Ward v. Dretke

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