Opinion
NO. 3-99-CV-2905-P.
September 11, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Randall Lee Mims has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of theft. Punishment, enhanced by two prior felonies, was assessed at ninety-nine years confinement. Petitioner appealed. The court of appeals affirmed in an unpublished opinion. Minis v. State, Nos. 05-96-00803-CR (Tex.App.-Dallas, March 11, 1998, pet. ref'd). Petitioner also filed an application for writ of habeas corpus in state court. The Texas Court of Criminal Appeals denied habeas relief without written order. Ex parte Minis, No. 43, 853-01 (Tex.Crim.App., Dec. 29, 1999). Petitioner then filed this action in federal court.
ISSUES PRESENTED
Petitioner attacks his conviction in two grounds for relief. He contends that: (1) the evidence is insufficient to support his conviction; and (2) he received ineffective assistance of counsel.
STANDARD OF REVIEW
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An "unreasonable application" of clearly established federal law is one in which "the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
SUFFICIENCY OF THE EVIDENCE
Petitioner contends that the evidence was insufficient to support his conviction for felony theft because the state failed to prove that the money was acquired by deceit.
A. Standard of Review
Federal habeas review of a claim based on sufficiency of the evidence is extremely limited. A federal court may not disturb a conviction in a state criminal proceeding unless no rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir. 1991), cert. denied, 113 S.Ct. 102 (1992). The evidence must be viewed in the light most favorable to the verdict. Jackson, 443 S.Ct. at 2789; Gibson, 947 F.2d at 781.
B. Elements of the Offense
Federal courts are bound by state statutes and case law in determining the elements of an offense. Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992). Petitioner was charged with theft of property valued at more than $200 but less than $750. A person commits theft if he intentionally appropriates property belonging to another without the effective consent of the owner. TEX. PENAL CODE ANN. § 31.03(a) (b)(1) (Vernon 1994). Consent is not effective if it is induced by deception or given solely to detect the commission of an offense. TEX. PENAL CODE ANN. § 31.01(3)(A) (D) (Vernon 1994).
C. Discussion
Petitioner was charged with stealing cash from B. K. Hall. (Tr. 7; SF 20). Hall testified that she is a narcotics investigator. (SF 27). She received complaints of drug activity in August 1992. ( Id. at 31-32). Hall contacted a confidential informant. ( Id. at 33). She and her partner accompanied the informant to a neighborhood for the purpose of making drug buys. ( Id. at 34-35). Petitioner entered Hall's car. The two began negotiating to buy $225 worth of crack cocaine. ( Id. at 37). Petitioner agreed to buy the drugs. Hall gave him $225 for that purpose. ( Id.). Petitioner told Hall to return later. She did, but petitioner was not there. ( Id. at 38-41). Hall testified that she gave petitioner the money solely to detect the commission of an offense. ( Id. at 42). She never received the money back. ( Id. at 52).
Petitioner argues that the state never proved he obtained the money by deception. This argument was considered and rejected on direct appeal. The appellate court found that the key element of the offense was deprivation of property without effective consent. Deception was merely one method of establishing lack of consent. The court noted that the statute provides that consent is not effective "if given solely to detect the commission of an offense." Mims, No. 05-96-00803-CR, op. at 4, citing TEX. PENAL CODE ANN. § 31.01(3)(D). The court concluded that the evidence was sufficient to show that appellant committed the offense of theft. Id. See also Smith v. State, 766 S.W.2d 544, 545-46 (Tex.App. — Houston [1st Dist.] 1989, pet. ref'd) (holding proof of deception not required when money given to detect commission of offense). This decision is neither contrary to clearly established federal law nor "unreasonable" in light of the evidence presented at trial. See 28 U.S.C. § 2254(d). Petitioner is not entitled to relief on this ground.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner also complains that he received ineffective assistance of counsel. He contends that his attorney failed to request a jury charge on the definition of deception.
A. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first demonstrate that counsel s performance fell below an objective standard of reasonable professional service. Strickland, 104 S.Ct. at 2064. He must then show that this deficient performance prejudiced the defense such that the outcome of the trial would have been different. Strickland, 104 S.Ct. at 2064. There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B. Discussion
Petitioner maintains that counsel was ineffective because he failed to request a jury charge on the definition of deception. He notes that, under Texas law, promising performance which the actor does not intend to perform, without other evidence of intent is insufficient to establish deception. Petitioner claims that counsel's failure to request this definition rendered the charge fatally flawed. However, this Court has already concluded that proof of deception was not required to establish petitioner's guilt. Counsel's failure to request such a definition did not, therefore, affect the outcome of the trial. This claim for relief is clearly without merit.
CONCLUSION
The application for writ of habeas corpus is denied.