Engle v. Lumpkin

Case: 19-40356 Document: 00516317380 Page: 1 Date Filed: 05/12/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

No. 19-40356 May 12, 2022

Lyle W. Cayce

Clerk

Kirk Ross Engle,

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:18-CV-8

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Don R. Willett, Circuit Judge:

In 2016, a Texas jury convicted Kirk Engle of felony aggravated assault

with a deadly weapon. Engle initiated this postconviction proceeding in

federal district court after unsuccessfully petitioning Texas state courts for a

writ of habeas corpus. The district court rejected all of Engle’s claims of trial

error. Engle then sought a certificate of appealability, which this court

granted as to the claim of prosecutorial misconduct. We now consider that

claim on the merits. Although we agree with Engle that certain conduct by

the prosecutor during the trial violated the Due Process Clause, we conclude

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No. 19-40356

that Engle was not prejudiced by the violation. We therefore AFFIRM the

judgment below denying habeas relief.

I

According to trial testimony, the events that gave rise to Engle’s

conviction occurred on the evening of August 19, 2014 in Yorktown, Texas.

Firefighters from the Yorktown Volunteer Fire Department were called to

the scene of a brush fire. When they arrived, Engle was standing nearby and

told them he had started the fire intentionally. He taunted the firefighters,

saying “f*** the fire department” and discouraging them from putting out

the fire. As firefighter Brian Smolik prepared to extinguish the blaze anyway,

Engle said, “Do you want to die tonight?” and then stabbed Smolik in the

stomach with a knife. When Smolik’s fellow volunteer Monte Riedel moved

to intervene, Engle threatened, “Do you want to get stabbed tonight, too?”

before fleeing on foot. Eric Von Helbing, another firefighter on the scene,

called the police and paramedics. Smolik was transported to the hospital,

where he remained for four days, three of which he spent in the ICU.

Police quickly found Engle wandering the streets and placed him

under arrest. Upon being handcuffed, Engle told the officers, “I was waiting

for you,” explaining that he “wanted to go back home” and that “the

penitentiary [wa]s [his] home.” The officers discovered through a pat-down

of Engle that he had disposed of the knife. Despite thoroughly searching the

area, police never recovered the weapon. As the officers were transporting

Engle to booking, he explained to them that Smolik was “in the wrong place

at the wrong time.” Engle further expressed that he found it “hard making it

outside of prison” and “didn’t want to get out.” At one point during the ride,

Engle overheard one of the officers misspell Engle’s name to dispatch and

spoke up to correct the error. Shortly after Engle arrived at the DeWitt

County Sheriff’s Office, Texas Ranger Troy Wilson attempted to question

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Engle about the stabbing. Ranger Wilson entered the interview room,

activated his digital audio recorder, and introduced himself to Engle. Engle

responded by expressing that he wanted to go back to prison and that “this

[was] what it took.” Wilson then gave Engle the Miranda warnings, followed

by the warning required by state statute of his right to terminate police

questioning. 1 Engle then responded, “terminate” before standing up and

being escorted out of the room.

A DeWitt County grand jury indicted Engle for felony aggravated

assault with a deadly weapon. 2 Engle pleaded not guilty and the case

proceeded to a jury trial. Engle did not dispute that he stabbed Smolik.

Instead, Engle raised a defense of temporary insanity due to involuntary

intoxication. Taking the stand in his own defense, Engle testified that an

adverse reaction to the common antidepressant Lexapro caused him to suffer

blackouts and fits of rage. Engle admitted on cross examination, however,

that he had a longstanding tendency to fly into violent rages even years before

he began taking Lexapro, and that he was telling acquaintances in the months

leading up to the stabbing that he wanted to return to prison. Importantly for

present purposes, the prosecutor also cross-examined Engle regarding his

actions when Ranger Wilson attempted to question Engle about the stabbing

incident, leading to the following exchange:

Q. So — and then [Ranger Wilson] started reading you your rights.

Do you remember that?

A. I heard it.

Q. And he said you have the right to terminate the interview at any

time, didn’t he?

1

See Tex. Code Crim. Proc. art. 38.22, § 2(a)(5).

2

See Tex. Penal Code § 22.02(a)(2).

3

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A. Yes, sir.

Q. And what did you say?

A. Terminate.

Q. You said terminate. Stood up and walked out. Sounds like you

knew exactly what was going on then, doesn’t it?

A. It would have made more sense if I tried to tell him my side of the

story.

Q. Would it make more sense in what way? What do you mean?

A. Like right now, if I talked to him I’ll tell him my side.

Q. Uh-huh.

A. At that time I was not in my right mind. I was talking but I was not

in my right mind.

Q. But, for whatever reason, he reads you your rights, he gives you

one of them, which is that you’ve got the right to terminate this at

any time, and you said terminate, stood up and walked out. Right?

A. Yes, sir.

Q. It sounds as if you knew exactly what he was telling you in your

warnings and you understood them and you chose to exercise one of

your rights, doesn’t it?

A. That’s what it sounds like, sir.

In support of his defense, Engle offered testimony from a psychiatrist,

Dr. Thomas Demoor, who testified that selective serotonin reuptake

inhibitors (SSRIs) such as Lexapro can cause mania, characterized by

“increasing agitation or irritability or aggression,” in patients with bipolar

depression—a condition from which, “in [Demoor’s] opinion,” Engle

suffered. Demoor believed that Engle’s adverse reaction to Lexapro “led to

a manic state that caused his aggressive outburst.” Demoor admitted,

however, that he “couldn’t evaluate [Engle’s] state of mind at the time of the

event . . . [b]ecause [Engle] told [him] he didn’t remember the event.”

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Instead, Demoor formed his opinion based on a “review[] [of] [Engle’s]

medical records,” “the witness statements from the assault,” and “[the

State’s expert witness] Dr. Kutnick’s reports.”

The defense also offered the testimony of three other witnesses. One

was a nurse at the DeWitt County Jail who was tasked with administering

inmates’ medications. She testified only that Engle began refusing to take

Lexapro when he arrived at the facility on the weekend of August 23, 2014,

though the prosecutor stressed on cross-examination that this was five days

after Engle was arrested for stabbing Smolik. The defense also called a

corporal at the same jail who also helped dispense medications to inmates.

She testified that shortly after Engle was housed at the jail in connection with

the stabbing, he had become “agitated” on occasion after taking Lexapro,

“pacing in the cell and yelling and talking loud” before wearing himself out.

The corporal admitted on cross-examination that Engle did not harm himself

or otherwise act violently during these periods. Engle’s mother also testified

on his behalf that she noticed him becoming more “forgetful” and “angry,”

and “crying” more often, after starting Lexapro. She admitted on cross-

examination that she nonetheless continued to bring the medication to the

jail for Engle to use even after his arrest, and that some of his hostile behavior

persisted even when he was off Lexapro.

The State’s case was naturally aimed at rebutting Engle’s defense of

insanity due to involuntary intoxication. The prosecutor elicited testimony

about the events surrounding the stabbing and Engle’s subsequent arrest,

including Engle’s taunting of the firefighters, his admission to the police that

he had been “waiting” for them, and his expressed desire to return to prison.

During the prosecutor’s direct examination of Ranger Wilson, Wilson was

asked about his questioning of Engle after the arrest, resulting in the following

exchange:

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A. . . . . I didn’t ask [Engle] any questions at that time, I needed to read

him his Miranda rights and other things, that was before, and so did a

little housekeeping, read him his Miranda. He said he understood it

and as soon as I finished reading his Miranda warnings, the 38.22

warnings, he terminated the interview and walked out.

Q. Terminated the interview?

A. Yes.

Q. How did he terminate it?

A. I said, “you have the right to terminate the interview at any time.”

He said “terminate,” stood up and walked out.

After some further back-and-forth, a recording of the interview was then

played for the jury, and the prosecutor then asked,

Q. So as you’re going through these warnings that we just heard,

what’s the defendant doing, if anything, when you’re asking do you

understand that?

A. He’s nodding in the affirmative that he understood that right.

Q. Show us what you mean.

A. Nodding his head up and down.

Q. Okay. And at the end when you said he can terminate this interview

at any time, what did he say?

A. Terminate.

Q. Terminate? And then what did he do?

A. Stand up and start walking towards the door.

The State also brought forth its own expert witness, psychiatrist Dr.

Joel Kutnick, who testified that Lexapro was not known to cause rage attacks

or temporary “blackouts” of the kind complained of by Engle, and that

Engle’s prescribed dose of Lexapro at the time was “a standard dosage.”

Kutnick also reviewed multiple reports from mental health professionals who

treated or evaluated Engle in the period leading up to the stabbing. Kutnick

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testified, based on the contents of the reports (which were also admitted into

evidence as exhibits), that Engle had never complained to his prescribing

doctor about Lexapro’s effects in the past (and had at one point even asked

for a higher dose), and that Engle had stated during an evaluation conducted

before he began taking Lexapro that he used “rage stages” “as an excuse to

become violent.” Kutnick conceded that SSRIs such Lexapro can cause

mania in patients with bipolar disorder. Nevertheless, after reviewing the

hour-long police footage of Engle’s arrest and subsequent transport to

booking so as to observe his demeanor as these events unfolded, Kutnick

testified that, in his professional judgment, Engle was not in a manic state at

the time. Furthermore, Kutnick explained, Engle was also taking Seroquel (a

mood stabilizer) during the period in question, and it was “much more rare”

for SSRIs to cause mania even in patients suffering from bipolar depression

if they are also taking a mood stabilizer.

The State also called a caseworker from the mental health facility that

had overseen Engle’s treatment in the roughly four-month period leading up

to his attack on Smolik. Throughout that time, Engle was on Lexapro as part

of his course of treatment. The caseworker testified that he spent an hour

each week with Engle at his home—mainly “to remind him to take

medication and reorder prescriptions on time, keep doctors’ appointments”

and meet with his parole officer—but that Engle never once reported any

complaints about his medication.

The prosecutor chronicled all of this evidence of Engle’s sanity in his

lengthy summation, during which he also made this comment:

Well, [Ranger Wilson] says [to Engle], “okay, well, let me give

you your rights and let’s see, you know, let’s talk about it some

more,” and he goes, “you have the right to terminate your

interview.” What does [Engle] say? He says “terminate,”

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stands up and walks out. Now, that doesn’t sound like an

insane person to me.

The jury found Engle guilty of the charged offense of felony aggravated

assault with a deadly weapon. The trial judge then found that Engle was a

habitual offender under Tex. Penal Code § 12.42 and accordingly

sentenced him to forty years’ incarceration. His conviction was affirmed on

direct appeal, with the appellate court rejecting Engle’s sole point of error

regarding the limitations on his expert witness’s testimony. 3

In September 2017, Engle filed a petition for a writ of habeas corpus

in Texas state court, raising several claims of error, including prosecutorial

misconduct. The Texas Court of Criminal Appeals denied his petition

without a written opinion. Engle then initiated this postconviction

proceeding in federal district court, seeking habeas relief under 28 U.S.C.

§ 2254. The district court rejected all five of Engle’s grounds for relief. 4

Engle then moved this court for a certificate of appealability (COA), 5 which

was denied as to all his claims except:

whether the prosecution engaged in misconduct by

commenting on Engle’s post-arrest, post-Miranda silence to

rebut his defense of insanity by involuntary intoxication, Doyle

v. Ohio, 426 U.S. 610 (1976); Wainwright v. Greenfield, 474 U.S.

284 (1986), and, if so, whether this misconduct had a

“substantial and injurious effect or influence in determining

3

See Engle v. State, No. 13-16-00270-CR, 2017 WL 219119 (Tex. App.—Corpus

Christi Jan. 19, 2017, pet. ref’d).

4

See Engle v. Davis, No. CV V-18-0008, 2019 WL 1429623 (S.D. Tex. Mar. 28,

2019).

5

See 28 U.S.C. § 2253(c)(2).

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the jury’s verdict.” United States v. Chavez, 193 F.3d 375, 379

(5th Cir. 1999).

These are the only issues before us in this appeal.

II

Our review of collateral attacks on state criminal convictions is

governed by the federal Antiterrorism and Effective Death Penalty Act

(AEDPA). AEDPA states, in relevant part, that a federal court cannot grant

a state prisoner’s habeas petition “with respect to any claim that was

adjudicated on the merits in State court proceedings”—as both parties agree

Engle’s claim was—unless the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 6 This provision

establishes a “‘highly deferential standard for evaluating state-court

rulings’” that requires federal courts to give those rulings “the benefit of the

doubt.” 7 We cannot conduct “our own independent inquiry into whether the

state court was correct as a de novo matter. . . . Relief is available under

[AEDPA] only if the state court’s decision is objectively unreasonable.” 8

The question is whether “fairminded jurists could disagree” as to how the

Supreme Court’s caselaw applies to the circumstances that the state court

confronted; if so, then we cannot set aside the state court’s conclusion. 9 This

deference applies even where, as here, the state court has denied habeas relief

6

28 U.S.C. § 2254(d)(1).

7

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v.

Murphy, 521 U.S. 320, 333, n.7 (1997)).

8

Yarborough v. Alvarado, 541 U.S. 652, 665 (2004).

9

Id. at 664.

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without a written opinion. In such cases, the habeas petitioner must “show[]

there was no reasonable basis for the state court to deny relief.” 10

At the same time, however, “AEDPA does not ‘require state . . .

courts to wait for some nearly identical factual pattern before a legal rule must

be applied.’” 11 On the contrary, a state court’s application of a principle

established by Supreme Court caselaw may still be “unreasonable” for

AEDPA purposes even if the state court confronted “a set of facts ‘different

from those of the case in which the principle was announced.’” 12 “Certain

principles are fundamental enough that when new factual permutations arise,

the necessity to apply the earlier rule will be beyond doubt.” 13

* * *

With these principles in mind, we consider Engle’s claim of

prosecutorial misconduct. During his trial, the prosecutor elicited testimony

that Engle had invoked his right to terminate police interrogation after being

advised of this right. The prosecutor then argued to the jury during his

summation that Engle’s termination of the interview was evidence that Engle

was sane at the time of the offense. Engle argues that the prosecutor’s

conduct in doing so deprived Engle of “due process of law” in violation of

the Fourteenth Amendment. 14 Moreover, Engle contends, the Supreme

Court’s caselaw clearly establishes that the prosecutor’s actions violated the

Due Process Clause. We agree with Engle on both points.

10

Harrington v. Richter, 562 U.S. 86, 98 (2011).

11

Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (quoting Carey v. Musladin, 549

U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment)).

12

Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).

13

Yarborough, 541 U.S. at 666.

14

See U.S. Const. amend. XIV, § 1 cl. 3.

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In Doyle v. Ohio, the Supreme Court held that the “use for

impeachment purposes” of a criminal defendant’s “silence, at the time of

arrest and after receiving Miranda warnings, violate[s] the Due Process

Clause.” 15 The Court reasoned that, although “the Miranda warnings

contain no express assurance that silence will carry no penalty, such

assurance is implicit to any person who receives the warnings,” and hence

“it would be fundamentally unfair” to allow that person’s “silence to be used

to impeach an explanation subsequently offered at trial.” 16 It made no

difference that the defendants in that case, “when cross-examined about

their silence, did not offer reliance on Miranda warnings as a justification. . . .

After an arrested person is formally advised” that “he has a right to remain

silent, the unfairness occurs when the prosecution . . . undertake[s]

impeachment on the basis of what may be the exercise of that right.” 17 The

Court relied on Doyle a decade later in Wainwright v. Greenfield, which held

that the Due Process Clause also prohibits a prosecutor from rebutting an

insanity defense by using a defendant’s “silence after receiving Miranda

warnings []as evidence of his sanity.” 18 Moreover, the Court explained,

“silence” in this context “does not mean only muteness; it includes the

15

426 U.S. 610, 619 (1976). Note that Doyle’s holding was grounded in the Due

Process Clause rather than the right against compelled self-incrimination; the latter, the

Court has explained, “is not violated when a defendant who testifies in his own defense is

impeached with his prior silence.” Jenkins v. Anderson, 447 U.S. 231, 235 (1980).

16

426 U.S. at 618. Though we presume most are familiar with the famous Miranda

warnings, we nonetheless offer a brief refresher: “when an individual is taken into custody”

and “subjected to questioning, . . . [h]e must be warned prior to any questioning that he has

the right to remain silent, that anything he says can be used against him in a court of law,

that he has the right to the presence of an attorney, and that if he cannot afford an attorney

one will be appointed for him.” Miranda v. Arizona, 384 U.S. 436, 478–79 (1966).

17

426 U.S. at 619 n.10 (emphasis added).

18

474 U.S. 284, 285 (1986).

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statement of a desire to remain silent, as well as of a desire to remain silent

until an attorney has been consulted.” 19

On the other hand, the Supreme Court has declined to apply Doyle in

cases where defendants had not been Mirandized, reasoning that, “[i]n the

absence of the sort of affirmative assurances embodied in the Miranda

warnings,” it does not “violate[] due process of law for a State to permit

cross-examination as to postarrest silence when a defendant chooses to take

the stand.” 20 The key difference between such cases and those in which the

Court found a due-process violation was that the latter involved government

action that frustrated defendants’ reliance on official assurances of their

rights. 21

We think it follows naturally and necessarily from this caselaw that the

prosecution in this case violated Engle’s due-process rights. At the outset of

custodial interrogation following his arrest, Ranger Wilson gave Engle the

statutorily required warning that he “ha[d] the right to terminate the

interview at any time.” Engle immediately invoked this right. The prosecutor

subsequently relied on that invocation at trial as evidence of Engle’s sanity.

Just as in the cases discussed earlier in which the Supreme Court found a due-

process violation, the State advised Engle of his rights and thereby

“implicitly promise[d] that any exercise of those rights w[ould] not be

penalized,” but “then s[ought] to make use of [his] exercise of those rights

19

Id. at 295 n.13.

20

Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam); see also Anderson v.

Charles, 447 U.S. 404 (1980) (per curiam); Jenkins, 447 U.S. at 240.

21

See Wainwright, 474 U.S. at 292 (“The point of the Doyle holding is that it is

fundamentally unfair to promise an arrested person that his silence will not be used against

him” and then “breach that promise by using the silence to impeach his trial testimony.”).

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in obtaining his conviction.” 22 The State, in doing so, violated the clearly

established strictures of the Due Process Clause, as construed by the Court.

The State argues, however, that Doyle and Wainwright are different

from this case in an important respect: the defendants in the former two cases

invoked their right to silence in reliance (or at least presumed reliance) on the

warnings required by Miranda, whereas Engle invoked his right to terminate

police questioning in reliance on a warning required by Article 38.22 of the

Texas Code of Criminal Procedure. 23 The State correctly points out that,

although Miranda established a right to terminate custodial questioning, this

was not one of the rights of which the Court held that suspects must be

apprised before questioning begins. 24 Thus, in the State’s view, the Supreme

Court has not spoken to the question at hand—that is, whether a defendant’s

reliance on warnings required by mere state statute should be treated the

same as a defendant’s reliance on warnings required by the Miranda decision.

22

Id.

23

See Tex. Code Crim. Proc. art. 38.22 §§ 2, 3 (“No oral or sign language

statement,” nor any “written statement,” made by “an accused . . . as a result of custodial

interrogation shall be admissible against the accused in a criminal proceeding unless,” inter

alia, “the accused, prior to making the statement, . . . received . . . a warning that . . . he has

the right to terminate the interview at any time.”).

24

See Miranda, 384 U.S. at 471–75. While we have never expressly recognized that

Miranda does not require the authorities to warn suspects of the right to cut off questioning,

Miranda itself arguably makes this clear, see id., and other courts have uniformly (and, in

our view, rightly) read Miranda as requiring no such warning. See, e.g., Robertson v. State,

871 S.W.2d 701, 713 (Tex. Crim. App. 1993); Wofford v. State, 952 S.W.2d 646, 657 (Ark.

1997); State v. McGhee, 280 N.W.2d 436, 441 (Iowa 1979); State v. Lowery, 427 P.3d 865,

893 (Kan. 2018); Com. v. Lewis, 371 N.E.2d 775, 776–77 (Mass. 1978); People v. Castille, 29

Cal. Rptr. 3d 71, 88 (Ct. App. 2005); State v. Mitchell, 482 N.W.2d 364, 373 (Wis. 1992);

United States v. Lares-Valdez, 939 F.2d 688, 689 (9th Cir. 1991); United States v. Crumpton,

824 F.3d 593, 610–11 (6th Cir. 2016); 2 Wayne R. LaFave et al., Criminal

Procedure § 6.8(d) (4th ed. Nov. 2021 update) (citing cases).

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We do not believe that the State’s proffered distinction between this

case and the applicable Supreme-Court precedent is material. Doyle and the

Court’s subsequent cases applying its holding, as we read them, establish that

a due-process violation occurs whenever (1) a defendant is assured by the

authorities that he has a certain right, (2) the defendant exercises the right,

and (3) the prosecution uses the defendant’s exercise of the right as evidence

against him at trial. It makes no difference whether the assurance given to the

defendant was required by the federal Constitution or instead by statute, as

in this case; it is the defendant’s frustrated reliance on an official assurance

that violates the Constitution. The warning required by Article 38.22 of the

Texas Code of Criminal Procedure of a suspect’s right to terminate

interrogation, no less than the warnings required by Miranda, carries with it

the “implicit [assurance] to any person who receives the warning[]” that

invoking the right to terminate “will carry no penalty,” and hence it would

be just as “fundamentally unfair . . . to allow” such an invocation to be used

against a defendant at trial as it would to do the same with a defendant’s

Miranda-induced choice to remain silent. 25 “The implicit promise, the

breach, and the consequent penalty are identical in both situations.” 26

Indeed, the Court’s reasoning in Doyle confirms that the source of the

right on whose assurance a defendant relies is irrelevant. The Doyle majority

supported its holding by citing a prior case where the Court had held that it

was improper for a prosecutor to ask jurors to draw adverse inferences from

a defendant’s refusal to answer a question at trial that the judge (incorrectly)

25

Doyle, 426 U.S. at 618.

26

Wainwright, 474 U.S. at 292; see also Phelin v. Kenderdine, 20 Pa. 354, 363 (1853)

(“When a witness declines answering a question” and “the privilege claimed by the witness

be allowed, the matter is at an end. . . . [N]o inferences whatever can be legitimately drawn

by . . . the claim of privilege [or] its allowance . . . . The allowance of the privilege would be

a mockery of justice, if either party is to be affected injuriously by it.”).

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told the defendant he had the right not to answer. 27 “[B]ecause the privilege

had been granted, even if erroneously,” the Doyle Court explained, “the

requirements of fair trial made it error for the trial court to permit comment

upon the defendant’s silence.” 28 Obviously, then, Doyle’s due-process

holding is not confined to instances in which defendants have detrimentally

relied on assurances of their rights under the federal Constitution, since Doyle

favorably cited a case in which a defendant had detrimentally relied on an

assurance that was not required by any provision of law. And if it violated the

Due Process Clause to frustrate a defendant’s reliance on an incorrect

assurance that he had a right not to answer a particular question, then surely

it violated the Due Process Clause to frustrate Engle’s reliance on a correct

assurance that he had the right to terminate police questioning.

Our confidence in our understanding of the Supreme Court’s

decisions is fortified by caselaw from other courts that reflects a similar

understanding. 29 For instance, the Texas Court of Criminal Appeals has

relied on Doyle to hold that a defendant’s invocation of the right to an

attorney after being advised of that right could not be offered as evidence

against him at trial, even though the advisement was given prematurely (that

is, before the right of which the defendant was advised had attached):

27

See Johnson v. United States, 318 U.S. 189 (1943). While Johnson itself justified

this holding as an exercise of the Supreme Court’s supervisory power over inferior federal

courts, the Court subsequently made clear in Doyle that the basic requirements of due

process would have compelled the same conclusion. See Doyle, 426 U.S. at 619 n.9.

28

Doyle, 426 U.S. at 619 n.9 (int’l quotes/cites omitted).

29

While AEDPA “restricts the source of clearly established law to Supreme Court

precedent, a federal court may consider other authorities” as persuasive authority in

determining “whether [a] state court’s adjudication was contrary to or an unreasonable

application of the Supreme Court’s clearly established precedents.” Brian R. Means,

Postconviction Remedies § 29:28 (June 2021 update); accord Reed v. Quarterman,

504 F.3d 465, 487 (5th Cir. 2007); Grim v. Fisher, 816 F.3d 296, 308 n.6 (5th Cir. 2016).

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[A]dverse use of evidence that a defendant invoked a right or

privilege which has been granted him, is constitutionally

impermissible. This is true even though the right or privilege

was erroneously extended to a defendant, because the

requirements of a fair trial make it impermissible to tell a

defendant that he has a right, even if erroneously, and then use

his exercise of that right against him. 30

The high courts of Kentucky and Vermont have also cited Doyle in reaching

the same conclusion on similar facts. 31 Collectively, these cases stand for the

proposition that Doyle’s due-process holding is not limited to defendants’

detrimental reliance on assurances required by the U.S. Constitution or

Miranda, but rather extends to similar assurances grounded in other sources

of law (and even to assurances given by mistake).

Most on-point of all, however, is a 1993 decision of the California

Court of Appeals in which a criminal defendant had been assured by the

authorities that he enjoyed certain statutory rights, yet the prosecutor later

introduced the defendant’s exercise of those rights as evidence against him.

The court held that the prosecutor’s action violated the Due Process Clause,

rejecting an argument reminiscent of the one made by the State in this case:

[The state] note[s] that while the rights at the center of Doyle

are constitutionally-based, the rights accorded defendant here

are statutory creations. . . . [T]his is a distinction without a

difference because the principle of unfairness is the same . . .

whether the rights at issue are statutorily-created or

constitutionally-based . . . . What implicates due process here

is not the derivation of the legal rights at issue—constitutional

or statutory—but rather the principle that the state cannot

30

Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991).

31

See Bartley v. Com., 445 S.W.3d 1, 9–10 (Ky. 2014); State v. Mosher, 465 A.2d 261,

265 (Vt. 1983).

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provide a right, implicitly assure that its exercise carries no

penalty, and then use that exercise as prosecution evidence. 32

To the same effect is a Connecticut court’s decision holding that warnings

required by state statute may induce the type of reliance that triggers Doyle. 33

We are persuaded by this reasoning, as well as by that of other courts

that have likewise found Doyle-style due process violations where defendants

detrimentally relied on assurances of their rights or privileges, even though

such rights or privileges were non-constitutional in nature. 34 The parties

have not cited, nor have we identified, any cases reaching the opposite

conclusion. We submit that “fairminded jurists” could reasonably reach only

one conclusion as to how the Supreme Court’s caselaw applies to the facts

before us: the prosecutor violated the Due Process Clause when he used

Engle’s invocation of his right to terminate custodial interrogation as

32

People v. Sutton, 23 Cal. Rptr. 2d 632, 638 (Ct. App. 1993).

33

See State v. Crosby, 641 A.2d 406, 409 (Conn. App. 1994) (accepting defendant’s

“argu[ment] that the giving of warnings at his arraignment . . . , pursuant to General

Statutes § 54–1b and Practice Book § 637, triggers the application of Doyle”).

34

See People v. Brown, 756 P.2d 204, 212–13 (Cal. 1988) (reliance on trial court’s

ruling granting immunity); State v. Woomer, 284 S.E.2d 357, 358 (S.C. 1981) (reliance on

trial court’s imposition of ex ante limitations on scope of cross-examination).

It is true that the Supreme Court in South Dakota v. Neville, a subsequent case

declining to extend Doyle’s holding, noted that one way in which that case differed from

Doyle was that “the right to silence underlying the Miranda warnings is one of

constitutional dimension.” 459 U.S. 553, 565 (1983). This observation, however, did not

form the core of the Court’s reasoning in Neville, and we certainly do not understand the

remark as a holding that due process is only implicated if a defendant relies on assurances

that he has a federal constitutional right. At any rate, even if this statement from Neville were

so understood, it would not change our conclusion that Engle’s due process rights were

violated in this case. After all, the Miranda Court made clear that the right to terminate

police questioning is of a constitutional dimension (even though the police are not required

to warn the defendant that he has such a right). See 384 U.S. at 473–74.

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evidence of sanity, since Engle ostensibly invoked that right in reliance on an

official assurance that he was entitled to terminate questioning at any time.

III

That Engle’s due-process rights were violated does not necessarily

mean, however, that he is entitled to habeas relief. He must also demonstrate

prejudice—that is, that the constitutional error was sufficiently serious as to

call the outcome of his trial into doubt. 35 This is where Engle falls short.

In considering Doyle claims raised on collateral attack, federal courts

apply the test of prejudice established by the Supreme Court in Brecht v.

Abrahamson, which calls on us to “review[] the record to determine whether

the alleged error had substantial and injurious effect or influence in

determining the jury’s verdict.” 36 Under this standard, “a constitutional

trial error is not so harmful as to entitle a defendant to habeas relief unless”

he shows that “there is more than a mere reasonable possibility that it

contributed to the verdict. It must have had a substantial . . . influence in

determining the verdict.” 37 “The Brecht standard applies even when, as here,

the state court did not analyze the issue.” 38

We begin our prejudice inquiry by noting that Engle raised the

“affirmative defense to prosecution” recognized by Texas law “that, at the

time of the alleged offense, the defendant, as a result of a severe mental defect

caused by involuntary intoxication, did not know that his conduct was

35

See United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999).

36

Id. (citing Brecht, 507 U.S. 619, 637 (1993)).

37

Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996).

38

Atkins v. Hooper, 979 F.3d 1035, 1049 (5th Cir. 2020).

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wrong.” 39 “‘[W]rong’ in this context means ‘illegal.’” 40 The defendant

bears the burden of proving insanity due to involuntary intoxication by a

preponderance of the evidence. 41 Engle does not dispute that the jury charge

in his case accurately explained the elements of this defense.

Our careful review of the record leaves us with the firm impression

that the constitutional violation did not have a substantial effect on the

verdict. 42 For one, the prosecution’s references to Engle’s termination of

questioning were relatively infrequent. 43 That fact was mentioned in the

prosecutor’s opening argument and again during his direct examination of

Ranger Wilson, but only twice did the prosecutor suggest any kind of

connection between Engle’s termination of questioning and his sanity: during

an exchange with Engle on cross-examination (which comprised less than

two pages of an approximately 70-page transcript of Engle’s cross-

39

Mendenhall v. State, 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (citing Tex.

Penal Code § 8.01(a)).

40

Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

41

See Tex. Penal Code § 2.04(d).

42

Although we could have disposed of this case based on our conclusion that any

constitutional violation was not prejudicial and thereby avoided deciding whether a

violation (or at least a violation sufficiently obvious to warrant relief under AEDPA) did in

fact occur during Engle’s trial, see Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir. 2003), we

elect to address both issues here “in order to provide clarity and guidance” for officials and

courts going forward—as we often do in cases involving qualified immunity, despite

enjoying “discretion to leapfrog the merits and go straight to whether the alleged violation

offended clearly established law,” Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020); see

also Buehler v. Dear, 27 F.4th 969, 982 (5th Cir. 2022). We are not alone in this regard; the

Supreme Court, too, “ha[s] often recognized the existence of a constitutional right . . . and

then gone on to find that the claim at issue fails.” Stop the Beach Renourishment, Inc. v. Fla.

Dep’t of Env’t Prot., 560 U.S. 702, 716 (2010) (plurality opinion) (citing cases).

43

See Brecht, 507 U.S. at 639 (finding no prejudice in part because “[t]he State’s

references to petitioner’s post-Miranda silence were infrequent, comprising less than two

pages of the 900–page trial transcript in this case”).

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examination and a nearly 300-page guilt-phase trial transcript), and once

more during the prosecutor’s roughly 6,100-word summation, of which less

than 60 words (about four sentences) made any reference to Engle’s

termination of questioning.

Moreover, the prosecutor’s fleeting mentions of Engle’s invocation of

his right to terminate police questioning were merely cumulative of the

State’s other, far stronger evidence of Engle’s lucidity at the time he stabbed

Smolik. 44 The prosecution elicited testimony that, just before the assault,

Engle explained to the firefighters that he had started the fire on purpose, as

well as that Engle told the police who arrested him that he had been “waiting

for [them]” and had wanted to return to prison. Engle apparently had the

presence of mind at the time of his arrest that, upon overhearing one of the

officers misspelling Engle’s name to dispatch, he interjected to correct the

spelling. Engle then explained to Ranger Wilson after arriving at the Sheriff’s

Office that he wanted to go back to prison and that “this [was] what it took.”

Once the jury had heard the foregoing evidence of Engle’s lucidity at the time

of the offense, it is quite implausible that testimony that Engle terminated

police interrogation by uttering a single word—a fact far less probative of his

sanity than the extensive testimony about his contemporaneous interactions

with police and firefighters 45—could have substantially affected the verdict.

On the whole, even setting aside the improper mentions of Engle’s

invocation of his right to terminate police interrogation, the evidence offered

44

See Brecht, 507 U.S. at 639 (improper admission of evidence was not prejudicial,

in part because evidence was merely “cumulative” of other, properly admitted evidence).

45

An arrestee’s refusal to talk to police is, as the Supreme Court has remarked,

often “ambiguous and thus of dubious probative value,” “for in a given case there may be

several explanations for the silence that are consistent with the existence of an exculpatory

explanation.” Doyle, 426 U.S. at 619 n.8.

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by the State to rebut his claim of temporary insanity was overwhelming. 46

First, there was the testimony recounted earlier regarding his interactions

with firefighters and police on the night he was arrested, which indicated that

Engle was alert and coherent around the time of the offense. Similarly, the

State introduced substantial evidence that Engle had planned the stabbing in

advance in order to get himself sent back to prison. That Engle planned his

crime beforehand is probative of sanity, 47 and his understanding that stabbing

someone would land him in prison reflects Engle’s appreciation of the

wrongfulness—that is, illegality—of such conduct. There was also

considerable testimony tending to show that Engle’s claims of having been

rendered insane by Lexapro were spurious. The State’s expert Dr. Kutnick

testified that rage attacks or “blackouts” of the kind Engle claimed to have

suffered were not common side effects of Lexapro and were especially

unlikely given that he was simultaneously taking a mood stabilizer. Kutnick

also testified as to his professional opinion, based on the video evidence and

Engle’s mental-health records, that Engle was not experiencing mania or any

other form of temporary insanity when he committed the assault. Those

records, which were admitted into evidence as exhibits, gave no indication

that Engle had ever complained to prescribers about Lexapro’s effects in the

past, and indeed indicated that he had once asked for a higher dose. Engle’s

mental health caseworker during the months preceding the assault likewise

testified that Engle had never mentioned any adverse effects from Lexapro.

Finally, there was a wealth of testimony and documentary evidence that

Engle had a history of aggressive and violent behavior that began long before

46

See Brecht, 507 U.S. at 639 (finding no prejudice in part because “the State’s

evidence of guilt was, if not overwhelming, certainly weighty”).

47

See Arnold v. State, 873 S.W.2d 27, 32 (Tex. Crim. App. 1993).

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he began taking Lexapro. The prosecutor recapped all this evidence in his

summation.

The evidence Engle offered in support of his insanity defense, on the

other hand, was comparatively far weaker and, more importantly, would not

have been any stronger if the prosecution had merely omitted mention of his

termination of the interview with Ranger Wilson—a fact that was, as was

previously explained, cumulative of the State’s other, far stronger evidence

of Engle’s lucidity at the time he committed the offense.

In light of the other evidence that Engle was not so intoxicated that he

could not appreciate the wrongfulness of his conduct, it is virtually

inconceivable that the jury would have bought Engle’s defense and acquitted

him if the prosecutor had merely omitted mention of the fact that Engle

exercised his right to terminate police questioning. Engle has thus failed to

raise “grave doubt as to the harmlessness” of the due-process violation at his

trial, and accordingly he is not entitled to habeas relief. 48

IV

For the reasons explained above, the district court’s judgment

denying a writ of habeas corpus is AFFIRMED.

48

O’Neal v. McAninch, 513 U.S. 432, 437 (1995).

22