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Hopper v. Davis

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

April 9, 2019

WILLIAM PRESTON HOPPER, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          OPINION AND ORDER

          REED O' CONNOR UNITED STATES DISTRICT JUDGE

         Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, William Preston Hopper, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         Petitioner was indicted in Hood County, Texas, No. CR12877, for continuous family violence with a deadly weapon, his hands. Clerk's R. 7, ECF No. 13-12. On October 28, 2014, a jury found Petitioner guilty of the offense and answered affirmatively to the “special issue” on a deadly weapon. Id. at 16-17, 20. Subsequently, Petitioner pleaded true to the enhancement and habitual-offender allegations in the indictment, and the trial court assessed his punishment at life imprisonment. Id. at 30. Petitioner's conviction was affirmed on appeal, as modified to reflect that the trial court assessed Petitioner's punishment, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Docket Sheet 1-2, ECF No. 13-2. Petitioner also challenged his conviction in a postconviction state habeas-corpus application, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court.[1] SHR-01 Action Taken, ECF No. 13-19.

         The state appellate court set forth the facts of the case as follows:

[Petitioner] was indicted with continuous violence against the family from October 1, 2013 to February 1, 2014, specifically against two of his girlfriends during this period: Sandra VanZant and Starla Green. The State alleged that [Petitioner] committed assault-intentionally, knowingly, or recklessly caused bodily injury to VanZant and Green-by hitting them in the head with his hands and by impeding their breathing with his hands. Based on these allegations, the State sought a finding that [Petitioner] “did use or exhibit a deadly weapon during the commission of the offense, to wit: said defendant's hands, that in the manner of its use or intended use was capable of causing death or serious bodily injury.”
Both Green and VanZant testified at trial. Green dated Hopper and experienced his violent nature. During arguments, [Petitioner] hit Green with his hands “on the side of the face or on the arm.” During one argument, [Petitioner] sat on top of Green and “put his hand over [her] mouth . . . and nose.” Green could not breathe and was afraid that she “wasn't going to live.” The struggle continued for approximately ninety seconds, and Green testified that she was in danger of losing consciousness. During a later argument, [Petitioner] dragged Green by her neck out of his truck where she fell to the ground. [Petitioner] picked her up by the neck again and took her into the house. This caused Green to have a “linear bruise” across her neck, which was consistent with [Petitioner]'s arm being around her neck. [Petitioner] also tried to “take [her] jaw off, rip it off” by pulling it down with his hands. Green had to use makeup to cover the bruises and cut lip that she received during this incident. This assault convinced Green she needed to leave [Petitioner] and to report him to the police. All of [Petitioner]'s assaults on Green occurred during a two- to three-week period between the dates alleged in the indictment.
VanZant began dating [Petitioner] after his relationship with Green ended. VanZant testified that [Petitioner] grabbed her around her neck twice between the dates alleged in the indictment. The first assault occurred while she and [Petitioner] were having an argument on the couch. [Petitioner] hit her on the side of her head with his fist. [Petitioner] continued hitting her and then sat on top of her, “grabbed” her by the throat, pinned her to the couch, and began “choking” her by putting both his hands around her throat with his thumbs to the front. He put “pressure” on her throat, and VanZant could not breathe for “a few seconds.” She believed she was going to die. While [Petitioner] was choking VanZant, his face was “wild” and “mad, ” and he called her a “stupid bitch.” After [Petitioner] released VanZant, he told her to “clean [herself] up.” VanZant saw that her mouth was bleeding and that her face was bruised and swollen.
The second assault happened on January 23, 2014, during a different argument at [Petitioner]'s house, which arose after [Petitioner] suspected VanZant had talked to the police after the first assault. [Petitioner] again hit VanZant in the head with his fist “a bunch” of times and then convinced VanZant to “go somewhere” in his truck. [Petitioner] was “very upset” and began to tell VanZant that he would do to her “what they did to people that were snitches.” When VanZant tried to roll down the window and call for help from passing motorists, [Petitioner] hit her again. [Petitioner] finally stopped the truck, removed VanZant from the truck, and began “punching” her. When VanZant could no longer stand, [Petitioner] pulled her back to the truck by her hair and “shoved” her into his truck in the floorboard. [Petitioner] sat on top of VanZant and began “choking” her by “squeezing [her] neck.” VanZant's arms went numb, her peripheral vision failed, and she began to black out. VanZant believed she was going to die. She finally was able to press her thumb into [Petitioner]'s eye until he released her. VanZant experienced nausea, vomiting, and shortness of breath after the attack and also had bruising on her neck and hemorrhages in her eyes.
A forensic nurse examiner, Tiffanie Dusang, testified as an expert on strangulation. She reviewed VanZant's medical records and pictures of her injuries after the January 23, 2014 assault and concluded that they were consistent with VanZant being strangled. Similarly, Green's injuries-bruising on her neck and jaw-were consistent with [Petitioner] using his hands on her neck and jaw as Green had testified. Dusang opined that a victim's estimates of how long such an episode occurred would not be reliable because it would be a “traumatic situation.” Dusang testified that a person could use his hands in a manner that is capable of causing death or serious bodily injury. Based on Green's and VanZant's testimonies, which Dusang heard, she concluded that [Petitioner] had used his hands as a deadly weapon during some of the assaults. The jury concluded that the manner in which Hopper had used or intended to use his hands was capable of causing death or serious bodily injury.

         Mem. Op. 3-6, ECF No. 13-3 (citations omitted).

         II. ISSUES

         In four grounds for relief, Petitioner raises the following claims:

(1) he was denied effective assistance of trial counsel due to counsel's failure to--
(a) obtain funds from the court prior to trial in order to hire a qualified forensic expert in the field of manual asphyxiation and strangulation to act as a rebuttal witness to controvert the testimony of the state's expert;
(b) interview all potential witnesses for both phases of trial based on the list provided by Petitioner;
(c) object and/or request a curative instruction and move for a mistrial to the state's improper argument on Petitioner's failure to testify;
(d) interview or call Petitioner's parents to testify on his behalf during the punishment phase; and
(e) object to the state's improper argument on matters outside the record;
(2) he was denied effective assistance of appellate counsel because counsel presented issues that were not properly ...

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