United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE.
William Pond, seeks habeas corpus relief under 28 U.S.C.
§ 2254, challenging a conviction in the 359th Judicial
District Court of Montgomery County, Texas. Respondent filed
an answer, which this court converts to a motion for summary
judgment,  (Docket Entry No. 13), and copies of the
state court record. Pond has filed his response. (Docket
Entries Nos. 18 & 20). The threshold issue is whether
Pond has presented meritorious grounds for federal habeas
was indicted for two counts of aggravated sexual assault of a
child. He pled not guilty and requested a jury trial. The
jury deadlocked on March 31, 2008 and the trial court
declared a mistrial. (Docket Entry No. 6-11, p. 11). The
State retried him. A jury found Pond guilty of the felony
offense of aggravated sexual assault of a child. (Cause
Numbers 06-04-3788I-CR and 06-04-3788II-CR). On October 12,
2009, the jury sentenced Pond to a sixty-year prison term on
each count, to be served concurrently. The Ninth Court of
Appeals of Texas affirmed Pond's conviction on June 15,
2011. Pond v. State, No. at 09-09-00483-CR, 2011 WL
2420828 (Tex. App. -Beaumont [9th Dist.] 2011, pet. ref
d)(not designated). The Texas Court of Criminal Appeals
refused Pond's petition for discretionary review on
November 9, 2011. Pond filed an application for state habeas
corpus relief on February 5, 2013, which the Texas Court of
Criminal Appeals denied without written order, on findings of
the trial court, without a hearing on May 1, 2013. (Docket
Entry No. 6-40, Ex parte Pond, Application No. 79,
267-01 at 2).
the assistance of counsel, Pond filed this federal petition
on May 3, 2013. Pond contends that his conviction is void for
the following reasons:
trial court violated Pond's due process and confrontation
rights by excluding testimony that the complainant's
mother encouraged her to make a sexual assault allegation
Trial counsel, Stephen Jackson, rendered ineffective
assistance by failing to:
a. file a motion in limine and object to opinion testimony
that the complainant was credible;
b. object to inadmissible opinion testimony that Pond used
fear and intimidation to keep the complainant quiet;
c. object to the court's improper comment on the weight
of the evidence;
d. file a motion in limine and object to a witness referring
to the complainant as the victim; and
e. call the complainant's brother as a witness to testify
that his mother told him that Pond had sexually abused him;
Appellate counsel, Judith Shields, rendered ineffective
assistance by failing to:
a. brief the issue that the trial court erred in allowing the
prosecutor to use argument and inflammatory language towards
Pond during cross-examination; and
b. brief the issue that the trial court a lowed a witness to
testify for the State about the national problem of child sex
(Docket Entry No. 1, Petition for Writ of Habeas Corpus, p.
The Applicable Legal Standards
Court reviews Pond's petition for writ of habeas corpus
under the federal habeas statutes, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U.S.C. § 2254; Woods v. Cockrell,
307 F.3d 353, 356 (5th Cir. 2002); Nobles v.
Johnson, 127 F.3d 409, 413 (5th Cir. 1997), citing
Lindh v. Murphy, 521 U.S. 320 (1997).
2254(d)(1) and (2) of AEDPA sc: out the standards of review
for questions of fact, questions of law, and mixed questions
of fact and law that result in an adjudication on the merits.
An adjudication on the merits "is a term of art that
refers to whether a court's disposition of the case is
substantive, as opposed to procedural." Miller v.
Johnson, 200 F.3d 274, 281 (5th Cir. 2000). A
state-court determination of questions of law and mixed
questions of law and fact is reviewed under 28 U.S.C. §
2254(d)(1) and receives deference unless it "was
contrary to, or involved an unreasonable application of
clearly established Federal law, as determined by the Supreme
Court of the United States." Hill v. Johnson,
210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is
"contrary to" Supreme Court precedent if: (1) the
s:ate court's conclusion is "opposite to that
reached by [the Supreme Court] on a question of law" or
(2) the "state court confronts facts that are materially
indistinguishable from a relevant Supreme Court
precedent" and arrives at an opposite result.
Williams v. Taylor, 120 S.Ct. 1495 (2000). A state
court unreasonably applies Supreme Court precedent if it
unreasonably applies the correct legal rule to the facts of a
particular case, or it "unreasonably extends a legal
principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply."
Id. at 1495. Questions of fact found by the state
court are "presumed to be correct. .. and [receive]
deference . . . unless it 'was based on ar unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.'" Hill, 210
F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)).
court's factual findings are entitled to deference on
federal habeas corpus review and are presumed correct under
section 2254(e)(1) unless the petitioner rebuts those
findings with "clear and convincing evidence."
Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir.
2006) (citing Hughes v. Dretke, 412 F.3d 582, 589
(5th Cir. 2005) and 28 U.S.C. § 2254(e)(1)). This
deference extends not only to express findings of fact, but
to the implicit findings of the state court as well.
Garcia, 454 F.3d at 444-45 (citing Summers v.
Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Young v.
Dretke, 356 F.3d 616, 629 (5th Cir. 2004)).
"[a]s a general principle, Rule 56 of the Federal Rules
of Civil Procedure, relating to summary judgment, applies
with equal force in the context of habeas corpus cases,"
Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.),
cert, denied, 531 U.S. 831 (2000), the rule applies
only to the extent that it does not conflict with the habeas
rules. Section 2254(e)(1) - which mandates that findings of
fact made by a state court are "presumed to be
correct" - overrides the ordinary rule that, in a
summary judgment proceeding, all disputed facts must be
construed in the light most favorable to the nonmoving party.
Unless the petitioner can "rebut[ ] the presumption of
correctness by clear and convincing evidence" as to the
state court's findings of fact, those findings must be
accepted as correct. Smith v. Cockrell, 311 F.3d
661, 668 (5th Cir. 2002).
Statement of Facts
Ninth Court of Appeals summarized:he evidence at trial as
On February 26, 2006, officers with the Montgomery County
Sheriffs Department responded to a 9-1-1 call by Toni Pain
alleging a sexual assault. When Officer Gerald Bruce arrived
at the scene Pain was "upset" and told him that she
had arrived home from the store and found her husband, Pond,
on tcp of her young daughter. Pain told Bruce that they were
under a blanket and that Pond got up "fixing his
pants" and went into the bathroom. Pain told Bruce that
her daughter, A.P., who was eight years old at the time of
the alleged assault, "pulled up her underwear and her
pants." Pain further told Bruce that when Pain
confronted Pond he admitted that he had been sexually
assaulting A.P. "for six months."
Bruce testified that Pain indicated that Pond had fled the
residence when she called the police. A.P. was not at the
residence when Bruce arrived and he advised Pain that A.P.
needed to be brought back to the residence. Police gathered
evidence at the scene including the blanket that A.P. and
Pond had been under, the pants Pond was wearing at the time
of the assault, and the shorts and panties A.P. was wearing
at the time of the assault. Police were unable to locate
Pond. After speaking with the responding officers, Pain took
A.P. to the hospital to be examined.
At the time of trial, A.P. was twelve years old. A.P.
testified that on February 26, 2006, she was eight years old.
A.P. stated that she did not recall how old she was the first
time that her stepfather sexually assaulted her. A.P.
testified that Pond touched her privates "with his
private." She further testified that Pond touched the
inside of her bottom with his private. A.P. did not tell her
mom because she was scared. A.P. stated that the first time
Pond assaulted her he told her not to tell anyone. A.P.
explained that the assaults happened "a lot" at the
"old house." A.P. also stated that at some point
the abuse started happening again after they moved to the
trailer on Fire Tower Road. A.P. told the jury that the
assaults occurred in her room, her mom's room, and on the
couch in the living room. A.P. explained that Pond would
sometimes call her into her parents' bedroom and assault
her. She further stated that sometimes he would get into the
bed she shared with her little sister, take of f his pants,
take her shorts off, and put his private in her bottom. On
some of these occasions Pond would fall asleep in her bed.
A.P. further stated that the assaults happened "a
lot" on the couch.
A.P. testified that on the day her mom walked in while Pond
was assaulting her, Pond had called her over to the couch to
come lay down with him, pulled her pants down, and "did
the same thing he'd been doing." When asked if this
meant, "the same thing that he did... with his private
in your private?" A.P. responded, "Yes, sir."
A.P. stated that her siblings were either outside or in their
rooms during the assault. A.P. testified that she and Pond
were under a blanket and Pond had his pants off. A.P.
explained that she was lying on the couch facing
"up" when her mother walked in the back door and
that she and Pond were both facing the kitchen. A.P. stated
that when her mom walked in, Pond had his private in her
bottom and he "jumped up and ran to [her mom's]
room." A.P. stated that she was "pulling up [her]
pants" when Pond ran to the bedroom. When Pain asked
A.P. what was going on, she said "nothing" because
she did not know what to say. A.P. stated that her mom went
into the bedroom and began yelling at Pond. Thereafter, Pain
told A.P. and her siblings they were leaving. Prior to
leaving, Pain called all the kids into the bedroom to tell
Pond goodbye. A.P. stated that Pond whispered into her ear
that he was sorry and "don't let anyone do that to
[her] ever again." Thereafter, Pain took A.P. and her
siblings to Coldspring to Theresa and Leonard Pond's
house. The testimony established that the man A.P. refers to
as "Uncle Leonard" is Pond's cousin. For ease
of reference we will refer to him as Uncle Leonard. A.P.
testified that later that day her Uncle Leonard drove her
back to her house.
Theresa Pond also testified at trial. Theresa testified that
she was married to Leonard, Pond's cousin. Theresa
testified that Pain called her "upset" and told her
that she walked through her back door and "caught [Pond]
and [A.P.] on the couch," and Pond "jumped up and
ran to the bathroom" and "[A.P.] got up and pulled
her pants up[.]" Pain brought the children to Theresa
and Leonard's house in Coldspring. At some point Pain
went back to the family's trailer in Conroe. Thereafter,
Pain called the police. Theresa testified that she and
Leonard drove the children back to Conroe. Theresa stated
that she accompanied Pain and A.P. to Ihe hospital and
Leonard drove the other children back to Coldspring. Pain and
her children stayed with Theresa and Leonard for about two
weeks and then went to Alabama where they stayed with
Pain's family for roughly three months.
Pain also testified at trial. Pain testified that A.P. was
born in March 1997 and she started dating Pond in May 1997.
Pain and Pond were married in October 2004. Pain had two
children, J.P. and A.P., prior to marrying Pond, and Pain and
Pond had two children together. At the time of trial, Pain
and Pond were divorced, purportedly as a result of the
February 26 incident. Pain testified that in December 2002
they moved to the trailer on Fire Tower Road in Conroe.
According to Pain, Pond would lay down with A.P. under a
blanket. Pain further testified that Pond would go lay down
with the girls at night to "put them to sleep."
Pain told the jury that after lying down with the girls, Pond
would often want to have sex with her. If she refused, he
would watch porn and masturbate.
In November 2005, Pond was diagnosed with testicular cancer.
At the time of the alleged assault on February 26, Pond had
been home from the hospital for about a week. Pain testified
that Pond was still able to have sex. Pain stated that on
February 26 she walked through the back door of their trailer
and saw AP. jump up from the couch and when she got into the
kitchen A.P. appeared to have "just pulled her shorts
up." According to Pain, Pond ducked down and ran in
front of the kitchen bar to the bathroom in the master
bedroom. Pain stated that Pond's shirt was off. Pain
testified that she asked A.P. what was going on and she said,
"Nothing." Pain told A .P. to go to her room and
then Pain went into the bedroom to confront Pond. Pain
explained that she met Pond as he was coming out of the
master bathroom and the "look on his face" was
"like he just got caught doing something." Pain
testified that she started screaming because she knew what
had happened "by the look on his face." According
to Pain, Pond did not deny sexually assaulting A.P. Pain
stated that Pond admitted he had been having sex with A.P.
"for six months." According to Pain, Pond was
crying and said he was sorry. Pain testified that Pond said
"he was going to take the shotgun and go out back and
Pain stated that for "an hour or two" she
alternated between talking to A.P., who was in her bedroom,
and talking to Pond, who was in the master bedroom. Pain
testified that A.P. told her that Pond put "his private
part... in her bottom." Pain told the kids they were
leaving and took them to Coldspring. At sc me point
thereafter, Pain returned to their trailer in Conroe and
called the police. Pain stated that when she called the cops
Pond "looked scared" and "took off into the
woods across the street." Pond eventually turned himself
in to the police.
The jury convicted Pond of two counts of aggravated sexual
assault and sentenced him to sixty years confinement on each
Pond v. State, No. 09-09-00483-CR, 2011 WL 2420828
(Tex. App. - Beaumont [9th Dist] 2011, pet. ref'd)(not
designated for publication).
The Issue of Exhaustion
argues that Pond has not exhausted state court remedies as to
claim 1. (Docket Entry No. 13, p. 7). Under the AEDPA, a
habeas application by a person in custody under a state-court
judgment may not be granted unless: "(A) the applicant
has exhausted the remedies available in the courts of the
State; or (B) (i) there is an absence of available State
corrective process; or (ii) circumstances exist that render
such process ineffective to protect the rights of the
applicant." 28 U.S.C. § 2254(b)(1) (West 2017).
prisoner must exhaust his remedies in state court before a
federal court may grant habeas relief. O 'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). State prisoners
"must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State's established appellate review
process," to give the state courts "a full and fair
opportunity" to resolve any federal constitutional
claims. Id. "This requirement is not
jurisdictional, but 'reflects a policy of federal-state
comity. '"Anderson v. Johnson, 338 F.3d
382, 386 (5th Cir. 2003) (quoting Wilder v.
Cockrell, 274 F.3d 255, 260 (5th Cir. 2001)).
satisfy the exhaustion requirement, a claim must be presented
to the highest available state court for review. Rocha v.
Thaler, 626 F.3d 815, 820 (5th Cir. 2010); Kittelson
v. Dretke, 426 F.3d 306, 315-16 (5th Cir. 2005). The
Texas Court of Criminal Appeals "is the highest court in
Texas state court for purposes of exhaustion of state court
remedies." Tipton v. Thaler, 354 Fed.Appx. 138,
140 n.l (5th Cir. 2009); see also Richardson v.
Pwcunier, 762 F.2d 429, 431 (5th Cir. 1985). To allow
the State the opportunity to review and if needed to correct
alleged violations of its prisoners' federal rights, all
grounds raised in a federal application for writ of habeas
corpus must have been "fairly presented" in the
state court before the federal courts. Baldwin v.
Reese, 541 U.S. 27, 29 (2004). The state court must have
been presented with the same facts and legal theory on which
the petitioner bases his current federal-court assertions.
Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006).
Finally, the petitioner must have done so in a procedurally
correct manner. Carty v. Thaler, 583 F.3d 244, 254
(5th Cir. 2009); Castille v. Peoples, 489 U.S. 346,
351 (1989); Rauchle v. Barton, 37 F.3d 629 (5th Cir.
argues that claim 1 is unexhausted and procedurally barred
from proceeding in this federal habeas corpus petition
because the state court to which Pond would be required to
present his unexhausted claims would now find those claims
procedurally barred. See Nobles v. Johnson, 127 F.3d
409, 423 (5th Cir. 1997) (an unexhausted claim that would be
barred by the Texas abuse-of-the-writ doctrine if raised in a
successive state habeas petition is procedurally barred).
However, 28 U.S.C. § 2254(b)(2) provides that "(2)
An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the
State." Notwithstanding Pond's failure to exhaust
the remedies available in the courts of the State, this Court
may proceed to deny relief on the merits of his unexhausted
claims. Neville v. Dretke, 423 F.3d 474, 482 (5th
Cir. 2005); Mercadel v. Cain, 179 F.3d 271, 276-78
(5th Cir. 1999).
Court will review the merits of Pond's unexhausted claim
based on trial court error.
The Claim of Trial Court Error
states that after the Defense rested, the State sought to
introduce the testimony of J.P., the complainant's
brother, to testify in rebuttal that he was sexually
assaulted by Pond. 8 R.R. 26, 243; 11 R.R.
23-36. The trial court conducted a hearing
outside the presence of the jury to determine the
admissibility of his testimony. 11 R.R. 23-24. J.P. testified
that he did not remember being sexually assaulted, but that
Pain "reminded" him after the first trial that Pond
had sexually assaulted him. 11 R.R. 33-34. Thereafter, the
Stare withdrew its request to admit the testimony. 11 R.R.
36. Pond requested to re-open the defense case to call J.P.
to testify that his mother reminded him that he had been
sexually assaulted by Pond. 11 R.R. 36-38. Counsel argued
that testimony regarding Pain's instructions to J.P.
corroborated the main theory of the Defense-that Pain made
the complainant believe that Pond sexually assaulted her. The
court ruled that the testimony was not relevant because it
had "nothing to do with [the complainant]." 11 R.R.
argues that the State's case depended on the credibility
of Pain and the complainant. Excluding this testimony left
the jury with the impression that there was no direct
evidence to corroborate the Defense's assertion that Pain
encouraged the complainant to make the sexual assault
allegations against Pond. J.P.'s testimony corroborated
this defense. Pond maintains that J.P.'s testimony
regarding Pain's instructions would have enabled the jury
to understand the complainant's motive to falsely accuse
Pond. Pond insists that the exclusion of this testimony
denied Pond his Sixth Amendment right to confrontation and
his fourteenth Amendment due process right to a fair trial.
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense." Holmes
v. South Carolina, 547 U.S. 319, 324 (2006) (internal
quotation marks omitted). "This right is abridged by
evidence rules that 'infring[e] upon a weighty interest
of the accused' and are '"arbitrary" or
disproportionate to the purposes they are designed to
serve.'" Id. (quoting United States v.
Scheffer, 523 U.S. 303, 308 (1998)). Per that
constitutional guarantee, the Supreme Court in Crane v.
Kentucky held that the state court erred in excluding
"competent, reliable evidence bearing on the credibility
of [the defendant's] confession" merely because the
trial court had ruled the confession voluntary. 476 U.S. 683,
590 (1986); see Id. at 690-91 ("Th[e]
opportunity [to be heard] would be an empty one if the Stat
z were permitted to exclude competent, reliable
evidence bearing on the credibility of a confession when such
evidence is central to the defendant's claim of
innocence. In the absence of any valid state justification,
exclusion of this kind of exculpatory evidence deprives a
defendant of the basic right to have the prosecutor's
case encounter and survive the crucible of meaningful
adversarial testing." (internal quotation marks
omitted)); see also Chambers v. Mississippi, 410
U.S. 284, 302 (1973) ("The testimony rejected by the
trial court here bore persuasive assurances of
trustworthiness and thus was well within the basic rationale
of the exception for declarations against interest. That
testimony also was critical to Chambers' defense. In
these circumstances, where constitutional rights directly
affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the
ends of justice."); Washington v. Texas, 388
U.S. 14, 23 (1967) ("We hold that the petitioner in this
case was denied his right to have compulsory process for
obtaining witnesses in his favor because the State
arbitrarily denied him the right to put on the stand a
witness who was physically and mentally capable of testifying
to events that he had personally observed, and whose
testimony would have been relevant and material to the
"trial court is afforded wide discretion in assessing
the relevance and prejudicial effect of evidence."
United States v. Seale, 600 F.3d 473, 494 (5th Cir.
2010) (citation omitted). Therefore it has the power to
exclude, inter alia, witness "testimony that
would be cumulative and marginally relevant." See
United States v. Wallace, 32 F.3d 921, 929 (5th Cir.
1994). "A trial court abuses its discretion when its
ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence." United States
v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (citation
and internal quotation marks omitted).
Court reviews a district court's evidentiary rulings for
an abuse of discretion. United States v. Powers, 168
F.3d 741, 748 (5th Cir. 1999). "Generally, an abuse of
discretion only occurs where no reasonable person could take
the view adopted by the trial court. If reasonable persons
could differ, no abuse of discretion can be found."
Dawson v. United States, 68 F.3d 886, 896 (5th Cir.
1995) (quoting Lorentzen v. Anderson Pest Control,
64 F.3d 327, 330 (7th Cir. 1995)). Even if the court abused
its discretion, reversal is required only if the evidentiary
error affected the substantial rights of the parties.
Fed.R.Evid. 103(a). "An error is harmless if the court
is certain, after reviewing the record, that the error did
not influence the jury or had only a slight effect on its
verdict." Tanner v. Westbrook, 174 F.3d 542,
549 (5th Cir. 1999) (citing EEOC v. Manville Sales
Corp., 27 F.3d 1089, 1094 (5th Cir. 1994)).
is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." Fed.R.Evid. 401.
Otherwise relevant evidence "may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury." Fed.R.Evid. 403. The trial judge has broad
discretion over determinations of relevance and unfair
prejudice. United States v. Madera, 574 F.2d 1320,
1322 (5th Cir. 1978). But Rule 403 should be used sparingly
to exclude relevant evidence. United States v.
McRae, 593 F.2d 700, 707 (5th Cir. 1979).
an accused has a Sixth Amendment right to offer testimony and
to question witnesses, the right to a vigorous defense is
limited by the Federal Rules of Evidence. Taylor v.
Illinois, 484 U.S. 400, 410-11 (1988) ("The
principle that undergirds the defendant's right to
present exculpatory evidence is also the source of essential
limitations on the right. The adversary process could not
function effectively without adherence to rules of procedure
that govern the orderly presentation of facts and arguments
to provide each party with a fair opportunity to assemble and
submit evidence to contradict or explain the opponent's
case."). Due process and the Sixth Amendment's
Compulsory Process Clauses entitle a defendant to obtain
witnesses in his favor and present exculpatory evidence, but
a defendant's rights are abridged only when the defendant
is precluded from presenting testimony or witnesses that are
relevant and material to the defense. See Washington v.
Texas, 388 U.S. 14, 23 (1967); see also Taylor,
484 U.S. at 408. Accordingly, although Pond phrases his
argument in terms of the Sixth Amendment, the question is
whether the court abused its discretion by excluding evidence
as unfairly prejudicial.
wished to introduce J.P. 's testimony to show that J.P.
's mother, Pain, had reminded him of being abused by
Pond. Pond sought to show tha: A.P. was similarly coerced by
Pain to make false allegations of sexual abuse against Pond.
raised this issue on appeal, and the Texas Court of Criminal
Appeals subsequently refused Pond's petition for
discretionary review. "When one reasoned state court
decision rejects a federal claim, subsequent unexplained
orders upholding that judgment or rejecting the same claim
are considered to rest on the same ground as did the reasoned
state judgment." Bledsue v. Johnson, 188 F.3d
250, 256 (5th Cir. 1999). This "look through"
doctrine enables a federal habeas court "to ignore-and
hence, look through-an unexplained state court denial and
evaluate the last reasoned state court decision."
Id.; see also Rem v. Scott, 28 F.3d 431, 432 (5th
Cir. 1994) (finding that the denial of relief "on the
findings of the trial court'' by the Texas Court of
Criminal Appeals adopts an express finding by the trial court
that a claim was procedurally barred from habeas review);
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)
("Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same
case, the Ninth Court of Appeals reacted Pond's trial
court error claim. Because the Ninth Court of Appeals issued
the last reasoned opinion on this matter, this Court
"looks through" the Texas Court of Criminal
Appeals' order to the appellate court's decision.
Ninth Court of Appeals found:
MOTION TO REOPEN
In issues eight and nine, Pond argues that the trial court
erred in denying his request to reopen evidence and introduce
testimony from J.P., A.P.'s brother, and that the trial
court abused its discretion in finding J.P. incompetent to
testify at trial. After the State and Pond rested, the State
presented a bill of review regarding the testimony of J.P.,
which the State sought to introduce in rebuttal as an
extraneous sexual assault committed by Pond.
At the time of trial, J.P. was thirteen years old. J.P.
explained that he understood the difference between the truth
and a lie. J.P. testified that prior to the family going to
Alabama, Pond had touched him "[i]n the private
area." J.P. stated that Pond touched him "in the
front," "[q]uite a few times." J.P. explained
that the touching was on the outside of his pants and that he
was always clothed during the assaults. J.P. stated that he
did no": recall how old he was when the inappropriate
touching occurred bit that it made him uncomfortable. J.P.
stated that he did not tell his mother. J.P. explained that
he had testified in Pond's first trial but that nobody
ever asked him if anything like this had happened to him.
Pond was initially tried for the charged offense in March
2008. However, Pond's first trial resulted in a hung
jury. In addressing motions in limine, counsel for both
parties agreed that no reference would be made in the
underlying proceeding to the first trial of this cause. To
the extent necessary, the first trial was referenced only as
an earlier proceeding or hearing. J.P. explained that he did
not tell anyone that Pond had inappropriately touched him
during the first trial because he was nervous. J.P. stated
that he eventually told his mother about the assaults. When
defense counsel questioned J.P., he stated 1hat he did not
remember when he first told his mother about the assaults but
that it was when he was living in the trailer on Fire Tower
Road. J.P. explained that following the February 26 incident,
his mother questioned him and his siblings about whether Pond
had touched:hem inappropriately, and he told her
"no." Defense counsel elicited the following
testimony from J.P. regarding when he first told his mother
about the assaults:
[Counsel:] And when was the first time you made mention of
this to anybody?
[J.P.:] When my mom told me that he did-said he did it back
[J.P.:] They had him on TV.
[Counsel:] ... So, this would have been . . . kind of a long
time ago when he was in jail when he was en TV, right? Yes?
[Counsel:] That's when you first told your mom about it,
the following exchange took place on the record:
THE COURT: [J.P.], were you just telling [defense counsel]
that you told your mom before that first hearing, that first
big hearing in the other building?
[J.P.:] No. I told her after that.
THE COURT: That's what I thought.
[Counsel:] You told her shortly thereafter?
THE COURT: ... So, before the first trial with Mr. Pond, you
had not told your mom?
[Counsel:] And so, you remember-if he was on T.V., it was
when he first got arrested, do you recall that?
[J.P.:] No. But my mom told me that when I went up there.
[Counsel:]... what did your mom tell you? Did she tell you
the first hearing didn't go the way she wanted it or-
[J.P.:] She told me that she[sic] had did it to me and [A.P],
but I don't remember.
[Counsel:] Okay. So, your mom told you that this happened to
you and [A.P.], but you didn't remember?
[Counsel:] So, she refreshed your memory and helped you
THE COURT: Did you remember first and tell your mom?
THE COURT: Your mother knew that- [J.P.:] My mom told me. And
I started to think about it, and I remembered.
[Counsel:] Judge, we have no objection to the admission of
his testimony. In fact, we want the jury to hear it.
The State further questioned J.P. as follows:
[State:] Do you remember this happening to you?
[J.P.:] No. I remember it, but I don't remember what day
[State:] Okay. Tell us what you remember? What you remember.
Not what your mom told you, [J.P.], what you remember?
[J.P.:] That he was touching me inappropriately.
[State:] And where was he touching you?
[J.P.:] In the private area.
[State:] Okay. Now, are you here based upon something that
your mom told you or based upon what you remember?
[J.P.:] What I remember.
The State stated that it did not wish to call J.P. to
testify. Defense counsel made a motion to reopen its case in
order to call J .P. as a witness. Defense counsel argued that
the testimony of J.P. supported the defensive theory that
Pain had coached A.P. to say that Pond had sexually assaulted
her. The trial court concluded that it could not find beyond
a reasonable doubt that Pond had committed the extraneous
offense and excluded the evidence. The trial court denied
Pond's request to reopen. The following day, Pond
presented a bill of review regarding J.P.'s potential
trial testimony. Pond argued he should be allowed to reopen
his case pursuant to article 36.02 of the Code of Criminal
Procedure to call J.P. as a witness. The trial court denied
this request and concluded that J.P. was incompetent to
testify under Rule 601 of the Rules of Evidence and the
factors enumerated in Reyna v. State, 797 S.W.2d
189, 191-92 (Tex. App. - Corpus Christi 1990, no pet).
We review a trial court's denial of a request to reopen
the evidence under an abuse of discretion standard.
Reeves v. State, 113 S.W.3d 791, 794 (Tex. App. -
Dallas 2003, no pet.) (citing Peek v. State, 106
S.W.3d 72, 79 (Tex. Crim. App. 2003)). A trial court must
allow the introduction of evidence at any time before the
conclusion of argument if it appears necessary to the due
administration of justice. Tex. Code Crim. Proc. Ann. art.
36.02 (West 2007)." '[D]ue administration of
justice' means a judge should reopen the case if the
evidence would materially change:he case in the
proponent's favor." Peek, 106 S.W.3d at 79.
To establish a material change, the proponent of the evidence
must show that the evidence is more than "just
relevant-it must actually make a difference in the
case." Id. Among the factors to consider in
determining the materiality of the evidence under article
36.02 are the weight of the evidence, its probative value,
the issue upon which it is offered, and whether it is
cumulative. See Id. at 77-79.
In the present case, the State concedes that because J.P. was
present and ready to testify and the substance of his
testimony was apparent at the conclusion of the hearing, the
only question is whether the trial court abused its
discretion in determining that J.P.'s testimony was not
necessary to the due administration of justice. See
generally Reeves, 113 S.W.3d at 795. We are not
persuaded that J.P.'s testimony would have materially
changed the case in Pond's favor. Pond testified at trial
that Pain manipulated or coached A.P. to make the allegations
against him because Pain believed Pond was cheating on her.
In addition, Pond's cousin Leonard testified that A.P.
told him that Pond was going to go to jail for
"something he didn't do." The jury heard
testimony regarding Pond's theory that Pain was behind
the allegations, as well as his testimony regarding the
events of February 26. The jury also heard testimony from
A.P., Pain, Theresa, Goodwin, and law enforcement personnel
regarding the events of February 26. J.P.'s testimony
regarding how he came to recall that he had been touched
inappropriately centered on a conversation J.P. had with his
mother after Pond's first trial, well after the February
26 incident of A.P. Moreover, J.P. testified that his
testimony was based on what he remembered and not what his
mother told him. On this record, we cannot conclude that
J.P.'s testimony would have materially changed the case
in Pond's favor.
We hold the trial court did not abuse its discretion in
denying Pond's motion to reopen evidence to introduce the
testimony of J.P. We overrule issue eight. Because we
overrule issue eight, we need not address the merits of issue
nine. Having overruled the issues raised on appeal, we affirm
the judgments of the trial court.
Pond v. State, No. 09-09-00483-CR, 2011 WL 2420828,
at *11-13 (Tex. App. - Beaumont [9th Dist.] 2011, pet. ref
has not shown how exclusion of J.P/ s testimony had a
substantial and injurious effect or influence in determining
the jury's verdict. The jury heard testimony that the
complainant's mother manipulated or coached the
complainant to make the allegations against him. Leonard Pond
testified that A.P.'s mother brought her and her siblings
to his house on the day of the incident and A.P. came to him,
upset, "that her daddy is going to jail for something he
didn't do." 8 RR 180.
A.P.'s allegations, Pond testified on direct examination
MR. JACKSON: Thank you.
Q. (BY MR. JACKSON) William, are [A.P.]'s statements true
A. Her statements are untrue.
Q. Do you have any idea why see would make those
A. Because her mom made her Q. That's your belief?
A. That is my belief.
Q. And without going into it, do you have an opinion as to
why her mom made her make up these statements?
MR. FREYER: Calls for speculation. Calls for speculation.
MR. JACKSON: Your Honor, I'll ask the question
THE COURT: Thank you. Sustained.
Q. (BY MR. JACKSON) Okay. It's your belief-- okay. How
does it make you feel to hear those allegations?
A. It angers me.
THE COURT REPORTER: I'm sorry.
THE WITNESS: I said it angers me.
Q. (BY MR. JACKSON) Did you ever touch [A.P.] inappropriately
A. I have never.
Q. - with any part of your body?
A. I have never touched [A.P.] inappropriately.
Q. And so when the testimony has it that this could have
happened 500 to 800 times, it happened weekly for the past -
since she was five, is there any portion of that that has any
remoteness of being true?
A. That is not true.
8 R.R. 121-22.
events on February 26, 2006, Fond testified:
Q. So, she -- she being, Toni, your wife, she wakes you up
and tells you what?
A. She tells me she's going to get some cigarettes.
Q. And does she also tell you sh;'s going to go to
McDonalds and the Red Box?
A. I do not recall her saying she's going to McDonalds.
Q. If she was going to get cigareltes, would you have an idea
of the approximate drive time there and back as to where she
would typically go get cigarettes?
Q. And so when she says it could be about 38 miles round trip
to that area, saying 45 minutes or so, would that be a
reasonable time consumption to make that trip?
A. If she was just going to get cigarettes or -
Q. Uh-huh - or would that even be too long?
A. Maybe 30 minutes.
Q. So, if she told you that, then you would have an idea of
how long she would be driving to and from?
MR. FREYER: He's leading his witness, and I respectfully
MR. JACKSON: I'll ask it differently, Judge.
THE COURT: Okay. Sustained.
Q. (BY MR. JACKSON) Would you have an idea how long it would
take her to go there and back?
A. Yes, I would.
Q. How long did you live in that area?
A. Six years.
Q. And did you travel frequently in a vehicle in that area?
A. I did.
Q. And did you know where she would typically get cigarettes?
Q. Okay. And so, when she told you that, did you have an idea
how long it would take her to return?
Q. Would Toni typically enter and exit the house through the
A. She would come into the back.
Q. And can you hear the vehicle when it drives up in the
A. You can.
Q. Can you hear the slamming or the shutting of a car door
outside the house from inside the mobile home?
A. You would be able to.
Q. When Toni gets home, where were you?
A. I was in the bathroom.
Q. What do you recall happening when she - she got home?
A. I was in the restroom. I see her pull up. She gets out.
There's a few minutes. She comes into the restroom. She
starts hollering at me that I have been cheating on her.
Q. Hang on a second. You saw her come in. How did you see her
A. There's a window right in front of our toilet and we
always park right in front of this window.
Q. Okay. So, she comes into the bathroom area and says what?
A. She just starts hollering at me that I've been
cheating on her and begins to hit me.
Q. Okay. She tell you why you have been cheating on her or
why she believes that?
A. Because she had found there was a condom missing.
Q. Okay. And how angry was she?
A. She was angry.
Q. Was she hitting?
A. Yes. She was hitting me in the arm.
A. She was.
Q. Was she screaming?
A. She was.
Q. Was it loud?
A. It was loud.
8 R.R. 123-26.
appellate court determined that J.P.'s testimony was
cumulative of other testimony at trial. In reviewing
Pond's claim that J.P.'s testimony was improperly
excluded, the appellate court found that Pond testified at
trial that Pain manipulated or coached A.P. to make the
allegations against him because Pain believed Pond was
cheating on her. Pond's cousin, Leonard, also testified
that A.P. told him that Pond was going to go to jail for
something 'he didn't do.' The jury also heard
testimony from A.P., Pain, A.P.'s aunt, and law
enforcement personnel regarding the events of February 26.
The appellate court noted that J.P.' s testimony
regarding how he came to recall that he had been touched
inappropriately centered on a conversation J.P. had with his
mother after Pond's first trial, well after the February
26, incident of A .P. J.P. testified that his testimony was
based on what he remembered and not on what his mother told
him. The appellate court determined that J.P.' s
testimony would not have materially changed the case in
Pond's favor. Because the same information was introduced
through Pond and his cousin, Leonard Pond, testimony as would
have been introduced by the admission of J.P.'s
testimony, the district court did not abuse its discretion in
excluding this evidence as cumulative. Winans v. Rockwell
Int 7. Corp., 705 F.2d 1449, 1456 (5th Cir. 1983)
(finding that it was harmless to exclude documentary evidence
that was cumulative to direct testimony).
J.P. been allowed to testify, he would have relayed that Pond
touched him inappropriately in the front, over his clothes
long before the incident with A.P. 11 RR 27, 29-30. Pond was
charged with sexually assaulting A.P. by penetrating her
vaginally and anally. Observing that the situation that
occurred with J.P. was far different than the allegations
against him with regard to A.P., the trial court reasoned,
"if this had to do with the instant offense, with
[A.P.]'s, then it would be different." 11 RR 38. The
trial court then explained that admitting the testimony would
lead to unfair prejudice and mislead the jurors, confusing
the issues." 11 RR 40. The incident J.P. would have
testified to occurred a long time ago, when he was in third
grade (he was thirteen and in the eighth grade at the time of
his testimony) and he did not tell his mother until long
after the February 26 incident for which Pond was on trial.
11 RR 33-35. Moreover, J.P. never specifically stated that he
was coached or that his mother helped him remember. He
testified that the inappropriate touching incidents were
based on what he remembered, not what his mother told him. 11
RR 35. In a hearing outside the jury's presence, when the
State sought to introduce J.P.'s testimony, the
prosecutor noted that it came out at the last trial that Pond
showed J.P. pornography. 8 RR 133. The prosecutor provided
notice of his intent to show that Pond showed J.P.
pornography. 8 RR 138. The jury would have heard that Pond
inappropriately touched A.P.'s brother on several
occasions and showed him pornography. J.P.'s testimony
would have undermined the Defense theory that he was coached
and, by reasonable extrapolation, A.P. was also coached to
make false allegations of sexual abuse against Pond.
argues that the trial court erred in excluding J.P.'s
testimony. However, the trial court also determined that J.P.
was incompetent to testily under Rule 601 of the Rules of
Evidence. Texas Rule of Evidence 601(a)(2) places the power
to determine a witness' competency into the hands of the
trial judge. Broussard v. State, 910 S.W.2d 952, 960
(Tex. Crim. App. 1995), cert, denied, 519 U.S. 826
(1996). The standard for reviewing a trial court's
determination of whether a child witness was competent to
testify is abuse of discretion. See Baldit v. State,
522 S.W.3d 753, 761 (Tex. App.-Houston [1st Dist] 2017, no
pet.). This means the defendant would have to show from the
record that the trial court abused its discretion in
implicitly finding the complainant was competent to testify.
See Moore, 395 S.W.3d at 158; Baldit, 522
S.W.3d at 761. Pond, however, has made no such showing.
Generally, every person is presumed competent to testify.
See Tex. R. Evid. 601(a); Baldit, 522
S.W.3d at 761; Hogan v. State, 440 S.W.3d 211, 213
(Tex. App.-Houston [14th Dist] 2013, pet. ref d). A child or
any other person is not competent to testify if, after
examination by the court, the court finds the person
"lacks sufficient intellect to testify concerning the
matters in issue." Tex. R. Evid. 601 (a)(2). A trial
court is not required to conduct a sua sponte preliminary
competency examination of a child witness. Baldit,
522 S.W.3d at 761. Instead, the party seeking to exclude the
witness must raise the issue. Id. When a party
challenges the competency of a child witness, the court will
consider whether the witness possesses (1) the ability to
intelligently observe the events in question at the time of
the occurrence, (2) the capacity to recollect the events, and
(3) the capacity to narrate the events. Id. See also
Hogan, 440 S.W.3d at 213-14. The third element involves
the ability to understand the moral responsibility to tell
the truth, to understand the questions posed, and to frame
intelligent answers. Baldit, 522 S.W.3d at 761. A
child witness need not understand the obligation of the oath,
but the trial court must impress the child with the duty to
be truthful. Id. There is no precise age under which
a child is deemed incompetent to testify. Id.
Moreover, "[i]f a person afflicted with a physical or
mental disability possesses sufficient intelligence to
receive correct impressions of events he sees, retains clear
recollection of them and is able to communicate them through
some means there is no reason for rejecting his
testimony." Watson v. State, 596 S.W.2d 867,
870-71 (Tex. Crim. App. [Panel Op.] 1980); see also
Hogan, 440 S.W.3d at 214. Inconsistencies in a
child's testimony, while probative on the issue of
competency, do not alone render the child incompetent.
Fields v. State, 500 S.W.2d 500, 503 (Tex. Crim.
App. 1973). The role of a federal habeas court is to
'"guard against extreme malfunctions in the state
criminal justice systems, "' Richter, 562
U.S. at 102-103 (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) Stevens, J., concurring in
judgment)), not to apply de novo review of factual
findings and to substitute its own opinions for the
determination made on the scene by the trial judge. A state
court's findings and conclusions on questions of fact are
entitled to deference unless the petitioner shows that they
are "based on an unreasonable determination of the facts
in light of the evidence presented in the state court
proceeding." 28 U.S.C. § 2254(d)(2); Buntion v.
Quarterman, 524 F.3d 664, 670 (5th Cir. 2008). Moreover,
a state court's findings of fact are presumed to be
correct on federal habeas review, and the petitioner has the
burden of rebutting the presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). This
presumption extends not only to express findings of fact, but
to the implicit findings of the state court as well.
Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir.
2006) (citations omitted).
case, the trial court's determination that J.P. was not
competent was based on her personal observation of J.P. as he
answered questions during the hearing. The trial court
THE COURT: Okay. Under 601, it -- it starts a whole lot
sooner with Mr. Justin. I do not find him a competent
witness. He - I had a chance to observe him - extremely
closely. He was within feet of me here, which is much closer
than we would normally put a witness. He's not at the
witness stand. He was probably, you know, maybe six feet away
from me. I found him at age 13, to be - he's not in the
I was thinking of him ~ watching him very closely, . . .
He's a simple child. I'm not sure. He seemed very
slow to me. He does not - when I look at factors to be
considered under 601, 1 look at Renna v. State, 797
Southwest 2nd, 189. An Appellate Court decision out of Corpus
Christi with no petition. In determining whether a witness is
competent to testify, the Court should consider the
witnesses, (a) competence to observe intelligently the events
in question at the time of their occurrence, (b) capacity to
recollect the events. And (c) capacity to narrate the events
which in turn involves the ability to understand the
questions asked, frame intelligent answers and understand the
moral responsibility to tell the truth.
In this instance with [J.P.], I actually - because I heard
such inconsistency and such misunderstanding of questions, I
had to myself-1 got involved in the questioning because he
had answered a question two different ways. He is - he
misunderstood several questions that were asked of him on
direct and on cross. And then would restate an answer.
I do not find this witness competent to testify. I do not
find on the State's behalf that this jury would be able
to believe beyond a reasonable doubt that these allegations
were true. And consequently under 403, these -to allow an
incompetent witness to testify, would absolutely bring unfair
prejudice to this case and substantially outweigh any
probative value in confusing, misleading these jurors and
having them decide issues that are very important on grounds
that are not valid. So, the State's request to have this
child testify as to these events is denied. And the defense
request to reopen with this child, who I believe to be, from
my observations of his demeanor, the manner in which he
answered the questions and the fact that I had to get
involved in the questioning to understand any of what he was
saying, is further denied.
11 RR 48-49.
trial court's credibility determination based on her
up-close and personal observation is entitled to deference.
Lavernia, 845 F.2d 496; Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). The trial court
explained why she did not allow th; admission of J.P.'s
testimony. In reviewing the factual findings of the trial
court, this Court cannot substitute its own opinions for the
determination made on the scene by the trial judge. A state
court's findings and conclusions on questions of fact are
entitled to deference unless Pond shows that they are
"based on an unreasonable determination of the facts in
light of the evidence presented in the state court
proceeding." 28 U.S.C. § 2254(d)(2). The state
court's findings of fact are presumed to be correct on
federal habeas review. Pond has not met his burden of
rebutting the presumption of correctness with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). This
presumption extends not only to express findings of fact, but
to the implicit findings of the state court as well.
habeas review under AEDPA, the prejudice of constitutional
error in a state-court criminal trial is measured by the
"substantial and injurious effect" standard of
Brecht v. Abrahamson, 507 U.S. 619 (1993). See,
e.g., Hughes v. Quartemian, 530 F.3d 336, 345 (5th Cir.
2008). There are guideposts in applying the standard to the
facts of a given case. When a court finds itself "in
virtual equipoise as to the harmlessness of the error under
the Brecht standard, the court should treat the
error as if it affected the verdict." Fry v.
Pliler, 551 U.S. 112 n.3 (2007) (citations and
quotations omitted); see also Robertson v. Cain, 324
F.3d 297, 305 (5th Cir. 2003) ("[T]he petitioner should
prevail whenever the record is so evenly balanced that a
conscientious judge is in grave doubt."). Conversely, an
error is insufficient under Brecht when the evidence
of the defendant's guilt is overwhelming. See, e.g.,
Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003). A
constitutional trial error is not so harmful as to require
habeas relief unless there is more than a mere reasonable
possibility that it contributed to the verdict. Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993). It must have had a
substantial effect or influence in determining the verdict.
Based upon its own careful review of the record, this Court
finds that the trial court's decision to exclude
J.P.'s testimony did not have a substantial and injurious
effect or influence in determining the verdict.
has failed to show that there was a reasonable probability
that the verdict would have been different if the trial court
had not excluded J.P.'s testimony. Any such error was
harmless under Brecht v. Abrahamson, 507 U.S. at
623. There was overwhelming evidence against Pond. He has
failed to raise an issue as to whether the trid court's
decision to exclude J.P.'s testimony had an injurious
effect or influence on the verdict. Pond's claim of trial
court error lacks merit. Pond has failed to show that the
state court's decision was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States. Pond
is not entitled to habeas relief on this claim. 28 U.S.C.
The Claim of Ineffective Assistance of Trial Counsel
Court reviews Sixth Amendment claims concerning the alleged
ineffective assistance of counsel ("IAC"), whether
at trial or on direct appeal, under the two-prong test
established in Strickland v. Washington, 466 U.S.
668 (1984); see also Smith v. Robbins, 528 U.S. 259,
285 (2000) ("the proper standard for evaluating [a]
claim that appellate counsel was ineffective ... is that
enunciated in Strickland" (citing Smith v.
Murray, 477 U.S. 527, 535-36 (1986))).
Strickland, a habeas petitioner must demonstrate
that the performance of his attorney fell below an objective
standard of reasonableness, see 466 U.S. at 687-88.
To be cognizable under Strickland, trial
counsel's error must be "so serious that counsel was
not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id. at 687;
see also Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759,
775 (2017) (reaffirming that "[i]t is only when the
lawyer's errors were 'so serious that counsel was not
functioning as the "counsel" guaranteed ... by the
Sixth Amendment' that Strickland's first
prong is satisfied" (citation omitted)). The petitioner
also must prove that he was prejudiced by his attorney's
substandard performance. See Strickland, 466 U.S. at
687, 692. "This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Id.
at 687. [B]ecause of the risk that hindsight bias will cloud
a court's review of counsel's trial strategy, "a
court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy."
Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012)
(quoting Strickland, 466 U.S. at 689).
conscious and informed decision on trial tactics and strategy
cannot be the basis for constitutionally ineffective
assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness."
Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir.
2003). Moreover, "[j]ust as there is no expectation that
competent counsel will be a flawless strategist or tactician,
an attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare
for what appear to be remote possibilities."
Harrington v. Richter, 562 U.S. 86, 110 (2011).
"The Supreme Court has admonished courts reviewing a
state court's denial of habeas relief under AEDPA that
they are required not simply to give [the]
attorney's[sic] the benefit of the doubt, . . . but to
affirmatively entertain the range of possible reasons
[petitioner's] counsel may have had for proceeding as
they did." Clark v. Thaler, 673 F.3d 410, 421
(5th Cir. 2012) (internal quotation marks omitted).
Therefore, on habeas review under AEDPA, "if there is
any 'reasonable argument that counsel satisfied
Strickland's deferential standard, the state
court's denial must be upheld." Rhoades v.
Davis, 852 F.3d 422, 432 (5th Cir. 2017) (quoting
Richter, 562 U.S. at 105).
demonstrate prejudice, a habeas petitioner "must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466
U.S. at 694. Thus, "the question is not whether a court
can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might
have been established if counsel acted differently."
Richter, 562 U.S. at 111. "Instead,
Strickland asks whether it is 'reasonably
likely' the result would have been different," which
"does not require a showing that counsel's actions
'more likely than not altered the outcome,' but the
difference between Strickland's prejudice
standard and a more-probable-than-not standard is slight and
matters "only in the rarest case.""
Id. at 111-12 (quoting Strickland, 466 U.S.
at 693, 696, 697). "The likelihood of a different result
must be substantial, not just conceivable."
Richter, 562 U.S. at 112.
state habeas court found that:
6. This Court is familiar with the effective performance of
the applicant's trial counsel, Mr. Stephen D. Jackson,
who has long practiced in the courts of Montgomery County and
is well-qualified for appointment in serious felony cases.
7. This Court is familiar with the effective performance of
the applicant's appellate counsel, Ms. Judith Shields,
who has long practiced in the courts of appeal for the State
of Texas and is well-qualified for appointment in serious
felony appellate matters.
8. This Court recalls the trial of the applicant and
remembers the effective performance of trial counsel during
(Docket Entry No. 6-40, p. 35).
state habeas court concluded:
2. The applicant has failed to prove by a preponderance of
the evidence that he was denied his right to the effective
assistance of counsel, either at the time of the
guilt-innocence stage or at the time of the appeal.
Strickland v. Washington, 466 U.S. 668, 669 (1984);
Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
3. The applicant has not overcome the presumption that his
trial and appellate counsels' actions were based in sound
strategy. See Ex parte Rogers, 369 S.W.3d 858, 862
(Tex. Crim. App. 2012).
4. The applicant has not shown that this Court would have
created error by overruling any of the objections he now says
his trial counsel should have made. See Ex parte
Martinez, 330S.W.3d891, 901 (Tex. Crim. App. 2011).
5. The applicant has not established that if his appellate
counsel were to have presented the issues he now claims
should have been presented, he would have prevailed on
appeal. Ex parte Miller, 330 S.W.3d 610, 623 (Tex.
Crim. App. 2009).
assistance of counsel claims are considered mixed questions
of law and fact and are therefore analyzed under the
"unreasonable application" standard of 28 U.S.C.
§ 2254(d)(1). See Gregory v. Thaler, 601 F.3d
347, 351 (5th Cir. 2010). Where, as here, the state court
adjudicated ineffective-assistance claims on the merits, this
Court must review a habeas petitioner's claims under the
"doubly deferential" standards of both
Strickland and Section 2254(d). Cullen v.
Pinholster, 563 U.S. 170, 190, 202 (2011); see also
Rhoades, 852 F.3d at 434 ("Our federal habeas
review of a state court's denial of an
ineffective-assistance-of-counsel claim is 'doubly
deferential' because we take a highly deferential look at
counsel's performance through the deferential lens of
§ 2254(d)." (citation omitted)).
cases, the "pivotal question" for this Court is not
"whether defense counsel's performance fell below
Strickland's standard"; it is "whether
the state court's application of the Strickland
standard was unreasonable." Richter, f 62 U.S.
at 101; see also Id. at 105 ("Establishing that
a state court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult.
The standards created by Strickland and §
2254(d) are both 'highly deferential,' and when the
two apply in tandem, review is 'doubly' so."
(internal quotation marks and citations omitted)). In other
words, AEDPA does not permit a de novo review of state
counsel's conduct in these claims under Strickland.
See Id. at 101-02. Instead, on federal habeas review of
a claim that was fully adjudicated in state court, the state
court's determination is granted "a deference and
latitude that are not in operation when the case involves
review under the Strickland standard itself."
Id. at 101; see also Woods v. Etherton, 136
S.Ct. 1149, 1151 (2016) (per curiam) (explaining that federal
habeas review of ineffective-assistance-of-counsel claims is
"doubly deferential" "because counsel is
'strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment'"; therefore,
"federal courts are to afford 'both the state court
and the defense attorney the benefit of the doubt'"
(quoting Burt, 571 U.S. at 22, 15)); Johnson v.
Sec'y, DOC, 643 F.3d 907, 910-11 (11th Cir.
2011) ("Double deference is doubly difficult for a
petitioner to overcome, and it will be a rare case in which
an ineffective assistance of counsel claim that was denied on
the merits in state court is found to merit relief in a
federal habeas proceeding.").
Court has carefully reviewed the transcript of Pond's
criminal trial that began on October 5, 2009 and lasted five
days. Counsel zealously defended his client throughout the
trial. Counsel vociferously objected to the prosecutor's
questions to the various State's witnesses. Counsel often
referred to several grounds for his objections. He presented
testimony in support of Pond's defense that Pond was
innocent and that he had a good relationship with A.P. and
his other children. The record shows that counsel was
familiar with the facts and law of the case. Counsel
formulated a reasonable trial strategy to discount A.P.'s
credibility. Counsel vigorously cross-examined the
State's witnesses, consistent with his trial strategy. In
his closing argument, counsel raised the following issues to
cast doubt on A.P.'s allegations of sexual abuse:
The lack of details from A.P. even though A.P. was abused 208
times over four years;
A.P. gave inconsistent accounts regarding the number of times
the sexual ...