United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE.
inmate Corey Stewart has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody
("Petition") (Docket Entry No. 1), seeking relief
under 28 U.S.C. § 2254 from a state court capital murder
conviction that resulted in a sentence of life without
parole. Pending before the court is Respondent Lorie
Davis's Motion for Summary Judgment with Brief in Support
("Respondent's MSJ") (Docket Entry No. 26).
Stewart has filed Petitioner's Traverse to
Respondent's Return and Answer Pursuant to 28 U.S.C.
§ 2254(e)(1), and Rule 5(e) ("Petitioner's
Traverse") (Docket Entry No. 37), along with a Motion
for Expansion of Record (Docket Entry No. 35) and a Motion
for Appointment of Counsel if the court orders an evidentiary
hearing (Docket Entry No. 36). After considering all of the
pleadings, the state court records, and the applicable law,
the court will grant Respondent's MSJ and will dismiss
this action for the reasons explained below.
Brazos County cause number 10-02913-CRF-361, Stewart was
charged with capital murder in connection with the death of
Johannes Kinny,  who was shot and killed early in the
morning of April 2, 2010, during the course of a robbery at
an Exxon convenience store in College Station, Texas, where
Kinny worked as an overnight cashier. Security camera
footage showed that Kinny was shot in the chest during a
confrontation with Stewart's accomplice, Joshua
Evans. Stewart, who was armed with a knife,
struck Kinny several times during that
altercation. Stewart and Evans then went behind the
counter and took the store's cash drawer. Although
Kinny sustained at least two stab wounds to his back, he died
as a result of the gunshot wound inflicted by
enforcement set up a mobile command center at the Exxon
station to coordinate reports from the investigating officers
and to disseminate information that was being collected by
detectives.As the investigation commenced on April
2, 2010, police received information about another violent
robbery that had occurred recently at another Exxon station
in nearby Bryan, Texas, which they believed could be
related. In addition, two local residents
(Jessica Greeno and Devoris Harris) came forward and
identified one of the perpetrators shown in the security
footage as one of three men who had robbed them at gunpoint
the previous week on March 27, 2010. Greeno told
Detective Michael Lohse that thirty minutes before arriving
at their interview she had seen the man who was armed with
the gun during that robbery (later identified as Stewart) and
that he was driving a white and blue Lincoln bearing the
Texas license plate number HCK 814.
recovered the stolen cash drawer from a dumpster in front of
an apartment building that was within walking distance from
the College Station Exxon where Kinny was
killed. Police noted that a white and blue
Lincoln had been seen parked next to the dumpster where the
stolen cash drawer was found. The Lincoln had
license plate number HCK 841, which nearly matched the number
provided by Greeno. Police who were canvassing the area
had encountered Stewart in front of the apartment complex
where Stewart was living with his girlfriend. Stewart
was questioned by Detective Danny Junek, who noted that
Stewart had the same build as one of the suspects depicted in
the security footage of the offense. Junek became even
more suspicious after it was later reported that Stewart was
seen leaving the apartment complex in the Lincoln along with
another male who met the description of the other
suspect. Based on this information the
detective who was in charge of the investigation at the
command center (Sergeant Woodward) put out a BOLO (be on the
look out) for the Lincoln, with instructions to find a way to
stop the vehicle and detain the occupants for questioning in
connection with the robbery and murder that had occurred
earlier that day.
Ian Mader, who had been with the College Station Police
Department for less than a year, watched the surveillance
footage of the robbery at the start of his shift on the
afternoon of April 2, 2010, and heard the BOLO while he was
out on patrol. Officer Mader located the Lincoln
and reported it to a dispatch officer who told Mader to try
and make a stop for probable cause based on a traffic
violation, rather than making a "suspicious person
stop." While coordinating with other
officers, Mader stopped the vehicle and detained all three
occupants after he observed that the driver (Stewart) failed
to signal the required distance before making a
turn. Although Stewart had signaled his
intent to turn, Mader did not believe that the signal had
been made more than 100 feet from the turn, which is a
traffic violation under Texas law. Stewart was detained
for the traffic violation, for failing to have a driver's
license, and for being in possession of
identified Joshua Evans and his cousin, Jeremy Evans, as the
passengers in the Lincoln that Stewart was driving when it
was stopped by Officer Mader. Greeno and Harris
viewed photographic lineups and identified Stewart, Joshua
Evans, and Jeremy Evans as the men who robbed them on March
Travis Lacox arrived at the scene of the traffic stop and
questioned Stewart as he sat hand-cuffed in the back of a
patrol car. After Lacox read Stewart his
Miranda warnings, he showed Stewart surveillance
photos from the robbery that occurred at the Exxon station in
Bryan, and Stewart admitted taking part in that
was given Miranda warnings again several days after
his arrest and gave a recorded statement admitting his role
in the robbery of the Exxon in College Station, during which
Johannes Kinny was killed. Items taken from
Greeno and Harris were recovered from a search of the
Lincoln, which was impounded after Stewart's
arrest. A knife and the gun used to kill
Kinny were recovered during a search of Stewart's
defense counsel filed motions to suppress his statements to
police and the evidence seized as the result of his arrest,
arguing that the traffic stop was invalid. Testimony
at the suppression hearing disclosed that Stewart had not, in
fact, committed a traffic violation because he did signal his
intent to turn within the required distance. After
hearing testimony about how police had identified Stewart as
a suspect before the traffic stop was made and the BOLO that
had issued for the Lincoln, the trial court denied the
motions to suppress.
17, 2011, a jury in the 361st District Court of Brazos County
found Stewart guilty as charged of capital
murder.Because the State did not seek the
death penalty, the trial court automatically imposed a
sentence of life imprisonment without the possibility of
parole pursuant to Texas Penal Code §
direct appeal Stewart argued that the trial court abused its
discretion by (1) denying his motion to suppress evidence on
the grounds that police conducted an improper traffic stop;
(2) denying his motion to suppress statements because there
was no express waiver of his rights; and (3) admitting
exhibits presented during the trial of his accomplice (Evans)
without proper authentication. Stewart also argued
that there was insufficient evidence to show that he intended
to cause the victim's death.An intermediate court
of appeals rejected all of Stewart's arguments and
affirmed the conviction in an unpublished opinion, which
summarized the pretrial proceedings and the evidence
presented at trial. See Stewart v. State, No.
10-11-00291-CR, 2013 WL 3969824 (Tex. App. - Waco, Aug. 1,
2013) . The Texas Court of Criminal Appeals summarily refused
his petition for discretionary-review. See Stewart v.
State, PD-1183-13 (Tex. Crim. App. Jan. 15, 2014) .
then challenged his conviction by seeking state habeas corpus
review under Article 11.07 of the Texas Code of Criminal
Procedure. The state habeas corpus court, which
also presided over the trial and pretrial proceedings,
recommended that relief be denied after making detailed
findings of fact and conclusions of law. The Texas Court
of Criminal Appeals agreed and denied relief without a
written order based on the findings and conclusions made by
the trial court.
now seeks a federal writ of habeas corpus under 28 U.S.C.
§ 2254 to challenge his capital murder conviction.
According to the Petition and Memorandum Brief in Support of
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 ("Memorandum Brief"), Docket Entry No.
2, Stewart raises the following claims for relief:
1. During the suppression hearing, he was denied the right to
confront and cross-examine witnesses who identified him
(Greeno and Harris).
2. His conviction was obtained with evidence seized during an
unlawful search, therefore, he is actually innocent.
3. The trial court erred by denying his motions to suppress
without a valid reason.
4. The evidence was insufficient to support his conviction
for capital murder.
5. The prosecutor engaged in misconduct by presenting
evidence during the suppression hearing of an unadjudicated
extraneous offense, namely, the robbery of Greeno and Harris;
and the trial court abused its discretion by admitting this
evidence without affording him the opportunity to confront
and cross-examine the witnesses against him.
6. He was denied effective assistance of counsel during his
pretrial and trial proceedings.
7. He was denied effective assistance of counsel on appeal.
8 . The state courts erred by holding that his unlawful stop
and detention was reasonable.
respondent moves for summary judgment arguing that Stewart is
not entitled to relief under the governing federal habeas
corpus standard of review because two of his claims are
procedurally barred (Claims 1 and 5) and that all of his
claims are without merit.
Standard of Review
extent that Stewart's claims were adjudicated on the
merits in state court, his Petition is subject to review
under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), codified at 28 U.S.C. §
2254(d). Under the AEDPA a federal habeas corpus court may
not grant relief unless the state court's adjudication
"resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States[.]" 28 U.S.C. § 2254(d)(1). Likewise, a
court may not grant relief on a claim that presents a
question of fact unless the petitioner shows that the state
court's denial of relief "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)(2).
purposes of review under § 2254(d)(1), "'[a]
state court's decision is deemed contrary to clearly
established federal law if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or
if it reaches a different conclusion than the Supreme Court
on materially indistinguishable facts.'"
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir.
2015) (citations omitted); see also Williams v.
Taylor, 120 S.Ct. 1495, 1519-20 (2002) . To constitute
an "unreasonable application of" clearly
established federal law, a state court's holding
"must be objectively unreasonable, not merely wrong;
even clear error will not suffice." Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White
v. Woodall, 134 S.Ct. 1697, 1702 (2014)). "To
satisfy this high bar, a habeas petitioner is required 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.'" Id. (quoting
Harrington v. Richter, 131 S.Ct. 770, 786-87
AEDPA "imposes a 'highly deferential standard for
evaluating state-court rulings, ' . . . [which]
'demands that state-court decisions be given the benefit
of the doubt.'" Renico v. Lett, 130 S.Ct.
1855, 1862 (2010) (citations omitted). This standard is
intentionally "difficult to meet" because it was
meant to bar relitigation of claims already rejected in state
proceedings and to preserve federal habeas review as "a
'guard against extreme malfunctions in the state criminal
justice systems, ' not a substitute for ordinary error
correction through appeal." Richter, 131 S.Ct.
at 786 (quoting Jackson v. Virginia, 99 S.Ct. 2781,
2796, n.5 (1979) (Stevens, J., concurring)); see also
White, 134 S.Ct. at 1702.
court's factual determinations are also entitled to great
deference on federal habeas corpus review. Findings of fact
are "presumed to be correct" unless the petitioner
rebuts those findings with "clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). This presumption
of correctness extends not only to express factual findings,
but also to the state court's implicit findings. See
Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.
2006) (citing Summers v. Dretke, 431 F.3d 861, 876
(5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629
(5th Cir. 2004)). A federal habeas corpus court "may not
characterize these state-court factual determinations as
unreasonable 'merely because [it] would have reached a
different conclusion in the first instance.'"
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015)
(quoting Wood v. Allen, 130 S.Ct. 841, 849 (2010)).
"Instead, § 2254(d)(2) requires that [a federal
court] accord the state trial court substantial
The Confrontation Clause Claims (Claims 1 and 5)
related claims (Claims 1 and 5), Stewart argues that the
trial court improperly admitted hearsay testimony from
detectives during the pretrial suppression hearing about the
identification made by Greeno and Harris, who told police
that Stewart robbed them at gunpoint one week before the
capital murder occurred at the College Station
Exxon. Stewart argues that evidence of the
identification was hearsay that was offered by the prosecutor
and admitted by the trial court improperly in violation of
the rules of evidence and the Confrontation Clause, which
guarantees a defendant's right to confront and
cross-examine his accusers .
These Claims Are Barred from Federal Review
respondent notes that Claims 1 and 5 were rejected for
procedural reasons on state habeas corpus review because
Stewart failed to present them on direct
appeal. The respondent argues that Claims 1
and 5 are therefore barred from federal review by the
doctrine of procedural default.
record confirms that the state habeas corpus court rejected
the grounds asserted in Claims 1 and 5 for procedural reasons
because these issues should have been raised on direct
appeal, but were not. In doing so the state habeas
corpus court relied on Ex parte Nelson, 137 S.W.3d
666, 667 (Tex. Crim. App. 2 004), which held that
"habeas corpus cannot be used as a substitute for
appeal, and that it may not be used to bring claims that
could have been brought on appeal." See also Ex
parte Richardson, 201 S.W.3d 712, 713-14 (Tex. Crim.
App. 2006) (Emphasizing that "'the Great Writ [of
habeas corpus] should not be used' to litigate matters
'which should have been raised on appeal[.]'")
(quoting Ex parte Townsend, 137 S.W.3d 79, 81 (Tex.
Crim. App. 2004)). The Fifth Circuit has held that this state
procedural rule is adequate to bar federal habeas corpus
review. See Scheanette v. Quarterman, 482 F.3d 815,
827 (5th Cir. 2007) (recognizing that the Texas rule
requiring a petitioner to present any claims based on the
trial record on direct appeal, before raising them in a state
habeas petition, is an "'adequate state ground
capable of barring federal habeas review'") (quoting
Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)).
petitioner has committed a procedural default, federal habeas
corpus review is available only if he can demonstrate: (1)
"cause for the default and actual prejudice as a result
of the alleged violation of federal law, " or (2) that
"failure to consider the claims will result in a
fundamental miscarriage of justice." Coleman v.
Thompson, 111 S.Ct. 2546, 2565 (1991). To satisfy the
exception reserved for fundamental miscarriages of justice a
petitioner must provide the court with evidence that would
support a "colorable claim of factual innocence."
Kuhlmann v. Wilson, 106 S.Ct. 2616, 2627 (1986) .
Stewart makes no showing of factual innocence here, and he
does not otherwise attempt to explain or demonstrate cause
for his default. Accordingly, Claims 1 and 5 are procedurally
barred from federal review.
Alternatively, These Claims Are Without Merit
not procedurally barred Stewart cannot prevail on a claim
that hearsay testimony was presented and admitted improperly
during a pretrial suppression hearing. The state habeas
corpus court, which also considered these claims in the
alternative, concluded that they were without
merit because, subject to limited exceptions not applicable
here, the rules of evidence do not apply during pretrial
suppression hearings. See Granados v. State,
85 S.W.3d 217, 227 (Tex. Crim. App. 2002) (holding that the
rules of evidence, except those applying to privileges, do
not apply to suppression hearings); see also Ford v.
State, 305 S.W.3d 530, 534-35 (Tex. Crim. App. 2009) .
The state habeas corpus court also concluded that the Sixth
Amendment Confrontation Clause also does not apply during a
suppression hearing because the right to confront and
cross-examine witnesses is a trial right that is not
implicated during pretrial proceedings. See Vanmeter
v. State. 165 S.W.3d 68, 74-75 (Tex. App. - Dallas 2005,
pet. ref'd) (concluding that "the constitutional
right of confrontation is a trial right, not a pretrial
right, " and therefore does not apply at pretrial
the state habeas corpus court based its decision on Texas
law, federal courts have also held that the rules of evidence
and the Confrontation Clause do not apply during pretrial
suppression hearings. See, e.g., United States v.
Raddatz, 100 S.Ct. 2406, 2414 (1980) ("At a
suppression hearing, the court may rely on hearsay and other
evidence, even though that evidence would not be admissible
at trial."); Ebert v. Gaetz, 610 F.3d 404, 414
(7th Cir. 2010) (holding that the Confrontation Clause
"was not implicated" during a pretrial suppression
hearing); United States v. de la Fuente, 548 F.2d
528, 533 (5th Cir. 1977) (explaining that "[a] trial
court, in resolving preliminary fact questions concerning the
admissibility of evidence, is not bound by the rules of
evidence") (citing Fed.R.Evid. 104(a) and 1101(d)(1)).
does not identify any Supreme Court precedent holding that
the Confrontation Clause or evidentiary rules regarding
hearsay apply during a pretrial suppression hearing and the
court's own research has not located any. Thus, to the
extent that the state habeas corpus court concluded that
Claims 1 and 5 were without merit, Stewart does not show that
this decision was contrary to clearly established Supreme
Court precedent. Therefore, he is not entitled to federal
habeas corpus relief on Claim 1 or Claim 5.
The Fourth Amendment Claims (Claims 2, 3, and 8)
three overlapping claims for relief Stewart argues that he is
entitled to relief because his conviction was obtained with
evidence seized following his invalid arrest in violation of
the Fourth Amendment. Stewart contends in Claim 2 that his
arrest was invalid because it was the result of a
"bogus" traffic stop conducted by Officer
Mader. Stewart repeats this contention in
Claim 3, arguing that the trial court abused its discretion
by denying his motion to suppress "without a valid
reason" because Officer Mader's erroneous belief
that he violated traffic laws was insufficient to justify the
stop that led to his arrest. Stewart repeats this
contention again in Claim 8, arguing that the state court of
appeals erred by affirming his conviction after holding that
the traffic stop was supported by reasonable suspicion and
that his arrest did not violate the Fourth
Amendment. Arguing that all of the evidence
against him should have been suppressed, Stewart reasons that
there should not have been a trial and that he is actually
innocent as a result of the Fourth Amendment
violation. The respondent argues that these
claims are "not cognizable" on federal habeas
corpus review or are without merit.
Stewart's Actual Innocence Claim is Not
petitioner's claim of actual innocence, standing alone,
is not an actionable ground for relief on federal habeas
corpus review. See Herrera v. Collins, 113 S.Ct.
853, 860 (1993) ("Claims of actual innocence . . . have
never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in
the underlying state criminal proceeding."). Instead, a
claim of actual innocence is "a gateway through which a
habeas petitioner must pass to have his otherwise
[procedurally] barred constitutional claim considered on the
merits." Id. at 862. A petitioner must support
his allegation of actual innocence with "new reliable
evidence" that was not presented at trial and must show
that "it is more likely than not that no reasonable
juror would have convicted him in the light of the new
evidence." Schlup v. Delo, 115 S.Ct. 851, 865,
867 (1995). Stewart makes no effort to satisfy that
assuming that a freestanding innocence claim were actionable
on federal habeas review, the Supreme Court has emphasized
that a showing of actual innocence would have an
"extraordinarily high" threshold. Herrera,
113 S.Ct. at 869; see also House v. Bell, 126 S.Ct.
2064, 2086 (2006) (observing that such a "hypothetical
freestanding innocence claim" would require "more
convincing proof of innocence" than the gateway standard
for excusing a procedural default under Schlup).
Because Stewart does not present any evidence in
support of his claim, he does not demonstrate that he has a
credible claim of actual innocence.
Stewart's Fourth Amendment Claims are Barred from
Stewart had an opportunity to litigate his Fourth Amendment
claims in state court, federal habeas corpus review of those
claims is barred by the Supreme Court's decision in
Stone v. Powell, 96 S.Ct. 3037 (1976). The Supreme
Court held that "where the State has provided an
opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a
state prisoner be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search
or seizure was introduced at his trial." Id. at
3046. The Fifth Circuit has since interpreted an
"opportunity for full and fair litigation" to mean
just that: "an opportunity." Janecka v.
Cockrell, 301 F.3d 316, 320 (5th Cir. 2002) (citing
Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir.
1978)). "If a state provides the processes whereby a
defendant can obtain full and fair litigation of a [F]ourth
[A] mendment claim, Stone v. Powell bars federal
habeas corpus consideration of that claim whether or not the
defendant employs those processes." Id.
affords a process for criminal defendants to file a pretrial
motion to suppress under Article 28.01 of the Texas Code of
Criminal Procedure. Stewart availed himself of that process
by filing a motion to suppress, which the trial court denied
following a hearing. Stewart's Fourth Amendment
claims were also reviewed at length by the intermediate court
of appeals, which found no Fourth Amendment violation, and by
the Texas Court of Criminal Appeals, which denied
Stewart's petition for discretionary review of that
determination. See Stewart v. State, No.
10-11-00291-CR, 2013 WL 3969824, at *l-4 (Tex. App. - Waco,
Aug. 1, 2013, pet. ref'd). Because Stewart had ample
opportunity to challenge his arrest and the ensuing search in
state court, his Fourth Amendment claims (Claims 2 and 3) are
precluded from federal habeas review by the holding in
Stone v. Powell.
Alternatively, the Fourth Amendment Claims are Without
respondent also argues that Stewart fails to show that the
trial court denied his motion to suppress in error for
reasons outlined by the court of appeals. Stewart
challenged the trial court's decision, arguing that the
traffic stop which led to his arrest was
invalid. He complained in particular that
there was no reasonable suspicion to stop him because he did
not commit a traffic offense, and the officer who detained
him (Officer Mader) did not otherwise have a basis to suspect
his involvement in criminal activity that would have
justified the stop.
stopping of a vehicle and detention of its occupants
constitutes a 'seizure' under the Fourth
Amendment." United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004) (en banc) . For a traffic
stop to satisfy the Fourth Amendment, "officers need
only 'reasonable suspicion' - that is, 'a
particularized and objective basis for suspecting the
particular person stopped' of breaking the law."
Heien v. North Carolina, 135 S.Ct. 530, 536 (2014)
(quoting Navarette v. California, 134 S.Ct. 1683,
1687-88 (2014)). A brief stop is permissible for purposes of
investigating possible criminal behavior in order to
determine the suspected individual's identity or to
briefly maintain the status quo while obtaining more
information. See Adams v. Williams, 92 S.Ct. 1921,
1923 (1972) (citing Terry v. Ohio, 88 S.Ct. 1868,
1879-80 (1968)); see also Arizona v. Johnson, 129
S.Ct. 781, 784 (2009) (observing that Terry
authorizes investigatory detention of brief duration in a
traffic-stop setting where the police officer has a
reasonable suspicion that one of the occupants is committing
or has committed a criminal offense).
court of appeals provided a lengthy summary of the facts
adduced during the suppression hearing. See Stewart,
2013 WL 3969824, at *1-4. The court of appeals noted that
Officer Mader had viewed the security camera footage of the
offense at the start of his shift and heard the BOLO
identifying Stewart as a suspect wanted for questioning in
connection with the robbery and murder before making the
decision to stop the Lincoln based on the mistaken belief
that Stewart had committed a traffic violation. Id.
at *3. Without addressing whether Officer Mader's
erroneous belief that Stewart committed a traffic violation
was reasonable, the court of appeals rejected Stewart's
claim, concluding that the "cumulative information"
available to the officers who were investigating the murder
"constituted reasonable suspicion that Stewart had been
involved in criminal activity." Id. at *4. The
court of appeals concluded, therefore, that the trial court
did not err by denying Stewart's motion to suppress the
reaching its ultimate conclusion, the state court of appeals
observed that "[t]he detaining officer need not be
personally aware of every fact that objectively supports a
reasonable suspicion to detain; rather, the cumulative
information known to the cooperating officers at the time of
the stop is to be considered in determining whether
reasonable suspicion exists." Id. at *2
(quoting Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2 011)). This is consistent with Fourth
Amendment jurisprudence from the United States Supreme Court,
which has held that an officer is permitted to make an
investigatory stop based upon a police bulletin that has been
issued on the basis of articulable facts supporting a
reasonable suspicion that the person has committed an
offense. See United States v. Hensley, 105 S.Ct.
675, 682 (1985); see also United States v. Ibarra -
Sanchez, 199 F.3d 753, 759-60 (5th Cir. 1999) (upholding
a traffic stop and search by officers acting on a police
dispatcher's bulletin under the "collective
knowledge" doctrine) (citations omitted); United
States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999)
(noting that "an alert or BOLO report may provide the
reasonable suspicion necessary to justify an investigatory
facts outlined by the state court of appeals are presumed
correct for purposes of federal habeas corpus review, 28
U.S.C. § 2254(e) (1), and are supported by the record.
As noted above, the BOLO was issued after a witness (Jessica
Greeno) identified Stewart from surveillance footage of the
offense as the man who robbed her at gunpoint and provided
the license plate number of the car he was driving, which was
off by one number, but otherwise matched a Lincoln that was
seen parked next to a dumpster where the stolen Exxon store
cash drawer was found. Based on this information and the
suspicions formed by Detective Junek, the BOLO was issued for
Stewart and the vehicle, advising patrol officers that the
passengers were wanted for questioning in connection with the
robbery and murder at the Exxon. Stewart does not
demonstrate that the information provided was unreliable or
insufficient to establish a reasonable suspicion for the
vehicle stop. See Hensley, 105 S.Ct. at 682;
Gonzalez, 190 F.3d at 672-73. Stewart does not
otherwise show that the state court's decision to reject
his Fourth Amendment claims was contrary to, or involved an
unreasonable application of, clearly established Supreme
Court precedent. Accordingly, Stewart fails to show that he
is entitled to federal habeas corpus relief on any of his
allegations arising under the Fourth Amendment (Claims 2, 3,
Sufficiency of the Evidence (Claim 4)
contends that the evidence was insufficient to support his
conviction for capital murder because the State failed to
prove that he "specifically" and
"intentionally" caused the victim's death as
charged in the indictment. On habeas
corpus review of a state court conviction, a challenge to the
legal sufficiency of the evidence is governed by Jackson
v. Virginia, 99 S.Ct. 2781 (1979), which reflects the
federal constitutional due process standard. See In re
Winship, 90 S.Ct. 1068, 1073 (1970) ("[T]he Due
Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which he is charged.").
This standard requires only that a reviewing court determine
"whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson, 99 S.Ct.
at 2789 (emphasis in original).
Supreme Court has emphasized "that Jackson
claims face a high bar in federal habeas proceedings because
they are subject to two layers of judicial deference."
Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per
curiam) . A federal habeas corpus court questions only
whether the state court's assessment of the
already-strict Jackson standard was unreasonable.
See 28 U.S.C. § 2254(d)(1). Together,
Jackson and the AEDPA require a "double dose of
deference that can rarely be surmounted." Boyer v.
Belleque, 659 F.3d 957, 964 (9th Cir. 2011).
conducting its review under this doubly deferential standard,
the court looks to the last reasoned state judgment that
considered and rejected the petitioner's federal claim.
See Ylst v. Nunnemaker, 111 S.Ct. 2590, 2594 (1991).
That judgment was issued by the intermediate court of
appeals, which set forth the elements of the offense and
concluded that there was sufficient evidence to support
Stewart's capital murder conviction as charged under the
Texas law of parties:
A person commits capital murder if he intentionally causes
the death of an individual while in the course of committing
or attempting to commit robbery. Tex. Pen. Code Ann. §
19.03(a)(2) (West 2011); Johnson v. State, 853
S.W.2d 527, 535 (Tex. Crim. App. 1992), cert,
denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115
(1993); Frank v. State, 183 S.W.3d 63, 72 (Tex. App.
- Fort Worth 2005, pet. ref'd). The law of parties
applies to the offense of capital murder. Johnson,
853 S.W.2d at 534; Frank, 183 S.W.3d at 72.
Under the law of parties, "[a] person is criminally
responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for
which he is criminally responsible, or by both." Tex.
Pen. Code Ann. § 7.01(a); Frank, 183 S.W.3d at 72. A
person is "criminally responsible" for an offense
committed by the conduct of another, if acting with intent to
promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other
person to commit the offense. Tex. Pen. Code Ann. §
7.02(a)(2); Frank, 183 S.W.3d at 72. Evidence is
sufficient to convict under the law of parties when the
defendant is physically present at the commission of the
offense and encourages its commission by words or other
agreement. Ransom v. State, 92 0 S.W.2d 288, 302
(Tex. Crim. App.) (op. on reh'g), cert, denied,
519 U.S. 1030, 117 S.Ct. 587, 136 L.Ed.2d 516 (1996);
Frank, 183 S.W.3d at 72-73. In determining whether a
defendant participated in an offense as a party, the
factfinder may examine the events occurring before, during,
and after the commission of the offense and may rely on
actions of the defendant that show an understanding and
common design to commit the offense. Ransom, 920
S.W.2d at 302; Cordova v. State, 698 S.W.2d 107, 111
(Tex. Crim. App. 1985), cert, denied, 476 U.S. 1101,
106 S.Ct. 1942, 90 L.Ed.2d 352 (1986); Frank, 183
S.W.3d at 73.
Further, section 7.02(b) of the penal code provides that
[i]f, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it, if
the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a
result of the carrying out of the conspiracy.
Tex. Pen. Code Ann. § 7.02(b).
The jury was instructed that it could find Stewart guilty of
capital murder in any of three different ways: (1) as a
principal; (2) as a party under section 7.02(a)(2) of the
Texas Penal Code; and (3) as a co-conspirator under section
7.02(b) of the Texas Penal Code. The jury returned a general
verdict; therefore, if the evidence is sufficient to support
a guilty finding under any of the allegations submitted, we
must uphold the jury's guilty verdict. Sorto v.
State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005) .
Stewart's complaint is limited to whether the evidence
was sufficient to show that his accomplice had the specific
intent to kill the victim. Therefore, our analysis and
discussion of the facts will be limited to that issue.
Intent is most often proven through the circumstantial
evidence surrounding the crime. See Sholars v.
State, 312 S.W.3d 694, 703 (Tex. App. - Houston [1st
Dist.] 2009, pet. ref'd). Intent to kill may be inferred
from the use of a deadly weapon unless it would not be
reasonable to infer that death or serious bodily injury could
result from the use of the weapon. See Ross v.
State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992). If a
deadly weapon is used in a deadly manner, the inference is
almost conclusive that the defendant intended to kill.
See Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim.
App. 1986) .
Stewart's accomplice, Joshua Evans, entered an Exxon in
College Station to rob it armed with a loaded .22 caliber
revolver. Stewart entered approximately ten seconds after
Evans. Kinny, the victim, was a clerk at the store. The
security camera footage showed that Evans pointed the
revolver at Kinny when he saw Kinny. Kinny advanced toward
Evans holding his hands up. Evans pulled the revolver to his
side, with Kinny still coming toward him. When Kinny was
close to Evans, Evans raised the revolver again and pointed
it toward Kinny. Evans and Kinny scuffled and at some point,
Kinny was shot by Evans. Kinny continued scuffling with Evans
until he collapsed.
Stewart claimed that Kinny collapsed on top of Evans, and in
an effort to get Kinny off of Evans, he may have
"poked" Kinny with the knife he was carrying. Kinny
suffered two stab wounds to his back, one of which was 2
inches deep, which the medical examiner believed ...