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Smith v. Davis

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

November 15, 2019

HARVEY SMITH, TDCJ #01990542, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.



         Harvey Smith (TDCJ #01990542) has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1) to challenge an aggravated robbery conviction entered against him in 2015. He has also filed Petitioner's Memorandum of Law Brief in support (Docket Entry No. 2) . Now pending is Respondent Lorie Davis's Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 15), arguing that the Petition is barred by the governing one-year statute of limitations. In response, Smith has filed a Memorandum in Brief (Docket Entry No. 24) with an "Affidavit in Support of [an] Order Granting Summary Judgment" in his favor (Docket Entry No. 25). He has also provided Exhibits (Docket Entry No. 26) and an untitled pleading that has been docketed as a Supplemental Memorandum in support of Smith's Petition for federal habeas relief (Docket Entry No. 30). After considering all of the pleadings, the state court records, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below.

         I. Background and Procedural History

         In 2014 a grand jury in Harris County, Texas, returned an indictment against Smith in Cause No. 1421605, accusing him of aggravated robbery with a deadly weapon, namely a firearm.[1] The State gave notice that it intended to seek enhanced punishment because Smith had a prior felony conviction.[2] On March 23, 2015, a jury in the 176th District Court of Harris County found Smith guilty of aggravated robbery as charged in the indictment.[3] The jury also found that the enhancement allegation was true and sentenced Smith to 2 8 years' imprisonment.[4]

         On direct appeal Smith argued that the evidence was insufficient to support his conviction for aggravated robbery because the State failed to prove beyond a reasonable doubt that he used or exhibited a firearm during the commission of the offense and that he was guilty of, at most, theft.[5] The intermediate court of appeals rejected that argument and affirmed the conviction for aggravated robbery after summarizing the evidence presented at trial, as follows:

Juan Carlos Martinez worked as a mechanic for a trucking company. He was working alone on a Saturday afternoon, repairing a transmission, which required the use of an air compressor. While he was working, he heard a noise that sounded like a person throwing items into the bed of a pickup truck. As he got up to investigate, he noticed that the hoses attached to the air compressor had deflated. Martinez saw appellant Harvey Smith, a man he recognized, having seen him speaking with the manager of the trucking company in the past. Martinez saw that Smith had put tools and the air compressor in the back of a brown Chevy pickup truck.
Martinez approached the truck and attempted to remove the air compressor. Smith began yelling angrily, and Martinez responded, saying, "It's mine, it's mine." Smith then pulled a black semiautomatic pistol from his waistband and pointed it at Martinez's chest, causing him to fear that he would be killed or injured. Martinez backed away, and Smith shot twice toward his feet. Smith then got into the truck and sped away.
Houston Police Department Officer J. Gomez responded to a call about the robbery. Martinez told him that someone who had previously worked for the trucking company had fired a gun at him and taken an air compressor. Officer Gomez later testified that Martinez was nervous and rattled, and he had difficulty hearing. Officer Gomez canvassed the area but did not find any spent shell casings. However, he testified that shell casings are not always recovered after a gun is fired.
Michael Tyler, the manager of the trucking company, confirmed the shooter's identity and provided his name and date of birth to patrol officers. During the investigation of this robbery, Houston police officers drove past Smith's house, where they saw a brown Chevy pickup truck that matched the description of the truck used to take the compressor.
Smith was charged with aggravated robbery. Martinez testified at trial, saying that Smith held him at gunpoint, took an air compressor he had been using, and fired two shots at his feet. According to Martinez, the robbery occurred at about 2:00 p.m. or 3:00 p.m. Martinez testified that he had identified Smith from a photographic array, and he also identified him in open court as the person who took the air compressor and fired shots at him.
Another mechanic, Jose Portillo, testified that he had loaned the air compressor to Martinez. He did not witness the robbery, but he heard a sound that Martinez later told him was a gunshot. However, he testified that the shot was fired around 11:00 a.m. or 11:30 a.m. This was consistent with the police department incident report. However, Portillo also testified that other activities that occur on the premises make noises similar to gunshots, such as pallet repair and hammering.
Tyler also identified Smith in open court as someone who had worked briefly for him as an independent trucker. Tyler admitted that he owed Smith $200 around the time of the robbery.
Smith testified in his own defense, agreeing that he had worked briefly for Tyler as an independent trucker. He said that Tyler owed him $421, and a $200 check from him had bounced due to insufficient funds. Smith testified that Tyler was indignant when told about the bounced check. Smith said he called Tyler many times to attempt to recover the money owed, but he was unable to connect with him.
Smith admitted that he went to the trucking company around 11:00 a.m. on the day of the robbery. He admitted taking the air compressor and conceded that it did not belong to him. He intended to use his possession of the compressor to persuade Tyler to pay the $421 that he allegedly was owed. Smith testified that the compressor was not in working order, and he later sold it for $65. Smith's testimony differed sharply from Martinez's on the issue of the gun. Smith denied having, brandishing, or firing a gun. Smith testified that he was 64 years old, and he had never robbed anybody.

Smith v. State, No. 01-15-00312-CR, 2016 WL3662447, at *1-2 (Tex. App. - Houston [1st Dist.] July 7, 2016, no pet.).[6] Because Smith did not appeal further by filing a petition for discretionary review with the Texas Court of Criminal Appeals, [7] his conviction became final thirty days later on August 8, 2016.[8]

         On August 27, 2017, Smith executed an Application for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction Under Code of Criminal Procedure, Article 11.07 ("State Habeas Application"), asserting claims of ineffective assistance of counsel.[9] After considering the record, which included supplemental briefing from Smith, the trial court recommended that relief be denied.[10] The Texas Court of Criminal Appeals summarily-denied relief without a written order on December 19, 2018.[11]

         On January 10, 2019, Smith filed the pending federal habeas corpus Petition under 28 U.S.C. § 2254.[12] Smith raises the following arguments:

1. He was denied effective assistance of counsel before and during his trial because his attorney failed to: (a) conduct an adequate investigation; (b) object to perjured testimony; (c) object to improper arraignment and amendment of the indictment; and (d) argue in closing that Smith was guilty only of a lesser-included offense.
2. There was no evidence to support his conviction for aggravated robbery or for the finding that a deadly weapon was used to commit the offense.
3. He was denied due process when the trial court erred by (a) denying his motion for a directed verdict; (b) overruling objections to State's Exhibits four and five; (c) overruling an objection to the State's use of an enhancement offense over ten years old and not alleged in the indictment; (d) conducting his arraignment in the presence of ...

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