United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
August 9, 2005
For the Fifth Circuit
Charles R. Fulbruge III
_________________________ Clerk
No. 03-51352
_________________________
BERNARD JAMES WARD, JR.,
Petitioner - Appellee-Cross-
Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellant-Cross-
Appellee.
_________________________
Appeals from the United States District Court
For the Western District of Texas
_________________________
Before REAVLEY, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Claiming that he had received ineffective assistance of
counsel, Bernard Ward sought relief under 28 U.S.C. § 2254 from his
conviction and sentence by a Texas court for indecency with a
child, sexual assault, aggravated sexual assault, and possession of
child pornography. The federal district court denied relief as to
his conviction, but granted Ward’s petition as to his sentence.
Ward and the State filed cross-appeals, and the district court
granted Ward’s motion for COA. We hold that the district court
correctly denied Ward’s petition as to his conviction, but erred in
granting his petition as to his sentence.
I
In August 1993, Shannon Grant, then age 13, and his mother,
Patti Love, moved into a house in Williamson County, Texas. The
house was located next door to Bernard Ward, a single male. Ward
befriended the family, and began working with Grant in an effort to
improve his performance at school. He also encouraged Grant to
stop abusing illegal drugs. As their friendship progressed, Ward
began allowing Grant to spend the night at his house, purchased
time for him on a web-based video game, and took him to Big Bend
National Park. In addition to these innocuous activities, Ward
allowed Grant to view pornographic videos. Grant also discovered
a number of Playboy and Hustler magazines in Ward’s attic. Roughly
eighteen months into their friendship, Ward encouraged Grant to
enter into a sexual relationship with him. The two engaged in
sexual acts four or five times, after which Grant refused to
participate further.
Roughly one month after these sexual encounters began, Ward
leased a room in his house to Grant’s best friend, Mike Carta.
Carta was 18 years old at the time. Grant also introduced Ward to
one of his friends from school, Adam Clouse. Clouse, who was
twelve or thirteen years old at the time, began frequenting Ward’s
house along with Grant. Ward ultimately invited Clouse to
participate in sexual activity with him, resulting in a number of
sexual encounters over an eight-day period. Finally, Ward was
2
introduced to Chad Wright, another friend of Grant’s. Ward made a
number of passes at Wright, and attempted to initiate a sexual
encounter. Wright quickly stopped the encounter and refused to
participate in further sexual activity with Ward.
When Grant first met Ward, Ward owned a personal computer.
Ward allowed Grant access to his personal computer on a regular
basis. Eventually, Grant’s use of Ward’s computer became so
excessive that Ward purchased Grant his own computer. Shortly
thereafter, Ward discovered the internet and purchased a second new
computer for his own use. Ward quickly became addicted to internet
pornography, including child pornography and photographs of adult
bestiality. He would download files containing pornographic
pictures from the internet and store the files in folders marked
“Animals, Boy/Girl, Female, Male, Male 10 to 13, Male 13 to 16,
Male 7 to 10, Male in Briefs, and Celeb Boys.”
Ward attempted to hide his use of internet pornography from
the boys who frequented his home, but his furtiveness ultimately
piqued the suspicions of Grant and Carta. One day while Ward was
away, Grant used a password to log onto Ward’s computer, and he and
Carta accessed the files containing child pornography and
photographs of bestiality. Rightly disgusted and disturbed, Carta
reported Ward to the police. On September 24, 1996, Carta spoke
with detectives Dan LeMay and Mary Ryle of the Round Rock Police
Department and told them that he had observed child pornography on
Ward’s computer. The next day, LeMay and Ryle accompanied Carta to
3
Ward’s house while Ward was away. Carta let them into the house,
logged onto Ward’s computer, and showed them the child pornography.
At that point, LeMay and Ryle turned Ward’s computer off and
prepared a search warrant. They returned later that day and seized
Ward’s computer along with pornographic videos, magazines, condoms
and K-Y Jelly. Ward was arrested on charges of possessing child
pornography and was subsequently released after posting bond.
On September 27, Clouse went to the Round Rock Police
Department and informed LeMay that Ward had sexually assaulted him
on numerous occasions. Further investigation revealed the abuse of
Grant and Wright. Ward was arrested again and indicted for
possession of child pornography, indecency with a child, and
multiple counts of sexual assault, and charged in a second
indictment with multiple counts of aggravated sexual assault. Ward
elected to have a jury assess punishment in both cases, and filed
a motion to suppress evidence based upon an illegal search.
During this time, Ward’s counsel, Hugh Lowe, devised a defense
strategy aimed at securing either probation or the most lenient
prison sentence possible. As part of this strategy, Lowe sought to
have the cases against Ward consolidated into a single trial. The
prosecutor agreed to consolidate in exchange for a guilty plea, a
confession from Ward, and the name of Ward’s testifying expert.
Ward agreed to plead guilty, and Lowe disclosed the name of Ward’s
expert, Dr. Collier Cole, a psychologist specializing in the
treatment of sex offenders. Dr. Cole had treated Ward for seven
4
months prior to his trial. Lowe also declined to pursue the
earlier filed suppression motion.
In addition to taking these steps, Lowe determined that a
posture of complete openness was the proper approach to take at
Ward’s sentencing. Prior to trial, Lowe had Ward prepare a lengthy
written statement detailing his life up to the point of his
incarceration. The statement included Ward’s account of the
charged offenses, a summary of his employment history, an account
of his troubled childhood, and a summary of his use and sale of
illegal drugs many years before trial. Lowe provided the written
statement to Dr. Cole with the knowledge that it would be
subpoenaed by the State.1
Pursuant to his openness strategy, Lowe also failed to object
when the State sought to admit photographs of bestiality that were
stored on Ward’s computer. Neither did he object when the
prosecutor solicited testimony that of the 4,100 probationers in
Williamson County, not one was on probation granted by a jury for
aggravated sexual assault.
Lowe did lodge an objection when, in response to testimony by
Dr. Cole that it was not uncommon for a sex offender to be required
to place a sign in his yard announcing his status, the prosecutor
inquired whether a judge had ever required that the names,
1
When the subpoena was served, Dr. Cole faxed a copy of it to Lowe. Lowe
failed to respond to this fax and declined to claim attorney-client or work
product privilege. The statement was copied and ultimately provided to the
prosecution.
5
addresses and telephone numbers of jurors be placed on the sign if
they gave the sex offender probation. However, Lowe opted not to
request a curative instruction or move for a mistrial.
Lowe’s passive approach continued throughout the State’s
closing argument, during which the prosecutor made a number of
inflammatory remarks. The prosecutor quoted extensively from the
Bible and discussed attitude about crime in Williamson County
compared to that in other putatively less hospitable Texas
counties. Lowe failed to object to these statements.
Following deliberation, the jury returned a verdict of four
concurrent 20-year sentences, one 10-year sentence, three
concurrent 60-year sentences for aggravated sexual assault, and a
number of fines. Ward’s sentence was affirmed on direct appeal,
and his petition for discretionary review was denied.2 On November
27, 2000, Ward filed a state habeas application alleging
ineffective assistance of counsel. The State responded by filing
a one-page general denial and an affidavit by Lowe. Ward’s
application was considered by the same judge who presided over his
trial. After making findings of fact and conclusions of law, the
judge recommended that relief be denied.3 The Texas Court of
Criminal Appeals denied relief without issuing a written opinion.
2
Ward v. State, Nos. 03-97-657-CR & 03-97-658-CR, 1999 WL 125404 (Tex.
App.--Austin Mar. 11 1999, pet. ref’d) (unpublished).
3
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A (368th Dist. Ct.,
Williamson County, Tex., Mar. 9, 2001) (unpublished order).
6
Ward filed a petition under 28 U.S.C. § 2254 in the District
Court for the Western District of Texas, Austin Division. The
federal magistrate recommended that all relief be denied. Oral
argument was then held before the district court. The court denied
relief on Ward’s claim that his trial counsel was ineffective in
failing to challenge the search and seizure of his computer files
prior to his guilty plea, finding that this claim was barred
because he had not made a showing that his plea was involuntary.4
The court granted relief, however, on Ward’s claim that his
trial counsel was ineffective at sentencing. The court identified
five instances of ineffectiveness by Lowe: (1) his failure to
request a curative instruction or move for a mistrial after the
prosecutor queried whether the names of jurors had ever been placed
on a sign in a sex offender’s front yard in response to a sentence
of probation; (2) his failure to make efforts to keep the portion
of Ward’s statement regarding unadjudicated drug offenses out of
evidence; (3) his failure to object to the introduction of
photographs of bestiality; (4) his failure to object to testimony
regarding the absence of probationers in Williamson County granted
probation by a jury after being convicted of aggravated sexual
assault; and (5) his failure to object to improper jury argument by
the prosecutor.5 The court found that there was a reasonable
4
Ward v. Cockrell, No. A-01-CA-354-SS, at 8 (W.D. Tex. Sept. 12, 2003)
(unpublished order).
5
Id. at 9-18.
7
probability that but for these errors, Ward’s sentence would have
been different.
Ward filed an unsuccessful motion to alter or amend the
judgment. The State filed a notice of appeal from the judgment,
and Ward filed a motion for COA and a notice of appeal from the
order denying his motion to alter or amend. Ward’s motion for COA
was granted by the district court.
II
Under 28 U.S.C. § 2254, Ward is entitled to federal habeas
relief only if he can demonstrate that the state court’s
adjudication of his ineffective assistance claims
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.6
A state court’s adjudication constitutes an “unreasonable
application” when the court identifies the correct governing legal
principle from Supreme Court’s decisions, but applies that
principle to the facts of a particular case in an objectively
unreasonable way.7
6
28 U.S.C. § 2254(d)(1)-(2).
7
See Rompilla v. Beard, 125 S. Ct. 2456, 2462 (2005); Wiggins v. Smith,
539 U.S. 510, 519-20 (2003); Williams v. Taylor, 529 U.S. 362, 409-13 (2000)
(Opinion of O’Connor, J.).
8
We examine the federal habeas court’s factual findings for
clear error and determinations of law de novo.8 An ineffective
assistance of counsel claim “presents a mixed question of law and
fact.”9 “When examining mixed questions of law and fact, we also
utilize a de novo standard by independently applying the law to the
facts found by the district court, as long as the district court’s
factual determinations are not clearly erroneous.”10
Reviewing the state habeas court’s rejection of Ward’s state
petition, the district court found that Ward was not entitled to
relief on his ineffective assistance claim with respect to his
guilty plea, but held that Ward was entitled to relief on his claim
that Lowe was ineffective at sentencing. We address these issues
in turn.
A
Ward contends that the district court erred when it rejected
his claim that Lowe was ineffective for abandoning a meritorious
motion to suppress evidence of child pornography seized after an
illegal search of his computer. Ward claims that had he been
properly informed of the law governing search and seizure, he would
not have pled guilty and would have pressed Lowe to pursue the
suppression motion.
8
See Bosley v. Cain, 409 F.3d 657, 662 (5th Cir. 2005); Ramirez v. Dretke,
396 F.3d 646, 649 (5th Cir. 2005).
9
Riley v. Dretke, 362 F.3d 302, 305 (5th Cir. 2004).
10
Ramirez, 396 F.3d at 649.
9
Our review of Ward’s ineffective assistance of counsel claim
is governed by the familiar test of Strickland v. Washington:
deficient performance and prejudice.11 To prove deficient
performance, “a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of
reasonableness.’”12 We must “accord substantial deference to
counsel’s performance, applying the strong presumption that counsel
performed adequately and exercised reasonable professional
judgment.”13 To establish prejudice, a 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.”14
When a petitioner challenges the voluntariness of his guilty
plea entered pursuant to the advice of counsel on ineffective
assistance grounds, he must establish that his counsel’s advice
fell below the range of competence demanded of an attorney in a
11
466 U.S. 668, 687 (1984). We note that the state habeas court applied
Strickland in assessing Ward’s state habeas petition. See Hernandez v. State,
988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (holding that Strickland applies to
ineffective assistance claims raised in state habeas actions).
12
Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
13
Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005) (citing
Strickland, 466 U.S. at 689).
14
Strickland, 466 U.S. at 694.
10
criminal case.15 Further, he must show prejudice by establishing
that “but for his counsel’s alleged erroneous advice, he would not
have pleaded guilty but would have insisted upon going to trial.”16
This assessment will turn partially on “a prediction of what the
outcome of a trial might have been.”17
Ward urges that Lowe rendered ineffective assistance by
failing to adequately investigate whether the search and seizure of
Ward’s computer files was illegal under the Fourth Amendment and
Texas law. Ward asserts that had Lowe provided minimal legal
investigation, he would have discovered that all evidence yielded
by the search, including statements by the boys regarding the
sexual assaults, was inadmissible. Had Lowe informed him of this,
Ward claims that he would have directed Lowe to “push the
suppression motion to the limit, more likely than not securing a
dismissal of all charges.”
We are not persuaded. The record contains no indication that
Lowe failed to conduct an adequate investigation into the law and
facts relevant to the suppression motion. In addition, Ward cannot
establish that Lowe performed in a deficient manner by failing to
seek suppression of evidence related to the sexual assault and
15
See Hill v. Lockhart, 474 U.S. 52, 56 (1985); Armstead v. Scott, 37 F.3d
202, 206 (5th Cir. 1994).
16
Armstead, 37 F.3d at 206; see Carter v. Collins, 918 F.2d 1198, 1200
(5th Cir. 1990); Uresti v. Lynaugh, 821 F.2d 1099, 1101 (5th Cir. 1987) (citing
Hill, 474 U.S. at 58-59).
17
Armstead, 37 F.3d at 206 (citing Hill, 474 U.S. at 56-58).
11
aggravated sexual assault charges.18 We have held that “counsel’s
failure to move to suppress evidence, when the evidence would have
been suppressed if objected to, can constitute deficient
performance.”19 Assuming arguendo that the search and seizure
precipitated by Carta’s actions was unlawful, Ward would have been
unable to suppress evidence that he committed multiple sexual
assaults against Grant and multiple aggravated sexual assaults
against Clouse because this evidence was not obtained as a result
of the allegedly unlawful police activity.
Ward argues that suppression of Clouse and Grant’s testimony
would have been appropriate under the “fruit of the poisonous tree”
doctrine, which provides that “all evidence derived from the
exploitation of an illegal seizure must be suppressed, unless the
government shows that there was a break in the chain of events
sufficient to refute the inference that the evidence was a product
of the Fourth Amendment violation.”20 The test for determining
18
In his brief, Ward argues that successful prosecution of the suppression
motion would have resulted in the dismissal of evidence supporting all charges
against him. This argument presupposes that the suppression motion was equally
meritorious with respect to evidence of child pornography, sexual assault,
indecency with a child, and aggravated sexual assault.
19
Martin v. Maxey, 98 F.3d 844, 848 (5th Cir. 1996); see Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986) (holding that when ineffectiveness claim is
grounded on counsel’s failure to litigate a Fourth Amendment claim, “the
defendant must also prove that his Fourth Amendment claim is meritorious and that
there is a reasonable probability that the verdict would have been different
absent the excludable evidence in order to demonstrate actual prejudice”).
20
United States v. Portillo-Aguirre, 311 F.3d 647, 658 (5th Cir. 2002);
see United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998); United States v.
Caldwell, 750 F.2d 341, 343 (5th Cir. 1984); see also Thornton v. State, 145
S.W.3d 228, 232 (Tex. Crim App. 2004) (discussing “fruit of the poisonous tree”
doctrine).
12
whether evidence is inadmissible as fruit of the poisonous tree is
“whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”21 Evidence that
would otherwise be suppressible as fruit of the poisonous tree is
purged of the primary taint “if it derives from an independent
source, if the link to the illegally secured evidence is
attenuated, or if it would inevitably have been discovered without
the aid of the illegally obtained evidence.”22
When Ward was first arrested following the seizure of
materials from his house, he was charged only with possessing child
pornography. Ward did not disclose that he had been involved in
sexual relationships with minor children. Two days after the
search, Adam Clouse was taken by his father, Chuck Clouse, to the
Round Rock Police Station where he disclosed that he had been
sexually abused by Ward. An arrest warrant was prepared and Ward
was re-arrested and charged with aggravated sexual assault.
Importantly, there is no indication that Clouse’s revelation was
the product of police exploitation of evidence seized from Ward’s
house.
Even assuming that Clouse’s disclosure was linked to the
21
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal quotation
marks and citation omitted).
22
United States v. Singh, 261 F.3d 530, 535 (5th Cir. 2001).
13
search and seizure, the link was sufficiently attenuated to
dissipate any taint. Clouse’s decision to come forward, while
possibly attributable to Ward’s arrest in a tangential way,23 was
the product of his own free will.24 Although only two days elapsed
between the search and seizure and Clouse’s disclosure, the record
indicates that his decision to report Ward was in no way “coerced
or even induced by official authority.”25 As a result, suppression
of his testimony would have been inappropriate even if Ward’s
motion had been pursued by Lowe and a successful outcome achieved.
Likewise, suppression of Grant’s testimony would have been
improper because Grant also chose to voluntarily report that he had
been sexually abused by Ward. At trial, Grant testified that he
initially denied having been abused after news of Ward’s arrest
23
Presumably, the disclosure constitutes a “fruit” of the search because
Ward’s arrest emboldened Clouse to come forward when he otherwise would not have
done so. This hypothesis is speculative in nature, and lacks a solid factual
basis in the record. Nonetheless, it is the only plausible link between the
search and the discovery of the sexual abuse committed by Ward.
24
The Supreme Court has observed:
Witnesses are not like guns or documents which remain hidden from
view until one turns over a sofa or opens a filing cabinet.
Witnesses can, and often do, come forward and offer evidence
entirely of their own volition. And evaluated properly, the degree
of free will necessary to dissipate the taint will very likely be
found more often in the case of live-witness testimony than other
kinds of evidence.
United States v. Ceccolini, 435 U.S. 268, 276-77 (1978); see United States v.
Butts, 729 F.2d 1514, 1528 (5th Cir. 1984) (among the factors considered in
making the attenuation determination is “whether the testimony was the act of the
witness=s own free will”).
25
Ceccolini, 435 U.S. at 279. In his trial testimony, Clouse stated that
he had been “tricked” by Detective LeMay into disclosing that he had been
sexually abused when LeMay stated that Ward had already confessed to the abuse.
This testimony suggests at most that LeMay may have employed deception in order
to encourage Clouse to speak openly once he came forward.
14
first came out. Grant testified that he eventually decided to go
to the police with his story after he admitted to Chuck Clouse that
he had been abused. As with Adam Clouse, there is no evidence that
Grant’s decision to report Ward’s illegal behavior was the result
of police exploitation of evidence seized from Ward’s house.
Given that Lowe’s failure to challenge the admissibility of
Clouse and Grant’s testimony was not objectively unreasonable, Ward
cannot establish that his guilty plea was entered involuntarily as
a result of his counsel’s ineffective assistance. Even if Lowe had
succeeded in suppressing evidence of child pornography taken from
Ward’s computer, Ward still would have faced two separate
indictments charging, inter alia, multiple counts of sexual assault
and aggravated sexual assault. In his affidavit, Lowe stated that
one of his overriding strategic goals was that of limiting Ward’s
exposure to “multiple trials and stacked sentences.” The
prosecutor agreed to consolidate the cases if Ward would plead
guilty and confess. This same pressure to plead guilty would have
been present had evidence of child pornography been excised from
the case. Ward has offered no argument or evidence as to any
countervailing considerations which would have altered his decision
to plead guilty upon suppression of the child pornography alone.
Accordingly, we agree fully with the district court that Ward has
failed to demonstrate that his guilty plea was involuntary.
B
15
We now turn to the State’s argument that the district court
erred in holding that Ward was prejudiced by his counsel’s
ineffective assistance at sentencing. As before, our analysis is
guided by the performance and prejudice test of Strickland.
1
The district court identified five separate instances of defective
assistance rendered by Lowe at sentencing, all of which are
contested by the State. We will take up each instance in turn.
a
The State first argues that the district court erred in
holding that Lowe acted in an objectively unreasonable manner when
he failed to request a curative instruction and seek a mistrial
after the prosecutor made what the court described as “threats to
the jury.”26
When being questioned by Lowe about various conditions that
may be placed on sex offenders who are given probation, Dr. Cole
opined that “[t]here have been several . . . cases around the State
where Judges will require a notice on [the sex offender’s] door or
a sign in the yard, something of that nature, again to warn the
community.” During cross-examination, the prosecutor asked Dr.
Cole if he had “ever had a Judge that would require not only the
sign be put out there but the names and addresses and phone numbers
of the jury members that gave him probation” be placed on the sign.
26
Ward v. Cockrell, No. A-01-CA-354-SS, at 9.
16
Before Dr. Cole could respond, Lowe interposed an objection, and
the court asked the prosecutor to restate the question. The
prosecutor then inquired whether, in cases where juries had
recommended probation for sex offenders and probation was given,
the judge had ordered that the “names of the jurors and their
addresses and telephone numbers” be listed on the sign. Lowe again
objected and his objection was sustained. Lowe did not request a
curative instruction or seek a mistrial.
During a subsequent recess, Lowe informed the court that he
was having “more and more trouble about the juror’s names on the
signs,” and requested a curative instruction. He also announced
his intention to seek a mistrial if the request was granted. The
court denied the request as untimely, and stated, “I certainly
would have [issued an instruction], given the opportunity to at the
time that the objection was made; but there’s been an awful lot of
testimony since then.”
In his affidavit, Lowe explained that he did not seek a
curative instruction because doing so “would only remind the jury
of the question,” and he “did not believe that an instruction to
disregard would be any more effective than the trial court’s
decision to sustain” his objection. Further, he stated that he did
not seek a mistrial because he believed that Ward “had received a
fair trial and would not get any better opportunity to present his
case.” Lowe claimed that a mistrial would have allowed the
prosecutor time to better prepare for Dr. Cole’s testimony and to
17
hire a rebuttal expert. In addition, Lowe feared that a mistrial
would have resulted in the loss of favorable testimony from Patti
Love and Shannon Grant, both of whom were viewing Ward in an
increasingly negative light.
In reviewing Ward’s habeas application, the state habeas court
found that Lowe’s failure to request a curative instruction was
part of a “deliberately formed strategy to avoid bringing the
question again to the attention of the jury.”27 The court then
rejected Ward’s ineffective assistance challenge, noting that it
was “based almost entirely on the premise of using a different
trial strategy designed to object to everything and challenge the
State’s evidence.”28 “Such hindsight,” the court concluded, “is not
permitted in evaluating a claim of ineffective assistance of
counsel.”29
We have observed that 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.”30 Under
27
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A, at 8.
28
Id.
29
Id.
30
Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2005) (internal
quotation marks and citations omitted); see United States v. Jones, 287 F.3d 325,
331 (5th Cir. 2002) (“‘Informed strategic decisions of counsel are given a heavy
measure of deference and should not be second guessed.’” (quoting Lamb v.
Johnson, 179 F.3d 352, 358 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 228
(5th Cir. 1993) (“Given the almost infinite variety of possible trial techniques
and tactics available to counsel, this Circuit is careful not to second guess
18
this indulgent standard, we cannot say that Lowe’s strategic
decision to avoid seeking a mistrial was constitutionally
deficient. In deciding whether to seek a mistrial, Lowe was
required to balance the harm caused by the prosecutor’s improper
question against the legitimate possibility that a new trial would
present less propitious prospects for his client. Lowe opted to
cast his lot with a jury that, although possibly feeling
threatened, had heard favorable testimony from Love and Grant,
rather than risk retrying the case with Love and Grant appearing as
hostile witnesses. This decision, while debatable, was not
objectively unreasonable.
Lowe’s failure to seek a curative instruction after his
objection was sustained, however, cannot be considered an
objectively reasonable tactical decision based on an informed trial
strategy. After hearing the prosecutor ask two consecutive
questions suggesting that their names, addresses and telephone
numbers could be placed on a sign in Ward’s front yard if they
sentenced him to probation, the jury would have been understandably
anxious to learn the answer. What they received following Lowe’s
objections was silence. It was incumbent upon Lowe, whose trial
strategy was directed toward securing a sentence of probation for
Ward, to take some action to dispel the notion that the court
would, in effect, sentence the jury to public shame, ridicule and
legitimate strategic choices.”).
19
disapprobation if it provided Ward with his desired outcome.
Securing an instruction to disregard, while not fully mitigating
the effect of the prosecutor’s thinly veiled threat, would have
provided the jury with a solid basis for proceeding without fear of
state-imposed repercussions. The state habeas court’s decision to
the contrary was an objectively unreasonable application of the law
to the facts.
b
The State also challenges the district court’s conclusion that
Lowe offered ineffective assistance when he allowed evidence of
Ward’s unadjudicated drug offenses to reach the jury. Before
trial, Lowe requested that Ward prepare a written autobiography of
his life up to the point of his arrest and incarceration. Ward
prepared a detailed statement nearly forty pages in length in which
he recounted, inter alia, his involvement with illegal drugs,
including cocaine, marijuana, and methamphetamine, roughly ten
years before his arrest.
Upon receipt of this written statement, Lowe decided that it
should be used by Dr. Cole and be heard by the jury. Lowe
disclosed the statement to Dr. Cole, and did not seek to invoke
attorney client or work product privilege when the report was
subpoenaed. At trial, the prosecutor offered Ward’s statement into
evidence without objection from Lowe. Lowe referenced the
statement when he announced his strategy to the jury, stating:
20
You will hear also from Ben Ward himself. Ben is here
asking you for consideration, and in return for that he’s
bringing you complete honesty. He has written a report
for Dr. Cole--it’s in evidence[]--where he confesses to
every sin he’s ever committed. He’s here to answer any
questions the State might have and to give you whatever
information that you might need.
Ward’s involvement with illegal drugs was subsequently referenced
numerous times during the course of the trial, including his
admission to having been both a user and a dealer.
Lowe defended his decision to disclose the statement and not
seek exclusion of Ward’s prior uncharged drug offenses on grounds
that a posture of complete openness would bolster the credibility
of Dr. Cole and convince the jury that Ward was “ready for
treatment.” He asserted that Ward understood and agreed with this
strategy. The state habeas court found this strategy reasonable,
noting that Lowe made frequent use of Ward’s statement, including
references to his prior involvement with drugs, to demonstrate that
he was “good candidate for treatment and rehabilitation.”31
While we do not quarrel with Lowe’s strategic decision to be
open and honest with the jury, we conclude that Lowe provided
ineffective assistance in allowing the jury unabated access to
information about drug offenses remote from and unrelated to the
crimes for which Ward was indicted. Lowe’s strategy of openness
called for Ward to acknowledge his guilt and take responsibility
for his past failings in such a way that the jury would be
31
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A, at 6-7.
21
convinced that he was a good candidate for rehabilitation, thereby
increasing his chances for probation. This goal could have been
accomplished by having Ward testify openly about his sexual crimes
without placing before the jury evidence of past drug involvement
that had no relevance to the charged offenses.
We also find unpersuasive the State’s argument that any
objection by Lowe to the admission of evidence regarding Ward’s
involvement with drugs would have been futile. Texas law provides
that at the punishment stage of a criminal trial
evidence may be offered by the state and the defendant as
to any matter the court deems relevant to sentencing,
including but not limited to . . . evidence of an
extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been
charged with or finally convicted of the crime or act.32
The Texas Court of Criminal Appeals has held that relevancy
determinations at sentencing should be based on an analysis of
“what is helpful to the jury in determining the appropriate
sentence in a particular case.”33 The Court has explained that
these determinations are “a function of policy rather than a
32
TEX. CRIM. PROC. CODE ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 1997)
(emphasis added).
33
Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). In making
this determination, the Court has held that, while not a “perfect fit,” Texas
Rule of Evidence 401 is “helpful” in determining whether evidence is admissible
at sentencing. See Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)
(citing Rogers, 991 S.W.2d at 265)). Rule 401 provides that “‘[r]elevant
evidence’ means evidence having 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.” TEX. R. EVID. 401.
22
question of logical relevance.”34 Pertinent policy considerations
include “giving complete information for the jury to tailor an
appropriate sentence for a defendant; the policy of optional
completeness; and admitting the truth in sentencing.”35 Even if
a fact is found to be relevant to the determination of a
defendant’s sentence, it may still be excluded on grounds that “its
probative value is substantially outweighed by the danger of unfair
prejudice.”36
Here, evidence that Ward had used and sold illegal drugs
roughly ten years before his arrest for sex crimes was not relevant
to the jury’s sentencing determination. At no point was Ward
charged with any drug crimes,37 and no suggestion was raised at
trial that Ward’s sexual misconduct was related to his past drug
abuse. Ward’s involvement with illegal drugs was separate and
unrelated to his sex crimes, and was therefore not helpful to the
34
Sunbury v. State, 88 S.W.3d 229, 233 (Tex. Crim. App. 2002).
35
Id. at 233-34.
36
TEX. R. EVID. 403; see Rogers, 991 S.W.2d at 266 (applying Rule 403 in
sentencing context); Rodriguez v. State, 163 S.W.3d 115, 119 (Tex. App.--San
Antonio 2005, pet. filed June 8, 2005) (“[A]dmissibility of punishment phase
evidence that the trial court deems relevant is still subject to a rule 403
analysis.” (citing Rogers, 991 S.W.2d at 266-67)); Fowler v. State, 126 S.W.3d
307, 311 (Tex. App.--Beaumont 2004, no pet.) (applying rule 403 sentencing
context); Contreras v. State, 59 S.W.3d 362, 365 (Tex. App.--Houston [1st Dist]
2001, no pet.) (same).
37
Texas courts have held that evidence of prior sentences imposed for past
convictions is relevant to sentencing because such evidence informs the jury as
to the type of sentences that have proved insufficient in deterring individual
defendants from committing future crimes. See Sunbury, 88 S.W.3d at 235; Rogers,
991 S.W.2d at 266. These cases are distinguishable given that Ward was never
charged for his prior involvement with drugs.
23
jury in making its sentencing determination.
In addition, admission of evidence regarding Ward’s
involvement with drugs was improper because any probative value it
may have had with respect to determining the appropriate length of
Ward’s sentence was far outweighed by the danger that it would give
rise to unfair prejudice. Texas courts have held that “unfair
prejudice” refers to “an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional
one.”38 The admission of evidence establishing that Ward had used
and sold illegal drugs roughly a decade before committing
aggravated sexual assault gave rise to a risk that the jury would
attempt to punish Ward for both his drug offenses and his sex
crimes when determining his sentence. The probability that such
evidence would have been excluded is high.
The State’s argument that evidence of Ward’s involvement with
drugs would have been necessarily admissible as part of the factual
basis for Dr. Cole’s expert testimony is also misplaced. Under
Texas law, a testifying expert may be “required to disclose on
cross-examination” the facts or data underlying her opinion.39
However, expert “testimony may be admissible while at the same time
the underlying facts or data [supporting her opinion] are
38
Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993) (internal
quotation marks and citation omitted); see Erazo v. State, 144 S.W.3d 487, 501-02
(Tex. Crim. App. 2004); Newbury v. State, 135 S.W.3d 22, 43 (Tex. Crim. App.
2004).
39
TEX. R. EVID. 705(a).
24
inadmissible.”40 When the facts or data underlying an expert’s
opinion are otherwise inadmissible, “the court shall exclude the
underlying facts or data if the danger that they will be used for
a purpose other than as explanation or support for the expert’s
opinion outweighs their value as explanation or support or are
unfairly prejudicial.”41 Because evidence of Ward’s involvement
with drugs was inadmissible, there is a good possibility that an
objection by Lowe would have been sustained even though it
constituted “facts or data” underlying Dr. Cole’s expert opinion
testimony.42 Because the evidence related to past criminal conduct
for which Ward was never charged, the jury could easily have
considered it not for the purpose of ascertaining Ward’s propensity
for rehabilitation, but rather as an additional basis for assessing
a lengthy prison sentence.
In short, we find that the district court did not err in
holding that Lowe rendered ineffective assistance by allowing
without objection the presentation of evidence relating to Ward’s
past involvement with drugs.
c
The State next argues that the district court erred in holding
40
Boswell v. Brazos Elec. Power Coop., Inc., 910 S.W.2d 593, 602 (Tex.
App.--Fort Worth 1995, writ denied).
41
TEX. R. EVID. 705(d).
42
See Resendez v. State, 112 S.W.3d 541, 544-45 (Tex. Crim. App. 2003)
(holding that a trial judge did not abuse his discretion when he excluded
photographs under Rule 705(d) because they were inadmissible under Rule 403 and
were likely to be used for purposes other than supporting the expert’s opinion).
25
that Lowe performed in a deficient manner by failing to object to
the admission of images of bestiality seized from Ward’s computer.
In his affidavit, Lowe stated that he did not object to admission
of these grotesque images because he believed them to be admissible
“for impeachment of our strategy of openness” as well as
constituting background for Dr. Cole’s testimony. The state habeas
court did not directly address the admission of this evidence.
We can identify no objectively reasonable basis in this case
for permitting the sentencing jury to view the images of adult
bestiality. The images did not form part of the factual basis for
the charges to which Ward plead guilty, and had no relevance to the
jury’s sentencing determination apart from demonstrating the depths
of depravity to which Ward had sunk. Even if the evidence were
relevant in some tangential way to the determination of Ward’s
sentence, we believe it highly probable that considerations of
unfair prejudice would have sufficed to keep this evidence from the
jury.43
Further, we reject the State’s argument that Ward “opened the
door” to the bestiality images by purporting to be open and honest
with the jury.44 However, to the extent that Ward may have opened
43
See United States v. Harvey, 991 F.2d 981, 995-96 (2d Cir. 1993) (mere
description of “X-rated” videos in defendant’s possession containing images of
“gross acts involving human waste, and people engaging in bestiality and
sadomasochism” was “so prejudicial that it denied [defendant] his right to a fair
trial”).
44
See Perry v. State, 158 S.W.3d 438, 442 (Tex. Crim. App. 2004)
(defendant may open the door to otherwise inadmissible impeachment evidence);
Theus v. State, 845 S.W.2d 874, 878 (Tex. Crim. App. 1992) (same).
26
the door, the trial court would have been within its discretion to
exclude the images as unfairly prejudicial.45 The district court
did not err in holding that Lowe was ineffective for failing to
object to this evidence.
d
The State next contests the district court’s holding that Lowe
was ineffective for failing to object to testimony by the assistant
director for the Williamson County probation department that of the
4,100 probationers in Williamson County, not one was “currently
being supervised on probation for aggravated sexual assault that
was granted by a jury.”46 Lowe defended his decision not to object
on grounds that he “did not want to give the jury any impression
that Mr. Ward was trying to hide anything.” In its findings of
fact, the state habeas court found that Lowe chose not object to
the question based on his “deliberately formed . . . strategy of
giving the appearance to the jury that [Ward] was being completely
open.”47
On appeal, the State argues that Lowe “could reasonably have
withheld objecting to minimize the importance of the testimony.”
We find this argument, as well as the state habeas court’s
45
See Martinez v. State, 17 S.W.3d 677, 687 (Tex. Crim. App. 2000) (trial
court is within its discretion to exclude evidence under Rule 403 when defendant
has otherwise opened the door to its admission).
46
The record reveals that on redirect examination, the prosecutor elicited
identical testimony from the same witness. Lowe objected on grounds that the
question had been “asked and answered.” The objection was overruled.
47
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A, at 8.
27
reasoning, unpersuasive and an unreasonable application of
Strickland. Beyond being irrelevant to the proper determination of
Lowe’s sentence, this testimony was prejudicial to Ward in that it
invited the jury to base its sentencing decision on an improper
basis.48 Permitting the State to present this evidence without
objection was unreasonable, and cannot be recast as a “strategic
decision” given that the evidence was wholly unrelated to Ward’s
background or his readiness for treatment. In its brief, the State
acknowledges this reality by conceding that Lowe’s “decision not to
object may, in hindsight, have been deficient.” We find no error
in the district court’ holding on this point.
e
In its final challenge, the State argues that the district
court erred when it held that Lowe was ineffective for failing to
object to several statements made by the prosecutor during closing
argument, including a recitation from the Bible and a comparison of
Williamson County attitudes toward crime to those in Galveston and
the Rio Grande Valley. Discussing Ward’s alleged turn to
religion, the prosecutor observed:
We heard some talk from [Ward’s] mom . . . that Ben had
asked for forgiveness, had gone to confession, that sort
of thing. . . . As I remember it, and I don’t have the
actual chapter and verse . . . [b]ut as I remember it,
when Christ was crucified there were two thieves on each
48
Cf. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990) (“The
State may not . . . argue that the community or any particular segment of the
community expects or demands either a guilty verdict or a particular
punishment.”).
28
side of Christ, and they asked forgiveness. They asked
what they should do, and he told them how that they could
get forgiveness. They did that . . . and Christ said,
“You’re forgiven.” And I think that Ben Ward can and
probably has been forgiven. But Christ didn’t take the
thief off the tree. Christ let the thief pay for the
crime that he committed, and I think that’s important.
The prosecutor then observed that “Christ thought children were
really something else,” and quoted the following passage from the
book of Matthew: “But whosoever [sic] shall offend one of these
little ones which believe in me, it were better for him that a
millstone were hanged about his neck and that he were drowned in
the depth of the sea.”49
The prosecutor also recounted Dr. Cole’s response to a
question regarding the percentage of sex offenders in Galveston
County that receive probation:
[H]e got to throwing around, “It’s pretty big, maybe a
third.” I bet my paycheck it wasn’t [a] third. And if
it is, then maybe that’s what’s wrong with Galveston
County because there’s a lot of Galveston County that’s
not that beach, folks, that we see. You go down there
and look at the ghettos and the problems that they have
in Galveston County proper and in Galveston itself. Get
off that beach and get into their town, and you’ll
realize that it isn’t Williamson County. Maybe that’s
what the deal is. Maybe their juries do give probation.
But I’ve got news for you. It’s not the type of thing
that ought to be happening in Williamson County.
Turning to Ward’s involvement with drugs, the prosecutor noted:
And then he gets into a situation where he begins to use
marijuana and used it heavily daily and then begins to
sell marijuana. And yes, we have lawyers coming up here
all the time from the valley saying what are you people
doing trying to send these people to the pen for just a
49
See Matthew 18:6 (New King James).
29
few pounds of marijuana, because they think that’s
chicken feed, you know? Well, we don’t. We think in our
county if you want to sell a few pounds of marijuana, you
get to go to the pen. Is that something bad? Do ya’ll
like living where you’re living? Do ya’ll want to live
in the valley-type situation where several hundred pounds
of marijuana may be an offense? Or do you like living
where you are and raising your kids where you are because
of the fact that the law enforcement and the good people
of this community tow [sic] the line and expect others to
tow [sic] the line?
In his affidavit, Lowe justified his failure to object to the
prosecutor’s reference to religion on grounds that it was invited
by testimony about Ward’s return to faith. Further, Lowe claimed
that he opted not to object to the prosecutor’s reference to drug
offense sentences in the Valley because it was “a fair comment on
our arguments that Mr. Ward should get probation.” The state
habeas court accepted this explanation, noting: “In deciding not to
object to the prosecutor’s final arguments, Lowe formed the opinion
that the arguments were not objectionable or not harmful enough to
draw the jury’s attention with an objection. He deliberately made
a strategic decision not to object.”50
We conclude that the state habeas court unreasonably applied
Strickland with respect to Ward’s claim that Lowe should have
challenged the prosecutor’s recitation of the millstone passage.
Texas law provides that “proper jury argument must fall within one
of the following categories: (1) summary of the evidence; (2)
reasonable deduction from the evidence; (3) in response to argument
50
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A, at 8.
30
of opposing counsel; and (4) plea for law enforcement.”51 Under
this standard, the prosecutor’s reference to the “millstone
passage” was improper because it reached beyond the record evidence
and encouraged the jury to base its sentencing determination on
notions of divine retribution. The State posits that this argument
was made in response to testimony by Ward’s mother that, following
his arrest, Ward had turned back to his Catholic faith, attended
confession, and sought absolution for his sins. The context of
this testimony reveals that it was aimed at bolstering Ward’s claim
that he was penitent and ready for treatment. Importantly, Ward
did not seek to persuade the jury that his spiritual contrition
necessarily required temporal absolution. Argument that Ward was
not ready for treatment, or perhaps that his spiritual reawakening
was opportunistic, would have been the proper rejoinders. However,
suggesting that Ward’s embrace of faith dictated that he be judged
by Biblical standards of justice was improper, and an objection to
this suggestion was necessary in order to mitigate its highly
prejudicial effect.52
51
Borjan v. State, 787 S.W.2d at 55 (citing Madden v. State, 721 S.W.2d
859, 862 (Tex. Crim. App. 1986); Alejandro v. State, 493 S.W.2d 230 (Tex. Crim.
App. 1973)).
52
See Oakley v. State, 68 S.W.2d 204, 207 (Tex. Crim. App. 1934) (noting
that prosecutor’s citation of the millstone passage and associated religious
argument “was a direct appeal to religious prejudice and calculated to arouse the
emotions” of the jury); Commonwealth v. Brown, 711 A.2d 444, 458 (Pa. 1998)
(prosecutor’s invocation of millstone passage held to be reversible error); Long
v. State, 883 P.2d 167, 177 (Okla. Crim. App. 1994) (prosecutor’s quotation of
the millstone passage at penalty phase was “rank misconduct”); cf. Arnett v.
Jackson, 393 F.3d 681, 691 (6th Cir. 2005) (noting in response to judge’s
invocation of the millstone passage that “[i]f the Constitution sanctions such
31
On the other hand, we conclude that Lowe was not ineffective
for failing to object to the prosecutor’s comparison of the
attitude toward crime in Galveston and the Rio Grande Valley to
that in Williamson County. Ward asserts that this argument was an
improper appeal to the jury to sentence him based on community
expectations, while the State contends that it was a proper plea
for law enforcement. Argument by counsel “constitutes a proper
plea for law enforcement if it urges the jury to be the voice of
the community, rather than asking the jury to lend its ear to the
community.”53 While the prosecutor’s comments danced close, they
did not constitute an impermissible invitation for the jury to
sentence Ward based on community expectations. The prosecutor did
not state that the people of Williamson County were expecting or
demanding a particular sentence;54 rather, the prosecutor sought to
goad the jury to return a lengthier sentence by parading before it
the specter of living in a permissive and crime-infested locale.
As an objection to this likely would have been futile, we cannot
direct reliance on religious sources when imposing criminal sentences, then there
is nothing to stop prosecutors and criminal defense lawyers from regularly citing
religious sources like the Bible, the Talmud, or the Koran to justify their
respective positions on punishment”).
53
Harris v. State, 122 S.W.3d 871, 888 (Tex. App.--Fort Worth 2003, pet.
ref’d) (citing Cortez v. State, 683 S.W.2d 419, 421 (Tex. Crim. App. 1984)).
54
See, e.g., Cortez, 683 S.W.2d at 420; Prado v. State, 626 S.W.2d 775,
(Tex. Crim. App. 1982); Pennington v. State, 345 S.W.2d 527, 528 (Tex. Crim. App.
1961); Cox v. State, 247 S.W.2d 262, 263 (Tex. Crim. App. 1961); Porter v. State,
226 S.W.2d 435, 436 (Tex. Crim. App. 1950); Peyson v. State, 124 S.W.2d 137, 138
(Tex. Crim. App. 1939); Mata v. State, 952 S.W.2d 30, 33 (Tex. App.--San Antonio
1997, no pet.).
32
say that Lowe was ineffective for failing to lodge one.
In sum, we conclude that Lowe was ineffective for failing to
object to the prosecutor’s quotation of the millstone passage
during closing argument; but was not ineffective for failing to
object to discussion of the varying attitudes toward crime in
different Texas counties.
2
Having found that Lowe performed deficiently at the punishment
phase of Ward’s trial, we must now determine whether Ward suffered
prejudice as a result. In order to prove prejudice, Ward must
establish a reasonable probability that but-for his counsel’s
deficient performance, he would have received a “significantly less
harsh” sentence.55 We have observed that this standard reflects our
concern of allowing review of sentences imposed by state courts
possessing a “wide range of sentencing discretion” while avoiding
an “automatic rule of reversal.”56 When applying this standard, we
“must consider such factors as the defendant’s actual sentence, the
potential minimum and maximum sentences that could have been
55
Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir. 1993). Ward contends that
Spriggs was overruled by the Supreme Court’s decision in Glover v. United States,
531 U.S. 198, 203 (2001). We have adopted Glover’s “any amount of jail time”
test for cases involving the federal sentencing guidelines, while holding that
Spriggs still applies in cases involving state sentencing regimes. United States
v. Grammas, 376 F.3d 433, 437-38, 438 n.4 (5th Cir. 2004). We may not overrule
another panel of this Court absent an intervening decision by the United States
Supreme Court overriding the earlier decision. United States v. Pettigrew, 77
F.3d 1500, 1511 n.1 (5th Cir. 1996). Thus, Spriggs applies here.
56
United States v. Reinhart, 357 F.3d 521, 531 (5th Cir. 2004) (internal
quotation marks and citation omitted); see United States v. Phillips, 210 F.3d
345, 351 (5th Cir. 2000).
33
received, the placement of the actual sentence within the range of
potential sentences, and any relevant mitigating or aggravating
circumstances.”57
The State argues that Ward cannot establish a reasonable
probability that his sentence would have been significantly less
harsh but for Lowe’s errors. The State observes that Ward’s sixty-
year sentence fell far short of the maximum of life, indicating
that the jury afforded him some measure of clemency despite Lowe’s
ineffective assistance. Further, the State urges that the
despicable nature of Ward’s crimes coupled with the well-known
abhorrence expressed by Williamson County juries towards sex
offenders guaranteed a lengthy sentence regardless of whether Lowe
performed deficiently. In short, the State argues that Ward must
regard his sentence of sixty years as a “victory”; that no amount
of improvement in Lowe’s performance would have resulted in more
lenient punishment.
On the other hand, Ward argues that the cumulative prejudicial
effect of his counsel’s errors gives rise to a reasonable
probability that, but-for those errors, he would have received a
significantly shorter sentence. This argument is not without
merit. Timely objections likely would have resulted in the
exclusion of the bestiality photographs and evidence of Ward’s
involvement with drugs, preventing the jury from considering this
57
United States v. Segler, 37 F.3d 1131, 1136 (5th Cir. 1994) (citing
Spriggs, 993 F.2d at 88).
34
highly prejudicial material when determining Ward’s sentence.
Further, a timely objection and request for a curative instruction
in response to testimony regarding the lack of persons convicted of
aggravated sexual assault given probation in Williamson County
would have aided in mitigating any suggestion that Ward’s sentence
should mirror those assessed by other Williamson County juries.
In addition, a timely objection and request for a curative
instruction would have mitigated the prejudice generated by the
prosecutor’s invocation of the millstone passage, a statement
calculated to incite the jury to factor into its sentencing
determination considerations of divine retribution. Finally, the
failure to request a curative instruction in response to the
prosecutor’s suggestion that the jurors’ names, addresses and
telephone numbers could be placed on a sign in Ward’s front yard if
they had the temerity to grant probation was inexcusable. Any
rational juror faced with such a prospect would be hesitant to
consider a sentence of probation for fear of suffering
ostracization within her community.
Considering this evidence in the first instance, we may be
persuaded that but-for these errors, Ward would have received a
significantly less harsh sentence. Our task under the AEDPA,
however, is that of determining whether the state habeas court’s
application of the law to the facts was reasonable. Importantly,
in order to grant habeas relief from a state conviction following
rejection of the petitioner’s state habeas application, we must
35
conclude that the state habeas court’s application of federal law
was not only incorrect, but “objectively unreasonable.”58
With respect to prejudice, the state habeas court held that
“given the severity and number of the offenses and the strength of
the evidence [against Ward], there is no reasonable probability
that the outcome would have been different.”59 While we may take
issue with the correctness of this determination, we cannot say
that it constitutes an objectively unreasonable application of
federal law to the facts of this case. Insulated from all
potentially inadmissible evidence and prejudicial statements, the
jury would still have heard testimony that Ward took impressionable
boys into his confidence--showering them with attention, gifts, and
encouragement--only to commit inexcusable depredations, including
sexual assault and aggravated sexual assault. Our society does not
deal lightly with these sorts of sexual predators; nonetheless, the
jury in this case sentenced Ward to 60 years when a sentence of 99
years or life was available.60 Given the seriousness of the
offenses to which Ward pleaded guilty, a reasonable possibility
58
See, e.g., Garcia v. Dretke, 388 F.3d 496, 500 (5th Cir. 2004); Jones
v. Dretke, 375 F.3d 352, 354 (5th Cir. 2004); Morrow v. Dretke, 367 F.3d 309, 313
(5th Cir. 2004); Riley v. Dretke, 362 F.3d 302, 305 (5th Cir. 2004); Schaetzle
v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
59
Ex parte Ward, Nos. 96-624-K368A & 96-625-K368A, at 9.
60
See TEX. PEN. CODE ANN. § 22.021(e) (Vernon 1994) (aggravated sexual
assault described as a first degree felony); TEX. PEN. CODE ANN. § 12.32(a) (Vernon
1994) (“An individual adjudged guilty of a felony of the first degree shall be
punished by imprisonment in the institutional division for life or for any term
or not more than 99 years or less than 5 years.”).
36
exists that he may receive a more harsh sentence if he were granted
a new trial as to punishment.61 In short, looking as we must
through the prism of AEDPA deference, we decline to disturb the
state habeas court’s determination that Ward was not prejudiced.
III
Because Ward failed to establish that his guilty plea was
entered involuntarily, we find no error in the district court’s
rejection of his ineffective assistance claim with respect to his
conviction. This portion of the district court’s judgment is
AFFIRMED. However, because we are persuaded that the state habeas
court’s determination that Ward suffered no prejudice as a result
of his counsel’s errors does not constitute an objectively
unreasonable application of clearly established federal law to the
facts of this case, we REVERSE the judgment of the district court
granting Ward habeas relief as to his sentence, and RENDER judgment
in favor of the state.
AFFIRMED in part, REVERSED in part, and judgment RENDERED for
the state.
61
The district court recognized this fact, warning Ward “with the old
adage, ‘be careful what you wish for--you might get it.’” Ward v. Cockrell, No.
A-01-CA-354-SS, at 19 n.3.
37
Ward v. Dretke
Court: Court of Appeals for the Fifth Circuit
Date filed: 2005-08-09
Citations: 420 F.3d 479
Copy Citations