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Tuckness v. Davis

United States District Court, N.D. Texas, Amarillo Division

March 22, 2019

TY ALAN TUCKNESS, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2254

          LEE ANN RENO UNITED STATES MAGISTRATE JUDGE

         Before the Court is the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 filed by petitioner TY ALAN TUCKNESS, a state prisoner represented by legal counsel, challenging his state convictions and sentences out of the 47th Judicial District Court of Potter County, Texas. For the following reasons, petitioner's application for federal habeas corpus relief should be DENIED.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         On April 20, 2011, in Cause No. 63, 052-A, petitioner was charged by Indictment with the 1st degree felony offense of aggravated sexual assault of a child in violation of Texas Penal Code § 22.021(a)(1)(B)(iii), (2)(B). Specifically, it was alleged that on or about February 2, 2011, Petitioner:

[D]id then and there intentionally and knowingly cause the sexual organ of [J.H.], a child who was then and there younger than 14 years of age, to contact the mouth of another person, namely [petitioner].

[ECF 7-4 at 20]. That same date, petitioner was charged by separate Indictment, in Cause No. 63, 053-A, with an additional 1st degree felony offense of aggravated sexual assault of a child in violation of Texas Penal Code § 22.021(a)(1)(B)(i), (2)(B). Specifically, it was alleged that on or about February 2, 2011, petitioner:

[D]id then and there intentionally and knowingly cause the penetration of the female sexual organ of [J.H.], a child who was then and there younger than 14 years of age, by the [petitioner's] finger.

[ECF 8-1 at 18]. Each Indictment alleged a prior final felony conviction for delivery of a controlled substance for purposes of enhancing petitioner's minimum punishment.

         On May 23, 2012, after a consolidated trial, petitioner was convicted by a jury of both counts of aggravated sexual assault as alleged in each Indictment. [ECF 7-8 at 16, 8-4 at 11]. On May 24, 2012, the jury sentenced petitioner to fifty years confinement for each count.[1] [ECF 7-8 at 20, 8-4 at 15]. On June 1, 2012, the trial court signed the Judgment of Conviction in each case, ordering petitioner's sentences to run concurrently. [ECF 7-8 at 27, 7-9 at 1, 8-5 at 3-4].

         Petitioner, represented by new appointed counsel, appealed his convictions and sentences asserting, as relevant to this proceeding, that the evidence was legally insufficient to prove petitioner knew the victim was under 14 years of age at the time he sexually assaulted her so as to prove petitioner committed the offense of aggravated sexual assault. Tuckness v. State, No. 07-12-00235-CR, 07-12-00236. [ECF 8-18].

         On November 21, 2013, in addressing petitioner's sufficiency of the evidence ground, the Seventh Court of Appeals of Texas noted petitioner did not contest the general sufficiency of the evidence to sustain the jury's verdicts against him; rather, he contested the sufficiency of the evidence as to only one matter: whether the evidence was sufficient for the State to prove petitioner knew the victim was younger than 14-years-old at the time he committed the sexual assault offense. [ECF 8-20 at 4]. The court noted that to prove the offense of aggravated sexual assault, the State had to present evidence that (1) petitioner; (2) intentionally or knowingly; (3) caused the penetration of the anus or sexual organ of a child by any means; or caused the sexual organ of a child to contact or penetrate the mouth, anus or sexual organ of another person, including the actor; and (4) that the child was younger than 14 years of age. Tex. Penal Code Ann. 22.021(a)(1)(B)(i), (iii), (2)(B) (2011). [ECF 8-20 at 4-5].

         The intermediate appellate court held that from its review of the Texas Penal Code provisions involved in the case, “there [was] no requirement that the State prove that [petitioner] knew that [J.H.] was younger than 14 years old” and found such a determination was “the consistent holding of the courts in Texas.” [ECF 8-20 at 5]. The court noted the state legislature had the prerogative to define and punish acts as criminal, including the prerogative to create strict liability crimes where there is an “overriding governmental interest in promoting the health, safety, and welfare of its citizens, ” and that the authority of the legislature had been consistently upheld. The court thus found the State was not required to prove petitioner knew the victim was a child younger than 14-years-old when he sexually assaulted her in order to be guilty of the offense of aggravated sexual assault and overruled petitioner's legal insufficiency claim. After reforming the trial court's judgment to delete a provision not relevant to this proceeding, the intermediate appellate court affirmed the trial court's judgment as reformed. [ECF 8-20 at 9].

         Petitioner, represented by the same appellate counsel, sought review of the state intermediate appellate court's determination that knowledge that the victim is under 14 years of age is not an element of the Texas aggravated sexual assault statute and, therefore, the evidence was sufficient to support petitioner's conviction, by filing a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals. [ECF 9-7]. On April 1, 2015, that court refused petitioner's PDR. Tuckness v. State, No. PD-0185-14, PD-0186-14. [ECF 7-1].

         Petitioner, represented by the same appellate counsel, sought collateral review of his convictions by filing petitions for state habeas corpus relief alleging grounds of ineffective assistance of trial counsel. [ECF 9-9 at 5-42; 9-11 at 5-42]. On April 25, 2016, the state trial court entered Findings of Fact and Conclusions of Law finding trial counsel was not ineffective. [ECF 9-9 at 56-61, 9-11 at 57-62]. On May 11, 2016, petitioner's applications were dismissed as noncompliant with state appellate rules. In re Tuckness, No. 85, 006-01, -02. [ECF 9-8, 9-d10]. Petitioner, through counsel, again sought collateral review of his convictions by re-filing his petitions for state habeas relief. [ECF 9-13 at 5-15; 9-15 at 5-15]. On August 24, 2016, the Texas Court of Criminal Appeals denied petitioner's applications without written order based on the findings of the trial court without a hearing. In re Tuckness, No. 85, 006-03, -04. [ECF 9-12, 9-14].

         On August 30, 2016, petitioner, represented by the same legal counsel, filed the instant application for ...


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