Callins v. Collins

• Decision Date: 06 August 1993
• Docket Number: No. 92-1699,92-1699
• Parties: Bruce Edwin CALLINS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 269

998 F.2d 269

Bruce Edwin CALLINS, Petitioner-Appellant, v. James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 92-1699.

United States Court of Appeals Fifth Circuit.

Aug. 6, 1993.

Danny D. Burns, Fort Worth, TX, for petitioner-appellant.

William C. Zapalac, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, TX, for respondent-appellee.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Bruce Callins appeals the denial of his petition for writ of habeas corpus challenging his capital murder conviction. Finding no error in the findings of fact and conclusions of law of the district court, we affirm.

I.

On June 27, 1980, at approximately 4:00 p.m., Callins entered Norma's Lounge, a bar in Tarrant County, Texas, armed with a gun. There were three patrons and three employees present when he ordered the bartender to put money from the cash register into a bag. The remaining individuals were ordered to empty their pockets onto the bar or a pool table; Callins threatened to kill anyone who withheld property. Allen Huckleberry, a patron who was sitting at the bar, failed to turn over his wallet quickly enough to appease Callins, who shot him in the neck, ultimately causing him to bleed to death. ¹

II.

On August 19, 1980, Callins was indicted for one count of capital murder and six counts of aggravated robbery, and on October 15, 1981, the state filed a notice of intent to seek the death penalty. Prior to trial, the state dismissed three of the aggravated robbery charges; Callins pled not guilty to the remaining four counts.

On May 18, 1982, the jury convicted Callins of the capital offense and two counts of aggravated robbery. The next day, in a separate sentencing proceeding exclusively devoted to the aggravated robbery charges, the jury imposed a life sentence and a $10,000 fine on each count. On May 20, an additional hearing was conducted to determine punishment for the capital murder charge. The jury affirmatively answered the Texas special issues, TEX.CODE CRIM.PROC.ANN. art. 37.071(b), and sentenced Callins to death.

On appeal to the Texas Court of Criminal Appeals, Callins's conviction initially was reversed for misjoinder, because state law prohibited the joinder of property offenses with offenses against persons. On a sua sponte motion for rehearing, however, the court reformed the judgment to delete the convictions for the two aggravated robbery offenses, thereby preserving the capital murder conviction and the death sentence. Callins, 780 S.W.2d at 185-96.

Callins failed timely to file a petition for writ of certiorari with the Supreme Court, and his initial execution date was set for May 9, 1990. Subsequently, he filed a certiorari petition and an application for writ of habeas corpus in the state trial court, which modified the execution date to June 20, 1990, reviewed the habeas application, entered findings of fact and conclusions of law, and recommend that relief be denied. The Court of Criminal Appeals denied relief on June 12, 1990. Callins then filed a habeas petition and application for stay of execution in federal court. The district court granted a stay of execution on June 12, 1990. On June 25, 1990, the Supreme Court denied Callins's petition for writ of certiorari. Callins v. Texas, 497 U.S. 1011, 110 S.Ct. 3256, 111 L.Ed.2d 766 (1990).

The magistrate judge issued findings of fact and conclusions of law on January 6, 1992, recommending that Callins be granted an evidentiary hearing on a number of issues in order to create an adequate record, despite the apparent lack of merit in his arguments. After the evidentiary hearing, the district court adopted the magistrate judge's findings and conclusions, entered additional findings and conclusions based upon the testimony presented at the hearing, denied relief, and dismissed the petition. Callins appeals following the district court's issuance of a certificate of probable cause.

III.

Callins first asserts as error the denial of his Sixth Amendment Confrontation Clause rights allegedly inflicted by the trial court's refusal to allow him to impeach the testimony of Ricky Henderson, a witness for the state. Henderson had been working on a construction site when, approximately one-half hour after the robbery of Norma's Lounge, Callins pulled a gun on him, demanding he aid Callins in his escape attempt. Henderson took Callins to his supervisor, Arthur Wilson, who owned a jeep parked nearby. Callins then forced Wilson, at gunpoint, to drive him to another location. As the two men left in the jeep, Callins fired shots at Henderson and another worker.

The state sought to call Henderson at trial, to testify about the incident and identify Callins. Callins responded by filing a motion to suppress the identification, based upon the fact that Henderson was then on deferred adjudication probation for theft exceeding $200. The court denied Callins's motion, ruling that he would not be allowed to impeach Henderson with his probationary status because it did not constitute a final conviction. ²

Although the trial court's ruling was plainly correct as to Callins's attempt to impeach Henderson by evidence of his conviction of a crime under TEX.R.CRIM.EVID. 609, Callins urges that his inability to elicit on cross-examination the possible motive for Henderson to alter his testimony in favor of the prosecution denied him the protection accorded him under the Confrontation Clause. As noted above, at the time of the trial, Henderson was serving a three-year deferred adjudication probation for theft. Callins contends that Henderson violated the terms of his probation by committing a misdemeanor criminal trespass on December 7, 1981, and the state's decision not to pursue a motion to revoke Henderson's probation constituted an implicit exchange for his testimony, evidence of which the jury was entitled to consider in assessing Henderson's credibility.

In Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986), the Court recognized that the foreclosure of all inquiry into a state witness's possible bias or motive, where the state had dropped pending criminal charges in exchange for favorable testimony, violated the defendant's rights secured by the Confrontation Clause. Unlike the situation in Van Arsdall, however, the uncontroverted evidence at both the trial and habeas proceedings, apparently accepted by Callins's trial counsel, was that no deal had been offered Henderson and no favorable action taken by the state district attorney on his behalf. ³ Testimony in federal district court, however, revealed that there was frequent contact and substantial cooperation between the probation and district attorney's offices in investigating probation violations generally, as well as in determining whether a motion to revoke was warranted in an individual case.

We need not determine whether the evidence adduced before the district court was sufficient to permit a jury to infer that the prosecution dealt for Henderson's testimony, because we agree with the district court that even if the trial court erred in denying Callins the opportunity to impeach Henderson for bias, the error did not have "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). In the instant case, we must consider the weakness of Callins's allegations respecting Henderson's purported bias. Moreover, Henderson's testimony added little to the state's case. For the most part, it served to establish the facts leading up to the kidnapping of Arthur Wilson and his vehicle and lay a predicate for Wilson's identification of certain of the murder victim's items found in Callins's possession.

Henderson's identification of Callins was cumulative of, and corroborated by, the testimony of two workers who were on the construction site that day--Steven Henry and Paul Ethridge--both of whom also identified Callins in court. Lastly, Callins was identified by several witnesses at the murder scene, two of whom knew him from prior acquaintance. The strictly circumstantial allegations of Henderson's bias and the strength of the state's case as to Callins's guilt persuade us that, viewed in the context of the trial as a whole, any error the trial court may have committed in foreclosing Callins's opportunity to impeach Henderson had no effect on the verdict.

IV.

Callins next asserts that the sentencing procedure violated the Fifth Amendment prohibition against double jeopardy. Here, the trial court fashioned a "tri-furcated" proceeding, with a single guilt/innocence phase and separate sentencing phases for the aggravated robbery and capital murder counts. This admittedly unusual process was made necessary because certain evidence required to be admitted at the capital punishment phase was inadmissible in the robbery sentencing phase. Callins argues that he was twice subjected to punishment for the same offense because the prosecutor told the jury to consider the murder in imposing an appropriate sentence on the two aggravated robbery counts.

Although the prohibition of double jeopardy includes subjection to multiple punishments for the same offense, see Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308-09, 104 S.Ct. 1805, 1813-14, 80 L.Ed.2d 311 (1984), it does not offend the Fifth Amendment to sentence within the upper end of the permissible range for a crime on the basis of a defendant's other conduct. As we noted in Sekou v. Blackburn, 796 F.2d 108, 111-12 (5th Cir.1986), "[c]onsideration of criminal conduct as an aggravating circumstance does not convert the...