                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                               No. 00-40140



JAMES DAVID TUTT,

                                              Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

                                              Respondent-Appellee.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                           USDC No. 9:98-CV-46
                          --------------------
                            September 17, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges, and LITTLE*,
District Judge.

PER CURIAM:**

     James David Tutt (Texas prisoner #656227) appeals the district

court’s final judgment denying his 28 U.S.C. § 2254 petition, which

challenged      his   Texas   conviction   for   felony   driving   while




     *
       Chief Judge F.A. Little, Jr. of the Western District of
Louisiana, sitting by designation.
     **
        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that this opinion should not be published and is not precedent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.
intoxicated   (“DWI”).1          Tutt    was    granted    a   certificate       of

appealability (“COA”) on two issues: (1) whether trial counsel was

constitutionally ineffective for failing to use an audiocassette

recording of Tutt’s parole-revocation hearing to impeach the trial

testimony of his arresting officers; and (2) whether trial counsel

was   constitutionally         ineffective     for   failing    to     object     at

sentencing    to   the     state’s      introduction      of   three     exhibits

referencing several unadjudicated offenses.

                   FACTUAL AND PROCEDURAL BACKGROUND

      On May 24, 1993, Highway Patrolmen Teer and Hooper observed

Tutt driving with only one headlight.                They stopped him and,

according to the officers’ testimony at trial, observed that he was

not steady on his feet, had to lean on the car for support, had a

strong odor of alcohol about his person, and had glassy eyes.                    One

of the officers performed a field sobriety test on Tutt, and he

performed poorly. Tutt refused to take a breathalyzer test and the

officers   arrested      him    for   DWI.     Subsequently,    a    Texas      jury

convicted Tutt of the DWI.            During the sentencing phase of the

bifurcated trial, it was shown that Tutt had two prior felony

convictions in Texas, and the jury assessed his sentence at thirty-

five years’ imprisonment.

      1
     The felony offense of driving while intoxicated was defined
at the time as the offense of driving while intoxicated, where it
has been shown at trial “that the person has previously been
convicted two or more times” of misdemeanor driving while
intoxicated. Tex. Rev. Civ. St. Ann. art. 6701l-1(e)(Vernon
1993) (repealed 1995).

                                        2
     An intermediate appellate court affirmed Tutt’s conviction and

sentence on direct appeal.    The Texas Court of Criminal Appeals

refused a petition for discretionary review, and later denied a

state habeas application filed by Tutt.     Tutt then filed this 28

U.S.C. § 2254 petition, raising a number of issues, including but

not limited to ineffective assistance of counsel.      A magistrate

judge issued a report recommending that Tutt’s petition be denied

on the merits and the district court adopted the magistrate judge’s

recommendation over Tutt’s objections.    Tutt filed a timely notice

of appeal and requested a COA, which the district court denied.   As

previously stated, on appeal, this Court granted the COA with

respect to his two ineffective assistance of counsel claims.

                             DISCUSSION

     Tutt’s claims are reviewed de novo because there has not been

a clear adjudication on the merits in state court. See 28 U.S.C. §

2254(d); Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).

Although Tutt raised both of his claims on direct appeal, the state

appellate court applied state law standards and did not adjudicate

the claims as federal constitutional questions.    Tutt also raised

the claims in his state habeas application, but in the face of the

state’s assertion of procedural bar the Texas Court of Criminal

Appeals denied the application without written order.

     To establish ineffective assistance of counsel, Tutt must

show: first, that his counsel’s performance was deficient, and


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second, that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984).      In   determining    whether    counsel’s     performance    was

deficient, the relevant inquiry is whether counsel’s assistance was

reasonable   considering   all     the   circumstances.      Id.    at   688.

Judicial scrutiny of counsel’s performance is highly deferential:

“the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

trial strategy.’”    Id. at 689.    Under the second, prejudice, prong

of Strickland, “the defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.”           Id. at 694.

I.   Failure to Play the Audiotape.

     Tutt claims that counsel was ineffective because counsel

failed to play an audiotape that could have been used to impeach

the trial testimony of Officers Teer and Hooper. According to Tutt,

at his parole revocation hearing, Officer Hooper testified that he

administered the field sobriety test.       But both officers testified

at trial that Officer Teer administered the test.                  At trial,

defense counsel offered the tape of the parole revocation hearing.

The trial court ruled the tape was admissible for the limited

purpose of impeaching Officer Teer’s testimony and granted a recess

for defense counsel to find the proper part of the tape.           But after




                                     4
the recess, defense counsel withdrew his request to play the tape

without articulating a reason for doing so.

     Tutt contends that the arresting officers’ testimony, if

impeached,   would   have   been   inadmissible   under   Texas   Rule   of

Criminal Evidence 612.      According to Tutt, Rule 612 provides that

if it is proven that a witness has made a prior inconsistent

statement, the entire testimony of the witness is inadmissible.

But Tutt mischaracterizes Rule 612: that rule does not now, and did

not at the time of Tutt’s trial, state that a witness’ trial

testimony is inadmissible if it is shown that the witness made an

inconsistent statement in the past.       See Tex. R. Crim. Evid. 612

(repealed 1998).2    The rule states merely that a witness must be

informed about the circumstances surrounding a prior inconsistent

statement and given an opportunity to explain or deny it before

further cross-examination may take place.         Id.

     Nonetheless, if Tutt’s allegations concerning the audiotape

are accepted as true, and even were we to accept Tutt’s claim that

counsel was deficient, Tutt has not shown prejudice because the

question of who performed the test was not a critical matter.            As

noted by the district court, “[i]f the jury concluded the officers

were deliberately lying about who performed the test, it might have

looked upon the remainder of the officers’ testimony with greater



     2
      The substance of Tex. R. Crim. Evid. 612 is now found at
Tex. R. Evid. 613.

                                     5
skepticism.     However, the jury could as easily [have] concluded

that the officers simply failed to correctly remember who performed

the test.”     Also, there was other evidence at trial of Tutt’s

intoxication: a videotape of Tutt’s condition approximately one

hour after his arrest was admitted into evidence and played for the

jury.      Thus,   it   cannot   be    said   that   there   is   a    reasonable

probability    that,    but   for     his   counsel’s   failure       to   use   the

audiotape as impeachment evidence, the result of Tutt’s trial would

have been different.       Accordingly, the district court did not err

in concluding that Tutt had not shown the requisite prejudice and

we AFFIRM the holding of the district court with respect to the

playing of the tape.

II.   Failure to object to the introduction of evidence of
      unadjudicated arrests at Tutt’s sentencing

      During the punishment phase of Tutt’s trial, the prosecution

introduced three exhibits that detailed Tutt’s arrest record and

criminal    history.    One of the exhibits, an arrest record from the

Nacogdoches Police Department, contained a large number of entries,

listing various felonies and misdemeanors for which Tutt had been

arrested.     Of those entries, seventeen referred to unadjudicated

offenses, including a 1978 arrest for rape of a child, and                 several

arrests for minor burglary, theft, assault, and alcohol and drug-

related offenses.       Another exhibit referenced nine unadjudicated




                                        6
offenses.     Because he had at least two prior felony convictions,3

Tutt’s sentencing range under Texas law was from twenty-five to

ninety-nine     years’   imprisonment.        Tex.   Pen.     Code   Ann.   §

12.42(d)(Vernon 1994); Rodriguez v. State, 31 S.W. 3d 359, 362

(Tex. Ct. App. 2000).      Tutt claims that the introduction of the

unadjudicated offenses resulted in an increase in his sentence from

the twenty-five year minimum to thirty-five years. Thus, he argues

that his counsel’s failure to object to the introduction of these

offenses amounts to ineffective assistance of counsel.

     At the time of Tutt’s sentencing, Texas law provided that

unadjudicated offenses were not admissible for sentencing purposes.

See Grunsfeld v. State, 843 S.W.2d 521, 523-26 (Tex. Crim. App.

1992)(prohibiting    the   admission     of   evidence   of   unadjudicated

extraneous offenses during the punishment phase of a noncapital

trial.); Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon

1981).4   And under Fifth Circuit precedent, failure to object to

the admission of unadjudicated offenses constitutes a deficiency



     3
      According to the state, Tutt had ten prior misdemeanor
convictions and two felony convictions: one for delivery of a
controlled substance, and one for burglary.
     4
       On September 1, 1993, Article 37.07 was amended to allow
the admission of such evidence during the punishment phase of a
noncapital trial. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a) (Vernon Supp. 2001); Brown v. State, 6 S.W.3d 571, 583
(Tex. App. 1999). The amendment, however, applies only to
offenses committed on or after September 1, 1993. Brown,
6 S.W.3d at 583. Because Tutt’s DWI occurred on May 24, 1993,
the amendment to Article 37.07 did not apply in his case.

                                   7
for purposes of the first Strickland step. See Spriggs v. Collins,

993 F.2d 85, 89-90 (5th Cir. 1993).

      Tutt has also shown prejudice, as required by Strickland.          In

Glover v. United States, 531 U.S. 198, 121 S.Ct. 198 (2001), the

Supreme Court noted that “authority does not suggest that a minimal

amount of additional time in prison cannot constitute prejudice.

Quite to the contrary, our jurisprudence suggests that any amount

of actual jail time has Sixth Amendment significance.” Id. at 203.

Thus, the Court held that in a determinate sentencing system such

as the U.S. Sentencing Guidelines even a minimal increase in a

sentence could constitute prejudice.         Id. at 204.     The Court did

not   address   the   issue   of   whether   its   decision    applied   to

discretionary sentencing schemes, signaling only the possibility of

a distinction between discretionary and determinate sentencing

systems for purposes of determining prejudice.         Id.

      Texas has a discretionary, not determinate, sentencing scheme,

so it is not clear whether the rule in Glover applies to this case.

Before the Court’s decision in Glover the controlling decision

regarding prejudice in Texas’ sentencing scheme was Spriggs v.

Collins, 993 F.2d 85 (5th Cir. 1993).         In that case, this Court

noted that “[a]rguably, when the discretionary sentencing range is

great, practically any error committed by counsel could have

resulted in a harsher sentence, even if only by a year or two.”

Id. at 88.      Thus, we held that “[i]n order to avoid turning

                                     8
Strickland into an automatic rule of reversal in the non-capital

sentencing context, we believe that in deciding an ineffectiveness

claim, a    court    must    determine       whether   there    is     a   reasonable

probability that but for trial counsel’s errors the defendant’s

non-capital sentence would have been significantly less harsh.”

Id.    In that case, defendant had pled guilty to first-degree

murder. His sentencing range was five to ninety-nine years, and he

was sentenced to thirty-five years’ imprisonment.                     We found that

the defendant had not made an adequate showing of prejudice,

despite his attorney’s failure to object to the introduction of

unadjudicated       extraneous     offenses       through       the        presentence

investigation report (PSI), because the objectionable portion of

the PSI    was   short,     and   because     there    were    other       aggravating

factors, such as the senseless nature of defendant’s crime, that

properly influenced the court at sentencing.

      It is not necessary to decide in this case whether the lower

standard of Glover applies to a determination of prejudice in the

Texas sentencing system because Tutt has satisfied the higher

standard of Spriggs.        Tutt’s thirty-five year sentence is on the

low end of his sentencing range, and his prior convictions may have

been considered by the jury in determining his sentence.                     However,

the large number of unadjudicated offenses that were introduced at

Tutt’s sentencing hearing, combined with the inflammatory nature of

some of those offenses (such as rape of a minor child), are very


                                         9
likely to have influenced the jury at sentencing for Tutt’s offense

at trial, driving while intoxicated.          Thus, there is a reasonable

probability that but for trial counsel’s errors Tutt’s sentence

would have been significantly less harsh.

       Accordingly, while we agree with the district court’s holding

with regard to the question of counsel’s decision not to play the

tape   of   Tutt’s   probation   revocation    hearing,   we   REVERSE   the

district court’s judgment with regard to the question of counsel’s

decision not to object to the unadjudicated offenses.          The case is

REMANDED with instructions to issue the writ of habeas corpus

unless, within a reasonable time to be designated by the district

court, the state conducts a retrial of the sentencing stage of the

proceedings against Tutt.        Tutt’s motion to have this opinion

published is DENIED.

       The judgment of the District Court is REVERSED and the case is

REMANDED with instructions.




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