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Taylor v. Davis

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

April 19, 2019

EUGENE HARRIS TAYLOR, 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, Eugene Harris Taylor, 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

         On July 7, 2011, a jury in Tarrant County, Texas, No. 1178601D, found Petitioner guilty of indecency with a child by contact, assessed his punishment at eight years' confinement, and recommended that the sentence be suspended. SHR-02[1] 116, 159, ECF No. 21-40. The trial court sentenced Petitioner accordingly and suspended his sentence for ten years. Id. The trial court's judgment of conviction by the jury was affirmed on appeal and the Texas Court of Criminal Appeals refused Petitioner's petition for discretionary review. Docket Sheet 1-2, ECF No. 21-2. The state subsequently petitioned the trial court to revoke Petitioner's community supervision and, on November 2, 2015, following a contested revocation hearing, the court revoked Petitioner's community supervision and assessed his punishment at the original eight-year sentence. SHR-02 117, 199, ECF No. 21-40. The trial court's judgment revoking community supervision was affirmed on appeal and the Texas Court of Criminal Appeals denied Petitioner's petition for discretionary review. Electronic R. 1, ECF No. 21-26. Petitioner also challenged the judgment revoking community supervision 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. SHR-01 Action Taken, ECF No. 21-38.

         On appeal, Petitioner argued, among other things, that the trial court abused its discretion by revoking his community supervision, and the appellate court addressed the matter as follows:

[Petitioner] argues that the trial court abused its discretion by revoking his community supervision. We review an order revoking community supervision for an abuse of discretion. A trial court abuses its discretion when it makes a decision that lies outside the zone of reasonable disagreement.
In a revocation hearing, the State must prove by a preponderance of the evidence that the defendant violated at least one of the terms and conditions of community supervision as alleged in the petition to revoke. “The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and we review the evidence in the light most favorable to the trial court's ruling. A trial court does not abuse its discretion by revoking probation upon proof of a single violation, regardless of evidence that the probationer otherwise fulfilled the conditions.
In its revocation petition, the State alleged, [D]uring the effective period of . . . community supervision, [Petitioner] violated the terms and conditions set by the Court as follows:
1. SEX OFFENDER TREATMENT: [Petitioner] was ordered to submit to sex offender treatment evaluation as directed by the supervision officer. As recommended by the evaluation, attend and participate fully in and successfully complete psychological counseling, treatment, and aftercare sessions for sex offenders with an individual or organization as specified by or approved by the Court or the supervision officer. . . . Treatment must be completed within three years of its initiation, with at least one-third of treatment completed each year.
In violation of this condition, [Petitioner] was suspended from sex offender treatment on or about June 29, 2015.
2. SEX OFFENDER TREATMENT: [Petitioner] was ordered to submit to sex offender treatment evaluation as directed by the supervision officer. . . .
In violation of this condition, [Petitioner] failed to complete one-third of sex offender treatment within one year of its initiation.
3. SEX OFFENDER TREATMENT: [Petitioner] was ordered to submit to sex offender treatment evaluation as directed by the supervision officer. . . .
In violation of this condition, [Petitioner] failed to complete two-thirds of sex offender treatment within two years of its initiation.
4. CONTACT WITH CHILDREN: [Petitioner] was ordered to have no contact with any child under 17 years of age unless a chaperone approved by the Court or supervision officer is present.
In violation of this condition, [Petitioner] had contact with a child under 17 years of age without a [chaperon] approved by the court or supervision officer present on or before November 13, 2014.
[Petitioner] pled not true to each of these allegations, but after considering the parties' presentation of evidence, the trial court found the second through fourth allegations to be true. The evidence supports the trial court's findings. Jennifer Aguilar, [Petitioner]'s probation officer, testified that [Petitioner] had been placed in a county-approved sex offender treatment program and had attended that program for nineteen months. But according to Aguilar, although that program required [Petitioner] to complete thirty goals at a rate of ten per year, he completed only six in the nineteen months. Because [Petitioner] was “way behind” in completing the program and because he was dissatisfied with aspects of the program, a judge allowed him to switch treatment providers. [Petitioner] spent several months working with the second treatment provider but completed few goals. His second treatment provider eventually suspended him from the program because his probation officer said that [Petitioner] had been taking pictures of children and peeping in adults' windows. Thus, the evidence demonstrates that [Petitioner] did not complete one-third of his sex offender treatment within a year of its initiation or complete two-thirds of the treatment within two years, just as the State alleged in its revocation petition. Viewing the evidence in the light most favorable to the trial court's revocation decision, we conclude that the trial court did not abuse its discretion by finding that he violated a term of his community supervision-completing at least one-third of his sex offender treatment each year-and by revoking his community supervision.
. . .

Mem. Op. 4-7, ECF No. 21-20 (citations omitted).

         II. ISSUES

         In seven grounds for relief, Petitioner claims he received ineffective assistance of trial counsel during the revocation proceedings because counsel failed to--

(1) object to inadequate notice as to the alleged violations of his community supervision;
(2) investigate the Counsel on Sex Offender Treatment's “standards relative to ‘goals' and polygraphs, including consulting an expert on sex offender treatment”;
(3) subpoena probation officers and his therapist;
(4) “establish the connection between ‘goals' and polygraphs”;
(5) raise a “contractual waiver of performance defense”;
(6) impeach “state witnesses' bias and motive to revoke him”; and
(7) challenge his revocation as “being [an] unconstitutional penalty for exercising his right to religious freedom and practice.”

Pet.6-7.1, ECF No. 1.

         III. RULE 5 STATEMENT

         Respondent believes that Petitioner has exhausted his claims in state court and that the petition is neither successive nor ...


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