Bridge v. Lynaugh

• Decision Date: 18 February 1988
• Docket Number: No. 87-6069,87-6069
• Citation: 838 F.2d 770
• Parties: Warren Eugene BRIDGE, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 770

838 F.2d 770

Warren Eugene BRIDGE, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections Respondent- Appellee.

No. 87-6069.

United States Court of Appeals,

Fifth Circuit.

Feb. 18, 1988.

Rehearing and Rehearing En Banc Denied March 17, 1988.

Anthony P. Griffin, Galveston, for petitioner-appellant.

William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, WILLIAMS and JONES, Circuit Judges.

PER CURIAM:

Appellant, Warren Eugene Bridge, seeks habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 from his conviction for capital murder. Appellant is an inmate on death row in the Texas Department of Corrections. Bridge was tried and convicted in the 212th Judicial District Court, Galveston County, for the murder of Walter Rose, on February 10, 1980, while robbing the Stop'N Go convenience store where Rose was employed. The evidence showed that Bridge shot Rose four times with a .38 caliber revolver. Bridge and an accomplice, Robert Costa, took $24.00 out of the cash register. Bridge pled not guilty to the capital murder charge. His primary defense was the claim that accomplice Costa was the actual killer of Rose.

At the separate punishment hearing after Bridge was convicted, the jury answered affirmatively the special capital punishment issues, and Bridge was sentenced, on September 10, 1980, to death by lethal injection pursuant to Tex.Crim.Proc. Code Ann. Sec. 37.071. The Texas Court of Criminal Appeals affirmed his conviction and sentence. Bridge v. State, 726 S.W.2d 558 (Tex.Crim.App.1986). A fuller description of the factual background of this case is contained in the Court of Criminal Appeals of Texas opinion. Bridge's accomplice, Robert Costa, was convicted of aggravated robbery and sentenced to 13 years in prison in a separate trial.

Bridge did not seek certiorari review of his conviction from the United States Supreme Court. Bridge, however, filed a writ of habeas corpus, on June 25, 1987, in state district court in Galveston pursuant to Tex.Crim.Proc. Code Ann. Sec. 11.07. On August 24, 1987, the state district court recommended the writ application be denied without a hearing. On September 4, 1987, the Texas Court of Criminal Appeals denied the writ application. On September 21, 1987, Bridge filed a habeas corpus petition with the federal district court in Galveston and asked the court to stay his execution scheduled for October 1, 1987. On September 24, 1987, the federal district court entered its order denying the stay of execution and the requested writ of habeas corpus. The next day the district court also denied Bridge's Certificate of Probable Cause but granted leave to proceed in forma pauperis. We granted Bridge's motion to proceed in forma pauperis, granted his certificate of probable cause, and granted him a stay of execution until further order of this Court. The habeas corpus petition which we review is appellant's first petition in the federal courts.

I.

Appellant's first argument in his petition alleges he was deprived of his due process rights to a fundamentally fair trial under the Fourteenth Amendment by the trial court's refusal to allow into evidence at the guilt/innocence phase of his trial testimony regarding Robert Costa's indictment, conviction, and sentence for aggravated robbery. The trial court also granted the state's oral motion in limine preventing defense counsel from even mentioning at any time during trial that Costa had been indicted, tried, and convicted of aggravated robbery and sentenced to only 13 years. Bridge claims this exclusion was unfair because it prevented the jury from understanding the "relative posture" of appellant and the testimony of one of the state's witnesses. This is an obscure contention because the testimony of the state's witness was only in a vague and general way related to the crime.

It is well settled law in this Circuit that in reviewing state evidentiary rulings in habeas corpus petitions "[w]e do not sit as a super state supreme court to review error under state law." Bailey v. Procunier, 744 F.2d 1166, 1168 (5th Cir.1984); Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 153 (1984). An evidentiary error in a state trial justifies federal habeas corpus relief only if the error is "so extreme that it constitutes a denial of fundamental fairness under the Due Process Clause." Bailey v. Procunier, 744 F.2d at 1168. See also Skillern v. Estelle, 720 F.2d at 852. The challenged evidence must be "a crucial, critical, or highly significant factor in the context of the entire trial." Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 132, 98 L.Ed.2d 89 (1987). See also, Bailey v. Procunier, 744 F.2d at 1168-69; Skillern v. Estelle, 720 F.2d at 852.

Such was not the situation in the case at bar. Costa's conviction and sentence were not even probative evidence in Bridge's trial. This information was not necessary for an understanding of the state witness' testimony, which was in general that Bridge was easily influenced by others and was a drug user. Nor does it relate to the issue of appellant's culpability. At most, it might have swayed the jury to go a little easier on Bridge because Costa got such a light sentence. These circumstances are not a legitimate basis for admission of evidence.

A co-defendant's conviction and sentence for an offense arising out of the same course of events is irrelevant to the question of the defendant's guilt and thus not admissible. United States v. Miranda, 593 F.2d 590, 594 (5th Cir.1979); United States v. Irvin, 787 F.2d 1506, 1516 (11th Cir.1986); Rodriquez v. State, 552 S.W.2d 451, 456 (Tex.Crim.App.1977); Antwine v. State, 486 S.W.2d 578, 581 (Tex.Crim.App.1972); Martin v. State, 206 S.W.2d 254, 255 (Tex.Crim.App.1947). The Texas trial court made no error in refusing to admit this evidence or allow defense counsel to make reference to it. As a result there is no basis for habeas relief.

II.

Appellant's remaining habeas challenges to his conviction are in the form of ineffective counsel claims.

Claims of ineffective counsel are reviewed under the two prong standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See also Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). First petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." 466 U.S. at 694, 104 S.Ct. at 2068. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687, 104 S.Ct. at 2064. Appellant must make both these showings in order to have habeas relief based on an ineffective counsel claim. Id.

In applying the first Strickland criterion, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional competence, or that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). Every effort must be made to eliminate the distorting effects of hindsight--judicial scrutiny of counsel's performance must be highly deferential. Id.

Furthermore, it is not sufficient that a habeas petitioner merely alleges a deficiency on the part of counsel. He must affirmatively plead the resulting prejudice in his habeas petition. Hill v. Lockhart, 474 U.S. at 59-61, 106 S.Ct. at 371; Manning v. Warden, Louisiana State Penitentiary, 786 F.2d 710, 712 (5th Cir.1986).

We will apply this two part Strickland standard to each of appellant's ineffective counsel claims.

A.

Appellant's first claim as to ineffective counsel relates to his trial counsel's failure to object to testimony introduced by the state during the guilt/innocence stage of his trial concerning his escape from jail. Bridge escaped from the Galveston county jail on the night of July 9, 1980, while in custody on this capital murder charge. He was recaptured the following morning in Texas City. Bridge claims this evidence of his escape was used to try him for being a bad person generally in contravention of the rules of evidence concerning character evidence. Bridge claims his trial counsel was constitutionally ineffective in failing to object to this evidence.

Appellant is incorrect about this evidence being inadmissible. Under Texas law, evidence of escape from custody or flight to avoid arrest is generally held admissible on the issue of guilt. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App.1982); McWherter v. State, 607 S.W.2d 531 (Tex Crim.App.1980). "[T]o support admission of evidence of escape from custody and flight, it must appear that the escape and flight has some legal relevance to the offense under prosecution." Hodge v. State, 506 S.W.2d 870, 873 (Tex.Crim.App.1973). The state established the relevance by showing that appellant was in custody pending his trial for capital murder. He was not awaiting trial for any other crimes at the time.

Once escape and flight is established, "the burden then shifts to the defendant to show affirmatively that the escape and flight is directly connected to some other...