Alexander v. McCotter

• Citation: 775 F.2d 595
• Decision Date: 30 September 1985
• Docket Number: No. 84-2539,84-2539
• Parties: Benny Dale ALEXANDER, Petitioner-Appellant, v. O.L. McCOTTER, Director, of Texas Department of Corrections, Respondent- Appellee. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 595

775 F.2d 595

Benny Dale ALEXANDER, Petitioner-Appellant, v. O.L. McCOTTER, Director, of Texas Department of Corrections,

Respondent- Appellee.

No. 84-2539

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 30, 1985.

Benny Dale Alexander, pro se.

Jim Mattox, Atty. Gen., James O. Kopp, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before POLITZ, GARWOOD and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge.

Benny Dale Alexander, a state prisoner, appeals pro se from the district court's denial of his application for a writ of habeas corpus under 28 U.S.C. Sec. 2254, challenging his July 1981 Texas conviction for burglary for which he received, after enhancement for a prior felony, a forty year sentence. The appellant claims on appeal that he is entitled to relief on four separate grounds, each of which the district court rejected without an evidentiary hearing: 1) that the evidence at trial was insufficient to support the jury's verdict; 2) that the indictment was fundamentally defective; 3) that the district court erred by not instructing the jury on a lesser included offense; and 4) that the appellant was denied the effective assistance of counsel at trial. We affirm.

FACTS AND PROCEEDINGS BELOW

On March 9, 1981, at about 4:30 a.m., Reiffert Ward, who was asleep with his wife Katherine in the bedroom of their home, was awakened by a blow to the back of his head. The appellant had struck Ward on the head with an eighteen inch lug wrench or tire tool, thereby inflicting a head wound that required five stitches. The appellant continued to beat Mr. Ward with the tire tool, and Mr. Ward attempted to repel the appellant's attack by rolling over and kicking. As a result of these latter blows, Mr. Ward's legs were severely bruised, one toe and an ankle were fractured, and his left hand was cut, requiring three stitches.

When Mrs. Ward switched on the bedroom lamp, the appellant ceased his attack and moved away from the bed. She attempted to telephone the police, but hung up when the appellant threatened to kill both her and her husband if she did not stop her call. Appellant also threatened harm to the Wards' children, who were asleep in the house. The appellant refused the Wards' offer of their car, property, and money, although he later took $17 in cash.

During the lull after Mrs. Ward turned on the light, the appellant told Mr. Ward several times to lie down on the bed and put his head near where the appellant was standing with the lug wrench. Mr. Ward testified that when he told appellant that he would not lie down on the bed to be killed, the appellant responded, "[W]hat is the difference with doing it [killing him] with this tire tool or a bullet in the head?" The Wards soon determined that the appellant did not have a gun and a fight ensued. The appellant relinquished control of the lug wrench after Mr. Ward punched him and Mrs. Ward hit him with a suitcase. Upon gaining control of the lug wrench, Mr. Ward hit the appellant on the head two or three times, following which the appellant turned and attempted to enter the bedroom of the Wards' youngest child. After receiving further blows from the lug wrench and one further hit from the suitcase, the appellant retreated and threw down the $17 on the floor. Before leaving, the appellant stated, "[G]ive me a break," and "[T]hey give [sic] me the wrong address."

Both Mr. and Mrs. Ward testified that they saw their assailant clearly and both identified appellant at trial as such. The eighteen inch lug wrench was introduced into evidence, and testimony was elicited that it could be used to kill. Testimony was also presented that a substantial amount of blood was splattered in the Wards' bedroom.

Appellant was convicted in state court under Section 30.02(a)(3) of the Texas Penal Code (Vernon's 1974) of burglary consisting of an unlawful entry followed by the commission or attempted commission of a felony.

Appellant sought review from the Texas appellate courts but was denied relief; the Texas Court of Appeals upheld the appellant's conviction and the Texas Court of Criminal Appeals refused to hear a discretionary review and subsequently denied two writs for habeas corpus. Appellant, having exhausted his state remedies, then sought relief through the present federal habeas proceedings. We affirm the district court's denial of relief.

DISCUSSION

I. Insufficiency of Evidence

The appellant claims there was insufficient evidence to support his conviction by arguing that the state failed to prove beyond a reasonable doubt that he committed the offense of burglary of a habitation followed by the commission or attempted commission of a felony--here, attempted murder. His claim has no merit.

The standard for assessing the sufficiency of the evidence to support a conviction is settled:

"[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 2789, 61 L.Ed.2d 560 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 1624-25, 32 L.Ed.2d 152 (1972)) (emphasis in original).

This Court has held that, in making this determination, we should not substitute our view of the evidence for that of the factfinder, but consider all of the evidence in the light most favorable to the prosecution. Whitmore v. Maggio, 742 F.2d 230, 232 (5th Cir.1984). See also Jackson, supra, 99 S.Ct. at 2789. To make the above assessment, we must refer to the substantive elements of the criminal offenses as defined by state law. See Turner v. McKaskle, 721 F.2d 999, 1001 (5th Cir.1983).

The appellant was convicted of burglary by entry of a habitation followed by the commission or attempted commission therein of a felony, to wit, attempted murder. See Tex.Penal Code Sec. 30.02(a)(3) (Vernon 1974). Under Texas law a person commits murder if he "intentionally or knowingly causes the death of an individual." Id., Sec. 19.02(a)(1). Criminal attempt is committed if a person, acting with the specific intent to commit a particular offense, performs an act "amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Id., Sec. 15.01(a) (Supp.1985).

The record in this case clearly indicates that a rational factfinder could conclude that appellant was guilty of the crime with which he was charged. For instance, the appellant struck Mr. Ward on the back of the head with an eighteen inch iron lug wrench while Mr. Ward was sleeping, and the resultant wound necessitated five stitches. There was testimony that the lug wrench could be used to kill a person. When Mr. Ward awakened, the appellant continued to beat him with the lug wrench. Only through self-defense did Mr. Ward stave off the attacks of the appellant. There was, moreover, testimony to indicate that the appellant, through his blows, caused Mr. Ward to bleed extensively. After the appellant and Mr. Ward were separated, the appellant unsuccessfully attempted to persuade Mr. Ward to put his head down on the bed near where the appellant was standing, apparently so that appellant could again strike him on the head with the lug wrench. In this connection, appellant made a statement indicating that he regarded a blow or blows on the head with the lug wrench as essentially equivalent to "a bullet in the head." We find that with such evidence a rational factfinder could properly conclude that appellant was guilty as charged. See Jackson, supra, 99 S.Ct. at 2789.

II. Indictment Deficiencies

The appellant's second contention is that the indictment is fundamentally defective because it fails to list all the essential elements of an offense under Texas law. He did not raise this complaint in the trial court in which he was convicted or on his appeal as of right to the Texas Court of Appeals. Appellant specifically notes that the indictment fails to state that he acted with the specific intent to commit murder.

In this Circuit, " 'the sufficiency of a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction.' " Liner v. Phelps, 731 F.2d 1201, 1203 (5th Cir.1984) (quoting Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980)). The Liner court further stated that a claim of insufficiency of a state indictment is valid for federal habeas purposes only when the indictment is so defective that under no circumstances could a valid state conviction result from facts provable thereunder, id. at 1203, and that this can be determined "only by looking to the law of the state where the indictment was issued," id., quoting Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir.1983). We adhered to the rule that a federal habeas court will not consider such claims "[w]hen it appears ... that the sufficiency of the indictment was squarely presented to the highest court of the state on appeal, and that court held that the trial court had jurisdiction over the case...." Id., quoting Murphy v. Beto, 416 F.2d 98, 100 (5th Cir.1969). See Bueno v. Beto, 458 F.2d 457, 459 (5th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 176, 34 L.Ed.2d 140 (1972); Lowery v. Estelle, 696 F.2d 333, 337 (5th Cir.1983).

The Texas Court of Criminal Appeals has not only refused to hear this case upon a discretionary review on direct appeal, but has also denied a writ for habeas corpus sought on the basis, inter alia, of the claimed insufficiency of the indictment. By refusing to grant the appellant relief, however, the Texas Court of Criminal Appeals has necessarily, though not expressly, held that the Texas courts have jurisdiction and that the indictment is sufficient for that purpose. ¹

Even if review of this claim is not precluded, the indictment was sufficient under Texas law because it alleges the...