Elder v. Stephens

• Decision Date: 22 January 2015
• Docket Number: CIVIL ACTION NO. H-13-2868
• Parties: GEOFFREY SCOTT ELDER, TDCJ-CID No. 1616848, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

GEOFFREY SCOTT ELDER, TDCJ-CID No. 1616848, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department

of Criminal Justice, Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-13-2868

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

January 22, 2015

MEMORANDUM AND ORDER

This habeas case, concerning the validity of a state court judgment and filed pursuant to 22 U.S.C. § 2254, is before the Court on Respondent William Stephens' ("Respondent") Motion for Summary Judgment [Doc. # 12] ("Summary Judgment Motion"), filed January 2, 2014, seeking dismissal of the Petition for a Writ of Habeas Corpus filed by Petitioner Geoffrey Scott Elder ("Elder"). After being granted an extension of time, Elder has responded to the Summary Judgment Motion [Doc. # 17]. After considering the parties' pleadings, the evidence of record, and the applicable law, the Court grants the Respondent's Motion, denies the petition, and dismisses this case.

I. BACKGROUND

A. State Court Procedural History

On November 11, 2009, a jury in the 208th District Court of Brazos County, Texas, found Geoffrey Scott Elder guilty of two counts of aggravated assault of a public servant and one count of evading arrest. Jury Trial - Guilt/Innocence [Doc. # 10-19, at 37]. The jury also made an affirmative finding that Elder used or exhibited a deadly weapon, a motor vehicle, while committing the aggravated assault offenses. Id. Elder elected to have the trial court to assess punishment. Id. After hearing testimony from several witnesses called by the defense on November 11, 2009, the court sentenced Elder to twelve years incarceration for each aggravated assault offense and to two years in state jail for the evading arrest offense. Bench Trial - Punishment [Doc. # 10-21], at 51; Judgments [Doc. # 10-14] at 58, 62, and 69.

On December 9, 2009, Elder filed a Motion for New Trial and the trial court conducted a hearing concerning the motion on January 8, 2010 [Doc. # 10-22 at 1, 5]. On January 21, 2010, the trial court entered its Findings of Fact and Conclusions of Law denying Elder's motion [Doc. # 10-15]. In doing so, the trial court found that Elder did not present any evidence demonstrating that his trial counsel's representation was deficient. Id. at 9.

Elder appealed the trial court's judgment which was affirmed by the Court of Appeals for the Tenth District of Texas on February 8, 2012. Elder v. State, No. 10-09-00430-CR, 2012 WL 414442 (Tex. App. - Waco 2012). The Texas Court of Criminal Appeals ("TCCA") refused Elder's petition for discretionary review ("PDR") on July 25, 2012. Elder, PD-0305-12 (Tex. Crim. App.) [Doc. # 10-1, at 4].

Elder filed a state application for writ of habeas corpus, pursuant to Article 11.07 of the Texas Code of Criminal Procedure, on August 2, 2013. State Habeas Record ("SHR") [Doc. # 10-28, at 25] . The trial court recommended that the habeas application be dismissed based on its findings that the application was noncompliant with Rules 73.1 and 73.2 of the Texas Rules of Appellate Procedure. Id. at 28. The court further found no issues requiring an evidentiary hearing and ordered that state district clerk forward the record to the TCCA. Id. The TCCA denied the application without a written order on September 11, 2013. Ex parte Elder, No. 80,125-01; [Doc. # 10-27, at 2].

B. Facts Established at Trial

The state alleged that on or about July 1, 2008, Elder threatened two police officers with imminent bodily injury while using a motor vehicle to flee from them. Indictment [Doc. # 10-28], at 29. The 10th Court of Appeals described the events as follows:

On the evening of July 1, 2008, College Station Police Officers Sean Beatty and Travis Lacox were conducting surveillance in an area of town "notorious as an open-air drug market." While conducting surveillance,the officers were hiding in the shadows so that they would not be conspicuous. The officers observed what they believed to be several hand-to-hand narcotics transactions. In particular, Officer Beatty recounted that an individual would approach cars that stopped in the street, exchange something through the open driver's window, and once the transaction was completed, the cars would drive away.

Later that evening, Officers Beatty and Lacox observed Elder drive his blue Jeep Cherokee up to the individual the officers had seen earlier that night conducting narcotics transactions. The officers testified that Elder briefly spoke with the drug dealer and quickly drove the Jeep down the street so that he could turn around. Upon arriving back at the scene, the drug dealer got into the Jeep, and the officers witnessed Elder and the drug dealer smoking what they believed to be crack cocaine.

After observing Elder apparently smoking crack cocaine, the officers approached the Jeep. Officer Beatty stated that he approached the Jeep from the front while Officer Lacox approached from the driver's side. Both officers noted that they were wearing their official police uniforms that night and that when they approached Elder's Jeep, they were illuminated well by the street lights. Thereafter, both officers yelled, "Police! Stop!" The driver's side window was open at that time so that the officers' voices were audible. Upon seeing the officers approach, Elder leaned forward, started the Jeep, and put it in gear. Officer Lacox once again yelled "Stop. Police" and instructed Elder to "Stay there" and to not "turn on the car." According to Officer Lacox, Elder "applie[d] the accelerator very firmly. You hear the engine rev up. As he's going[,] he takes the steering wheel and pulls to the left which is where I'm standing...." Officer Beatty, who has received training from SWAT regarding high-risk warrants and analysis of perpetrators' demeanors, recounted that Elder did not have a panicked look on his face when they approached; instead, he looked "resolute." Apparently, Elder could have driven straight but, instead, decided to turn the steering wheel of the Jeep towards the officers to aid in his escape.

Elder missed hitting Officer Beatty by two feet. Officer Lacox tried to strike the Jeep's window with his flashlight as Elder drove away. In theprocess, Officer Lacox broke two fingers. Officer Lacox would have shot Elder during Elder's flight, but Officer Beatty was in his line of fire. Nevertheless, Officer Lacox described Elder's actions as a use of deadly force.

After Elder fled the scene, Officer Beatty immediately informed other officers about the incident. A blue Jeep Cherokee was found shortly thereafter that matched the description and license-plate number provided by Officer Beatty. Elder was found within a few blocks of the vehicle. Officers Beatty and Lacox subsequently identified Elder as the driver of the Jeep that had tried to run them over.

* * * *

The record reflects that the State came into possession of the documents during an administrative search of Elder's jail cell. When reviewing the substance of the documents, it appears that some of the documents may have been protected by the attorney-client privilege and that one of the prosecutors in the case probably read the documents. However, the lead prosecutor, John Brick, testified that nothing was discovered from these documents that was not already known. Brick also stated: "Now, I turned those [the documents] over during the trial. We did not use any of those documents at trial. Nothing was ever admitted as evidence. [We d]id not even cross-examine him on any of the documents to counter any of his testimony." See Murphy, 112 S.W.3d at 602-03 (concluding no prejudice to defendant when prosecutor, who reviewed privileged materials seized from defendant's cell, "testified that he did not use any of the information in the three pages of material in preparing the case"). Furthermore, at the conclusion of the hearing on Elder's motion for new trial, the trial court concluded that "the information on the documents seized from the defendant's jail cell contained the same information as the Probable Cause Statement[s]," which were also admitted into evidence without any objection. Based on the foregoing, we conclude that the record supports a finding that Elder suffered no prejudice from any intrusion by the prosecution into his attorney-client relationship. See Estrada v. State, 313 S.W.3d 274, 305 (Tex.Crim.App.2010); see also Murphy, 112 S.W.3d at 602-03 ("Because the proceedings were not adversely tainted by the intrusion into the attorney-client privilege,appellant is not entitled to a reversal."). We, therefore, overrule Elder's first issue.

Elder v. State, 2012 WL 414442, at ** 1-2, 3.

C. The Federal Habeas Petition's Claims

Elder filed the pending habeas petition with the Court on September 23, 2013. He asserts the following claims:

1. Elder was denied his Miranda¹ rights;

2. The trial court erred in failing to give the jury a mistake of fact instruction;

3. Elder was denied the right to call Barry Morrison as a defense witness;

4. Elder was denied the right to confront witnesses against him regarding privileged materials that were removed from his cell and were reviewed by the prosecution;

5. The trial court abused its discretion;

6. The Tenth Court of Appeals abused its discretion;

7. The prosecution committed misconduct by using Elder's privileged materials against him and not giving him access to exculpatory materials;

8. Elder was denied effective assistance of counsel because his attorney:

a. failed to file a motion to suppress;

b. failed to ask for a mistake of fact instruction;

c. failed to investigate and interview defense witnesses;

d. erred in recommending that Elder reject the State's plea offers;

e. failed to make reasonable objections; and

f. failed to confront the State's witnesses;

9. Elder is actually innocent; and

10. Elder was denied the right to privacy under the Ninth Amendment to the United States Constitution.

Petition, [Docs. ## 1-2, 1-3, and 1-4].

II. LEGAL STANDARD

Genera...