           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                       NO. WR–86,364–01 AND WR–86,364–02



                 EX PARTE EDWARD LOUIS THOMAS, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                        FROM HARRIS COUNTY



      K EEL, J., delivered the opinion of the Court in which K ELLER, P.J., and
K EASLER, H ERVEY, R ICHARDSON, Y EARY, N EWELL, and W ALKER, JJ., joined.
A LCALA, J., concurred.


                                      OPINION

       A jury found Applicant guilty of two counts of aggravated assault against a public

servant, and the trial judge sentenced him to concurrent terms of 40 and 35 years’

imprisonment. His convictions were affirmed on appeal. Thomas v. State, Nos. 14-09-

00592-CR & 14-09-00593-CR, 2010 Tex. App. LEXIS 6207 (Tex. App. Houston [14th

Dist.] August 3, 2010, pet. ref’d) (mem. op., not designated for publication). The habeas

judge, who did not preside over the trial, recommended that relief be denied. We agree
                                                                              Thomas–Page 2

and deny relief.

                                       Background

       According to the State’s evidence, Houston Police Department detectives Tim

Butler and Michael Hamby, who were dressed in plainclothes, took a lunch break at the

Asian City restaurant in Humble. Returning to their unmarked car they found Applicant

in their driver’s seat with the door open and another car backed into the space next to

theirs. The drivers’ doors of the cars were next to one another, and the second car’s

engine was idling.

       The officers drew their weapons, verbally identified themselves as police officers

and ordered Applicant to get out of the car and on the ground. He instead slid into the car

next to theirs, revved its engine and lurched forward, clipping Hamby’s right leg; then he

veered left toward Butler, throwing him onto the hood of his car. Butler fired at

Applicant through the front windshield and fell off the car. Applicant then drove toward

Hamby who fired at Applicant until the car drove over a curb and stopped in the bushes.

Applicant got out of the car and dropped to a knee as the officers continued ordering him

to the ground. He stood up, asked for an ambulance and reached under his shirt,

prompting Butler to shoot at him several more times.

       The defense theory was that Hamby and Butler shot Applicant out of anger for

burglarizing their car, and they concocted the story that he tried to run over them in order

to justify shooting him. Part of the trial strategy was to show a conspiracy between the
                                                                              Thomas–Page 3

Houston and Humble police departments. The defense relied on, among other things,

physical evidence, 911 call records, and the scene video to contradict the officers’ version

of events and support the defense theory.

                 Ineffective Assistance of Counsel: Standard of Review

       In order to prevail on a claim of ineffective assistance of counsel, a defendant must

show that his attorney’s performance was deficient and that his defense was prejudiced.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

       Deficient performance means “errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. A reviewing

court must apply a strong presumption that counsel’s representation was within the wide

range of reasonable professional assistance. Id. at 689. “The question is whether an

attorney’s representation amounted to incompetence under ‘prevailing professional

norms,’ not whether it deviated from best practices or most common custom.”

Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citing Strickland, 466 U.S. at 690).

That evaluation “calls for an inquiry into the objective reasonableness of counsel’s

performance, not counsel’s subjective state of mind.” Richter, 131 S.Ct. at 790. It

depends on the totality of counsel’s representation and the facts of the particular case at

the time of the trial, not hindsight. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim.

App. 2011) (citing Strickland, 466 U.S. at 690).

       To demonstrate prejudice from an attorney’s deficient performance, the defendant
                                                                               Thomas–Page 4

must show a reasonable probability that the jury’s decision would have been different

absent counsel’s errors. Strickland, 466 U.S. at 694. In the context of guilt-phase errors,

that means “a reasonable probability that, absent the errors, the factfinder would have had

a reasonable doubt respecting guilt.” Id. at 695. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome” and requires a review of

the totality of the evidence. Id. at 694-95. “The likelihood of a different result must be

substantial, not just conceivable.” Richter, 131 S.Ct. at 792.

       Applicant argues that Strickland’s prejudice standard does not require a reasonable

probability that, but for counsel’s errors, the defendant would have been acquitted. He

claims that “the issue is whether he received a fair trial that produced a verdict worthy of

confidence.” The “worthy of confidence” language, however, informs the “reasonable

probability” aspect of the prejudice inquiry, not the “different result” question. See, e.g.,

Hinton v. Alabama, 571 U.S. 263, ___, 134 S.Ct. 1081, 1089 (2014) (per curiam)

(prejudice question in the context of guilt-phase attorney error “is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.”) (quoting Strickland, 466 U.S. at 695).

       As detailed below, although the attorney made some mistakes, his deficiencies did

not prejudice the trial’s outcome, and Applicant’s ineffective assistance claim fails

Strickland’s two-prong test. Strickland.

                            Deficient Performance Allegations
                                                                               Thomas–Page 5

        Applicant claims his attorney was deficient in the guilt phase by: failing to object

to, opening the door to or eliciting certain testimony, and failing to object to closing

argument that was outside the record.

1. Failure to Object to Testimony

        Applicant cites four instances in which his attorney failed to object to testimony:

(a) Butler’s opinion that Applicant knew that he and Hamby were police officers; (b)

crime scene officer Domingo Villarreal’s opinion that Hamby’s prints on the hood of

Applicant’s car showed he was “getting out of the way, as he said he did”; (c) testimony

that a grand jury no-billed and internal affairs cleared Butler and Hamby; and (d)

testimony that neither Butler nor Hamby had previously fired his weapon in the line of

duty.

        In order to prevail on these claims, Applicant must show that the trial judge would

have erred in overruling objections to the evidence. Ex parte White, 160 S.W.3d 46, 53

(Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

A trial court’s decision about admitting evidence is reviewed for an abuse of discretion

and will constitute error only if the decision lies outside the zone of reasonable

disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

a. Butler’s opinion

        Applicant claims that his attorney was deficient for failing to object to Butler’s

testimony that Applicant knew that he and Hamby were police officers based on the
                                                                              Thomas–Page 6

things in their car, i.e., floor-mounted police radio, “Sam Brown” bearing asp baton and

can of mace, and bag of police gear containing handcuffs, holsters, magazines and hand-

held radio. The officers had left these items under a jacket on the floor of the backseat

before lunch but afterward found them on the front passenger seat.

       Applicant cites two cases to support his argument that Butler’s opinion was

inadmissible. They are Witty v. State, 203 S.W.2d 212, 220 (Tex. Crim. App. 1947)

(commission op.) (witness’s opinion generally inadmissible to interpret meaning of

another’s acts, conduct or language), and Frank v. State, 49 S.W2d 759, 760 (Tex. Crim.

App. 1932) (police officer should have testified to what suspect said or did instead of

concluding that he faked an injury). Notwithstanding these authorities, a fact witness’s

opinion testimony is admissible if it is (a) rationally based on his perception and (b)

helpful to a clear understanding of his testimony or the determination of a fact in issue.

T EX. R. E VID. 701; Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002).

       Butler’s opinion was rationally based on his perceptions about the car’s contents,

and it was helpful to a determination of Applicant’s state of mind, a disputed issue in the

case. The trial court would not have erred in overruling an objection to this testimony,

and the defense attorney was not deficient for failing to object to it.

b. Villarreal’s opinion

       Domingo Villarreal, a crime scene officer for the Humble Police Department,

testified about identifying Hamby’s print on the hood of Applicant’s car:
                                                                               Thomas–Page 7

       Officer Hamby put his left hand on that front of that car, with movement,
       and at that point getting out of the way, as he said he did, to be able to leave
       me that impression on there and identify that it was his.

Applicant characterizes this testimony as an inadmissible opinion that Hamby was telling

the truth. In support of his argument he cites Schutz v. State, a case of aggravated sexual

assault of a child in which this Court held that expert testimony that “constitutes ‘a direct

opinion on the truthfulness’ of a child complainant’s allegations” does not assist the jury,

and is inadmissible. 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Applicant also relies on

In re G.M.P., 909 S.W.2d 198, 205-06 (Tex. App. — Houston [14th Dist.] 1995, no writ),

and Black v. State, 634 S.W.2d 356, 357-58 (Tex. App. — Dallas 1982, no pet.), which

held that a witness’s belief that the complainant was telling the truth about sexual assault

allegations was inadmissible.

       Unlike the witnesses in the cases that Applicant cites, Villarreal did not offer a

direct opinion about Hamby’s truthfulness; he testified about his observations of the

physical evidence. His testimony that the prints showed that Hamby got out of the way

“as he said he did” was a shorthand rendition of the significance of the physical evidence.

The trial court would not have erred in overruling an objection to this testimony, and the

attorney’s failure to object was not deficient performance.

c. Grand jury and internal affairs actions

       Hamby, Butler and Keith Webb, an investigator for the district attorney’s office,

testified that the two officers were no-billed by a grand jury. Hamby also testified that
                                                                               Thomas–Page 8

they were cleared in an internal affairs investigation.

       Applicant claims that the testimony about the no-bills was irrelevant because the

same DA’s office that presented the cases to the grand jury also prosecuted Applicant, a

situation that he deems a conflict of interest. To the extent that there was a conflict of

interest, it would not render the evidence irrelevant.

       Applicant points out the attorney’s habeas hearing testimony that, in hindsight, he

thought the evidence was inadmissible. But an attorney’s subjective opinion and

hindsight evaluation of his trial performance are irrelevant to an appellate review of an

IAC claim. Richter, 131 S.Ct. at 790. Applicant further argues that this evidence was

prejudicial because it likely led the jury to believe that an acquittal depended on finding

that the complainants acted unlawfully. But that risk was inherent to a defensive strategy

centered on persuading the jury that the shooting was unjustified, and Applicant does not

claim that strategy was unreasonable.

       While the State argues that the decision not to object to this testimony supported

the over-arching defensive theory of collusion and cover-up, Applicant asserts that no

competent lawyer would try to persuade a jury that a grand jury was involved in covering

up a bad police shooting. We are skeptical of this bare assertion.1 We agree with the


       1
         See, e.g., Missouri police prepare for riots as they await grand jury decision over
whether to charge officer Darren Wilson in the shooting death of Michael Brown, DAILY MAIL
(24 Oct. 2014, 9:52 EDT), http://www.dailymail.co.uk/news/article-2806561; Twila Decker,
Violence Returns To St. Pete Streets: Gunfire Wounded Two Police Officers After A Grand Jury
Cleared Another Officer In The Killing Of A Black Motorist, ORLANDO SENTINEL (Nov. 14,
1996), http://articles.orlandosentinel.com/1996-11-14/news/9611140167_1_police-officer-grand-
                                                                                Thomas–Page 9

State that this testimony supported the defensive strategy, and we will not second-guess

the attorney’s decision not to object to it. See Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009).

d. Hamby and Butler had never before fired their guns in the line of duty

       Applicant argues that this evidence was inadmissible for three reasons. First he

claims it was irrelevant. But the trial court would not have erred in finding it relevant to

show that the complainants were in fear of injury when the car came at them, a fact issue

under the indictment. Applicant next asserts that this testimony was inadmissible

bolstering. Since it had relevance apart from any tendency to suggest the complainants

were credible, however, it was not bolstering. Cohn v. State, 849 S.W.2d 817, 819-20

(Tex. Crim. App. 1993). Lastly he points out that if the officers had previously fired their

weapons on the job, such testimony would have been inadmissible under Rule of

Evidence 608(b). That rule prohibits the introduction of “extrinsic evidence to prove

specific instances of the witness’s conduct in order to attack or support the witness’s

character for truthfulness.” The fact that Hamby and Butler had never before fired their

guns in the line of duty is not extrinsic evidence of specific instances of their conduct that




jury-riot; J. David Goodman and Al Baker, Wave of Protests After Grand Jury Doesn’t Indict
Officer in Eric Garner Chokehold Case, N.Y. TIMES (Dec. 3, 2014),
http://www.nytimes.com/2014/12/04/nyregion/grand-jury-said-to-bring-no-charges-in-staten-
island-chokehold-death-of-eric-garner.html; Allie Gross, California Becomes First State to Ban
Grand Juries in Police Shooting Cases, MOTHER JONES (Aug. 13, 2015, 10:00AM),
https://www.motherjones.com/politics/2015/08/california-becomes-first-state-ban-grand-juries-
police-shooting-cases/.
                                                                            Thomas–Page 10

support or attack their character for truthfulness. Thus, Rule 608(b) is inapplicable.

       Applicant has not shown that the trial court would have erred in overruling an

objection to this testimony, so he has not demonstrated that his attorney acted deficiently

in failing to object to it.

2. Elicitation of Opinion Testimony

       Applicant complains about his attorney’s elicitation of testimony from (a) Andrea

Szabo that she thought this was a “rightful shooting,” (b) detective Victor Gonzales that

he “talked to Villarreal, and the evidence he obtained from the hood of the vehicle, it’s

pretty obvious” that Applicant tried to run over the complainants and (c) Hamby that he

had no doubt that Applicant knew that he was a police officer though he was not in

uniform.

a. Szabo

       Szabo testified on direct that she and her mother, Billie Stubblefield, were pulling

into the parking lot of Asian City when Szabo saw two officers facing a vehicle with their

weapons drawn. The car went toward one officer. It seemed to her that the officers were

in danger from the car. Szabo put some distance between her own car and “everything”

that was going on in the Asian City parking lot, heard gunfire and saw the car go into the

bushes. She saw one officer on a cell phone and the other pointing his gun at a man on

the ground. The officer with the gun was telling the man not to move, but the man kept

getting up, and there was more gunfire.
                                                                               Thomas–Page 11

       On cross-examination the defense attorney impeached her with prior inconsistent

statements and established that she:

       – did not immediately know that the two men with guns were police officers;

       – told defense investigator Rudy Vargas that she heard a gunshot before she saw a
       gunshot;

       – did not know the circumstances surrounding the first gunshot;

       – did not remember while testifying whether she heard or saw gunfire first;

       – did hear a gunshot before she saw a gunshot;

       – is friendly with police officers; and

       – never saw Applicant on his knees.

The attorney also asked her if she thought it was a rightful shooting, and she answered

yes.

       The State points out that the attorney asked for Szabo’s opinion only after

impeaching her and argues that this context suggests that the attorney was executing a

trial strategy in asking her opinion about the shooting. But the State does not identify the

strategy the attorney was supposedly carrying out at that point, and though the cross-

examination damaged Szabo’s credibility, her opinion still undermined the defensive

theory that the shooting was unjustified. The attorney erred to elicit the opinion, but as

detailed below, the ineffective assistance claim still fails for lack of prejudice.

b. Hamby

       On direct examination, Hamby testified that Applicant tried to run over “two
                                                                             Thomas–Page 12

police officers.” The defense attorney cross-examined him about whether the jacket he

was wearing covered his badge. Hamby insisted the badge was visible in spite of the

jacket but conceded that a uniformed officer’s badge “would stand out a little better[.]”

The attorney then asked, “And there’s no doubt in your mind that the defendant knew you

were a police officer, even though you were wearing that jacket, which was a Marine

Corps jacket?” Hamby answered, “No doubt in my mind.”

       Applicant argues that Hamby’s opinion about his state of mind was inadmissible,

and he points out that the attorney conceded as much at the habeas hearing. But Hamby’s

opinion was admissible for the same reasons that Butler’s was: It was rationally based on

his perception and helpful to determining a fact in issue. T EX. R. E VID. 701. The trial

court would not have erred in overruling an objection to it, and the attorney’s elicitation

of it will not support a claim of ineffective assistance of counsel.

c. Gonzales

       The defense called as a witness Victor Gonzales, a Humble Police Department

detective, and asked him whether a video camera across the street captured “what

happened at the Asian City.” Gonzales answered non-responsively,

       The only thing the video contained was when myself and Detective Miller
       made the approach to the location, and it just captures an overall but it
       didn’t capture any of the shooting or when your client attempted to run over
       the officers.

Instead of objecting, however, the attorney asked Gonzales how he knew that Applicant

tried to run over the officers, and Gonzales answered, “I talked to Detective Villarreal,
                                                                             Thomas–Page 13

and the evidence that he obtained from the hood of the vehicle, it’s pretty obvious.”

Gonzales’s answer was objectionable because he lacked personal knowledge. Assuming

that counsel should have objected, we address prejudice later in this opinion.

3. Opening the Door to Evidence of Guns in Applicant’s Car and Failing to Object
to Testimony that the Guns Were Stolen

       The attorney asked Hamby if Applicant had a weapon on him when he was

arrested. Hamby answered, “Not on his person.” The attorney then asked, “No weapons,

right?” The prosecution argued that this question opened the door to testimony that there

were guns in Applicant’s car. The trial court agreed, reasoning that it left “a false

impression with the jury that this man was completely unarmed[.]” Consequently, Officer

Villarreal testified that he found a loaded Glock hidden behind the glove compartment, a

loaded magazine under the armrest and a loaded nine-millimeter pistol hidden in the car.

He added, without defense objection, that the guns were reported stolen from a car

burglarized five days earlier.

       Applicant claims that his attorney had no sound strategic reason to ask Hamby

about Applicant’s lack of a weapon on his person because in the absence of such

testimony, “the jury would assume that he was unarmed[.]” But the lack of weapons on

Applicant’s person supported the defensive theory that the shooting was unjustified, and

that question did not, in the trial court’s judgment, open the door to the evidence about the

guns in the car. The further question, however, “No guns, right?” did. Since the salient

point had already been made about the lack of guns on Applicant’s person, the additional
                                                                             Thomas–Page 14

question was unnecessary.

       The State argues that the testimony about guns in Applicant’s car was admissible

to show Applicant’s motive: He was a convicted felon who would have been subject to

prosecution for felon in possession of a firearm, and this explained his desperate effort to

flee the scene of the burglary. We agree that the trial court would not have abused its

discretion in admitting the evidence of the guns on that basis. As for the stolen nature of

the guns, however, counsel could have objected to the non-responsive testimony.

Assuming that his failure to do so was deficient performance, we address prejudice later

in this opinion.

4. Failure to Object to Argument Outside the Record

       The prosecutor argued in closing that Applicant’s car could not have gotten over

the curb while idling:

       It’s just not going to happen. I also drive a four cylinder car and I’m telling
       you, not going to happen. Your common sense tells you that engine was
       revved and that’s how it had enough momentum to end up in those bushes.

       Trial counsel testified at the habeas hearing that he did not think it was necessary

to object to this argument because he had presented the car’s black box evidence which

did not show any acceleration or impact. His failure to object to this innocuous outside-

the-record remark was not deficient performance.

                                   Prejudice Evaluation

       The trial attorney arguably performed deficiently in three ways: eliciting Szabo’s
                                                                                  Thomas–Page 15

opinion that this was a rightful shooting, eliciting Gonzales’ testimony that it was obvious

from what Villarreal said that Applicant had tried to run over the complainants, and

failing to object to testimony that the guns in the car were stolen. Assessing these errors

in light of the entire record, we cannot say that there is a reasonable probability that in

their absence, the jury would have acquitted Applicant.

       Szabo suffered a harsh cross examination; her opinion about the rightfulness of the

shooting likely carried little weight with the jury. Gonzales’ testimony based on what

Villarreal said added nothing new to the evidence; the jury heard from Villarreal directly.

As for the testimony that the guns in Applicant’s car were reported stolen, it did not

introduce an unsavory aspect to the case that was not already apparent from other,

unobjectionable evidence.2

       The attorney made mistakes, but error-free counsel is not required. Frangias v.

State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). Furthermore, “it is difficult to

establish ineffective assistance when counsel’s overall performance indicates active and

capable advocacy.” Richter, 131 S.Ct. at 791. The attorney’s overall performance in this

case demonstrated such advocacy in the presentation of evidence3 and his closing

       2
         Before he burglarized the officers’ car, Applicant burglarized another car in the same
parking lot. The owner of that car found its window smashed open and her briefcase in the car
that “was stopped in front of the restaurant halfway in some bushes, like it had ran up the curb[.]”
Applicant’s car also contained an assortment of tools, each of which had a broken or bent tip
“which is consistent with it being used as a tool to pry an item[.]”
       3
          The defense attorney developed the following evidence: eyewitness Yong Mavis’ 911
call asking why they shot Applicant; Szabo’s bias and inconsistencies; Stubblefield’s failure to
see Applicant’s car move; the failure of Hamby’s 911 call to capture the complainants’ demands
                                                                                  Thomas–Page 16

argument.4

                                        CONCLUSION

       Viewing the totality of the record, we cannot say that counsel’s errors were so

serious that he was not functioning as the counsel guaranteed by the Constitution or that

there is a reasonable probability that Applicant would have been acquitted in their

absence. Strickland, 466 U.S. at 687. Applicant fails to meet both prongs of Strickland.5

Relief is denied.




Delivered: June 20, 2018

Do Not Publish




that Applicant get on the ground; the DA investigator’s opinions that the shooter was standing in
front of the vehicle instead of lying on its hood when he fired; Butler’s ability to walk on-scene
in spite of his claim that he had just been hit by a car; the on-scene statement by an unidentified
officer that “he” shot Applicant’s “ass while he was laying on the ground.”
       4
          The attorney emphasized his theory of the case, “Corruption, conspiracy, cover-up, it’s
like an equation. That equals reasonable doubt.” Based on the scene video he argued that the
hand print on the hood of the car was placed there after the fact, Butler was not actually injured
because he was “walking around with no limp,” and the police were “out there trying to figure
out what they going to say about this guy shooting this guy while he was laying face down on the
concrete.” He reminded the jury of the bullet trajectories and suggested “that Butler walked up to
that car and started shooting. [Applicant] wasn’t getting out of there alive.”
       5
          Applicant’s brief offers editorial comment about the trial attorney and speculates about
why the habeas judge signed the findings she did. This commentary and speculation shed no
light on the validity of his IAC claims. Consequently, we do not consider them.
