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Batiste v. Davis

United States District Court, S.D. Texas, Houston Division

September 19, 2017

Teddrick Batiste, Petitioner,
Lorie Davis, Respondent.


          Gray H. Miller, United State District Judge.

         Teddrick Batiste, an inmate on Texas' death row, has filed a federal petition for a writ of habeas corpus challenging his capital conviction and death sentence. Dkt. 9. Respondent Lorie Davis moves for summary judgment. Dkt. 22. After considering the record, the pleadings, and the applicable law, the Court finds that Batiste has not shown an entitlement to habeas relief. Accordingly, the Court will GRANT Respondent's motion for summary judgment and DENY Batiste's habeas petition. The Court will not certify any issue for appellate review.

         I. BACKGROUND

         On direct appeal, the Texas Court of Criminal Appeals described the facts underlying the murder of Horace Holiday as follows:

In the early morning hours of April 19, 2009, [Batiste], a member of the Five Deuce Hoover Crips, was at home getting some tattoos, when he looked in the mirror, thinking about all of his bills. He asked his friend, Loc, to “ride around” in his Buick with him looking for something to steal because “that's the way you get money.” After fruitlessly cruising the streets for a while, they ended up at an after-hours club on Veteran's Memorial Drive on the north side of Houston. [Batiste] saw a white Cadillac coming out of the parking lot, and he decided that he wanted the Cadillac's fancy rims. “I just look at the rims, and I know what the rims are worth. . . . I could get $3, 000 on the streets.”
[Batiste] started following the Cadillac, and they drove for miles down the freeway. Eventually the driver must have noticed him, because the Cadillac began “swanging” from the right to the left lane and back again. [Batiste] was scared because the driver was acting “street smart, ” but he didn't want to show any fear because he and Loc were Crips, so he told Loc to lean back while [Batiste] pulled up even with the Cadillac and started shooting at the driver through Loc's passenger window. He shot the driver four or five times with his nine-millimeter, semi-automatic Glock pistol.
The Cadillac exited the freeway, pulled into an Exxon station, and ran into one of the gas pumps. [Batiste] drove into the station and saw the badly wounded driver slowly come out of the Cadillac, crying “Help, help, help.” The man collapsed on the concrete. [Batiste] thought, “[M]an, this is my chance. I got to get those wheels. . . . And I got my gun, and I put my hat on, and I had a ski mask.” He told Loc to drive the Buick to [Batiste's] wife's apartment, and then [Batiste] ran over to where Mr. Holiday, the driver, was lying on the ground. When he saw the man move, he shot him several more times in the back and head. Mr. Holiday died.[1]
[Batiste] jumped into the Cadillac and drove out of the Exxon station and back onto the Eastex freeway, heading north. He soon noticed a police car behind him and realized that he would be caught, but first he led the pursuing officers on a high-speed chase for about twelve miles.[2] It was not until officers placed a spike strip across the road and [Batiste] ran over it, destroying the Cadillac's passenger-side tires, that he was finally forced to stop.
[Batiste] was taken into custody and placed in a patrol car. One officer, who had noticed a great deal of blood on the Cadillac's steering wheel and driver's seat, came over to ask [Batiste] if he needed medical attention. [Batiste] told him that he was “fine”; it wasn't his blood, it “belongs to the guy I took the car from.” After [Batiste] was taken to the homicide division, he gave officers a recorded statement confessing to the capital murder of Horace Holiday. He then gave two more confessions - one to a second capital murder and one to a separate aggravated robbery.

Batiste v. State, No. AP-76, 600, 2013 WL 2424134, at *1 (Tex. Crim. App. June 5, 2013) (footnotes added) (hereinafter “Opinion on Direct Appeal at ”).

         In 2011, Batiste stood trial in the 174th District Court of Harris County, Texas.[3] The defense did not call any witnesses or present evidence in the guilt/innocence phase. One of Batiste's trial attorneys conceded in a habeas affidavit that “[t]he guilt phase was indefensible.” S.H.R. at 811.[4]The jury found Batiste guilty of capital murder.

         A Texas jury decides a capital defendant's fate by answering special issue questions at the conclusion of a separate punishment hearing. Here, the instructions asked jurors to decide (1) whether Batiste would be a future societal danger and (2) whether sufficient circumstances militated against the imposition of a death sentence. C.R. at 1712-13. The Court of Criminal Appeals summarized the punishment portion of Batiste's trial as follows:

During the punishment phase, the State offered evidence that, on March 23, 2009 (a little more than three weeks before killing Horace Holiday), [Batiste] robbed Walter Jones, his wife, Kari, and David McInnis, at the Phat Kat Tats tattoo shop. A little before 11:00 p.m., [Batiste] parked his Buick in front of the Shipley's Donuts shop in the strip center where the tattoo shop was located. Then he and two cohorts marched into the shop, wearing blue bandanas over their faces and carrying semi-automatic pistols. [Batiste] screamed, “This is a fucking robbery!” Each of the robbers grabbed one of the three adults, and each put a gun to that person's head. Walter Jones, the owner of Phat Kat Tats, noticed that these robbers were well organized and likely had done this before. Kari, very afraid that their five-year-old son might come into the shop from the next room, pleaded with the robbers not to shoot him if he did so. One of the robbers started yelling at her, “Shut up, bitch, I'll kill you, I'll kill you. Shut up.” The robbers made them empty out their pockets. Disappointed with the result, the robbers then scooped up two laptops, several cell phones, a digital camera, and three tattoo machines. They ran out of the shop and fled in [Batiste's] Buick. The surveillance camera at the nearby Shipley's Donuts caught [Batiste], his cohorts, and the Buick, on tape.
Two weeks later - shortly after midnight on April 8, 2009 - [Batiste] drove his Buick through the strip-mall center where the Black Widow tattoo parlor was located. He was “casing” it for a robbery. He backed his Buick into a parking slot in front of the shop, and then he and two other men walked into the tattoo parlor. Steve Robbins, the shop's owner, was tattooing Joshua's arm, while two of Joshua's friend-Anthony and Christie-were napping on the couch. Two of the robbers held Anthony and Christie at gunpoint, while the third robber went toward the back where Steve was tattooing Joshua. [Batiste] and the other two robbers were yelling and “cussing” at everyone, demanding money and wallets. When Steve told the robbers that they had gotten all the money and they should leave because the store had surveillance cameras, [Batiste] turned back to him and said, “What, motherfucker?” and began shooting Steve. [Batiste] and another robber shot a total of sixteen bullets before they finally fled in [Batiste's] Buick. Steve died.
The State also introduced evidence of [Batiste's] long criminal history, his gang-related activities, and his various acts of violence and intimidation while in jail.
Horace Holiday's mother, Lisa Holiday Harmon, gave the jurors a brief glimpse into her son's life and how he had saved up the money to buy the special rims for his Cadillac just two weeks before his death. She told the jury that, after the murder, Horace's grandmother moved into Horace's old room to be closer to his memory. Horace's grandmother testified that, after Horace's death, the “whole family fell apart.”
During his punishment case, [Batiste] called a dean from the University of Houston to testify to the TDCJ inmate classification system and life in prison. He also called a high-school track and football coach who said that [Batiste] was a gifted athlete in middle school, but that he “disappeared” after he got into trouble for car thefts. [Batiste's] former boss testified that [Batiste] worked at Forge USA for over six months as a helper on the forging crew. He never had any problems with [Batiste]. [Batiste's] girlfriend, Stephanie Soliz, testified that she and [Batiste] lived together with her two children, one of whom was fathered by [Batiste]. [Batiste] was “the best” father. Stephanie admitted that they smoked a lot of marijuana at home and that [Batiste] had a second job as a “fence” for stolen property. She was “okay” with [Batiste] selling stolen property, as long as he wasn't doing the stealing himself.
[Batiste's] younger brother, Kevin Noel, testified that [Batiste] was “a very caring and loving brother.” He did not try to get Kevin to commit crimes or join the Crips gang, but Kevin did join the Line Five Piru Bloods gang and has the gang's tattoos. Kevin would pick [Batiste] up from work and bring him back to his apartment where Kevin smoked dope with [Batiste] and Stephanie. [Batiste] would write him letters from jail suggesting various new gang tattoos and bragging about having sex with a nurse in the infirmary. [Batiste] also wrote a letter from the jail to a friend telling him that he had broken his hand fighting with “a white guy from the military.” When that man had interfered with [Batiste's] phone call, [Batiste] broke his jaw.
Darlene Beard testified that [Batiste] was her “favorite grandson.” She took care of him until he was nine years old. After that, she saw him every Thanksgiving, and sometimes on her birthday or Mother's Day. She never saw [Batiste] do anything bad. “I can only tell you about the good things that I know concerning my grandchild.” Mrs. Beard said that [Batiste] has a “huge” family and does not have any conflict with any member of that family. [Batiste's] mother testified that she was barely sixteen when [Batiste] was born, so her mother took care of him while she finished high school. He was a healthy, happy, church-going child without any mental-health or learning problems until he started getting into trouble in middle school. She knew that [Batiste] was sent to TYC for stealing cars, but he never told her about his other crimes, being in a gang, or having gang tattoos.
[Batiste] testified that he had a happy childhood, but when he was in middle school, he began selling Ritalin because he wanted to make money. After he was caught, he was sent to an alternative school for the rest of eighth grade and half of ninth grade. [Batiste] said that, after TYC, he committed crimes “just like to keep money in my pocket, keep everything I needed.” [Batiste] stated that he spent some of his money on marijuana for Stephanie and himself, but he didn't commit crimes to get drug money. He said that he really loves his two boys, Kash and Alex, and would guide them and tell them “what's right, what's wrong.” [Batiste] testified that he could be a positive influence on people in prison, and he would distance himself from the Crips members “and just pick different goals.” [Batiste] stated that he had followed the jail rules “[t]o the best of my ability. . . . Every time, it's always mutual combat. It's never been where I just hit somebody. I hit them back.” But [Batiste] did admit that, when faced with the choice to show empathy and help Horace Holiday, who was bleeding to death on the concrete, [Batiste] made the choice to shoot him several more times and steal his car.
When [Batiste] was in jail, Stephanie tried to move on with a new boyfriend, Aaron. [Batiste] wrote rap lyrics about shooting him: “But Aaron ain't crazy, man. That nigga respect my game. He's a target up in my range. Extended clip to his brain.” [Batiste] admitted that his jailhouse rap lyrics could be seen as glorifying capital murder (“I popped and he dropped”), the gangster lifestyle, and violence in general. [Batiste] agreed that he recruited the gang members for the Phat Kat Tats robbery and told them what to do. He admitted that he was the leader in the Black Widow capital murder as well. And he said that those were not his first robberies.

         Opinion on Direct Appeal at 2-4. The jury answered Texas' special issue questions in a manner requiring the imposition of a death sentence.

         Batiste challenged his conviction and sentence on appeal.[5] The Texas Court of Criminal Appeals issued an unpublished opinion affirming the judgment in 2013. Batiste v. State, No. AP-76, 600, 2013 WL 2424134 (Tex. Crim. App. June 5, 2013).

         Batiste filed a state habeas application during the pendency of his direct appeal.[6] In 2015, the trial-level state habeas court entered findings of fact and conclusions of law recommending that the Court of Criminal Appeals deny his habeas application.[7] On April 29, 2015, the Court of Criminal Appeals adopted the lower court's recommendation and denied habeas relief.

         Federal review followed. Batiste filed a timely federal petition raising the following grounds for relief:

         1. Trial counsel provided ineffective representation by:

• not investigating, preparing, and presenting evidence of Batiste's brain dysfunction.
• not calling an expert witness to rebut the State's testimony concerning Batiste's gang involvement.
• not calling an expert witness to explain the relevance of Batiste's social history.
• not investigating, preparing, and presenting testimony from lay witnesses.
• not calling additional witnesses to strengthen his mitigating evidence.
• not presenting additional evidence that Batiste would not be a future societal danger.
• inadequately preparing Batiste to testify.
• failing to challenge the State's use of letters Batiste wrote while awaiting trial.

         2. The State violated Batiste's right to a fair trial by failing to disclose impeachment evidence.

         3. Juror misconduct violated Batiste's rights to due process and a fair trial.

         4. Trial counsel failed to preserve error regarding the State's presentation of allegedly inadmissible evidence.

         5. The trial court erred by compensating trial counsel with a flat fee and trial counsel provided ineffective representation by accepting that arrangement.

         6. Trial counsel provided ineffective representation by not making a sufficient objection to the introduction of evidence allegedly protected by the First Amendment.

         7. Texas unconstitutionally administers the death penalty in an arbitrary manner.

         8. The trial court violated the Constitution by not informing jurors that a single juror's vote could result in a life sentence.

         9. Trial counsel failed to preserve the record for appeal.

         10. The punishment phase instructions constricted the jury's consideration of mitigating evidence.

         11. Batiste's appellate and habeas attorneys provided ineffective representation in their selection of grounds for relief.

         12. The trial court violated Batiste's First Amendment rights by allowing testimony and evidence about religious practices.

         13. The trial court violated Texas evidentiary law by allowing victim-impact testimony.

         14. Courtroom disruptions violated Batiste's right to due process.

         15. The trial court improperly prevented the defense from presenting execution-impact testimony.

         16. The trial court violated Batiste's constitutional rights by granting the State's challenge for cause to one prospective juror.

         17. The trial court should have suppressed Batiste's statements to police officers.

         Stating that his petition was “fact based” without “discuss[ing] all of the applicable law, ” Batiste indicated that he would file a supplement to his federal petition. Dkt. 9 at 2. The Court entered a scheduling order giving Batiste an opportunity to supplement the arguments in his petition. Dkt. 18. Batiste did not file any supplemental pleading.

         Respondent has moved for summary judgment. Dkt. 22.[8] Batiste has filed a reply. Dkt. 38. This action is ripe for adjudication.

         II. Standard of Review

         The writ of habeas corpus provides an important, but narrow, examination of an inmate's conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011); Barefoot v. Estelle, 463 U.S. 880, 887 (1983). “Society's resources have been concentrated at [a criminal trial] in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens.” Wainwright v. Sykes, 433 U.S. 72, 90 (1977); see also McFarland v. Scott, 512 U.S. 849, 859 (1994) (stating that a “criminal trial is the ‘main event' at which a defendant's rights are to be determined”). The States, therefore, “possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128 (1982).

         If the inmate has presented his federal constitutional claims to the state courts in a procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides for a deferential federal review. “[T]ime and again, ” the Supreme Court “has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'” White v. Wheeler, ___U.S.___, 136 S.Ct. 456, 460 (2015) (quoting Burt v. Titlow, ___U.S.___, 134 S.Ct. 10, 16 (2013)). Under AEDPA's rigorous requirements, an inmate may only secure relief after showing that the state court's rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or 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)(1), (2).

         Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)'s “contrary to” and “unreasonable application” clauses. See Bell v. Cone, 535 U.S. 685, 694 (2002). A petitioner does not merit relief by merely showing legal error in the state court's decision. See White v. Woodall, ___U.S.___, 134 S.Ct. 1697, 1702 (2014) (stating being “merely wrong” or in “clear error” will not suffice for federal relief under AEDPA). In contrast to “ordinary error correction through appeal, ” AEDPA review exist only to “guard against extreme malfunctions in the state criminal justice systems . . . .” Woods v. Donald, ___U.S.___, 135 S.Ct. 1372, 1376 (2015) (quotation omitted). “[F]ocus[ing] on what a state court knew and did, ” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates to “‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woodall, 134 S.Ct. at 1702 (quoting Richter, 562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Williams v. Taylor, 529 U.S. 362, 413 (2000). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         A petitioner challenging the factual basis for a state decision must show that it was an “unreasonable determination of the facts in light of the evidence . . . .” 28 U.S.C. § 2254(d)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). A federal habeas court must also presume the underlying factual determinations of the state court to be correct, unless the inmate “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). As the same judge presided over the trial proceedings and the state habeas action in this case, the presumption of correctness for state habeas factual findings is especially strong. See Mays v. Stephens, 757 F.3d 211, 214 (5th Cir. 2014); Woods v. Thaler, 399 F. App'x. 884, 891 (5th Cir. 2010); Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).[9]

         An inmate's compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief. See Horn v. Banks, 536 U.S. 266, 272 (2002) (observing that no Supreme Court case “ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28 U.S.C. § 2254(d) “does not require federal habeas courts to grant relief reflexively”). A habeas petitioner meeting his AEDPA burden must still comply with weighty jurisprudential tenets, such as the harmless-error doctrine and the non-retroactivity principle, that bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n.2 (5th Cir. 2005). Thus, any error cannot require habeas relief unless it “ha[d] a ‘substantial and injurious effect or influence in determining the jury's verdict, '” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629 (1993)), or would not require the creation of new constitutional law, see Banks, 536 U.S. at 272 (relying on Teague v. Lane, 489 U.S. 288 (1989)).

         III. Analysis

         A. Ineffective Assistance of Trial Counsel

         Batiste raises several complaints about his trial representation. A court reviews an attorney's representation under the general conceptual framework established in Strickland v. Washington, 466 U.S. 668, 686 (1984). Under Strickland, a criminal defendant's Sixth Amendment rights are “denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added); see also Rompilla v. Beard, 45 U.S. 374');">545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520 (2003). To establish deficient performance, the petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687. A petitioner must also show actual prejudice, meaning “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. at 694; see also Wiggins, 539 U.S. at 534.

         “Surmounting Strickland's high bar is never an easy task . . . .” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). When the state courts have already adjudicated the merits of a Strickland claim, “[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Richter, 562 U.S. at 101. Federal courts employ a “doubly deferential judicial review” of already adjudicated Strickland claims that gives wide latitude to state decisions. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Cullen v. Pinholster, 563 U.S. 170, 201 (2011). “The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Richter, 562 U.S. at 104; see also Premo v. Moore, 562 U.S. 115, 123 (2011). With those standards in mind, the Court turns to Batiste's individual allegations of error by defense counsel.

         1. Investigation, Preparation, and Presentation of Evidence Relating to Brain Dysfunction

         Batiste claims that he was denied effective trial representation because counsel did not retain a neuropsychologist, investigate sufficiently whether he suffered from frontal lobe damage, and advance a mitigation defense based on his general cognitive functioning. Mental-health issues did not play a prominent role in Batiste's trial. The State presented testimony in the penalty phase from Dr. Scott Krieger, a clinical psychologist who had examined Batiste at age sixteen. Dr. Krieger had performed several psychological tests, including the Minnesota Multiphasic Inventory Adolescent Form (MMPI-A). As a result of his interview and testing, Dr. Krieger diagnosed Batiste with “disruptive behavior disorder non-specified, ” a condition characterized by disruptive or oppositional behaviors. Dr. Kieger also testified that Batiste's results on the MMPI-A were common to people with hyperactive, impulsive behavior patterns. The State adduced testimony from Dr. Kieger showing that Batiste felt no empathy for his victims. Dr. Kieger, however, did not attribute any psychological condition to brain dysfunction or disorder. The defense did not call any mental-health experts at trial.

         On state habeas review, Batiste argued that his trial attorneys did not perform an adequate investigation because they did not secure a neurological examination. Specifically, Batiste faulted trial counsel for not retaining a neuropsychologist who could diagnose him with brain dysfunction.[10]Batiste identified “neuropathology and cognitive dysfunction risk factors present in [his] social history, ” such as his “history of meningitis as a neonate” and other “risk factors present in [his] juvenile history, ” that should have prompted counsel to seek a neuropsychological evaluation. S.H.R. at 39. Batiste substantiated his claim through the results of a neuropsychological examination conducted by Dr. James Underhill on January 5 and 6, 2012. Dr. Underhill administered various testing instruments, the results of which led him to opine, “with a reasonable degree of scientific certainty, that Teddrick Batiste suffers from damage to the frontal lobe of his brain. As a result, he is unable to calculate risk and appropriately weigh the consequences of his actions.” S.H.R. at 275.[11]Dr. Underhill could not identify the etiology of Batiste's brain dysfunction, but speculated that it may have been either his mother's lack of pre-natal care while pregnant with him or “the meningitis Mr. Batiste was reported to have suffered from as a neonate.” S.H.R. at 273. Dr. Underhill specified that Batiste's “damage to his frontal lobe” was specifically located in “the part of the prefrontal cortex that controls risk taking.” S.H.R. at 270. Persons with similar frontal lobe damage exhibit “[I]mpulsivity and/or risk taking” behaviors, causing them to “make a decision quickly, without considering the consequence, ultimately leading to behavior that exhibits a lack of control.” S.H.R. at 271.[12] Dr. Underhill opined that “Mr. Batiste's inability to perceive risk can be compared to that of an impulsive gambler” because “the chance of winning is extraordinarily slim, and the likelihood of him losing his money is great, ” but “once the process of gambling has begun, he experiences difficulties in stopping himself” and “ increases the risk by continuing to gamble, despite the fact that he can acknowledge he will almost certainly lose.” Dr. Underhill opined that medication and the structures of prison life would help control Batiste's risk-taking behaviors. S.H.R. at 274-75.

         The record indicates that trial counsel made some effort to investigate issues relating to Batiste's mental health. The state habeas court found that the defense's “pre-trial investigation included an investigation of [Batiste's] mental health; that trial counsel sought funding for and retained three mental health experts.” S.H.R. at 950. Specifically, trial counsel retained two clinical psychologists and a medical doctor as a substance-abuse expert. The record indicates that these experts conducted forensic interviews, reviewed records, and consulted with the defense team. The record does not contain any psychological report obtained from those three experts. Nothing in the record, however, suggests that the three experts uncovered any information that would have indicated the need for neuropsychological testing.

         Trial counsel provided an affidavit on state habeas review explaining the defense investigation into possible mental-health issues. Trial counsel expressed concern about the double-edged nature of using mental-health evidence in general:

One of the realities of death penalty litigation that all experienced defense attorneys will admit is this: if you use mental health evidence, short of proving actual insanity, you run the risk of making the defendant look even more dangerous to the jury, and frankly it is generally true, because they are more dangerous. Let me illustrate briefly. If you prove that the defendant needs medicine to overcome his mental health challenges, and even if you prove the medicine is available, the State will argue that even if this were true the jury will never be assured the defendant will take his medicine and if he doesn't society is in danger.
Conversely, if you don't use mental health evidence you will be writing affidavits like this one and/or testifying at hearings as to why you didn't use it.

         S.H.R. at 817. With that context, trial counsel provided specific reasons for which the defense did not investigate the possibility of brain dysfunction:

We had no information from any source, be it a family member, friend, our experts or investigators, or any record that would indicate a frontal lobe disorder, or any mental disorder. He was sharp and I personally saw him make decisions. I am very careful not to call witnesses, especially experts, who on cross examination can destroy our case.
If the Texas Court of Criminal Appeals rules, or if the Texas Legislature passes a law that requires in every capital murder prosecution a defendant must be given neuropsychological testing to see if they have brain damage, even if there is absolutely no indication, and the county or State must bare the cost, then I certainly will follow that requirement but that is not my understanding of the law in Texas.

         S.H.R. at 817.

         With that background, the state habeas court entered findings of fact and conclusions of law denying this claim. Despite the use of three mental-health experts, as well as the other investigations into Batiste's background, the state habeas court found that trial counsel “had no information from any expert, investigator, record, family member, or friend indicating that [Batiste] had any indicia of frontal lobe disorder.” S.H.R. at 951. The state habeas court also questioned Dr. Underhill's diagnosis of frontal lobe damage. The state habeas court found “unpersuasive Dr. Underhill's conclusions regarding [Batiste's] alleged frontal lobe damage and impaired perception/control of risky behavior.” S.H.R. at 950. The state habeas court found that Dr. Underhill's conclusion about the source of Batiste's risk taking was “vague” because he “does not disclose [Batiste's] specific score” or provide specific facts which could be corroborated. S.H.R. at 951. Additionally, the state habeas court found “Dr. Underhill's conclusions unpersuasive” about his impulsivity because state jail records “reflect[ed] that [Batiste] had no disciplinaries while incarcerated at the Lynchner Unit [before trial] which indicated that [Batiste] could control his behavior, including risk taking behavior, when he so chose without medication.” S.H.R. at 952. Also, Dr. Underhill's “conclusion regarding [Batiste's] alleged inability to calculate risk and weigh the consequences of his actions is cumulative of Scott Krieger's punishment testimony concerning the results of [his] MMPI-A score which indicated that [Batiste] was impulsive and preferred action over thought and reaction.” S.H.R. at 952. In sum, the state habeas court found no deficient performance by counsel or actual prejudice.

         a. Deficient Performance

         Batiste has not shown that trial counsel's performance was deficient. Batiste is correct that trial counsel “did not retain an expert to perform a neuropsychological evaluation and/or conduct any testing of Batiste.” Dkt. 9 at19. Applying applicable Supreme Court precedent, the Fifth Circuit has explained that, “[I]n investigating potential mitigating evidence, counsel must either (1) undertake a reasonable investigation or (2) make an informed strategic decision that investigation is unnecessary.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013). Trial counsel “must not ignore pertinent avenues of investigation, or even a single, particularly promising investigation lead.” Id. at 390 (internal citations and quotation marks omitted); see also Higgins v. Cain, 720 F.3d 255, 265 (5th Cir. 2013) (explaining that counsel must “research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful”). Batiste's claim depends on identifying some set of circumstances that would have led a reasonable attorney to engage in an investigation that included specific neuropsychological testing.

         Trial counsel inquired into Batiste's background and retained the services of three mental-health experts. Batiste's attorneys explored facets of his mental health and background with the assistance of various psychologists.[13] Trial counsel did not receive “information from any source, be it a family member, friend, our experts or investigators, or any record that would indicate a frontal lobe disorder, or any mental disorder.” S.H.R. at 817. Batiste has not pointed to any place in the record containing any indication that he experienced a head injury or other physical event causing brain damage.[14] Under the Strickland standard, counsel are required to conduct reasonable investigation under prevailing professional norms. Strickland, 466 U.S. at 688. Counsel are not expected to be experts in all fields, but can reasonably rely on experts in deciding the scope of pre-trial investigation. See, e.g., McClain v. Hall, 552 F.3d 1245, 1253 (11th Cir. 2008) (finding no error in trial counsel's investigation notwithstanding a later, more favorable expert opinion). Recognizing that “[j]udicial scrutiny of counsel's performance must be highly deferential, ” Strickland, 466 U.S. at 698, Batiste's trial attorneys could reasonably forgo investigating neuropsychiatric problems when the defense's three mental health experts did not indicate that such investigation was necessary.

         Yet even if trial counsel had uncovered evidence suggesting that Batiste possibly suffered from brain dysfunction, and secured results similar to those reached by Dr. Underhill, Batiste has not necessarily shown that a reasonable attorney would have presented that information to the jury. Trial counsel was apprehensive about presenting similar testimony because it would allow the State to characterize Batiste's mental state as unpredictably dangerous and intractable. Testimony about a brain injury may be a “‘double-edged' sword, ” Martinez v. Dretke, 404 F.3d 878, 889 (5th Cir. 2005), because jurors could fear that the defendant would never be able to control his violent behavior. See Nelson v. Quarterman, 472 F.3d 287, 307-08 (5th Cir. 2006). “Presenting evidence of ‘organic (i.e., permanent) brain damage, ' which is associated with poor impulse control and a violent propensity, would have substantiated the state's evidence and increased the likelihood of a future dangerousness finding.” Martinez, 404 F.3d at 890. And, as the Seventh Circuit has noted, sentencers “may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate.” Foster v. Schomig, 223 F.3d 626, 637 (7th Cir. 2000) (quotation omitted).

         Dr. Underhill recognized the double-edged potential of brain trauma evidence but predicated the mitigating thrust of his conclusions on (1) the ability of medication to reduce Batiste's tendency toward risk taking and (2) the structures of prison preventing dangerous actions. Trial counsel, however, feared that those two factors would not withstand cross-examination. Trial counsel anticipated that the State would argue that Batiste would only be capable of improvement if he chose to take his medication. More important, the State had already presented evidence of Batiste's threats and violence while in jail awaiting trial. Testimony that incarceration would squelch Batiste's free-world violent impulsivity would ring hollow against his inability to control himself in a structured environment. Weighing the benefit of Dr. Underhill's testimony against the potential that the State would undercut it, and possibly turn it against the defense, a reasonable trial attorney could choose not to present such evidence.

         b. Actual Prejudice

         Batiste has also not shown that the state habeas court was unreasonable in deciding that he did not meet Strickland's prejudice prong. The state habeas court concluded that (1) the jury already had before it evidence that Batiste “was ‘impulsive' and ‘preferred action over thought and reflection'” and (2) evidence of his “two capital murders, an aggravated robbery, and multiple bad acts” which was “particularly strong” would eclipse any brain-injury evidence. S.H.R. at 978. Without the veneer of neuropsychological testimony, the jury already heard a psychologist's opinion that Batiste acted on impulse. Insofar as that information has only mitigating value, the jury could already consider the effects of evidence similar to that identified on state habeas review.

         Importantly, strong evidence supported the jury's answers to the special issue questions. The question of Strickland prejudice does not exist in a vacuum; “[I]n making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695. On habeas review “the reviewing court must consider all the evidence - the good and the bad - when evaluating prejudice.” Wong v. Belmontes, 558 U.S. 15, 26 (2009). The Fifth Circuit has indicated that a court looks to see if the petitioner's new evidence will “lessen the impact of the other evidence against him[, ]” Conner v. Quarterman, 477 F.3d 287, 294 (5th Cir. 2007), because “overwhelming aggravating factors” can outweigh unpresented mitigating evidence. Sonnier v. Quarterman, 476 F.3d 349, 360 (5th Cir. 2007). For instance, the “horrific facts of the crime, ” Martinez, 481 F.3d at 259, the “brutal and senseless nature of the crime, ” Smith v. Quarterman, 471 F.3d 565, 576 (5th Cir. 2006), or the “cruel manner in which he killed, ” Miniel v. Quarterman, 339 F.3d 331, 347 (5th Cir. 2003), may weigh heavily against a finding of Strickland prejudice. See also Strickland, 466 U.S. at 700; Knight v. Quarterman, 186 F. App'x 518, 535 (5th Cir. 2006); Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002); Andrews v. Collins, 21 F.3d 612, 624 n.23 (5th Cir. 1994); Russell v. Lynaugh, 892 F.2d 1205, 1213 (5th Cir. 1989). Additionally, if the “evidence of . . . future dangerousness was overwhelming . . . it is virtually impossible to establish prejudice.” Ladd, 311 F.3d at 360 (citing Strickland, 466 U.S. at 698).

         Batiste committed murders for personal gain. The killing in the instant case was particularly brutal and senseless. Batiste repeatedly shot into the victim's car on the freeway to steal the rims from his car. Once they both stopped, Batiste could have stolen the victim's car and left the injured man lying on his stomach bleeding and pleading for his life. Instead, Batiste repeatedly shot him. Batiste's police statement indicates that he did not act on impulse. Batiste paused, mustering “all [his] empathy towards” the victim, but after “weighing” out what to do, decided that he had “to get these wheels.” In addition, Batiste participated in, and led, aggravated robberies. He stole cars. He used drugs. He sold stolen property for others. Batiste did not reform his character after previous periods of incarceration and, in fact, he became more violent. Even knowing that the State would use his actions against him in an impending capital murder trial, pre-trial incarceration did not squelch Batiste's violence. Batiste engaged in fights, threatened inmates, disrespected jail personnel, and possessed weapons. Batiste exhibited little remorse in jailhouse correspondence, but continued glorifying the gang lifestyle and praising violence. Against that background, the state habeas court was not unreasonable in finding no reasonable probability of a different result from trial counsel's failure to present neuropsychological evidence.

         2. Efforts to Rebut Testimony Concerning Batiste's Gang Involvement

         Batiste argues that trial counsel failed to provide the jury with an accurate picture of his gang membership. While Batiste's gang membership was mentioned only briefly in the guilt/innocence phase, [15] it was a major and predominant theme throughout the punishment hearing.[16] References to Batiste's gang affiliation permeated both lay and expert testimony. The State called three expert witnesses who, in great detail, elaborated on the extent to which Batiste identified as a gang member:

• Prison classification expert David Davis testified for the prosecution about Batiste's tattoos related to his Crips membership.[17] In particular, Davis explained that the Five Deuce Hoover Crips were involved in various crime-related activities, including drug dealing.
• Clint Ponder, a Houston Police Department officer assigned to a gang unit, testified that Batiste was found in the gang membership database as a documented member of the Five Deuce Hoover Crips. Tr. Vol. 18 at 165-67. Ponder testified that Batiste had “quite a few tattoos that were gang-related.” Tr. Vol. 18 at 171-72. Ponder testified extensively about Batiste's numerous gang-related tattoos. Those tattoos included the letters HCG under his left eye, which stand for “Hoover CRIP Gangster.” Tr. Vol. 18 at 179. Other tattoos included LOC, a “common acronym . . . for love of CRIP”; a Roman numeral V below his right earlobe signifying the Five Deuce Hoover Crips; numbers 8-3-7, signifying the letters of the alphabet corresponding to HGC; and the word CRIP on his left hand. Some tattoos were intended to show disrespect to other gangs, including one meaning “Piru killer” and “Bloods killer.” Tr. Vol. 18 at 171-198.
• Irma Fernandez, a prison security threat expert with TDCJ, testified that membership in a gang such as the Crips is a security threat in prison. Fernandez testified that Crips members tended to continue violent and unlawful activity when incarcerated. Tr. Vol. 19 at 36, 39-40, 64.

         Lay testimony provided mixed information about Batiste's ties to the Crips. Robert Dean, a fellow jail inmate, testified that Batiste was the leader of a group of Crips inmates that would pick fights. Dean said that Batiste acknowledged his gang membership and bragged about being incarcerated for capital murder. Tr. Vol. 19 at 125-26. Some family members and friends did not know that Batiste belonged to the Crips. Tr. Vol. 24 at 25, 71. Batiste himself, however, took the stand and acknowledged being a member of the Crips. Batiste told the jury that he recruited fellow Crips gang members to participate in the Phat Kats aggravated robbery. Tr. Vol. 24 at 192-93. Batiste, however, explained that he wanted to distance himself from the gang upon incarceration and “do what I have to do to renounce them.” Tr. Vol. 24 at 138.

         The State argued in closing that Batiste “wanted to portray himself as . . . a tatted-up street thug who deserves street cred.” Tr. Vol. 25 at 63. The State told jurors: “He told you yesterday he wanted out of the gang, but you know as recent as May 15th, after all of you had been selected for this jury, he's still writing his gang symbols in his mail. . . . He wants to stay in. He's telling you that because he thinks you will feel sorry for him and say: Oh, he's going to change.” Tr. Vol. 25 at 74.

         Batiste claims that “he was not a hard-core gang member, and only ever marginally affiliated at best.” Dkt. 9 at 5. Instead of being a leader in the Five Deuce Hoover Crips, Batiste was “a young man struggling with the ‘gangster' label that had been thrust upon him.” Dkt. 9 at 6. Batiste argues that trial counsel should have called an expert to place his gang affiliation into the proper context.

         On state habeas review, Batiste presented an affidavit from Charles Rotramel, the executive director of an organization that works with at-risk and gang-influenced youth. Rotramel conducted a three-hour interview with Batiste while on death row in 2013. Rotramel also reviewed trial testimony, read affidavits from Batiste's family members, and examined various records. Rotramel opined that Batiste was “never a ‘hard-core' gang member” because he was never “formally inducted into gang membership.” S.H.R. at 238. According to Rotramel, Batiste “never broadcast his gang membership to the world around him” and, in fact, “never actively defined himself according to his gang affiliation.” S.H.R. at 238-39. Rotramel explained that Batiste “did not have any actual involvement or membership” in the Crips before being in Texas Youth Commission custody. S.H.R. at 240. While in TYC, Batiste joined the Crips, but only “as a matter of his own protection and survival in an unfamiliar and dangerous institution far removed from everything and everyone he knew.” S.H.R. at 238. When released, Batiste “profess[ed] a Five Deuce Hoover Crip affiliation outwardly” but “actually never had a strong gang-affiliation because he lacked a set or a common group of gang members with whom he associated on a regular basis.” S.H.R. at 231. Rotramel also said that Batiste's subsequent employment history and interaction with family members was not indicative of gang membership.

         Rotramel reviewed Batiste's pre-trial letters and opined that they showed “an emotionally complex young man trying to come to terms with the consequences of his actions and preparing himself for a life of incarceration.” S.H.R. at 235. “Using the common tropes and argot of hip hop music, ” Batiste “vacillat[ed] between typical empty rap braggadocio and genuine emotional expression” when creating rap lyrics that “commonly use hyperbolic and grandiose language” but do not truly “glorify[], much less encourage violence.” S.H.R. at 935. Rotramel saw within Batiste's letters “emotional vulnerability behind the thin veneer of typical rap braggadocio and toughness.” S.H.R. at 328. Also, Rotramel explained that “[r]emorse is a common theme in [Batiste's] letters.” S.H.R. at 239. Rotramel contends that “[c]onspicuously absent from Teddrick's raps and letters are any explicit gang references, slang, or symbolism.” S.H.R. at 330.

         Trial counsel provided an affidavit responding to Rotramel's opinion that Batiste only had limited gang involvement:

“Limited scope of [Batiste's] gang involvement?” Are you kidding? He was as ganged up as any person I have ever met and I have been doing this since way before there were gangs in Houston, Texas. A cursory reading of his writing will illustrate that his gang involvement included virtually every word he wrote. Every conceivable gang reference is contained in all of his writing, to the point of not using certain letters because they refer to a rival gang and using certain letters, or the formation of the letters, to emphasize his gang. He had on his body every conceivable tattoo and reference to his gang. Every decision he made was about the gang. He was the living embodiment of his gang. We were not going to come out on top with testimony form any expert on gangs. The less said about gangs the more I liked our chances to save his life.

         S.H.R. at 818.[18] Trial counsel, in fact, said that Batiste refused to consider a plea bargain because it would have required him to turn on another gang member. Trial counsel opined that Batiste was “so involved in his ‘gang mentality' that he wouldn't even consider it. He wanted the life sentence but the gang code of honor was more important to him than his own life.” S.H.R. at 959.

         With that background, the state habeas court found that trial counsel “made a reasonable strategic decision to not present a gang expert at punishment because counsel believed that such tactic would harm the defense.” S.H.R. at 954. The state habeas court expressed deep skepticism regarding Rotramel's opinion about Batiste's “limited involvement with the Crips, ” particularly in light of the trial record. S.H.R. at 878. With the extensive, detailed trial testimony about Batiste's gang membership, the state habeas court found that Rotramel's testimony was “unpersuasive.” S.H.R. at 954. The state habeas court reasonably found that “the State's trial evidence and [Batiste's] testimony directly contradict [his] habeas characterization of his gang membership as ‘limited.'” S.H.R. at 953.

         Batiste has not shown that the state court was unreasonable in finding no deficiency because trial counsel did not present evidence similar to Rotramel's habeas affidavit. Trial counsel could reasonably decide that Batiste did not have only limited interaction with the Crips. Rotramel apparently drew a distinction between a “hard-core gang” member and someone only “affiliated” with a gang. S.H.R. at 317. Even accepting Rotramel's opinion that Batiste was not a hard-core gang member, a reasonable trial attorney could shy away from presenting that expert testimony when the violent conventions of gang life permeated Batiste's words, actions, and lifestyle. Batiste had not just adopted common customs of gang membership, he bore evidence of gang affiliation over his entire body. Jurors would have difficulty believing Rotramel's opinion that Batiste “never broadcast his gang membership to the world around him” when he had a gang tattoo on his face. The tattoos covering Batiste's body testified of his devotion to the Crips. More to the point, his actions bore indicia of gang membership as he recruited and directed other Crips in the commission of violent crimes. Batiste told police officers that, “because he was . . . [a member of the] CRIPS, ” he did not want to show fear as he shot into the victim's moving car. His self-identification as a gang member continued into the prison setting, where bad acts directly related to gang affiliation continued despite expert predictions that the rigors of prison would cause him to act otherwise. The state habeas court was not unreasonable in finding “unpersuasive” any attempt to minimize Batiste's gang membership.

         A reasonable attorney could instead decide to avoid unnecessary reference to gang affiliation or identification. With the extensive evidence of Batiste's involvement in not only the Crips gang, but in the lawlessness associated with gang membership, the state habeas court was not unreasonable in finding no Strickland deficient performance or resultant prejudice. Batiste has not met his AEDPA burden with regard to his claim that counsel should have minimized his gang membership.

         3. Mitigating Evidence

         Batiste's federal petition raises three specific challenges to trial counsel's efforts to investigate, prepare, and present mitigating evidence. With Batiste's extremely violent past, and aggressive behavior that extended into the prison setting, trial counsel knew that “[m]itigation was [the] best, and really only, opportunity to save his life at trial.” S.H.R. at 916. The defense team included an investigator, a specific mitigation investigator, three mental-health experts, and an expert on the criminal justice system. Trial counsel met with family members before trial. From the defense investigation, trial counsel called various witnesses to provide mitigating evidence. The state habeas court provided a comprehensive review of the defense's trial evidence, as recited below:


37. Mary Elizabeth Pelz, Ph.D., Dean of the College of Public Service at the University of Houston-Downtown, testified as an expert regarding TDCJ-CID classification, stating that she had interviewed [Batiste] and reviewed his TYC, TDCJ-CID, and employment records; that studies indicated that prisoners sentenced to life without parole were “very manageable” and did not manifest an increase in acts of violence while incarcerated;-that inmates sentenced to life without parole were more likely to obey prison rules because they needed to keep as many privileges as possible in order to survive; that an inmate's previous behavior in prison was more important than the actual crime committed to determine future behavior; that Dr. Pelz was not aware of [Batiste] having any disciplinary issues while incarcerated in a state jail facility; that [Batiste's] physical altercations in the Harris County Jail while awaiting trial would not be “seriously considered” for his inmate classification; and, that [Batiste's] future behavior in prison would become “tempered” as he aged and became institutionalized (XXIII RR at 27-30, 43, 50-52, 59, 97-8, 110).
38. Sgt. David Davis, Harris County Sheriff's Office Classification Unit, testified that [Batiste's] Harris County jail disciplinary records contained no record of [Batiste] having physical contact with the jail staff (XVIII RR at 6).


39. Gary Thiebaud, head football coach at Cypress Ridge High School, testified that [Batiste] was a gifted athlete; that [Batiste] did well in athletics, presented no disciplinary problems, and benefitted from the program's highly structured nature; that Thiebaud considered [Batiste] to be a “follower” who was influenced by those around him; and, that Thiebaud “lost” [Batiste] after spring football when [Batiste] left the structure of the sports program and became involved in car thefts (XXIII R. R. at 115-6, 118-22).
40. Kristopher McSherry, the plant manager for Forge USA, testified regarding [Batiste's] work history, stating that [Batiste] was a helper on a forging crew where the work was physically demanding and often required working more than eight hours per day; that McSherry never had issues with [Batiste's] job performance; that [Batiste] indicated that he was “desperate to find a job to feed his family”; and, ...

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