     Case: 10-10200 Document: 00511421347 Page: 1 Date Filed: 03/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 23, 2011

                                       No. 10-10200                         Lyle W. Cayce
                                                                                 Clerk

ELIZABETH BRIDGES

                                                   Petitioner-Appellee
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent-Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:07-CV-1203


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Respondent-Appellant         Rick    Thaler,     Director    of   the   Correctional
Institutions Division of the Texas Department of Criminal Justice (“the State”),
appeals the district court’s grant of habeas relief under 28 U.S.C. § 2254 to
Petitioner-Appellee Elizabeth Bridges (“Bridges”). We vacate and remand to the
district court to enter judgment in favor of the respondent.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                       I. Factual and Procedural Background
      On April 21, 2005, after rejecting a guilty plea offer of deferred
adjudication probation, Bridges was convicted of knowingly and intentionally
causing serious bodily injury to a child younger than fourteen years of age, in
Dallas County, Texas. She was sentenced to twenty-five years in prison.
      The testimony at trial was as follows. On March 27, 2001, Lakeita Parker
(“Parker”), a friend of Bridges, left her five-month-old son, Devine, with Bridges
around 9:30 p.m.1 Also present were Bridges’ eleven-year-old cousin, Mattie, and
Bridges’ fifteen-month-old nephew, Benny. While Parker was gone, her son
Devine suffered a serious head injury. Bridges called 911 for assistance around
10:30. Paramedics arrived at the apartment complex and took the apparently
unconscious child to the hospital where he was placed on life support. Bridges
told Robert Holloway, Jr. (“Holloway”), a paramedic with the Dallas Fire Rescue
Department, that Devine’s injuries occurred when Benny flipped him out of his
car seat and he hit his head on a wooden coffee table. When Parker returned
around 10:30 p.m., Bridges called her from the hospital and told her the same
version of events that she told Holloway. The day after the incident, Bridges
repeated this version of events to Detective Dan Lesher (“Lesher”), who was
tasked      with    investigating        the    case.       Lesher      photographed    Bridges’
demonstration of what she had seen.                     She made a written statement and
explained that she had left the apartment to go downstairs to use the telephone,
and saw the injury occur as she returned through the front door of the
apartment. In that statement she also explained, “my cousin [Mattie] told me
she took him in the kitchen and my nephew flipped him over, but I didn’t see it.”
      Bridges’ trial testimony was that she was not present when Devine was
injured, and that Devine was on the couch in the car seat crying when she



      1
          Parker testified that Bridges had previously briefly dated Devine’s father.


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returned from making a phone call. She explained that she initially told the 911
operator, Devine’s mother, and Lesher a different story because she was worried
that authorities might punish her for leaving Devine in the care of an
eleven-year-old.
      Dr. Donna Persaud (“Dr. Persaud”), a pediatrician and expert on child
abuse who examined Devine the night of the incident, testified that the baby
sustained brain swelling, blood between the brain and its covering, and a large
fracture. The nature of the injuries gave her considerable concern that the
injuries were non-accidental. A fall onto a coffee table could not have caused
Devine’s injuries, according to her testimony.
      Mattie testified at trial that Devine was injured when he fell off of the
kitchen table. Mattie stated that she had placed Devine in his unbuckled car
seat on the kitchen table, went into another room, heard something fall, entered
the kitchen, and found Devine on the floor. As she picked Devine up, Bridges
and Dwayne Greene (“Greene”) entered the apartment, according to Mattie.
Mattie denied having initially told Lesher a different story. As a rebuttal
witness, Lesher testified that the day after the incident Mattie told him that she
had heard a baby crying, rushed into the living room, and there saw Devine
lying on the floor with Bridges standing over him. Bridges’ attorney did not
object to Lesher’s testimony regarding Mattie’s prior statement.
      The Texas Fifth Court of Appeals affirmed Bridges’ conviction, Bridges v.
Texas, No. 05-05-00607-CR, 2006 Tex. App. LEXIS 10523 (Tex. App.-Dallas,
Mar. 8, 2006), and Bridges did not file a petition for discretionary review by the
Court of Criminal Appeals. Bridges filed an application for a state writ of
habeas corpus on July 11, 2006. Bridges made several claims, including that her
trial counsel’s failure to object to hearsay constituted ineffective assistance of
counsel. The Texas trial court ordered an affidavit from Bridges’ trial attorney,
Carl Hayes (“Hayes”), which he provided. On October 24, 2006, the trial court

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issued its findings of fact and conclusions of law recommending that Bridges be
denied relief.     The Court of Criminal Appeals denied Bridges’ application
without written order on the findings of the trial court on December 6, 2006. On
May 30, 2007, Bridges filed a pro se petition for federal habeas relief under 28
U.S.C. § 2254. The magistrate judge ordered an evidentiary hearing, at which
Dr. Persaud and Hayes were witnesses. On January 25, 2010, the magistrate
judge recommended that the petition be granted on the ground that “defense
counsel’s failure to object to Lesher’s rebuttal testimony and, if the evidence was
admitted, to request a limiting instruction, constituted deficient performance
that prejudiced” Bridges. Bridges v. Thaler, No. 3:07-CV-1203-K, 2010 U.S. Dist.
LEXIS 10523 (N.D. Tex. Jan. 25, 2010).                   The district court adopted the
magistrate judge’s findings, conclusions and recommendation, and on February
5, 2010, entered an order conditionally granting Bridges’ petition. The State
timely appealed. The court below granted the State’s motion for a stay pending
appeal.
                          II. Exhaustion of State Remedies
       To bring her habeas claim in federal court, Bridges must have exhausted
all available state remedies. See 28 U.S.C. § 2254(b)(1). “Whether a federal
habeas petitioner has exhausted state remedies is a question of law reviewed de
novo.” Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003). We interpret a
pro se petitioner’s filings liberally because it is inequitable to penalize a pro se
litigant for “lacking the linguistic and analytical skills of a trained lawyer.”
Perez v. United States, 312 F.3d 191, 194 (5th Cir. 2002). Bridges’ state and
federal habeas petitions are nearly identical with respect to her claim that
Hayes’ failure to respond to Lesher’s testimony regarding Mattie’s original
statement constituted ineffective assistance of counsel.2 Bridges did not raise


       2
        In a memorandum supporting her state habeas petition, Bridges stated: “(G) Ground
no. seven (7): Perjury/Hearsay . . . Failure to rise [sic] objection to perjury, the Detective, Dan

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a new claim on appeal. We reject the State’s argument that Bridges never
presented the state habeas court with her claim that her attorney’s failure to
request a limiting instruction constituted ineffective assistance of counsel.
Bridges’ claim regarding her attorney’s failure to request a limiting instruction
was implicit in her hearsay claim. See Bledsue v. Johnson, 188 F.3d 250, 255
(5th Cir. 1999) (“Although we recognize that the plain language of Bledsue’s
direct state appeal and second state habeas petition did not explicitly pinpoint
the issue of weight, his claim of insufficient proof of intent implicitly presented
the issue of weight.”). As such, we find that Bridges exhausted all available
state remedies.
                     III. Ineffective Assistance of Counsel
       a. Standard of Review
       “In a habeas corpus appeal, we review findings of fact for clear error and
issues of law de novo using the same standards as the district court.” Anderson,
338 F.3d at 389-90.        The Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254(d)(1), governs Bridges’ appeal. See id. at 390.
Under AEDPA, “a federal court may not grant a state prisoner’s habeas
application unless the relevant state-court decision ‘was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.’” Knowles v. Mirzayance, 129 S. Ct.
1411, 1418 (2009) (quoting 28 U.S.C. § 2254(d)(1)).
       b. Discussion
       The “clearly established federal law” applicable to Bridges’ claim is the
two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). See Anderson,


Lesher . . . and Hearsay which was all proven to be false by appellant’s witnesses . . . after
being informed of this mishaps several times during trial.” In her federal petition she
provided: “[Attorney] [m]ade no objections to hearsay and perjury from state’s witness Det.
Dan Lesher.” Her petition clearly makes a claim based on the alleged hearsay issue. We thus
reject the State’s argument that it was limited to the alleged perjury issue.

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338 F.3d at 391.     Under Strickland, Bridges must show both that Hayes’
performance was deficient (“cause”) and that this deficiency prejudiced her
defense (“prejudice”). See id. In this case we address only the prejudice prong
as it is dispositive of this appeal. See Strickland, 466 U.S. at 697 (“If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”).
             1. Prejudice
      Under Strickland’s prejudice prong, the petitioner must establish a
“reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”          Id. at 694.    A “reasonable
probability” is “a probability sufficient to undermine confidence in the outcome.”
Id. “Taking the unaffected findings as a given, and taking due account of the
effect of the errors on the remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different absent the errors.”
Id. at 696. Because the state court never reached a conclusion about prejudice,
we will consider the prejudice element of Strickland de novo. See Rompilla v.
Beard, 545 U.S. 374, 390 (2005) (“[b]ecause the state courts found the
representation adequate, they never reached the issue of prejudice, and so we
examine this element of the Strickland claim de novo”) (internal citations
omitted).
      Bridges argues that there is a reasonable probability that the jury would
have reached a different conclusion had the court provided limiting instructions
on Lesher’s rebuttal testimony. Lesher’s testimony regarding Mattie’s original
statement was not admissible as substantive evidence, but was admissible as
non-hearsay offered as “extrinsic evidence” for impeachment purposes. See T EX.
R. E VID. 613. We find no prejudice sufficient to meet Strickland, however,
because there is not a reasonable probability that a limiting instruction would

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                                  No. 10-10200

have changed the outcome of this case. There was ample evidence of Bridges’
guilt: Bridges repeatedly changed her story and offered inconsistent
explanations of how Devine’s injuries transpired; Devine’s injuries did not
appear to be a result of an accident and could not have been caused by a bump
on the table; and there was evidence that Bridges was the only adult present in
the apartment when the injury occurred.
      First, the jury could have discredited Bridges’ explanation of Devine’s
injuries and interpreted Bridges’ shifting her story as evidence of her
consciousness of guilt. We agree with the State’s contention that the jury may
have found Bridges’ testimony unbelievable because on the night Devine was
injured she claimed she had personally seen him fall, then later told authorities
that she was not present when Devine was hurt, and admitted that she had lied
in her written statement. See Kemmerer v. State, 113 S.W.3d 513, 516 (Tex.
App.-Houston 2003, no pet.) (denying a challenge to the sufficiency of evidence
because “the jury could have viewed appellant’s changing versions of the incident
as evidence of guilt”).   Bridges’ explanation that she lied because she was
worried about confessing that she had left the infant alone with an eleven-year-
old may have been unpersuasive to the jury, especially since in her lie, she still
stated that she left the infant alone with an eleven-year-old.
      Dr. Persaud testified that she was concerned that the injury was non-
accidental. The medical assessment Dr. Persaud wrote in evaluating Devine’s
injuries provided, “[t]his child has suffered massive brain injury due to high
forces. The mechanism involves blunt force and acceleration. The child’s injury
is unexplained by the history offered. There is considerable concern of non-
accidental trauma.” She explained that a knock of the head on the coffee table
(Bridges’ initial explanation) could not have caused the injury.
      Finally, the jury heard evidence, aside from Lesher’s testimony regarding
Mattie’s original statement, that Bridges was the only adult present when the


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accident occurred. Bridges told paramedics, the child’s mother, and Lesher that
she had seen the child hit his head on the coffee table as she was entering the
apartment. Though Lesher’s testimony regarding Mattie’s original statement
placed Bridges closer to Devine than did any other evidence, we reject Bridges’
argument that without this testimony there would have been no evidence that
Bridges was present in the apartment at the time of the incident.
      Moreover, we agree with the State that had the jury been instructed to
consider Lesher’s testimony only for impeachment of Mattie, the jury may well
have completely disregarded Mattie’s testimony. The “trier of fact is always free
to selectively believe all or part of the testimony proffered and introduced by
either side.” Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). Were
the jury to disregard Mattie’s testimony, including Mattie’s explanation that she
had left Devine un-strapped in a car seat on the kitchen table from which he fell,
Bridges had little evidence in her defense, other than her own conflicting
testimony. Greene testified that the child was already injured when he walked
into the apartment with Bridges, but he could not rule out the possibility that
Bridges had injured the child before he arrived.
      Based on the evidence presented at trial we find it highly improbable that
the jury would have believed Bridges’ defense of accident, even were it to have
been instructed properly on the use of Mattie’s testimony. In sum, Bridges has
not met her burden of showing a reasonable probability that the jury’s decision
would have been different had the trial court limited the use of Lesher’s
testimony regarding Mattie’s original statement.
                                IV. Conclusion
      For the foregoing reasons, the judgment of the district court is VACATED,
and REMANDED to the district court with instructions to enter a judgment in
favor of the respondent.




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