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Mayes v. Davis

United States District Court, N.D. Texas, Fort Worth Division

April 1, 2019

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         This is 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 History

         On 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.)

         Petitioner 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 Taken.[1])

         The 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 passenger seat.
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. . . .

         (Mem. Op. 2-6 (footnotes omitted).)

         II. Issues

         Petitioner 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 ...

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