United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. Miller, United State District Judge.
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.
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.
[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. 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 ”).
2011, Batiste stood trial in the 174th District Court of
Harris County, Texas. 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.The jury found Batiste guilty of
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.
on Direct Appeal at 2-4. The jury answered Texas' special
issue questions in a manner requiring the imposition of a
challenged his conviction and sentence on
appeal. 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).
filed a state habeas application during the pendency of his
direct appeal. 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. On April 29, 2015, the Court of
Criminal Appeals adopted the lower court's recommendation
and denied habeas relief.
review followed. Batiste filed a timely federal petition
raising the following grounds for relief:
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
• 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.
State violated Batiste's right to a fair trial by failing
to disclose impeachment evidence.
Juror misconduct violated Batiste's rights to due process
and a fair trial.
Trial counsel failed to preserve error regarding the
State's presentation of allegedly inadmissible evidence.
trial court erred by compensating trial counsel with a flat
fee and trial counsel provided ineffective representation by
accepting that arrangement.
Trial counsel provided ineffective representation by not
making a sufficient objection to the introduction of evidence
allegedly protected by the First Amendment.
Texas unconstitutionally administers the death penalty in an
trial court violated the Constitution by not informing jurors
that a single juror's vote could result in a life
Trial counsel failed to preserve the record for appeal.
punishment phase instructions constricted the jury's
consideration of mitigating evidence.
Batiste's appellate and habeas attorneys provided
ineffective representation in their selection of grounds for
trial court violated Batiste's First Amendment rights by
allowing testimony and evidence about religious practices.
trial court violated Texas evidentiary law by allowing
Courtroom disruptions violated Batiste's right to due
trial court improperly prevented the defense from presenting
trial court violated Batiste's constitutional rights by
granting the State's challenge for cause to one
trial court should have suppressed Batiste's statements
to police officers.
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
has moved for summary judgment. Dkt. 22. Batiste has filed a
reply. Dkt. 38. This action is ripe for adjudication.
Standard of Review
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
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).
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.
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.
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)).
Ineffective Assistance of Trial Counsel
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.
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.
Investigation, Preparation, and Presentation of Evidence
Relating to Brain Dysfunction
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.
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.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.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. 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.
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.
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
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.
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
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
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
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
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. 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. 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.
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).
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.
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.
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).
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
Efforts to Rebut Testimony Concerning Batiste's Gang
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,  it was a major and predominant
theme throughout the punishment hearing. 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. 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.
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.
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
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.
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.
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.
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.
at 818. 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
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.
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.
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.
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:
AND FUTURE RISK
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).
SCHOOL AND WORK HISTORY
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, ...