Smith v. Thaler

• Decision Date: 21 May 2013
• Docket Number: No. 12-10435,12-10435
• Parties: STEVEN GLEN SMITH, Petitioner - Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

STEVEN GLEN SMITH, Petitioner - Appellant

v. RICK THALER, DIRECTOR, TEXAS DEPARTMENTOF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

No. 12-10435

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Filed: May 21, 2013

Appeal from the United States District Court

for the Northern District of Texas

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:^*

A jury convicted Steven Glen Smith ("Smith") of sexual assault under section 22.011 of the Texas Penal Code. That provision criminalizes "intentionally or knowingly[] . . . caus[ing] the penetration of the . . . sexual organ of another person by any means, without that person's consent." TEX. PENAL CODE § 22.011(a)(1)(A). It also defines the circumstances under which that sexual activity occurs without the other person's consent, including—and as applicable here—when "the actor is a clergyman who causes the other personto submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser." Id. § 22.011(b)(10).

On direct appeal, Smith's court-appointed counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Smith responded with a pro se brief raising several issues, including a challenge to the constitutionality of section 22.011(b)(10). The Texas court of appeals affirmed the conviction, and the Texas Court of Criminal Appeals ("TCCA") denied Smith's petition for discretionary review. Smith then sought state post-conviction relief, adding a claim of ineffective assistance of appellate counsel for failure to identify any nonfrivolous issue on direct appeal. The TCCA ultimately denied Smith relief, and Smith filed a federal habeas petition. Although the district court denied relief, it granted Smith a certificate of appealability ("COA") limited to two grounds: (1) the constitutionality of section 22.011(b)(10); and (2) ineffective assistance of appellate counsel for failure to identify any nonfrivolous issue on appeal and instead filing an Anders brief.

On review of the parties' arguments and given the deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we cannot conclude that the TCCA rendered, with respect to any of Smith's claims, "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Accordingly, we AFFIRM the judgment of the district court, denying Smith habeas relief.

BACKGROUND

A.

Smith was convicted under section 22.011(a)(1)(A) and (b)(10) of the Texas Penal Code for "intentionally and knowingly caus[ing] penetration of the female sexual organ of CHRISTY DOWNEY" ("Downey") without Downey's consentbecause Smith was a "clergyman [who] caused [Downey] to submit and participate by exploiting [Downey's] emotional dependency on [Smith] in [Smith's] professional character as spiritual advisor." See TEX. PENAL CODE § 22.011(a)(1)(A), (b)(10).

Smith founded the Family of God Church of the Bible. Smith was not an ordained minister, and the church met only in its members' homes. Smith was the church's only pastor, he "led every prayer session," and he performed marriages and funerals. Moreover,

[t]here were never any [other leaders or pastors]. From the very beginning until the end of that church [Smith] was the only one to teach. He was the only one to authorize any special ministries. He was the only one to author any literature that was produced by the church.

The members of the church "relied on [Smith] heavily" for counseling, and Smith "warn[ed]" them "that he did not want [them] counseling each other, that he was the one who had the broadest understanding of all [their] lives."

Downey belonged to the church, and her counseling relationship with Smith began soon after she joined. Smith became "very special" to Downey because of what she believed was his desire "to see [each church member] grow spiritually and become spiritually mature." She "shared with him from the deepest part of [her] heart." With Smith, Downey discussed: (1) issues with her self esteem resulting from her "very manipulative relationship" with her father "where he would berate [her] quite a bit emotionally"; (2) her father's 1997 suicide; and (3) her grandfather's increasingly serious diabetes complications starting in 1999.

In 1999, two years after her father's suicide and while her grandfather was dying from diabetes, Downey suffered from depression and was "emotionally depleted." Smith's advice following her father's suicide and for the two years following was "one of the biggest things that connected me to him in my spirituallife as well as emotionally." Downey became "very dependent on [Smith's] counsel."

Her meetings with Smith were "very spiritual in nature," and Smith was her "only spiritual advisor." Their meetings included prayer, and, because Downey was missing church meetings due to emotional issues and family obligations, Smith would recap what "he had taught about that day" or "specific prayer requests people had mentioned."

One night, Smith called Downey from the parking lot of her apartment to say that he was coming over to pray. The two talked about her grandfather, her depression, and what happened during a church meeting that she had missed. Then Smith told Downey that he was suicidal and said that he was having issues with his marriage. Downey testified about the effect this had on her:

It had only been two years and three months prior to that that my dad had done that and it very much evoked a fear in my heart. It also just made me feel extremely anxious and I did not know how to cope with that. . . . [I]t linked me back to my dad when my sister and I had found out. . . . It was very traumatic.

Smith and Downey began hugging and praying on the couch, which often happened during counseling sessions "when it was very difficult on [her] emotionally." Smith then asked Downey "to lay on top of him," and she complied because she "was very emotionally distraught." "[W]hile [she] was laying on top of him [she] felt his penis get erect," and, at that point, Smith "asked [her] to go get a towel and so [she] did . . . . [b]ecause he told [her] to." When Downey "came back into the room [Smith] had unzipped his pants and his penis was sticking out of his pants. . . . And [she] masturbated him to ejaculation with [her] hand" because she "felt obligated to do that emotionally."

There were five sexual encounters between Smith and Downey in total, with each encounter following a similar pattern. Smith would call Downey, usually from the parking lot of her apartment, saying that he wanted to comeover and pray with her, and he would go to her apartment. The two would talk about church meetings and Downey's grandfather, which was "a pretty emotional subject," and Downey would cry most of the time. And then Smith would mention his own suicidal thoughts.

During two of the five encounters, Smith vaginally penetrated Downey. After the first time, Smith told Downey "how precious it was to his heart that [she] had let him be so intimate with [her] soul" and said "the Lord had literally used [her] to save his life." Downey "just felt numb." Downey described the second time:

I began crying silently. I just asked the Lord to help me to know how to cope with this because I could not help him emotionally. I was depleted. . . . [H]e was using me sexually because he was suicidal, even though he knew how much was going on in my life and how vulnerable I was. And I just did not understand how to tell him no.

Downey testified that she engaged in the sexual activity with Smith because of her emotional dependency on him and further stated that "emotionally I could not stop" the sexual encounters with Smith.

Pursuant to Rule 404(b) of the Texas Rules of Evidence,¹ the State presented testimony from two other women, Kendra McGarrahan and Nina Treat. Both women testified that Smith engaged in sexual activity with them and that Smith followed a pattern similar to the one he followed with Downey:making the women emotionally dependent on him and then exploiting that dependency for sexual gain.

B.

On September 29, 2005, a Dallas County jury convicted Smith of sexual assault. At the trial, Michael Gottlieb ("Gottlieb"), a forensic psychologist, testified about sexual misconduct by professionals and the power dynamics and emotional dependency that can develop between professionals and their patients, clients, and advisees. Gottlieb testified that a clergyman can have "power over our emotional and spiritual lives. If we come to them with a dilemma we expect them to diagnose our spiritual problems and to help us find a way to lead the kind of moral life . . . ." In particular, he testified about power being important to the way in which emotional dependency develops. Specifically as to Downey, Gottlieb testified that she was "[e]xtreme[ly]" emotionally dependent on Smith and that she engaged in sexual activity with Smith because he exploited this dependence on him as her spiritual adviser. He observed that by revealing his own problems to Downey, Smith would make her feel even more dependent. The jury sentenced Smith to a ten-year term of imprisonment and assessed a $10,000 fine.

On direct appeal, Smith's appointed counsel did not file a merits brief and instead filed an Anders brief, asserting that there were no nonfrivolous issues presented on appeal. See Smith v. State, No. 05-06-00183-CR, 2007 WL 642577, at *1 (Tex. App. Mar. 5, 2007). In response, Smith filed a pro se brief raising several issues. See id. The Texas court of appeals, however, affirmed, and, on August 22, 2007, the TCCA denied Smith's petition for discretionary review. See id.

Through new counsel, Smith filed an application for a writ of habeas corpus in state court. The trial court entered agreed findings of fact...