Anderson v. Dir., Tex. Dep't of Criminal Justice
| Decision Date | 30 June 2021 |
| Docket Number | 2:18-CV-146-Z-BR |
| Parties | BOBBY RAYMOND ANDERSON, Petitioner, v. DIRECTOR, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Bobby Raymond Anderson ("Petitioner") filed a Petition for a Writ of Habeas Corpus by a Person in State Custody, challenging the constitutional and statutory validity of his state court convictions and resultant 20-year sentences for ten counts of indecency with a child involving the same child victim. (ECF 11, at 22). Petitioner also challenges the state trial judge's decision to stack his sentences - resulting in a cumulative 200-year sentence. (Id.). The undersigned United States Magistrate Judge recommends Petitioner's application for federal habeas corpus relief be DENIED.
On November 14, 2012, Petitioner was charged by grand jury indictment in Hutchinson County, Texas, in Cause No. 10931, with ten counts of indecency with a child under the age of seventeen years, in violation of Texas Penal Code 21.11. (See ECF 15-12, at 19-20; ECF 15-25, at 7-8). The offenses involved a single victim, with multiple instances of abuse alleged between 2008 and 2011. (See id.). The state filed its notice of intent to consolidate these cases, and the judge ordered the cases consolidated for trial. (ECF 15-12, at 36-37, 182). After Petitioner entered a plea of not guilty, a jury trial commenced in the 84th District Court for Hutchinson County, Texas, on January 19, 2015. (ECF 15-14, at 1). The jury found Petitioner guilty of each count in the indictment and punishment was assessed for each count as 20 years of incarceration and a $10,000.00 fine. (ECF 15-19, at 63-67). Judgment was entered on each count in accordance with the jury's verdicts and the state trial judge ordered the sentences to run consecutively, resulting in a 200-year cumulative sentence. (ECF 15-12, at 185-193) ("The Court further finds that pursuant to Section 3.03(b)(2)(A) of the Texas Penal Code, the ten aforementioned sentences shall run consecutive to one another.").
Petitioner filed a direct appeal of his conviction and sentence. (Id., at 195). The Seventh District Court of Appeals of Amarillo, Texas affirmed Petitioner's judgment. Anderson v. State, No. 07-15-00065-CR, 2017 WL 167593 (Tex. App.—Amarillo Jan. 10, 2017); (ECF 15-10, at 22-39). The Texas Court of Criminal Appeals ("TCCA") refused Anderson's petition for discretionary review. Anderson v. State, No. PD-0137-17 (Tex. Crim. App. Apr. 26, 2017).
Petitioner then challenged his conviction through a state application for writ of habeas corpus, filed on February 14, 2018. (ECF 15-25, at 259-276). The trial judge did not enter findings of fact or conclusions of law, and the writ was denied by operation of law and forwarded to the TCCA. On June 20, 2018, the TCCA denied his application without written order. (ECF 15-21, at 1). Petitioner's motion for reconsideration of the TCCA's order, based on bias of the state trial judge during habeas proceedings, was likewise denied. (ECF 15-23, at 1-3). Petitioner filed the instant federal application on August 6, 2018. (ECF 1, at 1).
The Seventh Court of Appeals in Amarillo summarized the facts of this case in the opinion affirming the judgment and sentence of the trial court; additionally, the Respondent's Answer includes the summary of a section of the facts from this opinion. (ECF 15-10, at 22-39; ECF 12, at 4- 7). The Court adopts this summation without need to include it herein. As Petitioner could not challenge the effectiveness of trial counsel during direct appeal, the appellate court opinion does not address all the specific facts relevant to those challenges. (See id.).
Particularly relevant to the Court's analysis, the state introduced testimony from two prior victims during Petitioner's trial, after providing notice to the Petitioner of the intent to provide this evidence. (ECF 12, at 6; ECF 15-12, at 38, 100). During the testimony of one of these witnesses, the prior victim said she wished she had come forward sooner because the Petitioner later "hurt another victim." (ECF 15-17, at 202). Trial counsel for Petitioner submitted an affidavit indicating he knew this testimony was inadmissible and he failed to object to this testimony. (ECF 15-25, at 286-288).
During the police investigation into his conduct prior to his indictment, Petitioner gave a statement to Officer Durk Downs, indicating he had touched the victim's breasts, over her clothes, but that such touching was "not on purpose." (ECF 15-17, at 95). Officer Downs testified that he considered certain statements made by the Petitioner during the police interview to be "admissions" of conduct contained in the indictment. (Id., at 142-143).
Petitioner's counsel indicated he failed to object to this "inadmissible" testimony by Officer Downs or request a mistrial. (ECF 15-25, at 286-288). An interview conducted by Officer Downs of the Petitioner was played to the jury, and counsel failed to object in advance to the portion of the video containing a reference to Officer Down's request that Petitioner take a polygraph examination (which Petitioner can be heard refusing on the video, followed by a request for counsel). (ECF 15-17, at 72-73). However, counsel did object to this evidence, and the jury was instructed to disregard it. (Id.).
While questioning the victim named in the indictment concerning an incident alleged to have occurred when she was approximately three (3) years old, Petitioner's counsel asked the victim if she was sure this incident occurred in Texas, rather than at a family member's house in Kansas. (ECF 15-16, at 114-115). The testimony was as follows:
(See id.). Counsel's affidavit submitted in conjunction with the state habeas application acknowledges that the question could be interpreted by the jury that counsel believed the incident actually happened, and counsel was only challenging the location of the abuse. (ECF 15-25, at 286-287). However, counsel also indicated that his strategy in pursuing this line of questioning was to challenge the victim's memory of events to attack her credibility overall - not to concede guilt. (See id.).
After the accusations by the victim came to light, Petitioner wrote the victim letters, indicating the following:
(ECF 15-18, at 120-121). Other letters indicated:
(See id.).
In support of its verdicts, the jury received testimony from the two prior victims, Officer Downs, the victim, the victim's mother - who testified concerning the victim's outcry statements - and a friend who observed an incident of abuse. (ECF 15-16, at 171-296). While the victim was video chatting online (a.k.a. Skyping) with a friend, the friend observed the Petitioner enter the room and touch the victim's breast with his hand over the victim's clothes. (ECF 15-17, at 167-168). The friend testified unequivocally during trial that this touch was "intentional." (See id., at 169). In contradiction to the victim's allegations, the victim's mother testified that she initially believed the victim's story but later came to believe the allegations were exaggerated because the details given by the victim were not consistent during interviews at an attorney's office. (ECF 15-17, at 8).
Petitioner contends he is being held in violation of the Constitution and laws of the United States for the following reasons:
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