Engle v. Lumpkin

Decision Date12 May 2022
Docket Number19-40356
Citation33 F.4th 783
Parties Kirk Ross ENGLE, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Petitioner-Appellant.

Kirk Ross Engle, Gatesville, TX, Pro Se.

Nathan Tadema, Office of the Attorney General, Criminal Appeals Division, Austin, TX, Sarah Miranda Harp, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Don R. Willett, Circuit Judge:

In 2016, a Texas jury convicted Kirk Engle of felony aggravated assault with a deadly weapon. Engle initiated this postconviction proceeding in federal district court after unsuccessfully petitioning Texas state courts for a writ of habeas corpus. The district court rejected all of Engle's claims of trial error. Engle then sought a certificate of appealability, which this court granted as to the claim of prosecutorial misconduct. We now consider that claim on the merits. Although we agree with Engle that certain conduct by the prosecutor during the trial violated the Due Process Clause, we conclude that Engle was not prejudiced by the violation. We therefore AFFIRM the judgment below denying habeas relief.

I

According to trial testimony, the events that gave rise to Engle's conviction occurred on the evening of August 19, 2014 in Yorktown, Texas. Firefighters from the Yorktown Volunteer Fire Department were called to the scene of a brush fire. When they arrived, Engle was standing nearby and told them he had started the fire intentionally. He taunted the firefighters, saying "f*** the fire department" and discouraging them from putting out the fire. As firefighter Brian Smolik prepared to extinguish the blaze anyway, Engle said, "Do you want to die tonight?" and then stabbed Smolik in the stomach with a knife. When Smolik's fellow volunteer Monte Riedel moved to intervene, Engle threatened, "Do you want to get stabbed tonight, too?" before fleeing on foot. Eric Von Helbing, another firefighter on the scene, called the police and paramedics. Smolik was transported to the hospital, where he remained for four days, three of which he spent in the ICU.

Police quickly found Engle wandering the streets and placed him under arrest. Upon being handcuffed, Engle told the officers, "I was waiting for you," explaining that he "wanted to go back home" and that "the penitentiary [wa]s [his] home." The officers discovered through a pat-down of Engle that he had disposed of the knife. Despite thoroughly searching the area, police never recovered the weapon. As the officers were transporting Engle to booking, he explained to them that Smolik was "in the wrong place at the wrong time." Engle further expressed that he found it "hard making it outside of prison" and "didn't want to get out." At one point during the ride, Engle overheard one of the officers misspell Engle's name to dispatch and spoke up to correct the error. Shortly after Engle arrived at the DeWitt County Sheriff's Office, Texas Ranger Troy Wilson attempted to question Engle about the stabbing. Ranger Wilson entered the interview room, activated his digital audio recorder, and introduced himself to Engle. Engle responded by expressing that he wanted to go back to prison and that "this [was] what it took." Wilson then gave Engle the Miranda warnings, followed by the warning required by state statute of his right to terminate police questioning.1 Engle then responded, "terminate" before standing up and being escorted out of the room.

A DeWitt County grand jury indicted Engle for felony aggravated assault with a deadly weapon.2 Engle pleaded not guilty and the case proceeded to a jury trial. Engle did not dispute that he stabbed Smolik. Instead, Engle raised a defense of temporary insanity due to involuntary intoxication. Taking the stand in his own defense, Engle testified that an adverse reaction to the common antidepressant Lexapro

caused him to suffer blackouts and fits of rage. Engle admitted on cross examination, however, that he had a longstanding tendency to fly into violent rages even years before he began taking Lexapro, and that he was telling acquaintances in the months leading up to the stabbing that he wanted to return to prison. Importantly for present purposes, the prosecutor also cross-examined Engle regarding his actions when Ranger Wilson attempted to question Engle about the stabbing incident, leading to the following exchange:

Q. So — and then [Ranger Wilson] started reading you your rights. Do you remember that?
A. I heard it.
Q. And he said you have the right to terminate the interview at any time, didn't he?
A. Yes, sir.
Q. And what did you say?
A. Terminate.
Q. You said terminate. Stood up and walked out. Sounds like you knew exactly what was going on then, doesn't it?
A. It would have made more sense if I tried to tell him my side of the story.
Q. Would it make more sense in what way? What do you mean?
A. Like right now, if I talked to him I'll tell him my side.
Q. Uh-huh.
A. At that time I was not in my right mind. I was talking but I was not in my right mind.
Q. But, for whatever reason, he reads you your rights, he gives you one of them, which is that you've got the right to terminate this at any time, and you said terminate, stood up and walked out. Right?
A. Yes, sir.
Q. It sounds as if you knew exactly what he was telling you in your warnings and you understood them and you chose to exercise one of your rights, doesn't it?
A. That's what it sounds like, sir.

In support of his defense, Engle offered testimony from a psychiatrist, Dr. Thomas Demoor, who testified that selective serotonin reuptake inhibitors (SSRIs) such as Lexapro

can cause mania, characterized by "increasing agitation or irritability or aggression," in patients with bipolar depression—a condition from which, "in [Demoor's] opinion," Engle suffered. Demoor believed that Engle's adverse reaction to Lexapro "led to a manic state that caused his aggressive outburst." Demoor admitted, however, that he "couldn't evaluate [Engle's] state of mind at the time of the event ... [b]ecause [Engle] told [him] he didn't remember the event." Instead, Demoor formed his opinion based on a "review[ ] [of] [Engle's] medical records," "the witness statements from the assault," and "[the State's expert witness] Dr. Kutnick's reports."

The defense also offered the testimony of three other witnesses. One was a nurse at the DeWitt County Jail who was tasked with administering inmates' medications. She testified only that Engle began refusing to take Lexapro

when he arrived at the facility on the weekend of August 23, 2014, though the prosecutor stressed on cross-examination that this was five days after Engle was arrested for stabbing Smolik. The defense also called a corporal at the same jail who also helped dispense medications to inmates. She testified that shortly after Engle was housed at the jail in connection with the stabbing, he had become "agitated" on occasion after taking Lexapro, "pacing in the cell and yelling and talking loud" before wearing himself out. The corporal admitted on cross-examination that Engle did not harm himself or otherwise act violently during these periods. Engle's mother also testified on his behalf that she noticed him becoming more "forgetful" and "angry," and "crying" more often, after starting Lexapro. She admitted on cross-examination that she nonetheless continued to bring the medication to the jail for Engle to use even after his arrest, and that some of his hostile behavior persisted even when he was off Lexapro.

The State's case was naturally aimed at rebutting Engle's defense of insanity due to involuntary intoxication. The prosecutor elicited testimony about the events surrounding the stabbing and Engle's subsequent arrest, including Engle's taunting of the firefighters, his admission to the police that he had been "waiting" for them, and his expressed desire to return to prison. During the prosecutor's direct examination of Ranger Wilson, Wilson was asked about his questioning of Engle after the arrest, resulting in the following exchange:

A. .... I didn't ask [Engle] any questions at that time, I needed to read him his Miranda rights and other things, that was before, and so did a little housekeeping, read him his Miranda. He said he understood it and as soon as I finished reading his Miranda warnings, the 38.22 warnings, he terminated the interview and walked out.
Q. Terminated the interview?
A. Yes.
Q. How did he terminate it?
A. I said, "you have the right to terminate the interview at any time." He said "terminate," stood up and walked out.

After some further back-and-forth, a recording of the interview was then played for the jury, and the prosecutor then asked,

Q. So as you're going through these warnings that we just heard, what's the defendant doing, if anything, when you're asking do you understand that?
A. He's nodding in the affirmative that he understood that right.
Q. Show us what you mean.
A. Nodding his head up and down.
Q. Okay. And at the end when you said he can terminate this interview at any time, what did he say?
A. Terminate.
Q. Terminate? And then what did he do?
A. Stand up and start walking towards the door.

The State also brought forth its own expert witness, psychiatrist Dr. Joel Kutnick, who testified that Lexapro

was not known to cause rage attacks or temporary "blackouts" of the kind complained of by Engle, and that Engle's prescribed dose of Lexapro at the time was "a standard dosage." Kutnick also reviewed multiple reports from mental health professionals who treated or evaluated Engle in the period leading up to the stabbing. Kutnick testified, based on the contents of the reports (which were also admitted into evidence as exhibits), that Engle had never complained to his...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT