United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR UNITED STATES DISTRICT JUDGE.
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by petitioner, Lionell Frazier
Jr., a state prisoner confined in the Correctional
Institutions Division of the Texas Department of Criminal
Justice (TDCJ), against Lorie Davis, Director of TDCJ,
Respondent. After considering the pleadings and relief sought
by Petitioner, the Court has concluded that the petition
should be denied.
September 2012 Petitioner was indicted in Tarrant County,
Texas, Case No. 1290856, on one count of aggravated assault
on a public servant with a deadly weapon, a motor vehicle.
Adm. R., Clerk's R. 5, ECF No. 15-14. The indictment
alleged that on or about July 24, 2012, Petitioner did-
intentionally or knowingly threaten imminent bodily injury to
J. Thomas, a public servant, to-wit: an employee or officer
of government, namely a police officer for the City of
Arlington, while J. Thomas was lawfully discharging an
official duty and the defendant knew that J. Thomas was a
public servant, and the defendant did use or exhibit a deadly
weapon during the commission of the assault, to-wit: a motor
vehicle, that in the manner of its use or intended use was
capable [of] causing death or serious bodily injury.
testimony at trial reflected that Arlington police officers
John Thomas and Kellen Garrett responded to a domestic
disturbance call in the 900 hundred block of Timber Oaks
Drive in Arlington, Texas, on July 24, 2012. Id.,
Reporter's R., vol. 6, 13-14, ECF No. 15-10. The officers
arrived in separate squad cars and parked on the opposite
side of the street from the caller's house. Id.
at 15. The officers crossed the street, and as officer
Garrett contacted the caller, officer Thomas heard a
“loud revving noise and a vehicle traveling westbound
on the street at a high rate of speed.” Id.
Officer Thomas, who was in uniform, motioned for the vehicle
to pull over, which it did, and he identified himself to
Petitioner, the lone occupant of the vehicle. Petitioner told
the officer that everything was fine and that he was just
trying to pick up his girlfriend or wife. Id. at 20.
Officer Thomas then noticed a green substance he believed to
be marijuana in Petitioner's lap and asked Petitioner
what it was. Id. The officer testified that at that
point, Petitioner “immediately looked down as if he
didn't realize it was in his lap. And he became very
fidgety and very nervous, and he just kept saying,
‘It's nothing, man. You can let me go.'”
Id. at 20-21. The officer then reached into the
vehicle to grab the marijuana. Id. at 20. As the
officer did so, Petitioner “floored” the
accelerator. Id. at 21. Officer Thomas was knocked
off balance and clung to the windowsill as he was dragged
some 40 feet. During that time, he was able to pull himself
farther into the vehicle, turn the ignition off, and throw
the keys in the floor board. Id. at 22-23. After the
vehicle stopped, officer Thomas pulled Petitioner out of the
vehicle and the two “scuffled.” Id. at
24-25. Petitioner broke free and ran. Id. at 26.
Officer Thomas attempted to tase Petitioner as he was
fleeing, to no avail. Id. at 27. Officer Garrett
then deployed his taser. Id. at 28, 54-56.
Petitioner continued to resist but was eventually handcuffed
and arrested after the fourth tase. Id. at 29,
54-56. After his arrest, Petitioner told officer Garrett that
“he messed up his life, ” that he did not mean to
do it, asked that they not charge him with one of the
offenses, and became angry when the officer refused to agree
to lessen or discuss the case with him. Id. at
57-58. Petitioner also told a police investigator at the
police station that he knew he had messed up. Id. at
100. Both Petitioner and officer Thomas were examined by
emergency medical personnel at the scene, and officer Thomas
was transported to the Medical Center of Arlington for
further observation. Id. at 54-56, 85. He suffered a
hyperextended left leg injury and was prescribed pain
medication. Id. at 30. The officer testified that
during the incident Petitioner did not verbally threaten him
but that he feared he would be run over by Petitioner's
vehicle or struck by another vehicle and feared for his life.
Id. at 44-45, 47.
on the evidence, the jury found Petitioner guilty of the
charged offense, and after a hearing on punishment, found the
repeat-offender notice in the indictment true and assessed
Petitioner's punishment at 30 years' confinement.
Id., Clerk's R. 61, ECF No. 15-14. Thereafter,
Petitioner appealed his conviction, but the Second District
Court of Appeals of Texas affirmed the trial court's
judgment. Id., Mem. Op. 7, ECF No. 15-4. Petitioner
did not file a petition for discretionary review in the Texas
Court of Criminal Appeals but did file a postconviction state
habeas-corpus application challenging his conviction, which
the Texas Court of Criminal Appeals denied without written
order on the findings of the trial court. Id.,
WR-83, 604-01, Action Taken, ECF No. 15-17.
federal petition, Petitioner raises five grounds for relief:
(1) Trial counsel was ineffective by failing to (a) build a
defense; (b) object to the perjured testimony of officer
Thomas; (c) point out the inconsistencies in officer
Thomas's testimony to the jury; and (d) file a motion for
acquittal after learning of officer Thomas's perjured
(2) Trial counsel was ineffective by failing to object and
correct the prosecutor's misconduct in knowingly using
officer Thomas's perjured testimony;
(3) The evidence is insufficient to support his conviction;
(4) The state engaged in malicious prosecution because there
was no evidence to ...