United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Petitioner Marc
Wyatt's Application for Writ of Habeas Corpus
[HI], the United States Magistrate Judge's
Report and Recommendation [#18], and Wyatt's Objections
[#24] thereto. Having reviewed the documents, the governing
law, and the file as a whole, the Court now enters the
following opinion and orders.
April 26, 2012, Eugene Fitzpatrick, a manager at a Tractor
Supply Company store in Giddings, Texas, arrived at work and
noticed the air conditioning was not cooling the building.
Resp. [#12] at 6. Later that day, Fitzpatrick looked up at
the store's roof where the air conditioning units were
located and noticed the units appeared to be damaged.
Id. at 6-7. He then accessed the roof to investigate
the damage and found that someone had removed aluminum coils
and copper tubing from the units. Id. at 7. The
night before, Fitzpatrick had received an alert from the
store's security system indicating something was amiss.
Id. at 6. Fitzpatrick concluded someone had stolen
the coils and tubing and reported the crime to the Giddings
police department. Id. at 7.
officers Jimmy Webber and Landis Lehman and detective Steve
Spencer arrived to investigate the scene, where they
discovered foot prints, drag marks, screws, and pieces of
sheet metal. Id. They also found a boot print on a
wall near a pole running up the side of the building, the
impression of the sole of a shoe, and the imprint of the seat
of a pair of jeans. Id. Shortly after photographing
the scene, Spencer, Webber, and Landis returned to the police
station. See Id. at 8.
station, Spencer spoke to Officer Derick Griffin, a patrol
sergeant who had been on duty near the store during the early
hours of April 26. Id. at 7. Griffin told Spencer
that he had observed a truck parked near the store at 2:36
a.m. Id. at 7-8. Griffin had approached the truck,
which was unoccupied, and noted that the hood felt somewhat
warm, indicating that the vehicle had been recently used.
Id. at 8. Griffin also observed a set of power tools
inside the truck. Id. Spencer subsequently
discovered the truck's owner was Petitioner Marc Wyatt.
investigation revealed Petitioner had used the truck to
transport aluminum and copper, which Petitioner sold to a
scrap metal yard in Austin, Texas at 9:13 a.m. on April 26.
Id. at 8, 10. After obtaining photographs of the
metal sold and speaking to the distributor of the air
conditioning units about what exactly was taken, Detective
Spencer believed the metal Petitioner sold was consistent
with the parts that had been removed from the store's air
conditioning units. Id. at 8. Spencer concluded
Petitioner stole the parts and obtained an arrest warrant for
interviewed Petitioner following his arrest. Id. at
9. During the interview, Petitioner admitted he owned the
truck Griffin had observed in the early morning of April 26.
Id. According to Petitioner, the truck was parked
near the store because he had run out of gas, and the truck
was empty because Petitioner had walked to a nearby gas
station to buy more gas. Id. The manager of the gas
station, however, stated that she did not see anyone buy gas,
and there were no records of any credit-card transaction at
any of the pumps near the time Petitioner claimed to have
purchased the gas. Id. The manager further stated
that she reviewed the security footage for the gas station on
the night of the crime and Petitioner did not appear in the
security footage. Id. Captain Earl Pence of the
Giddings police department also watched the security footage
and agreed that Petitioner did not appear in it. Id.
of his investigation, Detective Spencer obtained a pair of
jeans and a pair of shoes belonging to Petitioner from the
residence of Elisa Garza, Petitioner's then-girlfriend.
Id. Spencer compared the tread on Petitioner's
shoes and the seat on Petitioner's jeans to the imprints
left at the crime scene and concluded that the imprints were
consistent with Petitioner's shoes and jeans.
Id. Spencer later submitted the shoes and
photographs of the prints left at the crime scene-but not the
jeans-to the crime lab, where a forensic scientist determined
that some of the shoe prints left at the crime scene could
have been made by Petitioner's shoes or some other shoe
with a similar tread design. Id. at 9, 11.
Giddings police department also interviewed Cleofas Salas, an
employee of the scrap yard that purchased the aluminum and
copper sold by Petitioner, and Mike Stephens, an employee of
the company that built the store's air conditioning
units. Salas confirmed that Petitioner sold aluminum and
copper to the scrap metal yard and stated that he believed
the metals sold by Petitioner came from air conditioning
units. Id. at 10. Stephens told the police that he
believed the metals Petitioner sold on April 26 were taken
from the store's air conditioning units and noted that
the weight of the metals removed from the units was nearly
identical to the combined weight of the metal Petitioner sold
to the scrap metal yard. Id.
8, 2012, Petitioner was indicted on a charge of criminal
mischief causing a pecuniary loss of $20, 000 to $100, 000.
Id. at 5; see also R. & R. [#18] at 4.
"For enhancement purposes, the indictment also alleged
two prior felony convictions for felony theft and burglary of
a habitation." Resp. [#12] at 5. At a pretrial hearing,
where Petitioner was represented by counsel, the State
extended a plea offer of twenty years imprisonment, which
Petitioner rejected. State R. [#13-4] at 4-8.
trial, Petitioner did not testify in his defense. Pet. [#1]
at 3. At the close of the State's case, Petitioner's
counsel moved for a directed verdict, which the trial court
denied. State R. [#13-7] at 167. The jury found Petitioner
guilty of criminal mischief and found the enhancement
paragraphs to be true. Resp. [#12] at 5. Consistent with this
verdict, the jury sentenced Petitioner to eighty years in
prison and assessed a $5, 000 fine. State R. [#13-26] at 90.
The trial court further ordered Petitioner to pay $40, 995.61
in restitution. Id. at 99.
Petitioner was sentenced, "Petitioner's trial
counsel withdrew, and appellate counsel was appointed."
R. & R. [#18] at 5; see also State R. [#13-26]
at 95. In his appeal to the Third Court of Appeals,
Petitioner argued there was insufficient evidence to support
the finding that the value of the damaged property was
greater than $20, 000. R. & R. [#18] at 5. The appeals
court disagreed and affirmed the jury's verdict.
Wyatt v. State, No. 03-13-00307-CR, 2014 WL 7475488,
at *1 (Tex.App.-Austin Dec. 19, 2014, pet. ref d) (mem. op.).
The Texas Court of Criminal Appeals-Texas's court of last
resort for criminal cases-refused Petitioner's request
for discretionary review. State R. [#13-1].
December 8, 2015, Petitioner filed a state habeas petition.
See State R. [#13-25] at 6-119; see also R.
& R. [#18] at 5. The Court of Criminal Appeals denied
relief without written order on November 16, 2016. Resp.
[#12] at 6; see also State R. [#13-24]. On February
17, 2017, Petitioner filed a petition for federal habeas
relief, which was referred to Magistrate Judge Mark Lane
pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix
C of the Local Court Rules of the United States District
Court for the Western District of Texas, Local Rules for the
Assignment of Duties to United States Magistrate Judges. On
January 23, 2019, Magistrate Judge Lane issued a report and
recommendation denying all forty-one of ...