Baker v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-11389 Summary Calendar

STEVE BAKER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:96-CV-1895-H - - - - - - - - - -

February 15, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Steve Baker (#632428), a state prisoner, has appealed the

district court’s order dismissing his application for a writ of

habeas corpus. The legal issues presented by this case result

from a variance between the facts underlying Baker’s guilty plea

and the allegations in the indictment. The indictment alleged

that the offense of aggravated assault involving a child younger

than age 14 was committed by Baker “on or about” a certain date.

Baker contends that the victim was not younger than age 14 and

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-11389 -2-

that his trial attorney rendered ineffective assistance in

failing to discover this fact and in advising him to plead guilty

to the offense of aggravated sexual assault.

The state habeas court found that the victim was younger

than age 14 at the time of the offense. Even if we assume that

this fact finding was unreasonable, see 28 U.S.C. § 2254(d)(2),

we hold that the district court’s dismissal of Baker’s habeas

application must be AFFIRMED nevertheless because the state

habeas court’s determination that Baker had not received

ineffective assistance of counsel did not result 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.” 28 U.S.C. § 2254(d)(1).

Counsel determined by interviewing the victim and her mother

that Baker began to sexually assault the victim when she was age

13. Although the victim may not have been younger than age 14 on

the date alleged in the indictment, under state law, the state

was not required to allege a specific date in an indictment. See

Mitchell v. State, 330 S.W.2d 459, 462 (Tex. Crim. App. 1959).

In Texas, by alleging that the offense occurred “on or about” a

certain date, the state is allowed to prove that the offense

occurred on a date other than the one alleged in the indictment,

as long as the date is anterior to the presentment of the

indictment and is within the statutory limitation period. See

Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990);

Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App. 1988); see

also Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir. 1980); Nees No. 97-11389 -3-

v. Culbertson, 406 F.2d 621, 624 (5th Cir. 1969); see also Tex.

Code Crim. P. Ann. art. 12.01(2)(D) (West Supp. 1991). Because

counsel determined that an offense had occurred when the victim

was age 13, prior to the on-or-about date in the indictment, and

during the applicable limitation period, counsel’s duty to

investigate the facts of the case was discharged. Because the

allegations in the indictment were sufficient, counsel cannot be

faulted for failing to raise a frivolous challenge to the

indictment.

Baker contends that this panel should consider, under Fed.

R. App. P. 27(c), whether Judge Jolly erred in refusing to grant

COA as to his remaining issues. Except to state generally that

he has made a substantial showing of the denial of a

constitutional right as to those issues, Baker does not state in

his brief why he believes the Judge Jolly’s order was erroneous.

One of the issues rejected by Judge Jolly was whether Baker

had entered a knowing and voluntary guilty plea. Baker contends

in his supplemental letter brief that his admissions at the

rearraignment were not under oath and should not have been

considered in determining the voluntariness of his guilty plea.

Although the transcript of the rearraignment does not reflect

whether Baker was sworn, Baker waived arraignment and entered a

plea based upon a written judicial confession. Baker signed a

written acknowledgment that the applicable range of punishment

was “5-99 yrs./life fine up to $10,00[0].”

Judge Jolly concluded that Baker had failed to make a

substantial showing of the denial of a constitutional right as to No. 97-11389 -4-

the voluntariness of his guilty plea. The fact that Baker was

not under oath at the rearraignment, if true, is insufficient to

show that Judge Jolly erred by denying COA as to this issue. The

request for panel rehearing is DENIED.

JUDGMENT AFFIRMED; REQUEST FOR PANEL REHEARING OF SINGLE-

JUDGE ORDER DENIED.