Tutt v. Cockrell ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40140
JAMES DAVID TUTT,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:98-CV-46
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September 17, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE*,
District Judge.
PER CURIAM:**
James David Tutt (Texas prisoner #656227) appeals the district
court’s final judgment denying his 28 U.S.C. § 2254 petition, which
challenged his Texas conviction for felony driving while
*
Chief Judge F.A. Little, Jr. of the Western District of
Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
intoxicated (“DWI”).1 Tutt was granted a certificate of
appealability (“COA”) on two issues: (1) whether trial counsel was
constitutionally ineffective for failing to use an audiocassette
recording of Tutt’s parole-revocation hearing to impeach the trial
testimony of his arresting officers; and (2) whether trial counsel
was constitutionally ineffective for failing to object at
sentencing to the state’s introduction of three exhibits
referencing several unadjudicated offenses.
FACTUAL AND PROCEDURAL BACKGROUND
On May 24, 1993, Highway Patrolmen Teer and Hooper observed
Tutt driving with only one headlight. They stopped him and,
according to the officers’ testimony at trial, observed that he was
not steady on his feet, had to lean on the car for support, had a
strong odor of alcohol about his person, and had glassy eyes. One
of the officers performed a field sobriety test on Tutt, and he
performed poorly. Tutt refused to take a breathalyzer test and the
officers arrested him for DWI. Subsequently, a Texas jury
convicted Tutt of the DWI. During the sentencing phase of the
bifurcated trial, it was shown that Tutt had two prior felony
convictions in Texas, and the jury assessed his sentence at thirty-
five years’ imprisonment.
1
The felony offense of driving while intoxicated was defined
at the time as the offense of driving while intoxicated, where it
has been shown at trial “that the person has previously been
convicted two or more times” of misdemeanor driving while
intoxicated. Tex. Rev. Civ. St. Ann. art. 6701l-1(e)(Vernon
1993) (repealed 1995).
2
An intermediate appellate court affirmed Tutt’s conviction and
sentence on direct appeal. The Texas Court of Criminal Appeals
refused a petition for discretionary review, and later denied a
state habeas application filed by Tutt. Tutt then filed this 28
U.S.C. § 2254 petition, raising a number of issues, including but
not limited to ineffective assistance of counsel. A magistrate
judge issued a report recommending that Tutt’s petition be denied
on the merits and the district court adopted the magistrate judge’s
recommendation over Tutt’s objections. Tutt filed a timely notice
of appeal and requested a COA, which the district court denied. As
previously stated, on appeal, this Court granted the COA with
respect to his two ineffective assistance of counsel claims.
DISCUSSION
Tutt’s claims are reviewed de novo because there has not been
a clear adjudication on the merits in state court. See 28 U.S.C. §
2254(d); Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
Although Tutt raised both of his claims on direct appeal, the state
appellate court applied state law standards and did not adjudicate
the claims as federal constitutional questions. Tutt also raised
the claims in his state habeas application, but in the face of the
state’s assertion of procedural bar the Texas Court of Criminal
Appeals denied the application without written order.
To establish ineffective assistance of counsel, Tutt must
show: first, that his counsel’s performance was deficient, and
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second, that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). In determining whether counsel’s performance was
deficient, the relevant inquiry is whether counsel’s assistance was
reasonable considering all the circumstances. Id. at 688.
Judicial scrutiny of counsel’s performance is highly deferential:
“the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” Id. at 689. Under the second, prejudice, prong
of Strickland, “the defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
I. Failure to Play the Audiotape.
Tutt claims that counsel was ineffective because counsel
failed to play an audiotape that could have been used to impeach
the trial testimony of Officers Teer and Hooper. According to Tutt,
at his parole revocation hearing, Officer Hooper testified that he
administered the field sobriety test. But both officers testified
at trial that Officer Teer administered the test. At trial,
defense counsel offered the tape of the parole revocation hearing.
The trial court ruled the tape was admissible for the limited
purpose of impeaching Officer Teer’s testimony and granted a recess
for defense counsel to find the proper part of the tape. But after
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the recess, defense counsel withdrew his request to play the tape
without articulating a reason for doing so.
Tutt contends that the arresting officers’ testimony, if
impeached, would have been inadmissible under Texas Rule of
Criminal Evidence 612. According to Tutt, Rule 612 provides that
if it is proven that a witness has made a prior inconsistent
statement, the entire testimony of the witness is inadmissible.
But Tutt mischaracterizes Rule 612: that rule does not now, and did
not at the time of Tutt’s trial, state that a witness’ trial
testimony is inadmissible if it is shown that the witness made an
inconsistent statement in the past. See Tex. R. Crim. Evid. 612
(repealed 1998).2 The rule states merely that a witness must be
informed about the circumstances surrounding a prior inconsistent
statement and given an opportunity to explain or deny it before
further cross-examination may take place. Id.
Nonetheless, if Tutt’s allegations concerning the audiotape
are accepted as true, and even were we to accept Tutt’s claim that
counsel was deficient, Tutt has not shown prejudice because the
question of who performed the test was not a critical matter. As
noted by the district court, “[i]f the jury concluded the officers
were deliberately lying about who performed the test, it might have
looked upon the remainder of the officers’ testimony with greater
2
The substance of Tex. R. Crim. Evid. 612 is now found at
Tex. R. Evid. 613.
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skepticism. However, the jury could as easily [have] concluded
that the officers simply failed to correctly remember who performed
the test.” Also, there was other evidence at trial of Tutt’s
intoxication: a videotape of Tutt’s condition approximately one
hour after his arrest was admitted into evidence and played for the
jury. Thus, it cannot be said that there is a reasonable
probability that, but for his counsel’s failure to use the
audiotape as impeachment evidence, the result of Tutt’s trial would
have been different. Accordingly, the district court did not err
in concluding that Tutt had not shown the requisite prejudice and
we AFFIRM the holding of the district court with respect to the
playing of the tape.
II. Failure to object to the introduction of evidence of
unadjudicated arrests at Tutt’s sentencing
During the punishment phase of Tutt’s trial, the prosecution
introduced three exhibits that detailed Tutt’s arrest record and
criminal history. One of the exhibits, an arrest record from the
Nacogdoches Police Department, contained a large number of entries,
listing various felonies and misdemeanors for which Tutt had been
arrested. Of those entries, seventeen referred to unadjudicated
offenses, including a 1978 arrest for rape of a child, and several
arrests for minor burglary, theft, assault, and alcohol and drug-
related offenses. Another exhibit referenced nine unadjudicated
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offenses. Because he had at least two prior felony convictions,3
Tutt’s sentencing range under Texas law was from twenty-five to
ninety-nine years’ imprisonment. Tex. Pen. Code Ann. §
12.42(d)(Vernon 1994); Rodriguez v. State, 31 S.W.3d 359, 362
(Tex. Ct. App. 2000). Tutt claims that the introduction of the
unadjudicated offenses resulted in an increase in his sentence from
the twenty-five year minimum to thirty-five years. Thus, he argues
that his counsel’s failure to object to the introduction of these
offenses amounts to ineffective assistance of counsel.
At the time of Tutt’s sentencing, Texas law provided that
unadjudicated offenses were not admissible for sentencing purposes.
See Grunsfeld v. State, 843 S.W.2d 521, 523-26 (Tex. Crim. App.
1992)(prohibiting the admission of evidence of unadjudicated
extraneous offenses during the punishment phase of a noncapital
trial.); Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon
1981).4 And under Fifth Circuit precedent, failure to object to
the admission of unadjudicated offenses constitutes a deficiency
3
According to the state, Tutt had ten prior misdemeanor
convictions and two felony convictions: one for delivery of a
controlled substance, and one for burglary.
4
On September 1, 1993, Article 37.07 was amended to allow
the admission of such evidence during the punishment phase of a
noncapital trial. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a) (Vernon Supp. 2001); Brown v. State, 6 S.W.3d 571, 583
(Tex. App. 1999). The amendment, however, applies only to
offenses committed on or after September 1, 1993. Brown,
6 S.W.3d at 583. Because Tutt’s DWI occurred on May 24, 1993,
the amendment to Article 37.07 did not apply in his case.
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for purposes of the first Strickland step. See Spriggs v. Collins,
993 F.2d 85, 89-90 (5th Cir. 1993).
Tutt has also shown prejudice, as required by Strickland. In
Glover v. United States, 531 U.S. 198, 121 S. Ct. 198 (2001), the
Supreme Court noted that “authority does not suggest that a minimal
amount of additional time in prison cannot constitute prejudice.
Quite to the contrary, our jurisprudence suggests that any amount
of actual jail time has Sixth Amendment significance.” Id. at 203.
Thus, the Court held that in a determinate sentencing system such
as the U.S. Sentencing Guidelines even a minimal increase in a
sentence could constitute prejudice. Id. at 204. The Court did
not address the issue of whether its decision applied to
discretionary sentencing schemes, signaling only the possibility of
a distinction between discretionary and determinate sentencing
systems for purposes of determining prejudice. Id.
Texas has a discretionary, not determinate, sentencing scheme,
so it is not clear whether the rule in Glover applies to this case.
Before the Court’s decision in Glover the controlling decision
regarding prejudice in Texas’ sentencing scheme was Spriggs v.
Collins, 993 F.2d 85 (5th Cir. 1993). In that case, this Court
noted that “[a]rguably, when the discretionary sentencing range is
great, practically any error committed by counsel could have
resulted in a harsher sentence, even if only by a year or two.”
Id. at 88. Thus, we held that “[i]n order to avoid turning
8
Strickland into an automatic rule of reversal in the non-capital
sentencing context, we believe that in deciding an ineffectiveness
claim, a court must determine whether there is a reasonable
probability that but for trial counsel’s errors the defendant’s
non-capital sentence would have been significantly less harsh.”
Id. In that case, defendant had pled guilty to first-degree
murder. His sentencing range was five to ninety-nine years, and he
was sentenced to thirty-five years’ imprisonment. We found that
the defendant had not made an adequate showing of prejudice,
despite his attorney’s failure to object to the introduction of
unadjudicated extraneous offenses through the presentence
investigation report (PSI), because the objectionable portion of
the PSI was short, and because there were other aggravating
factors, such as the senseless nature of defendant’s crime, that
properly influenced the court at sentencing.
It is not necessary to decide in this case whether the lower
standard of Glover applies to a determination of prejudice in the
Texas sentencing system because Tutt has satisfied the higher
standard of Spriggs. Tutt’s thirty-five year sentence is on the
low end of his sentencing range, and his prior convictions may have
been considered by the jury in determining his sentence. However,
the large number of unadjudicated offenses that were introduced at
Tutt’s sentencing hearing, combined with the inflammatory nature of
some of those offenses (such as rape of a minor child), are very
9
likely to have influenced the jury at sentencing for Tutt’s offense
at trial, driving while intoxicated. Thus, there is a reasonable
probability that but for trial counsel’s errors Tutt’s sentence
would have been significantly less harsh.
Accordingly, while we agree with the district court’s holding
with regard to the question of counsel’s decision not to play the
tape of Tutt’s probation revocation hearing, we REVERSE the
district court’s judgment with regard to the question of counsel’s
decision not to object to the unadjudicated offenses. The case is
REMANDED with instructions to issue the writ of habeas corpus
unless, within a reasonable time to be designated by the district
court, the state conducts a retrial of the sentencing stage of the
proceedings against Tutt. Tutt’s motion to have this opinion
published is DENIED.
The judgment of the District Court is REVERSED and the case is
REMANDED with instructions.
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