Davis v. Lumpkin

UNITED STATES DISTRICT COURT September 24, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

CORPUS CHRISTI DIVISION

JOHNNY LEE DAVIS, §

§

Petitioner, §

VS. § CIVIL ACTION NO. 2:20-CV-162

§

LORIE DAVIS, et al, §

§

Respondents. §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION

AS SUPPLEMENTED AND MODIFIED

Pending before the Court is Respondent Lumpkin’s1 Motion for Summary

Judgment (D.E. 15). Soon after the summary judgment motion was filed, Petitioner,

Johnny Lee Davis (Davis), filed a Motion to Request Correction of an Illegal Sentence

(D.E. 16), which the Magistrate Judge construed as a response to the summary judgment

motion. D.E. 17. Davis also filed a document entitled both “Memorandum of Law” and

“Traverse to Response to Order to Show Cause” (D.E. 22), further addressing the

summary judgment issues.

On March 15, 2021, United States Magistrate Judge Julie K. Hampton issued a

Memorandum and Recommendation (M&R, D.E. 23), recommending that Lumpkin’s

motion be granted, Davis’s application for writ of habeas corpus (D.E. 1) be denied, and

1 Petitioner, Johnny Lee Davis, filed this habeas proceeding against “Warden Castro.” D.E. 1. After screening the

petition, the Magistrate Judge ordered service on Lorie Davis, who was then the Director of the Criminal Institutions

Division of the Texas Department of Criminal Justice (TDCJ), in her official capacity. D.E. 8. Soon thereafter,

Lorie Davis retired and Bobby Lumpkin assumed the position of Director of TDCJ-CID and the answer was filed by

Lumpkin as a substituted party. D.E. 14.

that a Certificate of Appealability be denied. Both Lumpkin and Davis filed objections

(D.E. 26, 27).

For ease of disposition, the Court has rearranged and grouped those of Davis’s

objections that are similar in nature. And the Court has combined the analysis of

Lumpkin’s objections regarding the prosecutorial misconduct language with Davis’s

objections on the same subject. The M&R is ADOPTED as supplemented and modified

by this Order, Lumpkin’s motion for summary judgment is GRANTED and Davis’s

petition is DENIED.

STANDARD OF REVIEW

The district court conducts a de novo review of any part of the magistrate judge's

disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.

72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). As to any portion for

which no objection is filed, a district court reviews for clearly erroneous factual findings

and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per

curiam).

FACTS

The evidence is set out at length in the Thirteenth Court of Appeals’ opinion and

in the M&R and will not be fully recounted here. D.E. 12-2, 23. In sum, Davis was

convicted for criminal solicitation of murder. The intended victim was Jenna Hernandez,

the former girlfriend of his son, J.D.2 The motive was to prevent Hernandez from

2 For clarity in distinguishing between Petitioner Johnny Davis and his son Joshua Davis, Petitioner is referred to

herein as Davis and his son as J.D.

testifying against J.D. in a criminal proceeding, which was scheduled for the same day on

which her body was found.

Lawrence Mireles, who was convicted for committing the murder, lived with

Davis and J.D. And in a series of recorded jail telephone calls with J.D., Davis was heard

suggesting that one way or another, J.D. would be getting out of jail and that Davis would

have “Little Lawrence” (a reference to Mireles) take care of things. However, Davis was

not convicted of soliciting Mireles.

Instead, the conviction was for soliciting Jason Phillips, who was shown to be

J.D.’s godfather and a gang leader whose permission for the murder Davis would, by

custom, seek as part of his gang allegiance. Kyle Rhodes, an Aransas Pass Police

Department investigator, testified that Phillips told him that Davis had approached him

several times to kill Hernandez because she had also stabbed J.D. Phillips testified that

Davis asked him three times to murder Hernandez and offered him $10,000 to do it. This

was confirmed by Phillips’s girlfriend, Kim Longbine, who testified that she was present

during one of Davis’s requests and that Phillips agreed to it.

DISCUSSION

1. General Global Objections

Davis begins his objections by stating globally that there is no evidence of (a) any

kind, (b) Davis’s gang membership, or (c) Davis’s solicitation of murder. D.E. 27, pp. 3,

22, 31 (objections 1-3). As articulated, the objections are not sufficiently specific to

challenge any particular finding of fact or conclusion of law set out in the M&R as

required by Federal Rule of Civil Procedure 72(b)(2). However, Davis does state more

specific subsidiary objections that will be addressed below. Because the first three

objections are insufficient on their face and because the subsidiary objections are not

sustained, the first three objections are OVERRULED.

2. Gang Affiliation Evidence as Inadmissible Hearsay

Davis objects that all evidence of his gang affiliation was hearsay and that the state

trial court’s admission of such evidence and limiting instruction to the jury was an abuse

of discretion and a failure to properly weigh the dangers of unfair prejudice under the

rules of evidence. D.E. 27, pp. 3, 22-23, 26-29 (objection 4). He further objects to the

M&R’s conclusion that this issue presents, at most, an error in the application of state law

and is not a federal issue on which habeas relief can be granted. Id.

To overcome the Magistrate Judge’s analysis, Davis insists that he stands to

benefit from a rule that a federal habeas court can disagree with a state court’s credibility

determination and conclude that the ultimate decision was unreasonable or incorrect by

clear and convincing evidence. But there was no factfinding regarding gang affiliation.

That was simply some of the evidence offered to explain how Davis solicited

Hernandez’s murder. And an isolated challenge to the gang affiliation evidence is

insufficient to overcome the other evidence supporting the actual finding of guilt for

solicitation of murder. Moreover, Davis fails to identify any evidence to controvert the

gang evidence or the finding of guilt, much less that it rose to the level of being clear and

convincing.

Davis’s authorities illustrate the shortcomings of his contention. In Miller-El v.

Cockrell, the Supreme Court acknowledged the clear and convincing standard that the

magistrate judge properly applied with respect to evaluating a factual decision. Habeas

relief can be granted only if the decision is “objectively unreasonable in light of the

evidence presented in the state-court proceeding.” 537 U.S. 322, 340 (2003). The only

reason the petitioner obtained relief in Miller-El is because the issue was whether a

certificate of appealability (COA) should issue regarding a Batson claim of

discriminatory prosecutorial action in exercising jury strikes.

The Supreme Court held that the court of appeals improperly denied the COA

because it made a merits decision instead of a COA decision when it held that the

substantial contrary evidence in the case was insufficient to meet the clear and

convincing standard. Nothing about Miller-El counsels against the Magistrate Judge’s

analysis on the merits issue here. Neither does it counsel against the denial of a COA

here because Davis has not demonstrated that the record contains any significant

controverting evidence.

Hall v. Director of Corrections, 343 F.3d 976, 984 (9th Cir. 2003), does not

reduce the standard of evidence necessary to challenge a fact finding on habeas review.

Moreover, its procedural posture is essentially the reverse of this case. The Hall analysis

begins with the observation that “There was no physical or forensic evidence connecting

Hall to the murder, or to the area where [the victim’s] body was found.” Id. at 980. Hall

was, instead, convicted on inconsistent evidence that included notes provided by a

jailhouse informant, which were proffered as indirect admissions. The state trial judge,

sitting in habeas jurisdiction, granted a new trial after hearing previously undisclosed

evidence that the jailhouse informant had altered his questions in the notes to make it

appear that Hall’s answers incriminated him. This evidence of alterations was confirmed

by forensic document examination experts.

The state appellate court reversed the order for a new trial, holding that the trial

court had not actually found that the evidence was falsified, thus defeating the basis for

Hall’s due process challenge. The Ninth Circuit, on federal habeas review, disagreed and

wrote:

The California Court of Appeal, therefore, proceeded from an

incorrect premise, “agreeing” with the trial court that the

notes were not false evidence, instead of acknowledging the

trial court's implicit finding that they were. This was an

unreasonable determination of the facts in light of the

evidence that was presented at the state court evidentiary

hearing. The state habeas trial judge necessarily found the

notes to be false, and this finding was entitled to “great

weight.”

Id. at 983.

In describing its decision, the Ninth Circuit majority stated that objective

unreasonableness is “not a mere synonym for clear error.” Id. at 984 n.8. Under the

Antiterrorism and Effective Death Penalty Act (AEDPA) standards, the courts do not turn

a blind eye “[w]here there are real, credible doubts about the veracity of essential

evidence and the person who created it.” This proposition does not call for a routine

reweighing of evidence, but is an endorsement of the trial court’s granting of a new trial

because the evidence in favor of conviction was demonstrably infirm. Because the issue

was the granting of a new trial, consistent with the trial court’s findings, the Hall decision

does not support Davis’s request that this Court substitute its assessment of the evidence

for that of the jury when there is ample evidence to support the jury’s verdict.

Neither is there any benefit to Davis’s citation of Torres v. Prunty, 223 F.3d 1103

(9th Cir. 2000). As in Hall, the procedural posture of Torres was significantly different

from that of Davis’s case. The question in Torres was whether the trial court violated

Torres’s due process rights by failing to hold a competency hearing to determine whether

Torres was competent to stand trial. The Ninth Circuit concluded that the trial court

unreasonably determined that Torres was not entitled to a hearing. “At the very least, the

trial court could not have concluded reasonably that Torres was disingenuous without

inquiring of Torres himself, or of Dr. Wells. On these facts, merely observing Torres's

demeanor in court would be insufficient factfinding to make a determination about

Torres's credibility.” Id. at 1109. Davis also cites to McClain v. Prunty, 217 F.3d 1209,

1223 (9th Cir. 2000), which disapproved of a trial court’s failure to investigate a Batson

challenge and instead taking the prosecutor’s conclusory word when there was substantial

evidence of discrimination. These cases do not suggest that evidence of gang affiliation

by reputation and expert opinion renders Davis’s conviction unconstitutional, particularly

when there is no evidence to the contrary.

Davis cites five more cases for the proposition that a conviction on the basis of

hearsay evidence violates the Fifth and Fourteenth Amendments regarding due process

rights to a fundamentally fair trial. The cases do not apply because they have nothing to

do with hearsay evidence: United States v. Beechum, 582 F.2d 898, 908 (5th Cir. 1978)

(addressing the right against self-incrimination, not hearsay); Murphy v. Waterfront

Commission of New York Harbor,3 378 U.S. 52, 87 (1964) (Black, J., concurring) (same),

abrogated by United States v. Balsys, 524 U.S. 666 (1998); Mooney v. Holohan, 294 U.S.

103, 112 (1935) (addressing a prosecutor’s knowing proffer of perjured testimony, not

hearsay); United States v. Bagley, 473 U.S. 667, 683 (1985) (addressing Brady violation

of withholding from defense counsel evidence of prosecution witnesses’ bias through

incentivized testimony, not hearsay); Ex parte Brandley, 781 S.W.2d 886, 893 (Tex.

Crim. App. 1989) (addressing Brady violation, not hearsay).

Davis has failed to demonstrate error in the Magistrate Judge’s application of the

AEDPA standard of review to the issues addressing the gang affiliation testimony. Davis

is not entitled to relief based on a hearsay objection that was addressed through a limiting

instruction. He did not brief error in the trial court’s determination of the admissibility of

the evidence (as not unduly prejudicial under the rules of evidence), or the effectiveness

of the trial court’s limiting instruction. And this Court is not entitled to substitute a

different view of the evidence absent a demonstration of clear and convincing contrary

evidence. Davis’s objections related to the gang affiliation testimony are OVERRULED.

3. The Hernandez Murder as an Undisclosed Extraneous Act

Davis objects to all evidence of the Hernandez murder as an undisclosed

extraneous act, offered in violation of the requirement that the prosecution disclose its

intention to offer such evidence. See Tex. R. Evid. 404(b); Tex. Code Crim. P. Article

3 Davis cites the case name as “Brady.” D.E. 27, p. 28. However, the Court was unable to find a case that included

Brady as a case name at that citation or at another citation addressing hearsay evidence and constitutional rights.

The cite brought up the Murphy case. Because Murphy and Beechum address the same—albeit inapplicable—issue,

the Court assumes that Davis intended to cite Murphy.

37.07 § 3(g). He argues that this made the trial fundamentally unfair in violation of the

Fifth and Fourteenth Amendments, such that no instruction could cure it. D.E. 27, pp. 3-

5, 8, 29-32 (objections 5 and 19).

While his petition (D.E. 1) complains that the evidence of murder was an

extraneous matter, he did not plead that it was a violation of any requirement that the

prosecution disclose its intention to offer it under Article 37.07 § 3(g) or Texas Rule of

Evidence 404(b). He raised the issue for the first time in his traverse. D.E. 22, p. 40.

And the M&R does not address the issue.

Nonetheless, Article 37.07, by its own language, does not apply to evidence

offered in the guilt phase of a criminal trial. Art. 37.07 § 3(e) (“Nothing herein contained

shall be construed as affecting the admissibility of extraneous offenses on the question of

guilt or innocence.”). And Rule 404(b) is concerned with evidence that goes only to the

issue of character.

(1) Prohibited Uses. Evidence of any other crime, wrong, or

other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance with the character.

(2) Permitted Uses; Notice in Criminal Case. This evidence

may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. On timely

request by a defendant in a criminal case, the prosecutor must

provide reasonable notice before trial that the prosecution

intends to introduce such evidence—other than that arising in

the same transaction—in its case-in-chief.

Tex. R. Evid. 404(b). Evidence that Mireles murdered Hernandez was not offered to

evidence Davis’s character, and a limiting instruction consistent with Rule 404(b)(2) was

given.

In support of his argument, Davis cites State v. Brinkley, which holds:

The offense of criminal solicitation is completed when the

culpable request or inducement to commit a capital felony or

a first degree felony is unilaterally presented. Proof that the

felony is actually committed is not required to establish the

offense of solicitation. Guilt of solicitation may be

established solely by proving the communication and the

culpable intent. Tex. Penal Code Ann. § 15.03 (Vernon

1974).

764 S.W.2d 913, 915 (Tex. App.—Tyler 1989, no pet.); see also Whatley v. State, 946

S.W.2d 73, 79 (Tex. Crim. App. 1997) (Baird, J., concurring in part and dissenting in

part) (citing Brinkley). This does not suggest that evidence of the murder is automatically

inadmissible as prejudicial. It is simply not necessary to prove the crime of solicitation.

The standard for reviewing error in an evidentiary ruling under Rule 404(b) in a

Texas state court is ordinarily abuse of discretion. Parlin v. State, 591 S.W.3d 214, 223

(Tex. App.—Houston [1st Dist.] 2019, no pet.). But as the Magistrate Judge observed,

“An error in the application of state law does not provide a ground for federal habeas

relief.” D.E. 23, p. 15 (citing Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir.

1993)). To qualify for habeas relief, the petitioner must show that he is in custody in

violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).

To show constitutional error, the error must affect a substantial right:

But an error does not affect a substantial right if we have “fair

assurance that the error did not influence the jury, or had but a

slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001). We must examine whether the evidence

had significant potential “to lure the factfinder into declaring

guilt on a ground different from proof specific to the offense

charged.” Old Chief v. United States, 519 U.S. 172, 180, 117

S.Ct. 644, 136 L.Ed.2d 574 (1997).

Parlin, 591 S.W.3d at 224. Given that the murder was committed by Mireles, Davis has

not demonstrated that admission of the evidence necessarily reflected on his own

character in violation of Rule 404. Neither does he acknowledge that the evidence could

have worked in his favor insofar as the murder was not committed by the person he was

charged with having solicited: Phillips.

According to his own authority, because the trial court gave the jury a limiting

instruction, Davis must not only show that the evidence improperly reflected on his

character, but that “the evidence was so clearly calculated to inflame the minds of the

jury or is of such damning character as to suggest it would be impossible to remove the

harmful impression from the jury's mind.” Kemp v. State, 846 S.W.2d 289, 308 (Tex.

Crim. App. 1992) (en banc), cert. denied, 508 U.S. 918 (1993). There is “an appellate

presumption that an instruction to disregard the evidence will be obeyed by the jury.”

Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (en banc), cert. denied,

484 U.S. 905 (1987).

Davis has not demonstrated that the evidence of Mireles’s murder of Hernandez

went to his character or that the limiting instruction was necessarily ineffective. His

objections in this regard refer to pictures of Hernandez from the murder scene being

displayed on a large video screen. However, the record reflects that the trial judge

refused to admit any pictures of the Hernandez murder scene. D.E. 12-18, pp. 28-29.

And there is no indication that such pictures were displayed. D.E. 12-18, 12-19. The

objection to the admission of the undisclosed extraneous act is OVERRULED.

4. No Competent, Credible Evidence of Solicitation

On the premise that he can disqualify all of the relevant evidence against him,

Davis claims that there is no evidence to support his conviction. D.E. 27, pp. 17-21, 24.

Each challenge is addressed below.

Uncorroborated Accomplice Testimony. Davis seeks to disqualify Phillips’s

testimony in its entirety because he was an accomplice or solicitee. Tex. Code Crim. P.

Art. 38.14; Tex. Penal Code § 15.03(b). Davis’s argument that the crime must be proven

entirely by evidence independent of the solicitee is not supported by the statutes or his

case authorities. It is enough that other evidence strongly corroborates the solicitee’s

testimony. The corroboration requirement is not a substitute for the solicitee’s testimony

and does not render the entirety of the solicitee’s testimony incompetent.

Under Article 38.14, the corroborating evidence supporting an accomplice’s

testimony does not have to prove every element of the crime. Holladay v. State, 709

S.W.2d 194, 199 (Tex. Crim. App. 1986) (en banc), overruling Fortenberry v. State, 579

S.W.2d 482, 485 (Tex. Crim. App. 1979). Under § 15.03(b), a person may not be

convicted of criminal solicitation on the uncorroborated testimony of the solicitee and

“unless the solicitation is made under circumstances strongly corroborative of both the

solicitation itself and the actor's intent that the other person act on the solicitation.” This

test was met by the corroborating evidence in Davis’s trial.

As the Thirteenth Court of Appeals and the Magistrate Judge found, there was

adequate corroboration of Phillips’s testimony in Longbine’s testimony, the jail calls

between Davis and J.D., and law enforcement testimony regarding the investigation of

the crime and knowledge about how gang murders are pursued. D.E. 12-2, pp. 8-9; D.E.

23, pp. 13-14. While Davis also challenges the reliability of Longbine’s testimony,4 the

context of the jail calls, and the hearsay nature of law enforcement testimony, none of

those challenges raise an issue of constitutional proportions. And his argument that

Hernandez’s murder does not prove his solicitation of the murder is moot because his

conviction does not rely on that evidence.

His case authorities are inapposite. Fraley v. State, 249 S.W. 866, 867 (1923) (no

corroborative evidence of any kind); Dewees v. State, 47 S.W.2d 277, 278 (1932) (same);

Brown v. State, 320 S.W.2d 845, 847 (1959) (“An accomplice cannot corroborate himself

by his own statements made to third persons.”); Nolley v. State, 368 S.W.2d 218, 219

(Tex. Crim. App. 1963) (evidence that corroborates the crime, but does nothing to

connect the defendant to the crime, is insufficient); McCarty v. State, 163 S.W.2d 200,

202 (1942) (same).

Davis’s suggestion that the corroborating evidence is impermissible

“bootstrapping” fails because each part of the corroborating evidence independently tends

to show Davis’s guilt. See Sonenschein v. State, 722 S.W.2d 450, 452 (Tex. App.—

4 Davis suggests that Longbine’s testimony is not corroborative because it went to soliciting a kidnapping, not

murder. D.E. 27, p. 22. However, as set out above, the corroboration need not prove each element of the crime.

And Longbine’s testimony is strongly corroborative of both the solicitation of Phillips and the intent to harm

Hernandez.

Austin 1986, pet. ref’d) (bootstrapping involves connecting two independent facts that do

not corroborate a crime by the defendant). Davis’s arguments against the

accomplice/solicitee testimony are rejected.

Hernandez Relationship with J.D./Davis. Despite competent testimony, Davis

objects that there is no written report to support the assertion that Hernandez was due to

testify against J.D. at his hearing for a misdemeanor violation. D.E. 27, pp. 5, 22

(objection 7). Moreover, he objects to the evidence that Hernandez stabbed J.D. as

hearsay because it is unaccompanied by a police or incident report. D.E. 27, p. 7

(objection 12). Nothing in his objections supports the implied premise that such reports

are necessary predicates for testimony on these matters.

Davis acknowledges in his traverse that Longbine testified that the problem was

Hernandez showing up in court—on a date very close to the evidence of solicitation and

phone calls with J.D.—but he states this “fact” should not be sufficient to show motive.

D.E. 22, pp. 31, 35. The evidence of the stabbing was offered to show motive. And there

is no need for a police report of the stabbing to verify that Davis knew or believed it had

happened.

He also objects that there is no evidence of any relationship between J.D. and

Hernandez; there is nothing but a false impression of a motive for murder. D.E. 27, p. 6

(objection 9). Davis does not address any reason to discount Phillips’s and Rhodes’s

testimony that J.D. and Hernandez had been in a relationship and that Hernandez had

stabbed J.D. D.E. 12-18, pp. 66-67, 95-96, 120, 186. The arguments against crediting

the evidence that Hernandez had been in a relationship with J.D., had stabbed J.D., and

was expected to testify against J.D. in court are rejected.

Violation of Confrontation Rights. Davis objects to all statements of those who

did not testify at trial subject to cross-examination. D.E. 27, p. 6 (objection 8). He fails

to detail what evidence he is referring to and how the right of cross-examination was

denied. As such, the objection is general and conclusory in violation of Federal Rule of

Civil Procedure 72(b)(2) and it is rejected.

Paid Informants. Davis objects that the testimony of Phillips and Longbine was

not competent because they were paid informants. D.E. 27, p. 6 (objection 10). He

separately objects to all testimony of Phillips, Dan Morales, and Longbine because their

testimony was incentivized. D.E. 27, pp. 7-8 (objections 15 and 16). He has not

provided any authority that holds that paid informants cannot testify. Any incentive goes

to the weight that the jury chooses to give to the evidence. See Jackson v. Virginia, 443

U.S. 307, 319 (1979). Given that there was no evidence to the contrary, a bare assertion

that the evidence was subject to impeachment is not sufficient to contradict the jury’s

decision. The arguments against crediting the testimony of these witnesses are rejected.

Phone Call Context. Davis objects that the phone calls between him and J.D.

were taken out of context when the M&R concludes that they “appeared” to reference

murder. D.E. 27, pp. 6, 22-23 (objection 11); see D.E. 23, p. 14. He suggests, without

benefit of authority, that allowing such an inference is an incorrect standard for factual

evidence. The objection is conclusory and contrary to the law. See Hardesty v. State,

656 S.W.2d 73, 76 (Tex. Crim. App. 1983) (comparing permissible inferences to

presumptions). The argument is rejected.

Speculation on Motive or Intent. Davis objects to evidence of his feelings or

emotions supporting motive as being speculative. D.E. 27, p. 7 (objection 13). He cites

no authority for this argument and it is contrary to the law. “The reviewing court must

give deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to

ultimate facts.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318–19).

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id.

“Under the Jackson test, we permit juries to draw multiple reasonable inferences as long

as each inference is supported by the evidence presented at trial. However, juries are not

permitted to come to conclusions based on mere speculation or factually unsupported

inferences or presumptions.” Id. at 15.

Here, evidence supports the jury’s inference of motive. J.D. is Davis’s son. Davis

revealed his intention to free J.D. from incarceration in his phone calls. Phillips testified

that Davis wanted to ensure that Hernandez did not testify against J.D. And Longbine

testified that Hernandez had previously stabbed J.D. There is sufficient evidence from

which the jury could infer a motive to solicit the murder of Hernandez. The Court rejects

Davis’s suggestion that any conclusion on motive or intent was speculative.

Unqualified Gang Expert. Davis objects to the use of Paul Lisowski as an expert

on gangs as he lacks qualifications. D.E. 27, pp. 7, 23 (objection 14). The objection is

conclusory and does not inform the Court of the missing qualifications or the expert

opinions that are challenged. Neither does he show how this issue amounts to a

deprivation of constitutional rights. As such, the objection is insufficient under Rule

72(b)(2).

The complaint that the jury or the Magistrate Judge engaged in an improper

evidentiary standard by concluding that the gang-related testimony indicated a gang hit is

incorrect. As detailed above, the jury is entitled to make inferences from the evidence.

And reciting that a fact was “indicated” by the evidence is sufficient. The arguments

against reliance on Lisowski’s testimony are rejected.

State Court Fact Recitations. Davis objects to the Thirteenth Court of Appeals’

findings, which were recounted in the background portion of the M&R (D.E. 23, p. 9).

D.E. 27, pp. 8-9 (objection 20). This objection is repetitious of his other objections to

different portions of the facts relied on here. This Court has already addressed the

individual objections and the evidence on which they were based. The subsidiary

arguments involved here are rejected as an unnecessary multiplication of the proceedings.

Corrupt Investigator. Davis objects that Leo Martinez, who was the lead

investigator in the Hernandez murder, was fired for corruption in connection with the

case and was fined for witness tampering and destruction of, or manufacturing, evidence.

D.E. 27, p. 5 (objection 6). This objection is not presented as a basis for habeas corpus

relief in his petition. D.E. 1. He did not present it in opposition to the motion for

summary judgment. D.E. 22. And he fails to point to any record evidence supporting

this complaint. Because nothing in the petition pleads or proves this issue, the argument

is rejected.

Reference to Miller. Davis objects to all references in the M&R to a person

named Miller as there was no evidence of any such person at trial. D.E. 27, p. 8

(objection 17). This is a clerical error and all references in the M&R to “Miller” are

STRICKEN and REPLACED with “Phillips,” consistent with the M&R’s citations to the

record. See D.E. 12-19, pp. 70-76. While the Court corrects the M&R, the error is not

one that changes the analysis or result. The argument is rejected for that purpose.

Conclusion. This is not a case where the record is entirely devoid of evidence of

a crime, as Davis suggests, citing Thompson v. City of Louisville, 362 U.S. 199, 206

(1960), abrogated by Jackson, 443 U.S. at 307 (allowing habeas review to include

insufficient evidence as well as no evidence complaints). As set out above, this Court is

not empowered, on habeas, to simply reweigh the evidence and substitute its conclusion.

The fact finding must be contrary to clear and convincing evidence. And Davis has not

provided any evidence, much less clear and convincing evidence, to the contrary. Davis

has failed to demonstrate that the state court proceedings were contrary to, or an

unreasonable application of clearly established federal law or involved an unreasonable

determination of the facts in light of all the evidence. All of the objections related to the

admissibility and sufficiency of the evidence to support the conviction, addressed above,

are OVERRULED.

5. Jury Charge Error

Davis objects to the jury charge for failure to instruct on the evidentiary

limitations of Texas Penal Code § 15.03(b), as stated in his § 2254 petition. Petition,

D.E. 1, pp. 7, 13 (ground 4); Objections, D.E. 27, p. 8 (objection 18). He couches this in

terms of failure to give proper instruction on all of the elements of the charge. D.E. 27,

pp. 31, 33-35. But the elements of the charge of solicitation are set out in § 15.03(a) and

there is no complaint about failure to include those elements. Addressed in Davis’s own

terms, there is no error in the jury charge. However, the Court must consider whether,

reading the pleadings and objections in favor of Davis as a layperson, he fairly states a

cognizable complaint.

The M&R finds that Davis’s objections regarding jury charge error do not show a

constitutional claim because they address only the application of state rules. D.E. 23, p.

18. However, this is too narrow a view of his argument. He raises this claim as a

violation of his right to a fair and impartial trial, which is guaranteed under the Fifth,

Sixth, and Fourteenth Amendments. Accordingly, habeas relief is potentially available.

E.g., White v. Wheeler, 577 U.S. 73, 76 (2015); Washington v. Thaler, 714 F.3d 352, 354

(5th Cir. 2013).

The jury charge did not include a § 15.03(b) instruction. D.E. 12-7, pp. 12-17.

Section 15.03(b) requires corroboration of any testimony of the solicitee. While it does

not set out additional elements of the charge, omission of a § 15.03(b) instruction is error

under state law because it is law applicable to the case. Claxton v. State, 124 S.W.3d

761, 765 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (citing Tex. Code Crim. Proc.

Art. 36.14).

Article 36.14 requires that the jury charge set forth the law applicable to the case

and Article 36.19 states:

Whenever it appears by the record in any criminal action

upon appeal that any requirement of Articles 36.14, 36.15,

36.16, 36.17 and 36.18 has been disregarded, the judgment

shall not be reversed unless the error appearing from the

record was calculated to injure the rights of defendant, or

unless it appears from the record that the defendant has not

had a fair and impartial trial. All objections to the charge and

to the refusal of special charges shall be made at the time of

the trial.

Here, Davis did not object to the charge at trial as required. In that event, the

fundamental error rule applies and the standard of review applicable to whether he has

had a “fair and impartial trial” is “egregious error.” E.g., Taylor v. State, 332 S.W.3d

483, 489 (Tex. Crim. App. 2011).

In Claxton, the methodology used to determine if there was egregious error was

described as follows:

To assess the degree of harm, we examine (1) the entire jury

charge; (2) the state of the evidence, including contested

issues and the weight of the probative evidence; (3) the

arguments of counsel; and (4) any other relevant information

revealed by the record of the trial as a whole.

We review the corroborating evidence in the light most

favorable to the verdict. Harm is egregious only if the

corroborating evidence is so weak and unconvincing that, had

they been properly instructed, rational jurors would find the

State's case clearly and significantly less persuasive.

The test used to evaluate corroboration is to eliminate

from consideration the accomplice testimony and then

determine whether there is other incriminating evidence

connecting the defendant with the crime. In determining the

sufficiency of the corroboration, we consider the combined

weight of the non-accomplice evidence even if it is entirely

circumstantial. It is not necessary that the corroboration

directly link the defendant with the crime or that it be

sufficient evidence in itself to establish guilt.

Claxton, 124 S.W.3d at 765–66 (citations omitted).

As set out above, the record contains strong and convincing evidence connecting

Davis with the crime. There was no controverting evidence. Consequently, the

requirements of § 15.03(b) were met, even though the provision was omitted from the

jury charge. There was no egregious harm.

Davis’s other authority is misplaced. The opinion in Webber v. State, 29 S.W.3d

226, 231, 237 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d), found no reversible

error in a jury charge mistake in the treatment of presumptions where the overwhelming

weight of the evidence supported the conviction. The opinion in Sheffield v. State, 847

S.W.2d 251, 259 (Tex. App.—Tyler 1992, pet. ref’d), more aptly addressed the necessity

for corroborating evidence to support a conviction based on accomplice testimony.

However, in that case as well, the evidence was found amply sufficient to sustain the

conviction.

The conviction was reversed in Underwood v. State, 853 S.W.2d 858, 859 (Tex.

App.—Fort Worth 1993, no pet.), because the crime charged—solicitation of capital

murder for remuneration—was submitted to the jury without the requirement of finding

remuneration, an essential element. In contrast, no essential element was omitted from

Davis’s jury charge. In Saunders v. State, 572 S.W.2d 944, 955 (Tex. Crim. App. 1978),

the defendant testified at trial and admitted the essential facts of the criminal solicitation

charge (hoping to be exonerated under a mistake of fact or entrapment defense). Thus,

the jury charge did not require the § 15.03(b) instruction. The defendant, himself,

admitted to the charges.

In Guthrie v. State, 149 S.W.3d 829, 834 (Tex. App.—Waco 2004, pet. ref’d), the

opinion notes that the corroboration instruction of § 15.03(b) was required, as Davis

argues. However, given the overwhelming evidence (a tape recording of the solicitation),

the defendant’s right to a fair and impartial trial was not violated. The same result

obtains here.5

Because the omission of the § 15.03(b) instruction arguably implicates a

defendant’s constitutional right to a fair trial, the Court rejects any suggestion in the

M&R that such error would not trigger habeas relief. However, because the

uncontroverted evidence corroborated Phillips’s testimony, the Court finds that the error

was harmless and did not, in fact, violate Davis’s constitutional right to a fair trial. There

was no unreasonable fact finding or unreasonable application of federal law. Therefore,

the objections regarding the jury charge are OVERRULED.

6. Ineffective Assistance of Counsel

Davis essentially repeats his complaints about the omission of the § 15.03(b)

instruction in objecting that his attorney’s failure to object to the jury charge violated his

Sixth Amendment right to effective assistance of counsel. D.E. 27, pp. 35-37. He limits

5 Davis also cites Walters v. State, 247 S.W.3d 204, 206 (Tex. Crim. App. 2007), a case this Court has reviewed,

but fails to find relevant to any issue.

his objection to only one of the two requirements for finding ineffective assistance of

counsel: prejudice. He does not address whether the failure to object fell below

objective standards of reasonableness under the circumstances. See Strickland v.

Washington, 466 U.S. 668 (1984).

He contends that the Magistrate Judge erred by accepting that questionable

evidence tended to prove all elements of the crime—a proposition the Court has already

rejected, above. The objection is not accompanied by the citation of authorities or

evidence. As far as it goes, the objection fails because the Court has found that the

evidence sufficiently eliminates any claim of prejudice—that Davis was denied a fair trial

by the omission of the jury instruction and, if the jury had been properly instructed, Davis

would not have been convicted. The Court OVERRULES the objection.

7. Prosecutorial Misconduct

Davis objects “to the comments and the pictures and all extraneous matters that

the trial judge allowed this prosecutor to get away with,” referencing the M&R (D.E. 23,

p. 16). While not entirely clear, it appears that he is calling into question prosecutorial

misconduct relating to comments during the final argument and the display of pictures of

Hernandez from the murder scene. D.E. 27, p. 31. His reasoning is that the fact that

Mireles killed Hernandez does not prove that Davis solicited Phillips with the required

intent that Phillips murder Hernandez and the photographs are calculated only to inflame

the jury.

The Magistrate Judge found that the objectionable comments were subject to

objections at trial, which the trial judge sustained. D.E. 23, p. 16. Elsewhere in the

M&R, the Magistrate Judge stated that the trial court did not allow the display of pictures

of Hernandez’s body. Id., p. 4. While the M&R later acknowledges Davis’s complaint

regarding the display of pictures of Hernandez’s body, it does not directly address that

complaint. Id., pp. 15-16.

After reviewing the trial transcript (D.E. 12-18, 12-19) and, particularly, closing

arguments, the Court has not found any indication that photographs from the Hernandez

murder scene were admitted into evidence or displayed for the jury and Davis has not

provided any specific reference in the record to the contrary. Thus, the Court considers

the prosecutorial misconduct objections only as they relate to the statements regarding the

Hernandez murder.

Each time the prosecutor brought up the fact that Hernandez had, in fact, been

murdered or that Davis had solicited someone other than Phillips, Davis’s attorney

objected and the trial court sustained the objection. D.E. 12-19, pp. 129, 130, 132. Davis

has not shown that the trial court’s ruling was insufficient to address any objection to the

statements or their prejudicial nature. Consequently, his objection is OVERRULED.

Lumpkin, however, also objects. The M&R, in material respects, states, “The

prosecutor’s comments during closing arguments regarding Hernandez’s murder were

improper.” D.E. 23, p. 16. Lumpkin complains that this is (a) a separate holding that

purports to encompass more comments than those to which objections were sustained

and/or (b) suggests that they were objectionable for more reasons than were stated on the

record—without specifying any basis for associated federal habeas relief. D.E. 26.

The Court finds that Lumpkin reads too much into the statement. It is clearly a

reference to the fact that Davis’s trial counsel had objected to the only comments that

Davis challenges, the trial court had sustained the objections on the basis articulated by

Davis’s counsel, and Davis had not made a case for habeas relief out of that issue. The

Court holds that the observation regarding the trial court’s rulings does not purport to,

and should not be read to, exceed what appears on the face of the record. The objections

are OVERRULED.

8. Jurisdiction

Davis objects to the holding that he failed to exhaust his claim challenging the trial

court’s jurisdiction. D.E. 27, p. 38-44. He claims that the judgment of conviction is a

void judgment that is a nullity, ab initio, because the prosecutor was not properly acting

for the District Attorney’s office and had not taken the correct oath of office. While he

cites cases for the proposition that a void judgment is unenforceable, he has not cited any

legal authority for his assertion that the prosecutor had no authority to prosecute the case

or that this made the judgment against him void.

Davis fails to acknowledge that, even though the M&R notes that the claim was

unexhausted, it also denied the claim because it was conclusory. Nothing in Davis’s

objections before this Court specifically challenge the alternate holding. Davis’s briefing

is still conclusory, failing to provide a legally authoritative link between his complaints

about the prosecutor’s oath and any defect in the judgment against him. He simply

repeats the arguments the M&R rejected. Objections to an M&R are not intended to

supply a petitioner with a second bite at the same apple. See Freeman v. Cnty. of Bexar,

142 F.3d 848, 852 (5th Cir. 1998); Fed. R. Civ. P. 72(b)(2). The objection is

OVERRULED.

9. Lack of Evidentiary Hearing

Davis objects to not being granted an evidentiary hearing to expand the record on

unresolved facts material to the legality of his confinement. D.E. 27, p. 45. While he

included a request for a hearing in the prayer of his traverse, he did not then—and does

not now—explain what controverted unresolved facts are essential to this action and what

authority supports his right to a hearing. See D.E. 22, p. 49. His objection is conclusory.

Rule 72(b)(2). It is OVERRULED.

10. Request for Attorney

Davis objects to not having a court-appointed attorney to assist him in these

habeas matters. D.E. 27, p. 45. Under the Rules Governing Section 2254 and 2255

Cases in the United States District Courts, Rule 8(c), counsel is to be appointed if the

court has determined that an evidentiary hearing is appropriate and if the prisoner

qualifies under 18 U.S.C. § 3006A, which includes the inability to pay for counsel. See

generally Brian R. Means, FEDERAL HABEAS MANUAL: A GUIDE TO HABEAS CORPUS

LITIGATION, § 4:26 (Appointment of Counsel) (Thomson Reuters, 2021 ed.). Davis has

failed to show himself entitled to an evidentiary hearing and has failed to show that he

qualifies for court-appointed counsel on the basis of inability to pay or other limits of 18

U.S.C. § 3006A. While the Court has discretion to appoint an attorney in the absence of

the need for an evidentiary hearing, Davis has not convinced the Court to do so under the

circumstances and the record produced here. The objection is OVERRULED.

11. Certificate of Appealability

Davis objects to the recommended denial of a COA, simply disagreeing with the

M&R’s conclusion. D.E. 27, pp. 44-45. This objection is deficient under Freeman and

Rule 72(b)(2) and is OVERRULED.

CONCLUSION

Having reviewed the findings of fact, conclusions of law, and recommendations

set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as the

parties’ respective objections, and all other relevant documents in the record, and having

made a de novo disposition of the portions of the Magistrate Judge’s Memorandum and

Recommendation to which objections were specifically directed, the Court

OVERRULES both Davis’s and Lumpkin’s objections and ADOPTS as its own the

findings and conclusions of the Magistrate Judge as supplemented and modified herein.

Accordingly, Lumpkin’s motion for summary judgment (D.E. 15) is GRANTED and the

Court DENIES the petition for writ of habeas corpus (D.E. 1). In the event that Davis

seeks a certificate of appealability, the request is DENIED.

ORDERED this 24th day of September, 2021.

UNITED STATES DISTRICT JUDGE

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