United States District Court, E.D. Texas, Sherman Division
TIMOTHY G. KALLA, #01600000
ORDER OF DISMISSAL
L. MAZZANT UNITED STATES DISTRICT JUDGE.
Timothy G. Kalla, a prisoner confined in the Texas prison
system, filed the above-styled and numbered petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petition was referred to United States Magistrate Judge
Christine A. Nowak, who issued a Report and Recommendation
(Dkt. #14) concluding that the petition should be denied.
Kalla has filed objections (Dkt. #17).
is challenging his Collin County conviction for two counts of
aggravated sexual assault of a child and two counts of
indecency with a child/contact. On September 18, 2009, after
a jury trial, he was sentenced to twenty years of
imprisonment for each aggravated sexual assault of a child
offense and two years of imprisonment for each indecency with
a child/contact offense, with the sentences running
concurrently. The conviction was affirmed. Kalla v.
State, No. 05-09-01243-CR, 2011 WL 489929 (Tex. App. -
Dallas Feb. 14, 2011, pet. ref'd). On September 14, 2016,
the Texas Court of Criminal Appeals denied his application
for a writ of habeas corpus based on the trial court's
findings, after a hearing.
present petition for a writ of habeas corpus was filed on
June 30, 2016. Kalla argues he is entitled to federal habeas
corpus relief based on ineffective assistance of counsel. On
pages twelve through seventeen of his memorandum (Dkt. #3),
Kalla lists eighteen instances where he believes his attorney
was ineffective. For the most part, he went no further than
list his ineffective assistance of counsel claims with little
or no development. The Magistrate Judge thoroughly addressed
each of the claims and found that they lack merit.
objections, Kalla focuses on what he perceives to be the most
egregious examples of ineffective assistance of counsel. He
claims that much of the evidence presented at trial consisted
of witnesses expressing opinions that the child was truthful
and the witnesses believed the child's story. For
example, District Attorney Investigator Bill Lanier testified
“there's several points in the [child's]
interview I saw things that lent credibility, when she's
telling her events to the interviewer, that she actually went
through this event with Mr. Kalla.” 3 RR 42. Lanier
continued by saying that, based on the way the child told the
story in the interview, he “felt like she was
describing something she had experienced.” 3 RR 43-44.
Lanier also testified that at the conclusion of the
child's forensic interview, he “had sufficient,
reliable information to understand that crimes had occurred
and exactly what crimes had occurred.” 3 RR 56. Child
Protective Services caseworker Madeline Gilliard provided
similar testimony: “She is a very strong little girl.
She -- and she's truthful, and she went through a lot
even.” 5 RR 50. Kalla alleges that his attorney was
ineffective for failing to object to these statements that
purportedly were a direct comment on the truthfulness of the
order to obtain relief based on ineffective assistance of
counsel, Kalla must show that attorney's representation
was deficient and that he was prejudiced by such deficient
representation, as required by Strickland v.
Washington, 466 U.S. 668, 687 (1984). Under Texas law,
expert witnesses are prohibited from testifying that a
particular person or class of persons is credible, but they
are allowed to testify that a particular victim exhibited
symptoms or behaviors consistent with sexual abuse. See
Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App.
1993); Yount v. State, 872 S.W.2d 706, 708 (Tex.
Crim. App. 1993). An expert may also testify about whether
the victim shows signs of manipulation or coaching.
Schutz v. State, 957 S.W.2d 52, 69 (Tex. Crim. App.
1997). They are only prohibited from testifying that a
witness is truthful or telling the truth. Yount, 872
S.W.2d at 709. A direct opinion as to the truthfulness of a
witness “crosses the line” under Rule 702 since
“it decides an issue for the
jury.” Id. (emphasis in original). It is the
role of the jury to draw conclusions about the credibility of
a witness. Id. at 710. “[F]oundation evidence
regarding child sexual abuse” is admissible and any
objection by defense counsel to such a line of questioning is
properly overruled. Oliver v. State, 32 S.W.3d 300,
303-04 (Tex. App. - San Antonio 2000, pet. ref'd).
present case, Kalla's complaints were thoroughly
considered in the state habeas corpus proceedings. After
considering all of the evidence before it, the trial court
made the following findings with respect to the ineffective
assistance of counsel claims involving Lanier's
Counsel's representation was not deficient in failing to
object to testimony from Sgt. Billy Lanier of the Collin
County Sheriff's Department (Subissues 1-6 and 18):
a) Expert witnesses may not testify that a particular person
is credible, but they may testify that a particular victim
does or does not exhibit symptoms and behaviors consistent
with sexual abuse, manipulation, or coaching. Schutz v.
State, 957 S.W.2d 52 (Tex. Crim. App. 1997); Yount
v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).
b) Sgt. Lanier did not state that he believed A.D., the
alleged victim, was telling the truth. Rather, he described
the process and procedure of the criminal investigation and
factors used to evaluate whether a child was being coached or
manipulated, both in general terms and specifically as
applied to A.D.'d forensic interview and his interactions
with A.D.'s mother Melissa.
c) Sgt. Lanier's testimony was within the bounds of
Yount and Schutz and did not amount to an
improper comment on A.D.'s credibility.
d) Throughout the trial, counsel showed a strategy to cast
A.D. as a liar and establish her mother had manipulated and
coached her into the allegations. He also attempted to show
through cross-examination of Sgt. Lanier that the police did
not conduct an adequate investigation and simply believed
A.D.'s outcry. This was reasonable trial strategy.
e) Choosing not to object to Sgt. Lanier's testimony
could be part of counsel's reasonable trial strategy and
accordingly was not deficient.
SHCR 114-15. The trial court went on to find that Kalla had
not shown that counsel's representation was deficient in
any way or that the results of the proceeding would have been
different but for ...