Tear v. Thaler, Director TDCJ-CID, No. 3:2006cv01893 - Document 94 (N.D. Tex. 2009)
Court Description: SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS on case: For the reasons set forth in the findings, together with the reasons stated by the magistrate judge in his recommendation dated May 1, 2008, petitioner's application for writ of habeas corpus should be denied. (See order for specifics) (Ordered by Magistrate Judge Jeff Kaplan on 11/4/2009) (vdf)
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Tear v. Thaler, Director TDCJ-CID Doc. 94 IN THE I-INITEDSTATESDISTRICTCOURT NORTHERNDISTRICTOF TEXAS DALLAS DIVISION ROBERTWILLIAM TEAR Petitioner, VS. RICK THALER,Director TexasDepartment CriminalJustice, of Institutions Division Correctional Respondent. $ $ $ $ $ $ $ $ $ $ $ NO.3-06-CV-1893-0 SUPPLEMENTAL FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE prisoner,challenges conviction for aggravated his PetitionerRobert William Tear, aTexas corpuspursuantto 28 U.S.C. 5 2254. sexualassaultof a child in an applicationfor writ of habeas In three grounds for relief, petitioner contendsthat he received ineffective assistanceof counsel Malisa Fyffe, a speechtherapist,to testi$ aboutthe his because attorney: (l) failed to subpoena disorder;(2) did not call Linda Scott,apediatricnurse,who would havesupported child'sexpressive Faulkner, and petitioner's medicalcaredefense; (3) did not objectto the experttestimonyof Suzanne judge, the district court deniedpostof a clinical therapist. On the recommendation the magistrate (N.D. Tex. Apr. WL 1009953 No. convictionrelief. Tear v. Quartermarz, 3-06-CV-1893-0,2009 10, 2009). In so doing, the court determinedthat petitionerfailed to properly exhaustone of the arguments made in his third ground for relief--that counsel was ineffective for not objecting to Faulkner'stestimony regardingthe truthfulnessof child sex abusevictims in generaland the victim . in particular Id., 2009 WL 1009953at * 10 n.4. After petitionertimely perfectedan appeal,the court realized that this argument was, in fact, properly exhausted. At the requestof the court, the Dockets.Justia.com Fifth Circuit remandedthe casefor further proceedings Tear v. Quartermare, No. 09-10415(5th Cir. . Jul. 7,2009). Both sideshave been given an opportunityto re-brief petitioner'sclaim involving Faulkner'stestimony,and this ground for relief is ripe for determination. judge's prior recommendation.See The relevant facts are set forth at length in the magistrate Tear, 2009 WL 1009953 at *2-5. Succinctly stated,petitioner was charged in a two-count indictment with the aggravatedsexual assaultof his four-year-old son. The first count allegedthat petitioner digitally penetrated child's anus. The secondcount allegedthat petitionerplacedhis the mouth on the child's penis. One of the witnesseswho testified for the statewas SuzanneFaulkner, a clinical therapist at the Denton County Children's Advocacy Center. Faulkner interviewed the of child after his fostermother, KathleenHoffman, reportedher suspicions sexualabuse. At their first meeting,the child told Faulknerthat his father"stuckhis finger in his butt usingKY Jelly." (See the SF-II at 125). In later sessions, child volunteeredadditionalinformation that led Faulkner to concludehe had been sexuallyabused.Faulknertestifiedthat: [The child] told me that his father had made a mistake, that he had touchedhim all over his body. He told me that his fatherhadtouched him with a vibrator on his stinka stinka, which is what he calls his penis, and on his butt. And, he also said that his father had put his penis in his mouth and drank his pee pee. (Id. at 127-28). On cross-examination,petitioner's attorney,Julie Jones,askedFaulkner if a fouryear-old child with the mental capacityofa three-year-old"sometimeshasa hard time with blending fantasy and reality[.]" (ld. at 139). Faulkner responded,"Researchshows that children do not lie counsel,Faulknerexplained: about sexualabuse." (/d.). Upon further questioningby defense Kids will often make up stories,makeup fantasythings that they wish would come true. Things that they want to happen.Bu! they rarely makeup storiesaboutthingsthat are not true,like sexualabuse. The times that children lie, research shows is when they are trying to protect a parent, get out of trouble or if they are playing a game. (ld. at 139-40) (emphasis added).On re-direct, prosecutor the inquired: And so,with you [sic] first meeting with Q. IBY PROSECUTORI: child], did you still lay down the law that it is importantto tell [the the truth? A. Yes,I tell all of my kidsthatatthebeginning every of session. And, then as time developed over your meetings with [the a childl, did you makea determinationthat he could tell the dffirence betweena truth and a lie? A. Yes,I did. Wasit importantfor you to meetwith him morethanonceor a. on twiceto makea full assessment him? A. Yes, definitely. that his attorneywas ineffectivefor (Id. at 142-43)(emphases added). Petitionernow contends to law not Texas does permitanexpert testiff aboutthe because failingto objectto this testimony victims. (SeeAm.Fed.Writ at 30-31).' of truthfulness child sexabuse Petitioner correctly notes that an expert may not expressa "direct opinion" regarding the of truthfulnessof allegations sexualabuse.SeeYountv.State,872S.W.2d 706,709-10(Tex. Crim. App. 1993). However, expert testimony may be permitted to attack a witness'sgeneralcapacity or disposition to tell the truth. SeeSchutzv. State,957 S.W.2d 52,69-70 (Tex. Crim. App. 1997). "General capacity evidence includes whether a person can distinguish betweenreality and fantasy and/or whether the person'sphysical or mental condition adverselyaffects a person'sability to I Petitioneralso criticizes his attorneyfor failing to object to Faulkner'squalificationsto give expert testimony regarding the behavior of child sex abuse victims. The magistrate judge rejected that argument in his prior ofcounselclaim. SeeTear,2009 ofpetitioner'sineffectiveassistance to recommendation, declines revisitthat aspect and WL 1009953 at * I 0 (explaining why Faulkner, who has a mastersdegreein psychology, worked at the Denton County Children's Advocacy Center for three years, and treatedbetween 50-100 children for problems related to sexual abuse, was qualified to testifr as an expert under Texas law). accurately perceive and/or relate events." Id. Assuming that Faulkner's testimony was "direct opinion" evidence regarding the truthfulness of child sex abusevictims, the court determinesthat petitioner was not prejudicedby counsel's failure to object to suchtestimony. prejudice,a petitioner "To demonstrate 'must show that there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different."' Richardsv. Quarterman,566F.3d 553, 564 (5th Cir. 2009),quotingStricklandv. Washington,466 probability is a U.S. 668, 694, 104 S.Ct. 2052,2068,80 L.Ed.2d 674 (1984). "A reasonable probability sufficient to undermine confidencein the outcome" of the trial. Id., quoting Strickland, 104 S.Ct. at2068. The ultimate focus of the prejudiceinquiry is on "the fundamentalfairnessof the proceedingwhose result is being challenged." Virgil v. Dretke, 446 F.3d 598, 612 (5th Cir. 2006), quoting Strickland, 104 S.Ct. at2A69. The court looks to "ferret[ ] out'unreliable' results just results."' process that our systemcountson to produce by'abreakdownin the adversarial caused Id. , quoting Strickland,l04 S.Ct. at 2069. While the test for prejudiceis not simply whetherthere was sufficient evidenceto convict the petitioner, "the strengthofthe incriminating evidenceinforms Fed.Appx.183, 188,2008WL v. of the determination prejudice." Bustamante Quarterman,2S4 at 2645676 *5 (5th Cir. Jul. 7,2008),citing Williamsv. Taylor,529U.S. 362,398,120S.Ct. 1495, 1515,t46L.Ed.zd 389 (2000). Here, petitioner was chargedwith two counts of aggravatedsexual abuseof child. The act by not chargedin the first count--digitalpenetrationof the child's anus--was contested petitioner. that defense counselacknowledged petitionertouchedthe child'sanus During her closingargument, with his finger, but askedthe jury to believethat it was done for medical purposes. (SeeSF-III at 13-14). Indeed, the evidenceadducedattrial, including the child's own testimony, supporteda medical care defense,which was included in the court's charge to the jury.' When asked by the prosecutorif petitionerhad done "bad things" to him, the child responded: Well, he put KY Jelly in my bow-bow and that didn't hurt so, he askedto do that to doctor me. because daddvis a doctor. mv Q. IBY PROSECUTOR]: Oh, he is? A. Yeah, he is. a. And, how did he put KY Jelly in your bow-bow? A. Well, he had some medicine in the refrigerator, so he got it out and put it in my bow-bow. a. What part of his body did he useto put the KY Jelly in? A. His hand. a. His hand? A. Yeah, a. What part of his hand, can you point at my hand? A. He usesit like this. a. Like that? A. Yeah, and it was that small. ,F**{. a. Did you feel it? 'z The jury was insfructed: ofmedical carefor the child thatthe conductconsisted It is a defense prosecution to and did not include any contactbetweenthe anusor sexualorganofthe child and conduct, that the defendant's the mouth of the actor. If you find from the evidence, if any, consistedof medical carefor [the child], and did not include any contact betweenthe anus or sexual organ of the child and the mouth of the defendant, not Roben William Tear, then you will find the defendant guilty of the offensein Count One herein. (St. App. Tr. at25). A. Yeah,it didn'thurt. a. It didn'thurt? A. Yeah, my bow-bow didn't hurt. a. Did it go all the way in your bow-bow, though? A. Yeah. (SF-II at 4l-42). Dr. Patricia Wheelahan,a pediatrician,testified that shemight prescribePhenergan suppositoriesfor children when they experiencevomiting, and might recommend FeverAll did for suppositories childrenwith high fever. (Id. at 168-77).Although Dr. Wheelahan not believe for suppositories the child, she may have recommended that she had ever prescribedPhenergan FeverAll and did prescribeNystatin ointment, which is applied "with your finger around the anus." the petitionerdid not contestthat he digitally penetrated child's anus, (Id. at 17l,177-78). Because but insteadarguedthat the touching was done for the purposesof medical treatment,the child's was not at issue. credibility regardingthis outcry statement petitionerplaced his mouth on With respectto the secondallegationof sexualabuse--that the child's penis--therewas conflicting evidence presentedat trial about statementsmade by the child. In his testimony before the jury, the child denied that petitioner ever touched him with his mouth. (Seeid. at 44-45). However, Faulkner testified that the child told her that "his father had put his penis in his mouth and drank his pee pee." (Id. at 127). In finding petitioner guilty, the jury implicitly found that the child did not testi$ truthfully at trial about this allegedact of sexualabuse. The jury could not have madesucha determinationby relying on Faulkner'stestimony that "children do not lie about sexual abuse," and that petitioner'sfour-year-oldson could tell the difference of between the truth and a lie. Instead,the jury had to make its own assessment the child's credibility. In view of this evidence,petitionercannotshow that his conviction probablyresulted from counsel'sfailure to object to Faulkner'stestimony. RECOMMENDATION For these reasons, together with the reasons stated by the magistrate judge in his recommendation dated May 1, 2008, petitioner's application for writ of habeascorpus should be denied. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendationmust file See28U.S.C.$636(bXl); specificwrittenobjectionswithinl0daysafterbeingservedwithacopy. Fpo. R. Crv. P. 72(b), In order to be specific, an objection must identift the specific finding or to recommendation which objectionis made,statethe basisfor the objection,and speciS the place in the magistratejudge's report and recommendationwhere the disputeddeterminationis found' An objection that merely incorporatesby referenceor refers to the briefing before the magistratejudge party from appealing will bar the aggrieved is not specific. Failureto file specificwritten objections judge that are acceptedor adoptedby the the factual findings and legal conclusionsof the magistrate AutomobileAss'n, district court,exceptupongroundsofplain error. SeeDouglassv. UnitedServices 79 F.3d 1415,l4l7 (sth Cir. 1996), DATED: November4. 2009. N STATESMAGISTRATE JTJDCE
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