United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
NCBRYDE UNITED STATES DISTRICT JUDGE.
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, Kenneth Dewayne Mayes, a
state prisoner confined in the Correctional Institutions
Division of the Texas Department of Criminal Justice, against
Lorie Davis, director of that division, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied, I. Factual and Procedural
April 16, 2015, a jury in Parker County, Texas, No.
CR14-0818, found petitioner guilty of aggravated robbery and
assessed his punishment at 65 years' imprisonment and a
fine of $10, 000. (Clerk's R. 122.) Petitioner appealed,
but the Second District Court of Appeals of Texas affirmed
the trial court's judgment and the Texas Court of
Criminal Appeals refused his petition for discretionary
review. (Mem. Op. 12; Elec. R. 1.)
also filed two state habeas-corpus applications challenging
his conviction. The Texas Court of Criminal Appeals denied
the first without written order and dismissed the second as a
subsequent application under article 11.07, § 4 of the
Texas Code of Criminal Procedure. (SHR-01, Action
appellate court summarized the evidence at trial as follows:
At approximately 1:00 a.m. on September 30, 2014, Sherry
Trejo was driving to her home in Weatherford, Texas, on an
interstate highway. Trejo noticed a white passenger car
stopped on the service road, which was unusual. After Trejo
passed by, she noticed that the car began moving to get on
the interstate, pulled behind Trejo's car, and followed
her off the interstate when Trejo exited. When Trejo parked
her car at her apartment complex, the car she had seen on the
service road "came behind" her car but drove by. As
Trejo was getting some bags out of the front passenger seat,
she saw a "clean-cut," black man standing at the
front of her car, wearing jeans and a "maroon or
burgundy" solid shirt. The man asked to use her phone,
and Trejo handed her phone to him. The man then asked where
Trejo's purse was, Trejo told the man she did not have a
purse and then noticed that the man was holding a short,
silver revolver with a black handle. The man grabbed Trejo
and put the gun against her back. He took Trejo's credit
cards and cash-approximately $37-from her pockets and made
her kneel down. Trejo begged the man not to shoot her, to
which he replied, "Why would I do that?" The man
then ran away. Trejo's granddaughter, who lived with
Trejo and whose bedroom faced the parking lot, heard a car
door slam around this time. When she looked out the window,
she saw a white car-"like a white [Dodge]
Charger"-back out and drive off at a fast speed.
Trejo, meanwhile, had fled to her apartment and called the
police. Police officers on patrol in the area were alerted
that a robbery at gunpoint had occurred and to be on the
lookout for a black male driving a white Dodge Charger.
Shortly after 1:00 a.m. on September 30, 201.4, Officer
Willie Johnson of the Hudson Oaks Police Department was on
patrol about two miles from where the robbery occurred. He
heard the notification about the robbery and saw a white
Dodge Avenger leave the parking lot of a convenience store.
Johnson followed the car and saw it fail to stop at a stop
sign, put its right-turn signal on, stop in the middle of the
intersection, and then drive straight through the
intersection. Johnson radioed the car's license-plate
information to the police department and turned on the roof
lights of his marked patrol car to pull the Avenger over for
a traffic stop. The car pulled into another convenience store
parking lot, slowed down, but then sped off onto the service
road to get back on the interstate. Johnson saw that the
driver was a black man and that a woman was sitting in the
The Avenger led Johnson and other responding police officers
on a high-speed chase on the interstate, reaching speeds of
over 120 miles per hour. When the Avenger got off the
interstate in Fort Worth and entered a residential area,
still at a high speed, the pursuing officers ended the chase
for safety reasons. Approximately fifteen minutes after the
chase ended, Sergeant Steven Fineman with the Fort Worth
Police Department saw a car with the license plate of the car
that had evaded Johnson's traffic stop parked in a
driveway in the neighborhood where the car was last seen.
After determining that the car was not owned by anyone in the
house, Fineman found a black man-[petitioner]-and a young
woman-Jessica Toombs-hiding in the back yard of the house
next door. [Petitioner] was wearing a “multi-colored
striped shirt" and jeans. Officers handcuffed both, and
discovered a silver revolver, Trejo's credit cards, and
Trejo's driver's license in [petitioner]'s
pockets. Trejo's iPhone was found in a sock in the back
seat of the Dodge Avenger. Later, Trejo identified someone
from a photographic line-up with 60% certainty as the man who
robbed her, but it was not [petitioner].
A grand jury indicted [petitioner] with aggravated robbery by
intentionally or knowingly, while in the course of committing
theft of property, threatening or placing Trejo in fear of
imminent bodily injury or death and using or exhibiting a
deadly weapon. At trial, Toombs testified that on September
29, 2014, at around 10:30 p.m., [petitioner] drove to Dallas
and picked her up in a white "Charger or Avenger"
so they could "just driv[e] around and smok[e]"
synthetic marijuana. Toombs remembered that [petitioner] was
wearing a "dark red t-shirt, just a plain t-shirt"
that night. Toombs could not remember what shirt she was
wearing. Toombs feel [sic] asleep at some point and woke up
when [petitioner] pulled into a convenience store and told
her to put her seat belt on. Toombs then noticed "more
than one cop car" behind [petitioner]'s car.
[Petitioner] drove off quickly "trying to get away"
from the police. Toombs testified that after [petitioner] got
into a residential area and lost the police cars,
[petitioner] pulled the car into a driveway and told Toombs
to switch shirts with him, which she did. Before putting
Toombs's shirt on, [petitioner] "started wiping
stuff down in general" inside the car. Toombs stated
that the pair then got out of the car, went a few houses
down, jumped a fence, and sat on a back porch. When officers
began shining flashlights into the back yard, searching for
[petitioner], [petitioner] told Toombs to "move [her]
feet in." Toombs testified that although she knew
[petitioner] was "running" from the police and did
not tell him to stop, she denied encouraging him to evade the
officers. She also denied seeing a gun, but remembered
[petitioner] having an iPhone in a pink case that night.
After the State rested its case against [petitioner], he
orally moved for a directed verdict because "even the
complaining party has not been able to identify
[petitioner]." The trial court denied the motion. After
[petitioner] rested and both sides closed, [petitioner]
requested that the trial court include in the jury charge an
instruction on the lesser-included offense of "theft as
a result of receiving stolen property" and an
instruction on "the accomplice witness rule"
because Toombs was "as a matter of fact ... an
accomplice." The trial court denied both requests.
At the punishment phase of the trial, the State introduced
evidence of its enhancement allegation regarding
[petitioner]'s 2005 conviction for aggravated assault,
and [petitioner] pleaded true to the allegation. The owner of
the Dodge Avenger that [petition] drove while evading the
police testified that a black man stole her car at gunpoint
on September 29, 2014. . . .
Op. 2-6 (footnotes omitted).)
raises two grounds for relief, in which he claims that (1)
the evidence is insufficient to support his conviction and
(2) the trial court abused its discretion by denying his
timely request for an ...