Givens v. Cockrell

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 00-40532 _______________ TRACY LEE GIVENS, Petitioner-Appellant, VERSUS JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. _________________________ Appeal from the United States District Court for the Southern District of Texas _________________________ September 6, 2001 Before JONES, SMITH, and DeMOSS, I. Circuit Judges. In 1992, Givens attended a party with three friends. When they heard that some revelers JERRY E. SMITH, Circuit Judge: had brought shotguns to the party, the group retrieved their own firearms. A verbal skir- Tracy Givens appeals the denial of his mish ensued between two of the young men petition for writ of habeas corpus. Finding no and quickly escalated into shots fired at ran- error, we affirm. dom into the air, prompting most of those present to flee in a panic. Givens and Adrian Oliver rode away from this presentation rendered his assistance inef- the melee with friends. As another car ap- fective; and (3) counsel’s failure to raise this proached their vehicle, Givens and Oliver issue on appeal rendered his assistance ineffec- thought they heard a gunshot and began firing tive. at the other car; no one in that car had a gun. The shots from Oliver’s weapon mortally II. wounded a passenger in the other car, and in Because Givens filed his habeas petition the subsequent trial of Givens and Oliver, Giv- before the effective date of the Anti-Terrorism ens was convicted of “murder as a party.” and Effective Death Penalty Act (“AEDPA”), his petition is governed by the pre-AEDPA During the punishment phase of Givens’s standards. Green v. Johnson, 160 F.3d 1029, trial, the state presented evidence that he had 1035 (5th Cir. 1998). “Under pre-AEDPA been placed on a type of probation for six law, 28 U.S.C. § 2254(d) required federal months for burglary. The state also presented courts in habeas corpus proceedings to accord evidence of arrests for aggravated assault, a presumption of correctness to state court theft of a semi-automatic pistol, and posses- findings of fact, while state court determina- sion of cocaine. None of these arrests ever tions of law were to be reviewed de novo.” was adjudicated. Magouirk v. Warden, 237 F.3d 549, 552 (5th Cir. 2001). There are no factual findings, be- Givens’s counsel did not object to the ad- cause the trial court did not issue an order on mission of these unadjudicated offenses as evi- Givens’s application, and the Court of Crimi- dence. On cross-examination, counsel ob- nal Appeals denied the application without tained admissions that Givens was never found written order. guilty of any juvenile delinquent conduct and voluntarily had participated in the juvenile A. probation program. Givens appealed, but his Givens complains of the presentation of evi- counsel did not challenge the admission of this dence of unadjudicated extraneous offenses evidence; the Texas Court of Criminal Appeals during the punishment phase. We grant ha- affirmed. beas relief only when “the violation of the state’s evidentiary rules results in a denial of Givens filed a state habeas application, ar- fundamental fairness.” Herrera v. Collins, 904 guing, inter alia, that the trial court had erred F.2d 944, 949 (5th Cir. 1990). “[T]he errone- in allowing the introduction of extraneous, un- ous admission of prejudicial evidence can jus- adjudicated offenses and that his lawyer’s fail- tify habeas corpus relief only if it is material in ure to object at trial or raise the issue on ap- the sense of a crucial, critical, highly significant peal had denied him effective assistance of factor.” Anderson v. Maggio, 555 F.2d 447, counsel. The state court and the federal dis- 451 (5th Cir. 1977) (internal quotation omit- trict court denied his habeas petitions, but we ted). granted a COA to examine whether (1) the trial court had denied him a fair trial by allow- Givens was sentenced in September 1992, ing the presentation of evidence of unadjudi- when Texas permitted the introduction of evi- cated extraneous offenses during the punish- dence “as to any matter the court deems ment phase; (2) counsel’s failure to object to relevant to sentencing, including the prior 2 criminal record of the defendant.” TEX. CRIM. App. 1992).3 Thus, because the law was un- PROC. CODE art. 37.07 § 3(a) (Vernon Supp. settled at the time of Givens’s sentencing, the 1991) (emphasis added). The legislature had trial court did not err in following the current amended the statute to include the italicized majority rule, so the admission of the evidence language in 1989, but before that amendment, did not deprive Givens of a fair trial. the Court of Criminal Appeals had held such evidence inadmissible. See Murphy v. State, B. 777 S.W.2d 44, 57 (Tex. Crim. App. 1989). Givens contends that his attorney was inef- fective because he did not object to the evi- From the 1989 amendment until shortly af- dence of the unadjudicated extraneous offens- ter Givens’s trial, Texas courts generally con- es. To prevail on an ineffective-assistance strued the amended statute as allowing evi- claim, Givens must show both that “counsel’s dence of unadjudicated extraneous offenses at performance was deficient” and that the “de- the sentencing phase of a noncapital trial,1 ficient performance prejudiced the defense.” though a minority had reached the opposite Strickland v. Washington, 466 U.S. 668, 687- conclusion.2 Not until three months after Giv- 88 (1984). A “deficient performance” is one ens’s conviction and sentencing did the Court that “fell below the objective standard of rea- of Criminal Appeals resolve the debate in favor sonableness.” Id. at 688. of the minority position. See Grunsfeld v. State, 843 S.W.2d 521, 523-26 (Tex. Crim. Because Texas law was unsettled, counsel reasonably could have believed that the law 1 permitted such evidence. See Sharp v. John- See, e.g., Lafayette v. State, 835 S.W.2d 131, son, 107 F.3d 282, 289-90 (5th Cir. 1997). 133 (Tex. App.SSTexarkana 1992, no writ) (find- Therefore, Givens cannot show that the failure ing that the additional language reflected a leg- to object was deficient performance.4 Because islative intent to broaden the spectrum of acceptab- le evidence); Robles v. State, 830 S.W.2d 779, 783 (Tex. App.SSHouston [1st Dist.] 1992, pet. ref’d); 3 Rexford v. State, 818 S.W.2d 494, 496 (Tex. See also Chatham v. State, 889 S.W.2d 345, App.SSHouston [1st Dist.] 1991), pet. ref’d); 352 (Tex. App.SSHouston [14th Dist.] 1994, pet. Gallardo v. State, 809 S.W.2d 540, 541-42 (Tex. ref’d) (explaining the fluctuations in the law in this App.SSSan Antonio 1991), vacated, 849 S.W.2d area). The legislature amended the statute again 825 (Tex. Crim. App. 1993); Hubbard v. State, after Grunsfeld to allow the admission of evidence 809 S.W.2d 316, 319-20 (Tex. App.SSFort Worth of unadjudicated extraneous offenses at the sen- 1991) aff’d in part, rev’d in part, 892 S.W.2d 909 tencing phase of a noncapital crime. See Voisine v. (Tex. Crim. App. 1995); McMillian v. State, 799 State, 889 S.W.2d 371, 372 (Tex. App.SSHouston S.W.2d 311, 314 (Tex. App.SSHouston [14th [14th Dist.] 1994, no writ). This amendment, Dist.] 1990), vacated, 844 S.W.2d 749 (Tex. however, applied only to offenses committed on or Crim. App. 1993); Huggins v. State, 795 S.W.2d after September 1, 1993. Brown v. State, 6 909, 911 (Tex. App.SSBeaumont 1990, pet. ref’d). S.W.3d 571, 583 n.7 (Tex. App.SSTyler 1999, pet. ref’d). 2 See, e.g., Grunsfeld v. State, 813 S.W.2d 158, 171 (Tex. App.SSDallas 1991), aff’d, 843 S.W.2d 4 We have held that an attorney’s failure to ob- 521 (Tex. Crim. App. 1992); Blackwell v. State, ject to the admission of evidence of unadjudicated 818 S.W.2d 134, 141 (Tex. App.SSWaco 1991, no offenses in a presentence report is conduct that writ) (following Grunsfeld). (continued...) 3 a failure to prove either deficiency or prejudice dered the trial and appeal fundamentally unfair. prevents Givens from prevailing, we need not Under Texas law at that time, if counsel failed reach the issue of prejudice. See Washington, to lodge an objection at trial, nothing was 466 U.S. at 687. preserved for appellate review. See TEX. R. APP. P. 52(a) (Vernon Supp. 1991).5 Thus, C. challenging the admission of unadjudicated ex- Givens asserts that counsel was ineffective traneous offenses on appeal would have been for neglecting to challenge the admission of frivolous. the extraneous-offense evidence on appeal. “Persons convicted of a crime are entitled to Givens’s counsel acted objectively reason- receive effective assistance of counsel in their ably in declining to raise an unreviewable is- first appeal of right,” but counsel is not re- sue. Because the court could not review the quired to raise every nonfrivolous issue. alleged error, no prejudice could have resulted Green, 160 F.3d at 1043. We apply the Wash- from the failure to raise it. ington test to counsel’s performance on ap- peal. Id. Additionally, Givens must show that AFFIRMED. the failure to raise the issue on appeal rendered the entire proceedings, trial and appeal, funda- mentally unfair. See Goodwin v. Johnson, 132 F.3d 162, 174-75 (5th Cir. 1997). Givens bears the “highly demanding and heavy burden in establishing actual prejudice,” not merely that “the errors had some conceivable effect on the outcome of the proceeding.” Williams v. Taylor, 529 U.S. 362, 394 (2000). On appeal, counsel challenged (1) the suf- ficiency of the evidence to support the convic- tion and (2) the refusal of the trial court to give jury instructions for lesser included of- fenses. The only issue before us is whether his failure to raise this particular objection ren- 4 (...continued) falls below an objective standard of reasonable- ness. Spriggs v. Collins, 993 F.2d 85, 89-90 (5th Cir. 1993). In Spriggs, however, we construed Texas law before the 1989 amendments. More- over, Grunsfeld had been decided, clarifying the 5 law and affirming the pre-1989 position. Thus, See also Esquivel v. State, 595 S.W.2d 516, Spriggs is inapplicable to the narrow time span 522 (Tex. Crim. App. 1980); Reyna v. State, 797 relevant to this case, in which the interpretation of S.W.2d 189, 193 (Tex. App.SSCorpus Christi the applicable statute was unsettled. 1990, no writ). 4