IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________
No. 00-50720 _______________________________
DIONICIO A. CRUZ,
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 Western District of Texas (SA-96-CV-155) _________________________________________________ August 8, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM*:
Petitioner-Appellant Dionicio A. Cruz appeals the district
court’s denial of his petition for habeas corpus pursuant to 28
U.S.C. § 2254. We affirm the decision of the district court.
I.
FACTS AND PROCEEDINGS
Cruz was convicted in 1977 of aggravated assault on a peace
officer and two counts of attempted capital murder for firing on
* Pursuant to 5TH Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4. law enforcement officers who had come to his home to serve a
narcotics search warrant, seriously wounding one officer and
hitting another’s jacket. His state convictions were affirmed on
direct appeal by the Fourth Court of Appeals1 and the Texas Court
of Criminal Appeals;2 two state habeas applications were
unsuccessful. Cruz was sentenced to three concurrent fifty-year
prison terms and was paroled in 1984.
In 1993, Cruz was convicted on federal drug charges and
sentenced to 96 months in federal prison. Based on this
conviction, the State of Texas lodged a detainer against Cruz for
violation of his parole. While serving his federal sentence, Cruz
filed this § 2254 habeas petition attacking his 1977 convictions.
Cruz now has been released from federal prison, but parole on his
state conviction runs until October 2011.
In his federal habeas corpus petition, Cruz asserts two
constitution violations concerning the testimony of police officer
Ray Hernandez, who was involved in Cruz’s arrest and discovered a
balloon containing heroin inside a shampoo bottle in Cruz’s
bathroom. Cruz alleges that Hernandez planted the heroin in his
home.
While on the witness stand at his trial, the prosecution asked
1 Cruz v. State, 645 S.W.2d 498 (Tex. App. —— San Antonio 1982). 2 Cruz v. State, 770 S.W.2d 778 (Tex. Crim. App. 1984).
2 Cruz whether he had spoken to Hernandez since his arrest. Cruz
testified first that he had not, and then that he could not
remember. When called by the prosecutor to rebut Cruz’s testimony,
Hernandez testified that Cruz approached him twice during pretrial
proceedings at the county courthouse approximately six months after
the shootout and two years before trial. According to Hernandez,
Cruz first asked him whether he was the officer who had discovered
heroin in the house, and later said: “You know, we are going to
have to take a lot of tests. . . . I’ll get you. We’ll get you.”
Defense counsel objected that Hernandez’s testimony, and a
written report he made regarding Cruz’s statements, had not been
disclosed pretrial. The objection was overruled.3 Cruz then asked
to be allowed (1) to present evidence that he had taken (and
passed) a polygraph examination, as the prosecution had opened the
door by eliciting testimony regarding “tests,” and (2) to offer
surrebuttal testimony to explain his statements to Hernandez. Cruz
stated on the record but outside the presence of the jury that he
vaguely recalled the conversation, and that what he meant was that
he and Hernandez would have to “take a polygraph test to prove who
is telling the truth” about the heroin. Cruz stated that he meant
that he would “get” the officer in court. The trial court denied
Cruz’s requests, and the prosecution referred to the alleged threat
3 Subsequently, the Texas Fourth Court of Appeals ruled that Hernandez’s statements should not have been admitted because they were not disclosed to the defense. Cruz v. State, 645 S.W.2d at 503.
3 twice during closing arguments, using it to portray Cruz as a liar
who had threatened Hernandez with bodily harm.
Cruz alleges that these events denied his rights to due
process and a fair trial by (1) violating his Sixth Amendment right
to testify in his own behalf through surrebuttal testimony, and (2)
the prosecution’s failure to disclose pretrial Hernandez’s
testimony concerning Cruz’s statements, in violation of Brady v.
Maryland4 and Jackson v. Denno.5 The district court denied Cruz’s
habeas petition, finding that Cruz had merely raised a state
evidentiary question, not a constitutional violation.
More than ten days after the district court’s judgment, Cruz
filed a motion for reconsideration. The district court again
denied the habeas petition, but this time on different grounds.6
The district court concluded that the state trial court had
committed constitutional error by impeding Cruz’s right to testify
on his own behalf through the surrebuttal testimony.7 The court
nonetheless denied habeas relief, concluding that the error did not
render Cruz’s trial fundamentally unfair, because Hernandez’s
testimony was not central to the case.8
4 373 U.S. 83 (1963). 5 378 U.S. 368 (1964). 6 Cruz v. Johnson, No. SA-96-CA-155-EP, 2000 WL 33349965 (W.D. Tex. June 19, 2000). 7 Id. at *4. 8 Id.
4 Cruz was late in filing his notice of appeal, which he filed
simultaneously with a motion for extension of time to file his
notice of appeal; and the district court granted the motion. The
district court granted Cruz a certificate of appealability (“COA”)
with respect to its decision that his trial was not rendered
fundamentally unfair by the trial court’s refusal to allow Cruz to
explain Hernandez’s testimony on surrebuttal. The district court
denied COA on all other issues.
II.
ANALYSIS
A. Standard of Review
Cruz filed this petition on February 29, 1996, before the
April 24, 1996 effective date of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Pre-AEDPA habeas law therefore
applies to his § 2254 petition. As Cruz’s motion for
reconsideration was not timely filed, it must be considered
pursuant to Rule 60(b).9 Denial of a Rule 60(b) motion is reviewed
for abuse of discretion.10
B. Constitutional Claim
Raising the issue of our jurisdiction sua sponte, we first
note that we have jurisdiction over this § 2254 appeal because
Cruz, as a parolee, remains “in custody” for federal habeas
9 Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998). 10 Id.
5 purposes.11 We further note that, because a releasee is in the
legal custody of the Texas Department of Criminal Justice (“TDCJ”)
Pardons and Paroles Division while he is on parole,12 TDCJ Director
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_______________________________
No. 00-50720 _______________________________
DIONICIO A. CRUZ,
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 Western District of Texas (SA-96-CV-155) _________________________________________________ August 8, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM*:
Petitioner-Appellant Dionicio A. Cruz appeals the district
court’s denial of his petition for habeas corpus pursuant to 28
U.S.C. § 2254. We affirm the decision of the district court.
I.
FACTS AND PROCEEDINGS
Cruz was convicted in 1977 of aggravated assault on a peace
officer and two counts of attempted capital murder for firing on
* 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. law enforcement officers who had come to his home to serve a
narcotics search warrant, seriously wounding one officer and
hitting another’s jacket. His state convictions were affirmed on
direct appeal by the Fourth Court of Appeals1 and the Texas Court
of Criminal Appeals;2 two state habeas applications were
unsuccessful. Cruz was sentenced to three concurrent fifty-year
prison terms and was paroled in 1984.
In 1993, Cruz was convicted on federal drug charges and
sentenced to 96 months in federal prison. Based on this
conviction, the State of Texas lodged a detainer against Cruz for
violation of his parole. While serving his federal sentence, Cruz
filed this § 2254 habeas petition attacking his 1977 convictions.
Cruz now has been released from federal prison, but parole on his
state conviction runs until October 2011.
In his federal habeas corpus petition, Cruz asserts two
constitution violations concerning the testimony of police officer
Ray Hernandez, who was involved in Cruz’s arrest and discovered a
balloon containing heroin inside a shampoo bottle in Cruz’s
bathroom. Cruz alleges that Hernandez planted the heroin in his
home.
While on the witness stand at his trial, the prosecution asked
1 Cruz v. State, 645 S.W.2d 498 (Tex. App. —— San Antonio 1982). 2 Cruz v. State, 770 S.W.2d 778 (Tex. Crim. App. 1984).
2 Cruz whether he had spoken to Hernandez since his arrest. Cruz
testified first that he had not, and then that he could not
remember. When called by the prosecutor to rebut Cruz’s testimony,
Hernandez testified that Cruz approached him twice during pretrial
proceedings at the county courthouse approximately six months after
the shootout and two years before trial. According to Hernandez,
Cruz first asked him whether he was the officer who had discovered
heroin in the house, and later said: “You know, we are going to
have to take a lot of tests. . . . I’ll get you. We’ll get you.”
Defense counsel objected that Hernandez’s testimony, and a
written report he made regarding Cruz’s statements, had not been
disclosed pretrial. The objection was overruled.3 Cruz then asked
to be allowed (1) to present evidence that he had taken (and
passed) a polygraph examination, as the prosecution had opened the
door by eliciting testimony regarding “tests,” and (2) to offer
surrebuttal testimony to explain his statements to Hernandez. Cruz
stated on the record but outside the presence of the jury that he
vaguely recalled the conversation, and that what he meant was that
he and Hernandez would have to “take a polygraph test to prove who
is telling the truth” about the heroin. Cruz stated that he meant
that he would “get” the officer in court. The trial court denied
Cruz’s requests, and the prosecution referred to the alleged threat
3 Subsequently, the Texas Fourth Court of Appeals ruled that Hernandez’s statements should not have been admitted because they were not disclosed to the defense. Cruz v. State, 645 S.W.2d at 503.
3 twice during closing arguments, using it to portray Cruz as a liar
who had threatened Hernandez with bodily harm.
Cruz alleges that these events denied his rights to due
process and a fair trial by (1) violating his Sixth Amendment right
to testify in his own behalf through surrebuttal testimony, and (2)
the prosecution’s failure to disclose pretrial Hernandez’s
testimony concerning Cruz’s statements, in violation of Brady v.
Maryland4 and Jackson v. Denno.5 The district court denied Cruz’s
habeas petition, finding that Cruz had merely raised a state
evidentiary question, not a constitutional violation.
More than ten days after the district court’s judgment, Cruz
filed a motion for reconsideration. The district court again
denied the habeas petition, but this time on different grounds.6
The district court concluded that the state trial court had
committed constitutional error by impeding Cruz’s right to testify
on his own behalf through the surrebuttal testimony.7 The court
nonetheless denied habeas relief, concluding that the error did not
render Cruz’s trial fundamentally unfair, because Hernandez’s
testimony was not central to the case.8
4 373 U.S. 83 (1963). 5 378 U.S. 368 (1964). 6 Cruz v. Johnson, No. SA-96-CA-155-EP, 2000 WL 33349965 (W.D. Tex. June 19, 2000). 7 Id. at *4. 8 Id.
4 Cruz was late in filing his notice of appeal, which he filed
simultaneously with a motion for extension of time to file his
notice of appeal; and the district court granted the motion. The
district court granted Cruz a certificate of appealability (“COA”)
with respect to its decision that his trial was not rendered
fundamentally unfair by the trial court’s refusal to allow Cruz to
explain Hernandez’s testimony on surrebuttal. The district court
denied COA on all other issues.
II.
ANALYSIS
A. Standard of Review
Cruz filed this petition on February 29, 1996, before the
April 24, 1996 effective date of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Pre-AEDPA habeas law therefore
applies to his § 2254 petition. As Cruz’s motion for
reconsideration was not timely filed, it must be considered
pursuant to Rule 60(b).9 Denial of a Rule 60(b) motion is reviewed
for abuse of discretion.10
B. Constitutional Claim
Raising the issue of our jurisdiction sua sponte, we first
note that we have jurisdiction over this § 2254 appeal because
Cruz, as a parolee, remains “in custody” for federal habeas
9 Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998). 10 Id.
5 purposes.11 We further note that, because a releasee is in the
legal custody of the Texas Department of Criminal Justice (“TDCJ”)
Pardons and Paroles Division while he is on parole,12 TDCJ Director
Wayne Scott continues to be the appropriate respondent in this
habeas corpus petition.13
A criminal defendant has a fundamental constitutional right to
testify in his own defense.14 We hold that, although under Texas
law Cruz could not have discussed whether he took a polygraph test
or its results,15 his Sixth Amendment rights were violated by the
trial court’s refusal to allow him to explain Hernandez’s testimony
through surrebuttal.
To determine whether the district court was correct in finding
that the constitutional error was harmless, we must review the
entire trial record de novo to ascertain that “‘the error did not
influence the jury,’ and that ‘the judgment was not substantially
11 Jones v. Cunningham, 371 U.S. 236, 242-43 (1963). 12 Tex. Gov’t Code Ann. § 508.143(a) (Vernon 1999). 13 See Jones v. Cunningham, 371 U.S. at 242-43. 14 Rock v. Arkansas, 483 U.S. 44, 49 (1987); Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). 15 See, e.g., Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998) (holding that state trial court’s exclusion of results of polygraph test based on Texas evidentiary rule that polygraph results are inadmissible did not violate federal constitutional rights).
6 swayed by the error.’”16 We have complied with that mandate,
reviewing de novo the entire record, including the complete
transcript of the four days of evidence presented in Cruz’s trial.
As a result of that review, we agree with the district court that
the error was harmless: Ample other evidence was adduced at trial
to show that Cruz was guilty of the offenses of which he was
convicted —— attempted capital murder and aggravated assault on a
peace officer. The statements that Cruz made to Hernandez more
than a year after the shootout cannot be considered central to his
conviction. We do not perceive that they had any substantial
effect on the jury or its verdict.
Cruz presented evidence at trial that the plainclothes police
officers involved in the raid on his home did not identify
themselves as such before they awakened him that morning by banging
on his front and back doors and breaking his windows. Cruz
testified that he fired only in fright and self-defense, and
stopped shooting immediately when an officer threw his badge into
the house in response to Cruz’s request for identification.
The jury nonetheless was entitled to believe contradictory
testimony from the law enforcement officers involved in the raid
that they had announced their identity before Cruz began shooting
at them, and that he fired again after looking at the badge. Two
16 Lowery v. Collins, 996 F.2d 770, 773 (5th Cir. 1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 642 (1993) (Stevens, J., concurring)).
7 officers also testified that they heard a toilet inside the house
flush repeatedly during the shooting, which could have led jurors
to conclude that Cruz was holding the police at bay with gunfire
while his wife, also in the house, attempted to destroy drug
evidence. Our careful review of the record does not convince us
that the jury was swayed in assessing guilt for the shootout based
on Cruz’s after-the-fact courthouse comments to Hernandez, or on
any alleged vendetta against the police. The twenty-page
transcript of the prosecutor’s summation includes just over one
page of comments on Cruz’s courthouse encounter with Hernandez. We
do not find that the jury was substantially swayed by this
unrebutted evidence. To the contrary, we can “‘say with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error.’”17
III.
CONCLUSION
For the foregoing reasons, the district court’s denial of
habeas corpus relief is
AFFIRMED.
17 O’Neal v. McAninch, 513 U.S. 432, 437-38 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)).