means of an unconstitutional statute, i.e., Texas Transportation Code § 724.012.

         5. The court reporter's record is incomplete because it fails to identify the basis of trial counsel's objection to the indictment.

         6. He was denied his right to the effective assistance of counsel because his appellate counsel failed to file an adequate motion for a new trial.

         7. He was denied his right to a fair trial because the prosecutor made “improper comments” “solely for the purpose of inflaming the minds of jurors.”

         D. Exhaustion of State Court Remedies

         Respondent allows Petitioner has exhausted his state court remedies regarding the claims brought in this application. A review of the state court records submitted by Respondent indicates Petitioner properly raised these claims in previous state court proceedings.

         DISCUSSION ...


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