Galbraith v. Director, CIVIL ACTION NO. 4:11cv756

CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas
Writing for the CourtAMOS L. MAZZANT UNITED STATES DISTRICT JUDGE
Docket NumberCIVIL ACTION NO. 4:11cv756
PartiesJOHN PAUL GALBRAITH, #1473442 v. DIRECTOR, TDCJ-CID
Decision Date01 April 2015

JOHN PAUL GALBRAITH, #1473442
v.
DIRECTOR, TDCJ-CID

CIVIL ACTION NO. 4:11cv756

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

April 1, 2015


MEMORANDUM OPINION AND ORDER

Petitioner John Paul Galbraith, an inmate confined in the Texas prison system, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the constitutionality of his convictions, alleging violations concerning the jury, prosecutorial misconduct, trial court errors, ineffective assistance of counsel, cruel and unusual punishment, and double jeopardy.

I. BACKGROUND

Petitioner is complaining about his Denton County convictions for two counts of indecency with a child, and two counts of aggravated sexual assault of a child - each concerning MG. Cause No. F-2007-01390C. The grand jury also returned a separate indictment alleging that Petitioner had sexually assaulted another child under the age of fourteen, TP. Cause No. F-2007-1541-C. The State consolidated the cases for trial. Although trial counsel moved to sever the two cases, the trial court denied the motion. The jury acquitted Petitioner in the allegations concerning TP. As to the two counts each of aggravated sexual assault and indecency with a child against MG, the jury found Petitioner guilty as charged. It then sentenced him to two life sentences on the aggravated sexual

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assault charges and two 20-year sentences on the indecency with a child charges, to be served consecutively.

The Second Court of Appeals affirmed his convictions on November 6, 2008. Galbraith v. State, No. 02-08-00024-CR. The Texas Court of Criminal Appeals (CCA) then refused his petition for discretionary review (PDR) on September 16, 2009, In re Galbraith, PD-0272-09. The CCA denied his application for state writ of habeas corpus without written order based on the findings of the trial court on October 26, 2011. Ex parte Galbraith, Application No. 75,459 at cover.

Petitioner filed the present petition, alleging 24 grounds of relief:

1. He was denied the right to an impartial jury when a biased juror was seated;

2. He was denied the right to the jury of his choice when the State struck a juror for cause;

3. The State withheld exculpatory evidence;

4. The trial court erred in allowing the outcry testimony;

5. The State violated his Fifth Amendment Rights by seizing a letter he had written in jail;

6. The trial court allowed the State's expert witness to bolster the credibility of MG;

7. Trial counsel was ineffective in failing to object to the State's seizure of the letter that Petitioner wrote while in jail - on the basis that the letter was seized without probable cause or a search warrant;

8. The use of the disjunctive in the court's charge deprived Petitioner of a fair trial;

9. Trial counsel was ineffective for failing to object when the Prosecutor called Petitioner a "child molester" and referred to his failure to testify in closing;

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10. Trial counsel was ineffective for failing to protect Petitioner's due process rights when the Prosecution introduced an audio recording of a conversation that he had with his girlfriend engaging in phone sex while he was in jail;

11. The trial court constructively amended the indictment five days prior to trial without giving Petitioner the opportunity to object to the amendment;

12. The trial court erred in allowing the State to introduce two separate video outcry statements;

13. Trial counsel was ineffective for failing to argue that Petitioner would be prejudiced by the joinder of the separate indictments;

14. The State knowingly used perjured testimony;

15. Appellate counsel was ineffective for failing to raise a factual insufficiency error on direct appeal;

16. Appellate counsel was ineffective for failing to raise a legal insufficiency error on direct appeal;

17. Trial counsel was ineffective for failing to interview witnessers and for failing to call the witnesses with whom he had interviewed to testify at trial;

18. Trial counsel was ineffective for loudly chastising Petitioner within earshot of the jury for having phone sex with his girlfriend while he was confined in county jail;

19. Appellate counsel was ineffective for failing to raise nonfrivolous points of error on appeal, i.e., the biased-juror error;

20. Petitioner's consecutive sentences are cruel and unusual;

21. Trial counsel was ineffective for failing to interview MG and the State's expert

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witnesses.

22. Trial counsel was ineffective for failing to challenge the State's medical evidence.

23. Trial counsel was ineffective for failing to introduce evidence showing that the grandmother coerced MG into making false allegations and giving false testimony because Petitioner was planning on moving the children; and

24. Petitioner's conviction violates double jeopardy.

Respondent provided a Response, asserting that Petitioner's claims are without merit to which Petitioner filed a Reply.

II. STATEMENT OF FACTS

As noted above, Petitioner was tried for sexual offenses against TP and MG in one trial. The jury found Petitioner "not guilty" of the offense against TP, but found Petitioner "guilty" of the offenses against MG in Cause No. F-2007-01390C.

At trial, 11-year-old TP testified that, when she was 8 years old, she spent the night at her friend, BG's apartment. BG lived in an apartment with her father (Petitioner), MG (her younger sister) and BGG (her brother). TP and BG decided to take a bath. While in the bathtub, Petitioner came into the bathroom and said that he would wash their hair. TP was shocked that a man would be in the bathroom with girls. Petitioner washed BG's hair first while TP tried to move as far away from Petitioner as possible. But then Petitioner washed TP's hair. He then left the bathroom.

After the two girls finished with their bath, they got ready for bed, climbed onto the top bunk of BG's bunk beds, and went to sleep. TP was awakened when Petitioner picked her up and carried her to the living room. Even though she told him to put her down, he placed her on the couch. Petitioner turned on a movie, sat down beside TP and began rubbing her back with his hand under

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her shirt. Petitioner told TP that he did that to MG and BG all the time. He then pulled TP's shorts and panties down and threw them onto the floor. TP pulled her knees up and held her knees together tightly. She told Petitioner that she was hungry. Petitioner told TP to put her legs down or he would not get her anything to eat. TP slowly put her legs down, they were spread open, and Petitioner licked her "private," or where she urinated from for approximately 5 seconds before she stopped him by pulling her knees back up. She told him, again, that she was hungry, and Petitioner went to the kitchen and brought her crackers. TP put her shorts back on as Petitioner told her, "Don't tell anybody." TP said that she thought to herself, "I'm going to tell somebody all right." Transcript of Trial vol. 3 at 37-53, Galbraith.

Two weeks later, TP told her friend, Christina, and her grandmother what Petitioner had done. TP's grandmother told TP's mother, who called the police. Transcript of Trial vol. 3 at 54-55, 57-58, 63, Galbraith. TP eventually told BG what had happened, but BG did not believe her and the two girls stopped being best friends. Transcript of Trial vol. 4 at 56, Galbraith. Detective Shane Kizer testified at trial that, although TP's case was investigated in 2004, it was closed because they did not believe there was enough evidence to prove the case at that point. Transcript of Trial vol. 4 at 27-28, Galbraith.

Eleven-year-old BG testified that, around December 20, 2006, she saw Petitioner and MG playing on the computer in her father's room through a partially open door. BG saw her father rub MG on her bottom. BG thought it was nasty and that it was unusual, as her sister was 10 and Petitioner was 40. BG watched for about five minutes before Petitioner closed the bedroom door. BG knocked on the door and said that her brother, BGG had to go to the bathroom, but Petitioner just told her, "Take [BGG] out." Transcript of Trial vol. 3 at 118, Galbraith. BG then heard the

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bathtub water running. Prior to this, BG said she would see MG go into Petitioner's room frequently, and the door would always be closed. She would hear water flowing every once in a while. When MG came out of Petitioner's room, BG pretended to be asleep.

The next morning, BG asked MG if "it has been happening," and MG said, "yes, but don't tell anybody." Transcript of Trial vol. 3 at 87-88, 119, 120-21, Galbraith. BG testified that what MG told her was nasty and bad because what Petitioner had done to her was like what he should do to a wife. BG was worried that MG was hurt down inside her. The next day, BG told someone at her school about it and the two sisters spoke with a teacher, Ms. Boone, and the school counselor, Ms. Tanos. BG told her grandmother that MG had been "sexing with Daddy." Transcript of Trial vol. 3 at 122, Galbraith.

Ten-year-old MG testified that Petitioner was her father and that she thought her mother had died when she was 2 years old. She said that, on December 20, 2006, she was in Petitioner's room on the computer when he began touching her "private, [her] butt" with his hand, and then started sticking his "wiener" in her butt. She said that Petitioner had done this many times before. She said that on December 20th, after Petitioner finished with her, she took a bath, as she usually did. The next morning, she told her sister about it, but asked BG not to tell anybody because she was afraid she might get sent to an orphanage. MG said that Petitioner had not touched her before TP had come to visit in 2004, but that since then, he had been doing things to her, such as sticking his "wiener in her butt." MG said he had touched her approximately 20 times, that he had put her mouth on his penis about 20 times, that he had put his penis in her private "a couple of times" or...

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