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

                                                 FILED
                                                                            April 28, 2011

                                       No. 09-20581                         Lyle W. Cayce
                                                                                 Clerk

LEXTER K KOSSIE,

                                                   Petitioner – Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                   Respondent – Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:99-cv-00270


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Lexter K. Kossie, Texas prisoner # 700661, was convicted in state court of
aggravated robbery and sentenced to life in prison. At trial, Kossie’s request to
instruct the jury on the lesser-included offense of theft was denied. Kossie’s
appellate counsel failed to challenge this denial on direct appeal. Kossie filed
state and federal habeas petitions with several claims, which were denied. We
granted a certificate of appealability on the issue of whether Kossie’s appellate


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                       No. 09-20581

counsel was ineffective for failing to appeal the lesser-included offense
instruction. We find that Kossie was entitled to have theft included in the jury
charge, but because Kossie cannot show that the state court’s failure to find
prejudice was unreasonable, we AFFIRM the denial of habeas relief.
                                              I.
       In November 1994, a jury convicted Kossie of robbing a Burger King
restaurant at gun point. At trial, the cashier on duty testified that Kossie
entered the restaurant around 10 p.m. and asked for the price of a fish sandwich.
Kossie ordered the sandwich and placed a handful of change on the counter.
Discovering he did not have enough money, Kossie told the cashier to open the
register. At first, the cashier thought Kossie was joking, but then he allegedly
opened his jacket to reveal the handle of a handgun sticking out of his pants.
The cashier testified that when she saw the gun, she held up her hands and
backed away. Kossie reached over the counter, grabbed about $175 out of the
register, and left.
       At the time of the robbery, another Burger King employee was on break
eating in the restaurant. She saw Kossie enter the restaurant and was the only
witness to identify Kossie in a photo spread. This co-worker testified that she
did not see Kossie display a weapon because his back was to her during the
robbery, but she claimed the cashier looked afraid. At trial, the co-worker
repeatedly asserted that Kossie was in the restaurant for about ten minutes,
talking with the cashier for several minutes before reaching into the register.
However, the co-worker’s earlier statement to the police suggested the robbery
took place about a minute after Kossie arrived.1


       1
         The state record includes testimony from a court clerk who saw a man from the
courtroom speaking to the co-worker after she gave her testimony. The man told the co-
worker she should have testified that Kossie was only in the restaurant one minute before the
robbery, not ten minutes. It is not clear who the man was, and the co-worker was not recalled.
Kossie’s trial counsel moved for a mistrial, which was denied.

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                                      No. 09-20581

       Kossie testified in his own defense. He stated that he had met the cashier
in a local park about two months before the robbery. They were friends and he
often saw her at the Burger King. Kossie testified that on the night of the
robbery he talked to the cashier and asked her for money but never threatened
her. He testified that he did not have a gun with him nor did police recover a
weapon when they arrested him later that night. Kossie claimed the cashier
willingly opened the register drawer for him and was a party to any theft that
took place. Further, before the trial, Kossie had mailed a letter to the cashier’s
home address, in which Kossie urged the cashier to tell the truth and admit that
she was a party to the crime.2 The State offered a copy of this letter as evidence
at trial.3
       Kossie’s defense was that he participated in a joint theft with the cashier
but did not commit aggravated robbery. At closing arguments, defense counsel
acknowledged, “this is simple theft. This is a misdemeanor theft.” Kossie
himself admitted on the witness stand that he had taken money from the
register. He denied having a weapon and denied intimidating the cashier. The
jury was instructed on both aggravated robbery and the lesser-included offense
of robbery, but not theft.       Kossie was convicted of aggravated robbery and
sentenced to life. Kossie appealed his conviction, but appellate counsel did not
challenge the trial court’s refusal to instruct the jury on theft.               The state
appellate court affirmed the conviction.
       Kossie filed numerous state habeas applications, including a claim of
ineffective assistance of appellate counsel, which was eventually denied on the


       2
        The State asserted that Kossie obtained the cashier’s home address from an earlier
hearing in which the cashier had stated her address on the record. The cashier denied
knowing Kossie.
       3
        At Kossie’s request, the defense did not object to the admission of the letter. Trial
counsel conducted voir dire of Kossie on the record and demonstrated that counsel had
informed Kossie they had grounds to exclude the letter.

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                                        No. 09-20581

merits without explanation by the Texas Court of Criminal Appeals.4 The
district court rejected Kossie’s 28 U.S.C. § 2254 habeas corpus petition, finding
his ineffective assistance claim meritless and other claims meritless or time
barred. This court granted a COA on the issue of whether Kossie’s appellate
counsel rendered ineffective assistance by failing to appeal the trial court’s
refusal to instruct the jury on theft.
                                              II.
       “In a habeas appeal, this court reviews the district court’s findings of fact
for clear error and its conclusions of law de novo, applying the same standards
to the state court’s decision as did the district court.”5              Kossie’s petition is
governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). We
may only grant relief if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts” in light of the state court record.6
       A state court’s decision is “contrary to” clearly established federal law “if
it relies on legal rules that directly conflict with prior holdings of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on
materially indistinguishable facts.”7 “A decision is an ‘unreasonable application’
of clearly established federal law if a state court ‘identifies the correct governing
legal principle from [the Supreme Court’s] decisions, but unreasonably applies




       4
           Ex parte Kossie, WR-10,978-14, 2008 WL 366681 (Tex. Crim. App. Feb. 6, 2008).
       5
           Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007).
       6
           28 U.S.C. § 2254(d).
       7
        Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004) (citing Williams v. Taylor, 529 U.S.
362, 405–06 (2000)).

                                              4
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                                         No. 09-20581

that principle to the facts of [a] prisoner’s case.’”8 In other words, a federal
habeas court has “no authority to grant habeas corpus relief simply because [it]
conclude[s], in [its] independent judgment, that a state supreme court’s
application of [clearly established federal law] is erroneous or incorrect.” 9
Rather, a federal habaes court may only grant relief if the state’s application of
federal law was unreasonable.10
                                               III.
       The principles of ineffective assistance of counsel were clearly established
by Strickland v. Washington11 at the time the Texas Court of Criminal Appeals
denied Kossie’s habeas claim in 2008.                 Further, it was established that a
criminal defendant is entitled to constitutionally effective assistance of counsel
on a direct appeal that is taken as of right.12                  To demonstrate ineffective
assistance of appellate counsel, Kossie must satisfy the requirements of
Strickland,13 by showing that appellate counsel’s performance fell below an
objective standard of reasonable competence and that Kossie was prejudiced by
counsel’s deficient performance.14             A failure to establish either deficient
performance or prejudice defeats the claim.




       8
       McAfee v. Thaler, 630 F.3d 383, 393 (5th Cir. 2011) (alterations in original) (quoting
Williams, 529 U.S. at 413).
       9
           Neal v. Puckett, 286 F.3d 230, 236 (5th Cir. 2002).
       10
            Williams, 529 U.S. at 411.
       11
            466 U.S. 668 (1984).
       12
            Evitts v. Lucey, 469 U.S. 387, 393–94 (1985).
       13
            466 U.S. at 689–94.
       14
            See Smith v. Robbins, 528 U.S. 259, 288–89 (2000).

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                                              No. 09-20581

                                                    A.
          In reviewing counsel’s performance, we must be “highly deferential,”
making every effort “to eliminate the distorting effects of hindsight,” and
“indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.”15 Acting under AEDPA, our review is
“doubly deferential” because we “take a highly deferential look at counsel’s
performance through the deferential lens of” AEDPA, requiring Kossie to
demonstrate that the state court’s denial of habeas was necessarily
unreasonable.16 An appellate attorney need not, and should not, raise every
nonfrivolous claim, but rather should “winnow out weaker arguments” to
maximize the likelihood of success on appeal.17 Although this reality makes it
“difficult to demonstrate that counsel was incompetent,” a prisoner may still
assert a Strickland claim based on counsel’s failure to raise a particular appeals
claim.18 The Supreme Court has quoted with approval the Seventh Circuit’s
standard that “[g]enerally, only when ignored issues are clearly stronger than
those presented, will the presumption of effective assistance of counsel be
overcome.”19
                                                    B.
          Kossie’s appellate attorney argued: (1) that the evidence was insufficient
to support the verdict because the state failed to prove that Kossie not only


          15
               Strickland, 466 U.S. at 689.
          16
        Cullen v. Pinholster, 131 S. Ct. 1388, 1403, 563 U.S. ___, ___ (2011) (internal citations
and quotation marks omitted).
          17
               Jones v. Barnes, 463 U.S. 745, 751–52 (1983); see also Robbins, 528 U.S. at 288 (citing
Jones).
          18
               Robbins, 528 U.S. at 288.
          19
        Id. (quoting Gray v. Greer, 800 F.3d 644, 646 (7th Cir. 1986)) (internal quotation
marks omitted).

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                                        No. 09-20581

exhibited but also used a deadly weapon, and (2) that Kossie’s trial attorney
rendered ineffective assistance by failing (a) to object to the state’s introduction
of the letter that Kossie had written to the cashier and (b) to file a motion in
limine, or to adequately object during trial, regarding the state’s use of Kossie’s
prior criminal record. Neither of these arguments presented a strong basis for
appeal.
       Kossie’s indictment stated that he “use[d] and exhibit[ed] a deadly
weapon” in the course of the robbery, while the evidence from trial only showed
Kossie “exhibited” a firearm.           However, Texas courts have long held that
conjunctive language in indictments may be proved in the disjunctive.20 The
cashier’s testimony allowed a jury to conclude that Kossie “exhibited” a firearm
and was sufficient evidence of aggravated robbery under Texas law.21 Appellate
counsel’s sufficiency of the evidence challenge had little chance of success.22
       Likewise, the ineffective assistance of counsel claims were also lacking.
Appellate counsel challenged trial counsel’s failure to object to the admission of
the letter Kossie wrote to the cashier, but the trial court record included voir dire
of Kossie, where he acknowledged that counsel told him they could prevent the

       20
           See Vaughn v. State, 634 S.W.2d 310, 312 (Tex. Crim. App. 1982) (affirming a
conviction for aggravated robbery when the indictment alleged the appellant did “threaten and
place” the complainant in fear of imminent bodily injury while the jury charge only required
the jury to find the appellant did “threaten or place” the complainant in fear of bodily injury);
see also Cowan v. State, 562 S.W.2d 236, 240 (Tex. Crim. App. 1978) (allowing substitution of
“or” for “and” in a rape charge); see generally Kitchens v. State, 823 S.W.2d 256, 258 (Tex.
Crim. App. 1991).
       21
        See TEX . PENAL CODE § 29.03(a)(2) (1993) (defining aggravated robbery as robbery in
which the assailant uses or exhibits a deadly weapon).
       22
         The standard of review makes this claim even weaker, especially when compared to
the standard for a lesser-included offense challenge. In a challenge to the sufficiency of the
evidence, the appellate court must “consider all of the evidence in the record in the light most
favorable to the jury’s verdict.” Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
By contrast, an appeal of the trial court’s refusal to include a theft charge requires just “more
than a scintilla of evidence” to demonstrate trial court error. Bignall v. State, 887 S.W.2d 21,
23 (Tex. Crim. App. 1994).

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letter from being admitted into evidence.              Kossie demanded the letter be
admitted because he thought it would further his case. Given trial counsel’s
efforts to ensure the explanation for allowing the letter into evidence was clearly
set forth on the record, this ineffective assistance claim was meritless. As for
Kossie’s prior criminal history, trial counsel filed two motions in limine and also
objected to the introduction of his criminal history at trial.23 Appellate counsel
simply needed to review the record to see that his ineffective assistance claims
were weak, if not frivolous.
                                             C.
       By contrast, the evidence supported a finding that the trial court erred by
failing to instruct the jury on theft. To be eligible for a lesser-included offense
instruction, the defense needed to show (1) that theft is a lesser offense included
within the proof necessary to establish the offense charged and (2) that there is
some evidence in the record that would permit the jury to find the defendant
guilty only of the lesser offense.24 The State does not challenge that theft is a
lesser-included offense of aggravated robbery.25 Rather, the State contends that
Kossie was not entitled to this instruction because no evidence exists for a
rational jury to have found Kossie guilty only of theft.
       To be entitled to a lesser-included offense charge, there needs to be
“[a]nything more than a scintilla of evidence” that would permit a rational jury
to find the defendant guilty only of theft.26 If any germane evidence exists, “it
does not matter whether the evidence is strong, weak, unimpeached, or


       23
         Kossie v. State, 1997 WL 109996, at *3 (Tex. App.—Houston [14th Dist.] Mar. 13,
1997, no writ) (unpublished).
       24
        See Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004); Royster v. State,
622 S.W.2d 442, 446 (Tex. Crim. App. 1981).
       25
            See Bignall, 887 S.W.2d at 23.
       26
            Id.

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                                         No. 09-20581

contradicted.”27         Moreover, even if the only evidence supporting the lesser-
included offense is the defendant’s testimony, that is sufficient to demand a
lesser-included offense instruction.28
       Here, Kossie testified that he left the Burger King with money from the
register, but he insisted that he did not threaten the cashier nor did he display
a weapon. He asserted that the cashier assisted him in the theft. In the letter
from Kossie admitted at trial, he also wrote that the cashier was a party to the
theft. If the jurors believed Kossie’s testimony, they could have found he was
only guilty of theft by working with the cashier to take money from the
restaurant without brandishing a weapon or threatening anyone.29 In other
words, “[f]rom the germane evidence positively admitted at trial . . . a rational
jury could find that a gun was not used or exhibited during the alleged robbery,
while nevertheless finding that Appellant was a party to the lesser included
offense” of theft.30 Accordingly, “the trial court’s failure to give the proffered
instruction was erroneous.” 31




       27
            Id. at 24.
       28
          See Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985); see also Williams v.
State, 314 S.W.3d 45, 51–53 (Tex. Crim. App. 2010) (finding that the defendant’s testimony
may have been “weak evidence,” but it was sufficient for a jury to conclude the defendant was
guilty of theft but not robbery, thus entitling the defendant to a lesser-included offense
instruction).
       29
         Compare TEX . PENAL CODE § 31.03(b)(2) (1993) (defining theft to include the knowing
appropriation of property that is stolen), with TEX . PENAL CODE § 29.03(a)(2) (1993) (defining
aggravated robbery as robbery in which the assailant uses or exhibits a deadly weapon), with
TEX . PEN AL CODE § 29.02(a)(2) (1993) (defining robbery as committing a theft in which the
defendant intentionally or knowingly threatens or places another in fear of imminent bodily
injury).
       30
            Bignall, 887 S.W.2d at 24.
       31
            Id.

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                                               D.
       Although Kossie’s trial counsel preserved the error, Kossie would only be
entitled to relief on appeal if the trial court’s error was not harmless.32 Under
Texas law, failure to instruct on a lesser-included offense causes harm when the
jury is faced with the dilemma of “whether to convict on the greater inclusive
offense about which it harbors a reasonable doubt, or to acquit a defendant it
does not believe to be wholly innocent.”33 Here, although the jury was not
instructed on theft, it was instructed on the intervening lesser-included offense
of robbery and still convicted Kossie of aggravated robbery. The jury’s failure to
convict for the lesser offense that was included in the jury charge “may, in
appropriate circumstances, render a failure to submit the requested lesser
offense harmless.”34 Because the jury had the robbery offense as an available
compromise, but elected to convict on the greater charge, the jurors may not
have found themselves in the dilemma of either convicting for aggravated
robbery when they had reasonable doubt or releasing a defendant they thought
was a wrongdoer. An intervening lesser offense does not automatically foreclose
harm, but “a court can conclude that the intervening offense instruction renders
the error harmless if the jury’s rejection of that offense indicates that the jury
legitimately believed that the defendant was guilty of the greater, charged
offense.” 35
       Thus, the issue here is whether the record creates a “realistic probability”
that the jury was in the above dilemma, leading it to convict of an offense when
it harbored reasonable doubt.              The harm of failing to include the theft


       32
            See Saunders v. State, 913 S.W.2d 564, 569 (Tex. Crim. App. 1995).
       33
            Id. at 573 (citing Beck v. Alabama, 447 U.S. 625 (1980)).
       34
            Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005).
       35
            Id. at 171–72.

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instruction “must be assayed in light of the entire jury charge, the state of the
evidence, including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the record
of the trial as a whole.” 36
      The prosecution submitted evidence showing that Kossie committed
aggravated robbery by displaying a gun. Kossie submitted evidence that he
committed only theft by taking money from the register with the cashier’s help.
Neither party argued that Kossie committed robbery by threatening the cashier
without showing a weapon. In fact, the evidence contradicts a robbery conviction
because the cashier testified that she thought Kossie was joking when he first
asked for money. She did not believe he was a serious threat until he displayed
the gun. It is conceivable that a jury could have found Kossie guilty of robbery,
assuming he threatened the cashier without a weapon because no gun was
recovered when he was arrested and several witnesses testified that the cashier
looked nervous, dazed, or scared after the event. However, the real decision for
the jury was whether Kossie committed theft with a gun (aggravated robbery)
or theft without a gun. In closing arguments, the defense counsel asserted that
Kossie was only guilty of theft, an option that was not available for the jury.
Therefore, the jury may have had to choose between convicting Kossie of
aggravated robbery, even if they had reasonable doubt, or acquitting a man they
believed was guilty of theft. An appellate court could conclude that Kossie was
harmed by the trial court’s failure to provide the theft instruction.
      Kossie’s appellate attorney did not need to raise every nonfrivolous claim,
but the trial court’s refusal to instruct the jury on theft was more meritorious
than all the claims actually raised by counsel. Appellate counsel’s failure to
appeal the refusal of theft instruction was not an exercise in winnowing out


      36
        Saunders, 913 S.W.2d at 574 (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984)) (internal quotation marks omitted).

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                                           No. 09-20581

weaker arguments, but rather counsel failed to appeal the most promising claim
in Kossie’s case, making his performance deficient.37
                                               IV.
       In addition to deficient performance, to prevail on his habeas claim, Kossie
must also show prejudice, which the Supreme Court has defined as “a reasonable
probability that, but for his counsel’s unreasonable failure . . . he would have
prevailed on his appeal.”38 “A reasonable probability is a probability sufficient
to undermine confidence in the outcome,”39 which requires a “‘substantial,’ not
just ‘conceivable,’ likelihood of a different result.”40 Moreover, under AEDPA, a
finding by this court that Kossie was prejudiced is not sufficient. Rather, to
grant relief, we must conclude that the state court’s determination that Kossie
was not prejudiced was objectively unreasonable.41
       If Kossie had effective counsel, he may have won his appeal. However, a
state court may instead have found that Kossie was not harmed by the failure
to instruct the jury on theft. The facts of the case support a conclusion that the
jurors were in a position of choosing between aggravated robbery with
reasonable doubt or acquitting because there was no theft charge. Yet the record



       37
            See Smith, 528 U.S. at 288.
       38
         Robbins, 528 U.S. at 285; see also Moreno v. Dretke, 450 F.3d 158, 168 (5th Cir. 2006)
(“When the petitioner challenges the performance of his appellate counsel, he must show that
with effective counsel, there was a reasonable probability that he would have won on appeal.”).
       39
            Strickland, 466 U.S. at 694.
       40
         Pinholster, 131 S. Ct. at 1403 (quoting Harrington v. Richter, 131 S. Ct. 770, 777, 562
U.S. ___, ___ (2011)).
       41
           See id. at 1411 (holding that “[e]ven if the Court of Appeals might have reached a
different conclusion as an initial matter,” the question under AEDPA review is whether the
state court unreasonably applied Supreme Court precedent); Richter, 130 S. Ct. at 785 (“[A]n
unreasonable application of federal law is different from an incorrect application of federal
law.” (internal quotation marks omitted)); see also Neal, 286 F.3d at 246 (“The precise question
. . . is whether the [state] court’s ultimate conclusion . . . is objectively unreasonable.”).

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as a whole does not indicate that the state habeas court acted unreasonably.42
In the sentencing phase, the jury started with a punishment range of fifteen
years to life. If the jury was not convinced Kossie had committed aggravated
robbery, it presumably would have sentenced him on the lower end of that scale.
However, the jurors sentenced Kossie to life. If the jury believed Kossie was
guilty only of misdemeanor theft but did not want to acquit a guilty man, it is
unlikely the jurors would have sentenced Kossie to the maximum punishment,
even factoring in his extensive criminal background.43
       While Kossie satisfied the deficiency prong of Strickland, his satisfaction
of the prejudice requirement is less clear. Strickland notes that “not every error
that conceivably could have influenced the outcome undermines the reliability
of the result of the proceeding.”44 To establish prejudice, Kossie must show that
there was a “reasonable probability” that the result of the proceedings would
have been different with adequate counsel.45 Under the deferential AEDPA
review, we find that the state court’s conclusion that there was no prejudice, and
thus no ineffective assistance of appellate counsel under Strickland, was not
objectively unreasonable.46
       Because Kossie did not demonstrate that the state court’s conclusion was
unreasonable, we AFFIRM the denial of habeas relief.




       42
            See Pinholster, 131 S. Ct. at 1402–03.
       43
         See Campos v. State, 2006 WL 1461155 (Tex. App.—Dallas May 30, 2006, pet. ref’d)
(unpublished) (finding that the defendant was not harmed by the trial court’s failure to
instruct on the lesser-included offense of theft when the jury sentenced him to twenty-seven
and a half years rather than the fifteen year minimum).
       44
            Strickland, 466 U.S. at 693.
       45
            Id. at 694.
       46
            See Neal, 286 F.3d at 246.

                                               13
