REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY Petitioner JAVIER YEBRA filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 69th Judicial District Court of Moore County, Texas, for the offense of aggravated assault in State v. Yebra, Cause No. 4249. For the reasons set out hereafter, the United States Magistrate Judge is of the opinion petitioner's motion for leave to supplement (Dkt. 33) should be DENIED. Further, it is the recommendation of the undersigned that petitioner's application for federal habeas corpus relief be DENIED.
I.FACTUAL AND PROCEDURAL BACKGROUND In February 2009, petitioner was indicted in Moore County, Texas, for aggravated assault. Petitioner entered a plea of not guilty. After a trial, the jury returned a verdict of guilty and set YEBRA's punishment at fifty years in prison. The judgment was affirmed on appeal. Yebra v. State, No. 07-10-00008-CR, 2010 WL 3893684 (Tex. App. - Amarillo Oct. 5, 2010, pet. ref'd). The Amarillo Court of Appeals summarized the facts of the case as follows:
Complainant, Darlene Flores, went with her roommate, Rosa Aguirre, to a bar in Cactus, Texas. While there, Flores met appellant. Flores bought him a beer, and the two played pool. During their interaction, appellant told her that if she "did him wrong that he had a knife." Flores and Aguirre left the bar at about 2:00 a.m. Though uninvited and unbeknownst, appellant followed them.
At this point, the details regarding the sequence of the night's events vary somewhat among the witnesses. Flores recalled going to her room to change clothes. Appellant, after having somehow gained entry to the house, tried to get into her room. Flores slammed the door to prevent him from doing so, changed clothes, and then went outside to talk to him. Appellant accused Flores of having stolen CDs from him. Appellant then attacked Flores. Flores remembered being on the ground as appellant was kicking and punching her. Flores had fallen to the ground near some beer bottles and picked up a number of these bottles and threw them at appellant. She also hit him in the head with a bottle as he continued hitting her. She got to her feet and ran around the car toward the house. She tried to get inside but Aguirre would not open the door because appellant had tried to punch her as well.
According to Flores, appellant again violently approached her. Flores presumed that it was during this stage of the altercation that appellant stabbed her although she was unaware of her stab wounds until later when she was inside receiving medical care from paramedics. Flores did not see a knife during any stage of the altercation. She testified that, as a result of the wounds, she had to go to the hospital. She testified that she underwent surgery and that once, during her approximately three-week stay in the hospital, she was transferred to ICU after she had stopped breathing. Flores admitted to having drunk a great deal that night and that her recollection of the night came only in "bits and pieces."
Aguirre testified that after she and Flores returned home, Flores and appellant left together in appellant's car, perhaps to search for more beer, and were gone for 30 to 45 minutes. When they returned, appellant came into the house but Aguirre directed him to go outside. He complied and waited outside for Flores for a little while then came back in the house and tried to get in the bedroom. Aguirre again told him to leave the house. Appellant went back outside and waited on the porch to talk to Flores.
Flores joined him while Aguirre remained inside. Aguirre heard Flores and appellant arguing. She looked outside and saw appellant punching Flores by the front door; she did not see him stab her. Aguirre moved to go out and assist Flores but was denied exit by appellant deliberately pushing the door closed. Appellant also tried to punch Aguirre, causing damage to the screen door. Sheexplained that only appellant and Flores were outside the house that night. Appellant eventually left, and Aguirre helped Flores inside and noticed that she was bleeding "bad."
. . . Flores and Aguirre provided their foregoing accounts of the night. Aguirre's fifteen-year-old twin children both testified that only appellant and Flores were outside that night. Neither saw appellant stab Flores. The responding officer testified that a brief search of the scene yielded no knife, and no knife was found on appellant.
No one disputes that there was an altercation between appellant and Flores. Likewise, it is undisputed that Flores sustained serious wounds that night. According to Dr. Thomas Parsons, a forensic pathologist who examined photographs of the wounds and a medical report of a CT scan, the wounds "were most likely caused by a knife or knife-like object." He described the wound characteristics that led him to that conclusion and explained the risks posed by the fact that Flores's liver was lacerated.
Appellant did not testify. In his defense, he recalled Aguirre's daughter who testified that, before Flores went outside to talk to appellant, Flores said to her boyfriend on the phone that she was going outside to "kick his A."
Id. at *1-2.
Petitioner filed a state habeas corpus application on June 18, 2012, which had been signed on June 13, 2012. The state habeas corpus application was denied without written order on February 13, 2013. Ex parte Yebra, No. WR-78,088-01 (Tex. Crim. App. February 13, 2013). Petitioner then filed this federal Petition for a Writ of Habeas Corpus on August 13, 2012, which petitioner states he placed in the prison mail system on August 8, 2012.
On November 25, 2013, petitioner filed "Petitioner's Motion Requesting Leave of Court for Filing His Supplemental Pleading to His Federal Habeas Petition - with Brief in Support." (Dkt. 33). By this pleading, petitioner sought to raise a claim of ineffective assistance of counsel due to trial counsel's failure to request the trial court instruct the jury on the lesser-included offenses of simple assault and deadly conduct. The motion was denied on December 19, 2013.(Dkt. 35). Petitioner objected, (Dkt. 37), and the United States District Judge overruled petitioner's objections, except for the issue regarding Trevino v. Thaler, 569 U.S. ___, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), as related to the lesser-included offense claim, which was remanded to the United States Magistrate Judge for further consideration.
II.PETITIONER'S ALLEGATIONS Petitioner appears to contend respondent is holding him in violation of the Constitution and laws of the United States for the following reasons:
1. The state did not prove the elements of the offense.
2. Petitioner received ineffective assistance of counsel, because counsel:
(1) failed to consult with a forensic pathologist;
(2) failed to object to hospital and medical records and to a recording of a 911 call;
(3) failed to object to Dr. Parsons's use of photographs to determine the nature of the wounds;
(4) failed to object to Dr. Parsons's speculation that the wounds were most likely caused by a knife or a knife-like object;
(5) failed to introduce a prior recorded statement of the alleged victim;
(6) failed to file a motion to suppress petitioner's statement to police and failed to review the recorded statement;
(7) failed to object to evidence of flight;
(8) failed to object to Dr. Parsons's lack of qualifications;
(9) failed to object that the prosecutor took evidence home after trial began and that the prosecutor tampered with a videotape.
3. A forensic pathologist was not appointed for petitioner.
4. The introduction into evidence of records, reports, videotapes, and a recording of a 911 call violated the Confrontation Clause.
5. The trial court did not permit defense counsel to impeach the alleged victim.
6. Petitioner's rights under the Confrontation Clause were violated by the failure to use the alleged victim's recorded statement.
7. Petitioner's right to due process was violated because Dr. Parsons's opinion testimony was based on suspicion, speculation, and conjecture.
8. Petitioner's right to due process was violated because Dr. Parsons was not qualified to testify about injuries based on photographs.
9. Petitioner's right to due process was violated because defense counsel did not move to strike Dr. Parsons's testimony.
10. Petitioner received ineffective assistance of appellate counsel because counsel did not raise an appellate issue regarding the attempt to impeach the alleged victim.
11. The cumulative effect of the errors requires that the conviction be set aside.
12. Petitioner's right to due process was violated by the amendment of the indictment.
13. The evidence was factually and legally insufficient.
Claim in Motion to Supplement:
Petitioner received ineffective assistance of counsel due to trial counsel's failure to request a jury instruction on the lesser-included offenses of assault and deadly conduct.
Under the Antiterrorism and Effective Death Penalty Act, a petitioner may not obtain habeas corpus relief in federal court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim resulted in a decision contrary to or involved an unreasonable application of clearly established federal constitutional law or resulted in a decision based on an unreasonable determination of the facts in light of the evidencepresented in the state court proceedings. 28 U.S.C. § 2254(d).
The Texas Court of Criminal Appeals heard and adjudicated, on the merits, the claims petitioner Yebra presents in his federal habeas corpus petition when it denied petitioner's...
