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Pond v. Davis

United States District Court, S.D. Texas, Houston Division

September 24, 2019

WILLIAM POND, (TDCJ-CID #1608119) Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND OPINION

          VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE.

         Petitioner, 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, [1] (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 corpus relief.

         I. Background

         Pond 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).

         With the assistance of counsel, Pond filed this federal petition on May 3, 2013. Pond contends that his conviction is void for the following reasons:

         (1) The 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 against Pond;

         (2) 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; and

         (3) 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 crimes.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, p. 8).

         II. The Applicable Legal Standards

         This 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).

         Sections 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)).

         A state 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)).

         While, "[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).

         III. Statement of Facts

          The Ninth Court of Appeals summarized:he evidence at trial as follows:

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 shoot himself."
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 count.

Pond v. State, No. 09-09-00483-CR, 2011 WL 2420828 (Tex. App. - Beaumont [9th Dist] 2011, pet. ref'd)(not designated for publication).

         IV. The Issue of Exhaustion

         Respondent 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).

         A state 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)).

         To 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. 1994).

         Respondent 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).

         This Court will review the merits of Pond's unexhausted claim based on trial court error.

         V. The Claim of Trial Court Error

         (Ground 1)

         Pond 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[2]. 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. 38-37, 41-42.

         Pond 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.

         "[T]he 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 defense.").

         A "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).

         This 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)).

         Evidence 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).

         Although 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.

         Pond 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.

         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 ground.").

         In this 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.

         The 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 in jail.
[Counsel:] Okay.
[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?
[J.P.:] Yes.
[Counsel:] That's when you first told your mom about it, right?
[J.P.:] Yes.

         Thereafter, 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?
[J.P.:] Yes.
THE COURT: ... So, before the first trial with Mr. Pond, you had not told your mom?
[J.P.:] No.
[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?
[J.P.:] Yes.
[Counsel:] So, she refreshed your memory and helped you remember it?
[J.P.:] Yeah.
THE COURT: Did you remember first and tell your mom?
[J.P.:] No.
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 it was.
[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 d)(not designated).

         Pond 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.

         Regarding A.P.'s allegations, Pond testified on direct examination as follows:

MR. JACKSON: Thank you.
Q. (BY MR. JACKSON) William, are [A.P.]'s statements true or untrue?
A. Her statements are untrue.
Q. Do you have any idea why see would make those statements?
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 differently.
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.

         Regarding 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?
A. Yes.
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 object.
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?
A. Yes.
Q. Okay. And so, when she told you that, did you have an idea how long it would take her to return?
A. Yes.
Q. Would Toni typically enter and exit the house through the back door?
A. She would come into the back.
Q. And can you hear the vehicle when it drives up in the trailer?
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 come in?
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.
Q. Yelling?
A. She was.
Q. Was she screaming?
A. She was.
Q. Was it loud?
A. It was loud.

8 R.R. 123-26.

         The 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).

         Had 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.

         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).

         In this 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 explained:

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 courtroom?
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.

         The 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.

         On 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.

         Pond 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. § 2254(d)(1).

         VI. The Claim of Ineffective Assistance of Trial Counsel

         (Ground 2)

         The 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))).

         Under 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).

         "A 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).

         To 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.

         The 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 that proceeding.

(Docket Entry No. 6-40, p. 35).

         The 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. App. 1999).
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).

(Id).

         Ineffective 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)).

         In such 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.").

         The 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 ...

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