Green, Ex Parte Jerry Wayne

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,545

EX PARTE JERRY WAYNE GREEN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NUMBER 1008352-A IN THE 179TH DISTRICT COURT HARRIS COUNTY

K EASLER, J., delivered the unanimous opinion of the Court.

OPINION

Jerry Wayne Green (“applicant”) was convicted of murder and sentenced to eighty

years’ imprisonment. After his conviction was affirmed,1 applicant filed an application for

writ of habeas corpus claiming that his trial counsel rendered ineffective assistance at the

guilt and punishment phases of his trial. We disagree and deny relief.

I. Factual and Procedural Background

A. Trial

1 Green v. State, No. 14-05-01223-CR, 2007 Tex. App. LEXIS 85, at *1 (Tex. App.—Houston [14th Dist.] Jan. 9, 2007, pet. ref’d). On the evening of November 18th, 2004, applicant, Anthony Johnson, Sam Davis,

Gary Marshall, Keith Spates, Andrew Toussaint, and several others were gambling at

Marshall Tire Service, a tire shop in Houston, as they had frequently done in the past. The

shop had separate tables for dice, dominoes, and poker. Johnson, Marshall, and Spates were

gambling at the dice table, while applicant watched the game behind Johnson and to his left.

Although not gambling, Toussaint was standing at the other gambling table nearby. As the

rest of the players continued shooting dice, applicant shot Johnson in the back of the head.

At trial, Davis testified he saw applicant pull out a black revolver with his right hand

and shoot Johnson in the back of the head. Spates testified he did not see who fired the gun,

but after the shot rang out, he looked up and saw applicant with a revolver in his hand and

Johnson was lying on the floor. Spates stated that he did not see Johnson exhibit a gun that

night. Marshall claimed he did not see the actual shooting because he crouched down by the

side of the dice table after he heard the gunshot. According to Marshall, Toussaint and

applicant left the tire shop after the shooting. Toussaint also testified he did not see the

shooting, but that when the gunshot was fired, he looked up toward the door and saw

applicant. Toussaint did not see applicant with a gun, but conceded that it was possible that

applicant did have a gun, but he just did not see it.

Davis, Spates, Marshall, and Toussaint all testified that after the shooting, applicant,

as if in an attempt to explain why he shot Johnson, told Toussaint that he should leave and

that Johnson was trying to rob Toussaint. Although Spates and Marshall testified they did not see the actual shooting, they testified that when presented with a photo lineup during the

investigation and asked if the shooter was among the pictures, they identified applicant as

the one who shot Johnson. When identifying applicant as the shooter, Marshall wrote, “The

guy who shot Craig [Johnson]” under applicant’s photo. Spates also indicated near

applicant’s photo that applicant was the one who shot Johnson. Davis, Spates, and Toussaint

stated that applicant was standing two to three feet behind Johnson and to his left. The

medical examiner confirmed that Johnson’s injuries and the presence of stippling were

consistent with being shot in the back of the head at close range. Further, the path of the

bullet’s trajectory—downward, left to right, back to front—was consistent with a person who

is six feet, three inches to six feet, four inches tall shooting a person who is five feet, eleven

inches tall from behind. In examining Johnson’s body, the medical examiner noted that

Johnson was five feet, eleven inches. Davis estimated that applicant was six feet, three

inches to six feet, four inches tall.

As the lead investigative officer, Sergeant Binford was responsible for the primary

investigative responsibilities including interviewing the witnesses and investigating leads.

According to Sgt. Binford, he received a number of anonymous tips indicating applicant was

responsible for Johnson’s death. In attempting to confirm these leads, Sgt. Binford

discovered that many of the witnesses, including Davis, Spates, Marshall, and Toussaint,

were evasive and refused to inculpate applicant by claiming not to know the shooter’s

identity. However, Davis, Spates, and Marshall later cooperated with the investigation and identified applicant as the one who shot Johnson.

Applicant chose to testify at the guilt-innocence phase and expressly denied shooting

Johnson. He did not dispute the testimony offered by the other witnesses or offer a defensive

theory as to why he was not responsible for Johnson’s death.

The jury found applicant guilty, and he was sentenced to eighty years’ confinement.

The Fourteenth Court of Appeals affirmed the judgment on direct appeal.

B. Habeas Application

Through his application for writ of habeas corpus, applicant claims that he received

ineffective assistance of counsel and specifically alleges the following deficient conduct by

his trial counsel, which he asserts cumulatively prejudiced his defense:

• Counsel failed to object to Sgt. Binford’s opinion that applicant looked “arrogant” in his photos;

• Counsel failed to move for a mistrial after the prosecutor asserted in a question that applicant had threatened his girlfriend with a gun;

• Counsel failed to file a motion in limine and object to the prosecutor impeaching applicant with a drug conviction that, arguably, was inadmissible;

• Counsel failed to object to the prosecutor’s punishment argument that applicant did not show remorse;

• Counsel failed to object to, and even elicited, hearsay testimony that the police received information from unidentified persons that applicant committed the offense;

• Counsel failed to object to Sergeant Binford’s testimony that applicant had a police record; • Counsel elicited Sergeant Binford’s opinions that the prosecution witnesses were telling the truth that applicant was guilty;

• Counsel failed to elicit that Davis told Sergeant Binford the night Johnson was shot that he did not see who shot Johnson;

• Counsel failed to object to the prosecutor’s argument that the defense had to prove its theory of the case; and

• Counsel inaccurately stated during closing argument that applicant had sold drugs.

In evaluating the merits of the application, the trial judge held an evidentiary hearing

at which applicant’s trial counsel testified. At its conclusion, the trial judge recommended

that the application be denied and entered findings of fact and conclusions of law stating that

applicant’s trial counsel (1) attempted to show Sgt. Binford’s bias towards applicant and his

lack of investigation and (2) developed a theory that the State’s witnesses conspired to blame

applicant for murdering Johnson and (3) Sgt. Binford’s testimony furthered counsels’

defensive theory. The trial judge additionally concluded that applicant’s other claims failed

to show that but for counsels’ failures, a reasonable probability exists that the result of the

proceeding would be different. However, the trial counsels’ testimony and the lead trial

counsel’s affidavit at the evidentiary hearing are inconsistent and at times contradictory.

Because the trial judge’s findings of facts and conclusions of law regarding counsels’

performance in furtherance of a trial strategy are inconsistent with the record, we have

conducted an independent review of the record.2

2 See Ex parte Reed, 271 S.W.3d 698, 727–28 (Tex. Crim. App. 2008). II. Standard of Review

“[T]he benchmark for judging any claim of ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.”3 In analyzing claims of ineffective assistance

of counsel under the Sixth Amendment, we apply the two-part framework announced by the

Supreme Court of the United States in Strickland v. Washington.4 Under this framework, an

applicant must prove by a preponderance of the evidence that: (1) “his counsel’s performance

was deficient”; and (2) “there is a ‘reasonable probability’—one sufficient to undermine

confidence in the result—that the outcome would have been different but for his counsel’s

deficient performance.” 5

To establish deficient performance, an applicant must show that “counsel was not

acting as ‘a reasonably competent attorney,’ and his advice was not ‘within the range of

competence demanded of attorneys in criminal cases.’”6 He must overcome the “strong

presumption that counsel’s conduct fell within the wide range of reasonable professional

3 Strickland v. Washington, 466 U.S. 668, 686 (1984). 4 Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. at 686); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). 5 Ex parte Chandler, 182 S.W.3d at 353 (citing Strickland, 466 U.S. at 694). 6 Id. at 354 (quoting Strickland, 466 U.S. at 687). assistance.”7 Therefore, an applicant must “overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” 8 We judge

the reasonableness of an attorney’s performance according to “prevailing professional

norms”9 and examine all of the facts and circumstances involved in a particular case.10 We

“must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.” 11

Under the second part of the Strickland analysis, an applicant must establish that the

“constitutionally deficient performance prejudiced his defense—that is, he must show that

‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’”12 “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”13 “[T]he difference between

Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters

‘only in the rarest case.’ The likelihood of a different result must be substantial, not just

7 Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 668); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). 8 Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland, 466 U.S. at 689). 9 Strickland, 466 U.S. at 688. 10 Id. at 688, 690. 11 Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). 12 Ex parte Chandler, 182 S.W.3d at 354 (quoting Strickland, 466 U.S. at 694). 13 Strickland, 466 U.S. at 694. conceivable.”14 When making this determination, we consider any constitutionally deficient

acts or omissions in light of the “totality of the evidence before the judge or jury.” 15 We also

consider whether multiple deficient acts or omissions cumulatively prejudiced the defense.16

Morever, when considering a trial judge’s findings of fact, we give “almost total

deference” to those findings when they are supported by the record.17 We review a trial

judge’s conclusions of law de novo.18

III. Counsels’ Performance

A. Failure to object to Sergeant Binford’s opinion that applicant looked “arrogant” in his photos

Applicant claims that his trial counsel was ineffective for failing to object Sgt.

Binford’s opinion that applicant looked “arrogant” in comparing two photos. Applicant’s

complaint concerns the following exchange:

Prosecutor: Is the person in the photograph and the person you had a photograph of, do they appear to be the same person?

14 Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (quoting Strickland, 466 U.S. at 693, 697) (citation omitted). 15 Strickland, 466 U.S. at 695; Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004). 16 See, e.g., Ex parte Ellis, 233 S.W.3d 324, 336 (Tex. Crim. App. 2007) (considering and rejecting the appellant’s argument of prejudice by cumulative error); Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000) (same). 17 Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004). 18 Ex parte Brown, 158 S.W.3d 449, 453 (Tex. Crim. App. 2005). Binford: They’re the same person and they have the same mannerisms in each of the two separate photographs.

Prosecutor: What mannerism is it that you’re referring to?

Binford: The head is cocked back in kind of an arrogant look down method both in the photograph that the police department has and in this photograph, also. Same characteristics the person—this person used on these two photographs that were taken at different times.

Applicant asserts that Sgt. Binford’s testimony “injected an aspect of [applicant’s] character

that the defense had not placed in issue” and as such was inadmissible. We disagree with

applicant’s characterization of Sgt. Binford’s testimony as character evidence.19 Rather Sgt.

Binford appeared to be describing applicant in the photographs, the manner in which

applicant was holding his head, and what stood out to him in comparing the two photos. “To

show ineffective assistance of counsel for the failure to object during trial, the applicant must

show that the trial judge would have committed error in overruling the objection.” 20 Because

Sgt. Binford’s testimony was not character evidence, a trial judge would not have committed

error in overruling an objection on that ground.21 Accordingly, we cannot conclude that

19 See 1 S TEVEN G OODE, O LIN G UY W ELLBORN III & M. M ICHAEL S HARLOT, T EXAS P RACTICE: G UIDE TO THE T EXAS R ULES OF E VIDENCE § 404.2 (3d ed. Supp. 2011) (“Character is said to be a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness . . . . It would not seem that character encompasses physical characteristics such as being left- handed or having quick reflexes.”) (internal citations omitted). 20 Ex parte White, 160 S.W.3d at 53. 21 See id. failing to object to this testimony as impermissible character evidence is deficient

performance.

B. Failure to move for a mistrial after the prosecutor asserted in a question that applicant threatened his girlfriend with a gun

On cross-examination of defense witness Rubert Rice, the State asked Rice whether

applicant carried a weapon. Rice claimed that applicant did not. The prosecutor then asked,

“Mr. Rice, have you heard or did you know that the defendant, on November 7 th of 2004,

was—it was reported that [Green] had threatened his girlfriend, Margaret Hitchins with a .38

revolver?” The trial court sustained defense counsel’s objection. However, applicant asserts

trial counsel was ineffective for failing to request a mistrial. When considering whether to

grant or deny a motion for mistrial, courts consider “(1) the severity of the misconduct (the

magnitude of the prejudicial effect of the prosecutor’s remarks), (2) the measures adopted

to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the

certainty of conviction absent the misconduct (the strength of the evidence supporting the

conviction).”22 Applicant fails to address whether a motion for mistrial was meritorious or

demonstrate that had counsel sought the mistrial, it would likely have been granted.

Applicant has failed to prove by a preponderance of the evidence that counsel performed

deficiently on this claim.23

22 Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011). 23 See Ex Parte Adams, 768 S.W.2d 281, 287–88 (Tex. Crim. App. 1989) (stating that “the applicant assumes the burden of proving his factual allegations by a preponderance of the evidence[.]”). C. Failure to file a motion in limine and object to the prosecutor impeaching applicant with a drug conviction that arguably was inadmissible

Applicant asserts counsel was ineffective for failing to file a motion in limine and

object when the State impeached applicant on cross-examination with his 2001 felony

conviction for possession of a controlled substance, for which he was sentenced to fifteen

months in state jail. Applicant claims that the use of the conviction to impeach applicant was

improper under Texas Rule of Evidence 609(a) because the probative value of the prior

conviction’s admission did not outweigh its prejudicial effect. In evaluating whether the

probative value of the conviction outweighs its prejudicial effect, courts balance the

following factors: “(1) the impeachment value of the prior crime, (2) the temporal proximity

of the past crime relative to the charged offense and the witness' subsequent history, (3) the

similarity between the past crime and the offense being prosecuted, (4) the importance of the

defendant's testimony, and (5) the importance of the credibility issue.”24 By failing to address

how these factors apply to his case, applicant has failed to demonstrate that the trial judge

would have committed error in overruling the objection.25 Therefore, applicant has not

satisfied his burden of establishing by a preponderance of the evidence that counsel was

deficient in failing to seek a pre-trial motion in limine or object to the impeachment.26

D. Failure to object to the prosecutor’s punishment argument that applicant

24 Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) 25 See Ex Parte White, 160 S.W.3d at 50. 26 See Ex Parte Adams, 768 S.W.2d at 287–88. did not show remorse

Applicant argues that counsel rendered ineffective assistance at the punishment phase

of his trial by failing to object to the prosecutor’s remark during closing argument that

applicant had not shown remorse: “[Green] was man enough that night, and he should be

man enough today, man enough to say, I’m sorry. But there has been no remorse for a year.”

However, the State’s argument was preceded by applicant’s counsel’s argument: “Ladies and

gentleman of the jury, we accept your verdict. We have no choice. I want you to look at my

client. . . . We’ve discussed everything to this point. He is truly sorry for this man’s death.”

Because the complained-of comment was made in response to defense counsel’s argument,

it was invited argument, and the trial judge would not have erred in overruling an objection.27

We therefore hold that counsel’s performance was not deficient by failing to object to the

State’s comment.

IV. Prejudice

Having denied the above claims of ineffective assistance for failing to demonstrate

deficient performance, we turn to the balance of applicant’s claims: failure to object to and

eliciting testimony that anonymous callers implicated applicant; failure to object to Sgt.

Binford’s testimony indicating that applicant had a criminal history and that the State’s

witnesses were truthful in their statements to him; failure to object to the prosecutor’s closing

27 See Ex Parte White, 160 S.W.3d at 50; see also Nethery v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985) (“The State’s comment was invited by appellant’s earlier argument, and as such does not constitute reversible error.”) argument that the defense had to prove its case; failure to impeach Davis through his prior

inconsistent statement; and inaccurately stating during closing argument that applicant had

sold drugs.

Applicant asks us to find prejudice based on the totality of the deficient performance

and its cumulative effect. But even if we were to assume counsel was deficient on the

remainder of his claims listed above, applicant has not satisfied the second prong of

Strickland in light of the overwhelming evidence of his guilt presented to the jury.28

Even excluding the complained-of acts or omissions, there was ample evidence

presented to the jury that applicant murdered Johnson. The jury heard from three witnesses

who identified applicant as the shooter and placed applicant behind Johnson at the time of

the shooting. Davis and Spates both testified that they saw a revolver in applicant’s hand.

Additionally, the forensic evidence corroborated the shooter’s location as being two to three

feet behind Johnson, and the bullet’s trajectory was consistent with applicant shooting

Johnson from behind and to his left. The jury also heard four witnesses all testify that, after

the shooting, applicant tried to explain why he shot Johnson by stating to the other witnesses

that Johnson was trying to rob Toussaint and by telling Toussaint to leave. We cannot say

that, in the face of all the evidence the jury heard about the murder, it is reasonably probable

28 See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011), cert. denied, 131 S. Ct. 3073 (2011) (“It is unlikely, in the face of all the evidence with which the jury was presented, that the jury would have reached a different conclusion . . . and so we need not address the first prong of Strickland.”). the jury would have reached a different conclusion had applicant’s trial counsel performed

in the manner applicant now claims.

V. Conclusion

Having concluded applicant was not denied effective assistance of counsel, we deny

relief.

Delivered: December 14, 2011 Do not publish