United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. § 636(b) and
Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
Kevin Todd Hardin is pro se and has paid the full filing fee
in this matter. Before the Court are Petitioner's
Application for Writ of Habeas Corpus under 28 U.S.C. §
2254 (Docket Entry “DE” 1), Respondent's
Answer (DE 9), and Petitioner's Reply (DE 11). For the
reasons set forth below, the undersigned recommends that the
Application for Writ of Habeas Corpus be
has custody of Hardin pursuant to a judgment and sentence
imposed by the 424th District Court of Burnet County, Texas.
A jury found Hardin guilty of evading arrest with a vehicle,
and concluded Hardin had two prior felony convictions. The
jury assessed punishment at a term of 99 years'
imprisonment. In his habeas action Hardin alleges he was
subjected to trial court error and prosecutorial misconduct,
and that he was denied his right to the effective assistance
of trial and appellate counsel.
OF THE CASE
following facts are taken from the State's brief in
On April 23, 2013, Granite Shoals Police Officer John Ortiz
was on routine patrol when he observed Appellant driving on
South Phillips Ranch Road at 4:00 a.m. traveling at a high
rate of speed in a 30 m.p.h. zone. RR Vol. 3 Pages 15-17.
Officer Ortiz was able to catch up to Appellant sufficiently
to record Appellant's speed to be 51 m.p.h. RR Vol. 3
Pages 17-18. Officer Ortiz activated his blue and red lights
to effect a traffic stop of Appellant for speeding. RR Vol. 3
Page l8. Instead of stopping Appellant accelerated to speeds
beyond 60 m.p.h. and made attempts to flee from Officer
Ortiz. RR Vol. 3 Pages 18-22. On two occasions during the
chase Officer Ortiz was able to see the driver of the vehicle
such that he was able to recognize that the driver was
Appellant. RR Vol. 3 Pages 19-20. Appellant's vehicle
eventually became stuck at which time Appellant abandoned his
vehicle and fled on foot. RR Vol. 3 Page 22. Officer Ortiz
was able to locate and detain Appellant at a carport about
150 yards from his abandoned vehicle. Vol. 3 Page 22.
(DE 10-10 at 9-10).
State Court Proceedings
jury returned an indictment on August 6, 2013, charging
Hardin with one count of using a vehicle to flee from a peace
officer to avoid arrest. (DE 10-4 at 4). The indictment
further alleged Hardin had two prior felony convictions for
burglary of a habitation. (DE 10-4 at 4-5). Hardin was
appointed counsel to represent him in his criminal
proceedings. (DE 10-4 at 11).
Hardin's trial the State presented the testimony of
Officer Ortiz and a “dash cam” video of the
pursuit of Hardin and his arrest. (DE 10-7 at 15-22). The
State rested after the presentation of this evidence. (DE
10-7 at 44). Hardin did not testify or present any evidence
in his defense. Id. Defense counsel argued to the
jury that there was insufficient evidence to identify Hardin
as the driver of the fleeing vehicle. (DE 10-7 at 54-56). The
jury deliberated for approximately two and a half hours. (DE
10-4 at 62). During deliberations the jury asked to review
the dash cam video, which they were permitted to do. (DE 10-7
at 60). The jury also requested the police reports of the
incident, which was denied because the reports had not been
admitted as evidence. Id. The jury also requested a
transcript of Officer Ortiz' testimony. This request was
THE COURT: . . . [this is the ] third note from the jury. . .
. The question is “Can I get a copy of the
officer's testimony?” My response is
“No”. Everybody [content] with that response? The
MR. CROWTHER: My feeling is you probably should tell the jury
that you outlined the procedure for getting that earlier.
THE COURT: If they didn't listen I'm not telling them
again. That's my response to that. Defense have an
MR. WATSON: No, Your Honor.
(DE 10-7 at 61). The jury then returned a verdict of guilty
as charged. (DE 10-7 at 62).
elected to have the jury assess his punishment. (DE 10-6 at
23). He pleaded not true to the indictment's enhancement
allegations. (DE 10-8 at 7-8). During the sentencing phase,
in addition to providing evidence of Hardin's convictions
on two charges of burglary of a habitation, the State
presented certified proof of three other convictions-a
misdemeanor failure to identify and two state jail felony
theft convictions. (DE 10-8 at 14-17; DE 10-9 at 14-37).
Hardin presented two character witnesses at the sentencing
phase of his proceedings, who testified as to his good
character. (DE 10-8 at 21-27, 33-38). Hardin's counsel,
without objection, urged the jury to ignore the evidence as
to one of the enhancement allegations and to assess
punishment at less than 25 years to life. (DE 10-8 at 55-56).
argument on sentencing, the prosecutor made reference to the
parole language contained in the charge to the jury. (DE 10-7
at 49-5, 59). The following colloquy resulted:
[State:] Now, of some interest in this is this offense is a
quarter-time offense, which means that when your actual time
[Defense:] Objection, Your Honor. He's going into parole.
[The Court:] He's just arguing what the instructions say,
Mr. Watson, I think.
[State:] Yes. It's a quarter-time offense, which
means-and I'm just using 40 because it make its [sic]
really easy for me to do the math. If you sentence him for
[Defense:] I'll just object that it's not proper.
It's in the instruction. The jury just doesn't
need-they can read the instructions themselves. They
don't need him talking about it. We just believe it's
an improper closing argument.
[The Court:] I'll overrule your objection.
Hardin v. State, 2015 WL 1514483, at *1 (Tex.
App.-Austin 2015, pet. ref'd). After deliberations, the
jury found both enhancement allegations to be true and
assessed punishment at a term of 99 years' imprisonment.
(DE 10-4 at 56).
was appointed appellate counsel, who filed a motion for a new
trial. (DE 10-4 at 60-61). The motion for a new trial was
denied by operation of law. Hardin then appealed his
conviction and sentence. Hardin asserted the trial court
erred by overruling his objections to the prosecutor's
comments during closing argument. Hardin, 2015 WL
1514483, at *1. The Texas Court of Appeals denied relief,
finding some of the prosecutor's comments improper, but
finding the error harmless. Id. at *2-*3. The Texas
Court of Criminal Appeals denied a petition for discretionary
filed an application for a state writ of habeas corpus,
asserting he was denied the effective assistance of trial and
appellate counsel. (DE 10-22 at 12-13, 16). Hardin asserted
his appellate counsel was ineffective because he failed to
file a substantive motion for a new trial and failed to
confer with trial counsel regarding a motion for a new trial.
(DE 10-22 at 16). Hardin further asserted trial court error,
raising the same claim denied in his appeal. (DE 10-22 at
14). Hardin also argued the trial court erred by failing to
re-instruct the jury as to how to obtain a witness'
testimony during deliberations. (DE 10-22 at 15). Hardin
further alleged prosecutorial misconduct, arguing the
prosecutor improperly bolstered the credibility of Officer
Ortiz and that the prosecutor's comments regarding parole
were improper. (DE 10-22 at 18).
state trial court ed Hardin's trial counsel to provide an
affidavit responding to Hardin's claims of ineffective
assistance of counsel. (DE 10-22 at 45). Trial counsel
provided the requested affidavit, (DE 10-22 at 46-47), which
stated in part:
My actions in Mr. Hardin's case were appropriate. Our
office had hoped that we might have some jury nullification
in this case as the officers had kicked him until he urinated
on himself. However, the facts were not good. One of the
videos from the police car clearly showed Hardin evading from
the police car, even going into a children's playground.
Hardin's face was viewed in that video as he passed the
police car with his window down. The ...