Verdine v. Director, TDCJ-CID

                                                                 Southern District of Texas 
               UNITED STATES DISTRICT COURT             ENTERED 
                SOUTHERN DISTRICT OF TEXAS            February 15, 2023 
                       HOUSTON DIVISION                   Nathan Ochsner, Clerk 

James Lee Verdine,                    § 
     Petitioner,                     § 
v.                                         Civil Action H-22-600 
Bobby Lumpkin, 
Director, Texas Department            § 
of Criminal Justice, Correctional     § 
Institutions Division,                § 
     Respondent.                     § 
                   Report and Recommendation 
        James Lee Verdine filed a petition for a writ of habeas corpus 
  under 28 U.S.C,                    §  2254 challenging his Texas state-court conviction 
  for aggravated robbery. ECF No. 2. The respondent, Bobby Lumpkin, 
  has moved for summary judgment.  ECF No.  19.  Verdine has filed a 
  response. ECF No.  24.  The  court recommends that the respondent’s 
  motion for summary judgment be granted and Verdine’s petition be 
  dismissed. 
  1.  Procedural Background 
        Verdine  is  in  custody  of the  Texas  Department  of  Criminal 
  Justice—Correctional Institutions Division (TDCJ)  as the result of a 
  state-court  conviction in the  232nd District  Court of Harris  County, 
  Texas  (Cause No.  1605457),  ECF No.  20-1  at  183-84.  Verdine  was 
  charged with aggravated robbery with a deadly weapon, enhanced by 
  two prior consecutive felony convictions. /d.  at 8. Following a  trial, a 
  jury  found  Verdine  guilty  as  charged  and,  on  September  26,  2018, 
  sentenced him to a 60-year prison term. /d. at 183. 
        The  First  Court  of  Appeals  of  Texas  affirmed  Verdine’s 
  conviction.  Verdine v. State, No. 01-18-00884-CR, 2020 WL 1584468 

(Tex. App—Houston [1st Dist.}| April 2, 2020, pet. ref'd). The Texas 
Court of Criminal Appeals subsequently refused Verdine’s petition for 
discretionary review.  Verdine v.  State, PD-0315-20 (Tex.  Crim. App. 
Oct. 28, 2020). 
     In September 2021, Verdine filed a state application for writ of 
habeas  corpus  under  Article  11.07  of the  Texas  Code  of Criminal 
Procedure,  collaterally  challenging his  conviction.  Ex parte  Verdine, 
Application No. WR-93,268-01. On November 17, 2021, the Court of 
Criminal  Appeals  denied the  application,  without  a written order  or 
hearing, on the findings of the trial court and the court’s independent 
review of the record, Id. 
     Verdine then filed the instant federal petition for a writ of habeas 
corpus. ECF No. 2. He asserts that he is entitled to relief because his 
Sixth Amendment right to confrontation was violated and the resulting 
violation  was  harmful.  Jd.  The  respondent  argues  that  Verdine’s 
petition  should  be  dismissed  with  prejudice  because  his  claims  are 
without merit. ECF No.  19. 
2.  Factual Background 
     The statement of facts is taken from the Texas Court of Appeals 
opinion affirming Verdine’s conviction. 
  Zone □□□ Erotica was staffed by only one employee one February 
  evening, when a man with a gun met the sole employee near the 
  entrance, pointed a gun at her and led her to the cash register. 
  The robber stole money from the cash register and fled on foot. 
  The business’s surveillance camera captured a few seconds of the 
  events, as the two moved from the store entrance deeper into the 
  building. The store employee called 9-1-1 after the robbery. She 
  stated  that  the  business  had  been  robbed  about  five  minutes 
  earlier,  she  was  the  only  employee there  at the time,  and the 
  robber fled  on foot toward an apartment complex nearby.  She 
  described the robber’s general appearance to the operator. 
  Officer S. Fernandez was patrolling the area. Within minutes, he 
  saw  James  Verdine  on  foot  150  feet  from  Zone  D’Erotica.

  Verdine was sweaty, which indicated to Fernandez that he had 
  been running. Fernandez brought Verdine back to the store for 
  the employee to identify; the employee could not identify him. 

  Sergeant C. Malveaux investigated the robbery. He interviewed 
  the store employee, watched the surveillance video he had asked 
  the store manager to download, and interviewed Verdine, who 
  remained a suspect. According to Malveaux, Verdine’s physical 
  appearance during the interview was very similar to the physical 
  appearance of the man in the surveillance video, Malveaux noted 
  that both wore the same shoes. 

  The store employee did not appear at trial to testify. Her 9-1-1 
  call  was  played  for  the  jury  over  Verdine’s  objection  that 
  admitting  the  evidence  violated  his  constitutional  right  to 
  confront his accuser. The surveillance video recording was also 
  played over Verdine’s objection that it had not been adequately 
  authenticated. 

  The  jury  convicted  Verdine  of  aggravated  robbery.  After 
  receiving enhancement evidence of earlier convictions, the jury 
  selected a punishment of 60 years’ confinement. The trial court 
  entered a judgment of guilty and sentenced Verdine to 60 years’ 
  confinement. 

Verdine, 2020 WL 1584468, at *1. 
3.  The Summary-Judgment Standard 
     Summary judgment is proper when the record shows no genuine 
issue as to  any material fact and that the moving party is  entitled to 
judgment as a matter of law. Fed.  R.  Civ.  P.  56(a).  In ordinary civil 
cases, a district court considering a motion for summary judgment must 
construe disputed facts in the light most favorable to the nonmoving 
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) 
(“The evidence of the nonmovant is to be believed, and all justifiable 
inferences are to be drawn in his favor.”). “As a general principle, Rule 
56  of  the  Federal  Rules  of  Civil  Procedure,  relating  to  summary

judgment,  applies  with  equal  force  in the  context  of habeas  corpus 
cases.” Clark v, Johnson, 202 F.3d 760, 764 (Sth Cir. 2000); Anderson, 
A77 US. at 254. The court applies general summary judgment standards 
to the extent they do not conflict with the Antiterrorism and Effective 
Death Penalty Act of 1996 (AEDPA). See Smith v.  Cockrell, 311 F.3d 
661, 668  (Sth Cir, 2002) (Rule 56]  applies only to the extent that it 
does not conflict with the habeas rules.”), abrogated on other grounds 
by Tennard v. Dretke, 542 U.S. 274 (2004). 
     Verdine   is   representing   himself.   Self-represented   habeas 
petitions are construed liberally and are not held to the same stringent 
and rigorous standards as pleadings lawyers file. See Martin v. Maxey, 
98 F.3d 844,  847 n.4  (Sth Cir.  1996);  Guidroz v.  Lynaugh,  852 F.2d 
832, 834 (Sth Cir.  1988). The court broadly interprets Verdine’s state 
and federal habeas petitions. Bledsue v.  Johnson,  188 F.3d 250,  255 
(5th Cir, 1999), 
4.  Standard of Review under 28 U.S.C. § 2254(d) 
     Under AEDPA, federal habeas relief cannot be granted on legal 
issues  adjudicated  on  the  merits  in  state  court  unless  the  state 
adjudication  was  contrary  to  clearly  established  federal  law  as 
determined  by  the  Supreme  Court  or  involved  an  unreasonable 
application  of clearly  established  federal  law  as  determined  by  the 
Supreme  Court.  Harrington  v.  Richter,  562  U.S.  86,  98-99  (2011); 
Williams  v.  Taylor,  529  U.S.  362,  404-05  (2000);  28  U.S.C.  §§ 
2254(d)(1), (2). A state court decision is contrary to federal precedent 
if it applies a rule that contradicts the governing law set forth by the 
Supreme  Court,  or  if it  confronts  a  set  of facts  that  are  materially 
indistinguishabie from such a decision and arrives at a result different 
from the Supreme Court’s precedent. Harly v. Packer, 537 U.S. 3, 7-8 
(2002). 
     A state court unreasonably applies Supreme Court precedent if it 
unreasonably applies the correct legal rule to the facts of a particular

case,  or unreasonably  extends  a legal principle  from  Supreme Court 
precedent to a new context where it should not apply, or unreasonably 
refuses to extend that principle to a new context where it should apply. 
Williams,  529  U.S.  at  409.  In  deciding  whether  a  state  court’s 
application  was  unreasonable,  this  court  considers  whether  the 
application was  objectively unreasonable. Jd.  “It bears repeating that 
even a strong case for relief does not mean the state court’s contrary 
conclusion was unreasonable.” Richter, 562 U.S. at 102. As stated by 
the Supreme Court in Richter, 
     If this standard is difficult to meet, that is because it was 
     meant to  be.  As  amended  by  AEDPA,  §  2254(d)  stops 
     short  of  imposing  a  complete  bar  on  federal  court 
     relitigation of claims already rejected in state proceedings. 
     It preserves authority to issue the writ in cases where there 
     is no possibility fairminded jurists could disagree that the 
     state   court’s   decision   conflicts   with   this   Court’s 
     precedents. It goes no farther. Section 2254(d) reflects the 
     view  that  habeas  corpus  is  a  “guard  against  extreme 
     malfunctions in the state criminal justice systems,” not a 
     substitute for ordinary error correction through appeal. 
Id. at 102-03 (emphasis added; internal citations omitted). 
     AEDPA affords deference to a state court’s resolution of factual 
issues,  Under 28  U.S.C.  §  2254(d)(2),  a decision adjudicated on the 
merits in a state court and based on a factual determination will not be 
overturned on factual grounds unless it is objectively unreasonable in 
light of the evidence presented in the state court proceeding. Miller-Fl 
v.  Cockrell,  537 U.S.  322,  343  (2003).  A federal habeas  court must 
presume the underlying factual determination of the state court to be 
correct, unless the petitioner rebuts the presumption of correctness by 
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller- 
El, 537 U.S. at 330-31. This presumption extends not only to express 
findings of fact, but to the implicit findings of the state court as well. 
Garcia vy.  Quarterman,  454  F.3d 441,  444  (Sth Cir.  2006)  (citations 
omitted).

J.  Discussion 
     In  his  sole  ground  for  relief,  Verdine  asserts  that  he  was 
convicted in violation of the Confrontation Clause and the violation was 
harmful. The respondent contends that Verdine fails to demonstrate that 
the state court’s dental of his claim was unreasonable. 
     The  Constitution guarantees  criminal  defendants  a meaningful 
opportunity  to  present  a  complete  defense,  which  encompasses  a 
defendant’s rights under the Confrontation Clause to rebut the State’s 
evidence through cross-examination. Kittelson v. Dretke, 426 F.3d 306, 
318-19  (Sth  Cir.  2005)  (citations  omitted).  The  right  to  cross- 
examination includes the opportunity to show that a witness is biased 
or that the testimony is unbelievable or exaggerated. /d. at 319 (citation 
omitted). In Crawford vy.  Washington, 541  U.S. 36, 53-54 (2004), the 
Supreme  Court  held  that  the  Confrontation  Clause  barred  the 
“admission of testimonial statements of a witness who did not appear 
at trial unless he was unavailable to testify, and the defendant had had 
a prior opportunity  for cross-examination.”  The  Court later clarified 
that: 
  Statements are nontestimonial when made in the course of police 
  interrogation under circumstances objectively indicating that the 
  primary  purpose  of  the  interrogation  is  to  enable  police 
  assistance to meet an ongoing emergency. ‘They are testimonial 
  when the circumstances objectively indicate that there is no such 
  ongoing  emergency,  and  that  the  primary  purpose  of  the 
  interrogation  is  to  establish  or  prove  past  events  potentially 
  relevant to later criminal prosecution, 

Davis v.  Washington, 547 U.S. 813, 822 (2006) (footnote omitted). 
     Before a federal court may grant habeas relief on the basis of a 
violation of the Confrontation Clause, the court must apply the Brecht 
harmless-error  standard.  Kittelson,  426  F.3d  at  319-20.  Under  the 
Brecht standard, the petitioner must establish that the violation of the 
Confrontation  Clause  had  a  “substantial  and  injurious  effect  or

influence in determining the jury’s verdict.” See Brecht vy. Abrahamson, 
507 U.S. 619, 637-38 (1993) (quotation marks omitted). It is not enough 
to  show  only  that  there  is  a  “reasonable  possibility”  that  the 
Confrontation Clause violation contributed to the verdict. Jd. at 637. 
     Here,  Verdine  argues  the  State  violated  his  rights  under  the 
Confrontation Clause by introducing a 9-1-1 recording without giving 
him an opportunity to cross-examine the store employee who made the 
call. The state appellate court addressed this claim and agreed that the 
trial court erred by admitting the recording because it was testimonial 
in nature.  Verdine, 2020 WL  1584468, at *6. The state appellate court 
also concluded, however, that admission of the recording was harmless 
error. /d, at *7—8. Because the Texas Court of Criminal Appeals denied 
relief  without  written  order,  this  court  considers  the  intermediate 
appellate  court’s  decision  to  be  “the  last  reasoned  opinion”  on 
Verdine’s claim. See Yist v. Nunnemaker, 501 U.S. 797, 803-06 (1991) 
(federal  courts  “look  through”  an  unexplained  state-court  denial  to 
evaluate the last reasoned state-court decision). 
     The parties do not dispute the appellate court’s conclusion that 
the 9-1-1  call was testimonial,  and the court assumes for the sake of 
argument that it is.  The dispute in this  case is whether the  appellate 
court’s harmless error analysis was unreasonable, 
     The court of appeals reviewed the constitutional error “under the 
standard  specified  in  Rule  44.2(a)  of the  Texas  Rules  of Appellate 
Procedure.” Verdine, 2020 WL 1584468, at *8 (citing Clay v. State, 240 
S.W.3d 895, 904 (Tex. Crim. App. 2007) and Tex. R. App. P. 44.2(a)). 
The  court  of  appeals  explained  that  “Constitutional  error  requires 
reversal  of  the  judgment  ‘unless  the  court  determines  beyond  a 
reasonable doubt that the error did not contribute to the conviction or 
punishment.’” /d.  In its harmless  error analysis, the court considered 
several  factors,  including:  1)  how  important  was  the  out-of-court 
statement to the State’s case; 2) whether the out-of-court statement was

cumulative of other evidence; 3) the presence or absence of evidence 
corroborating or contradicting the out-of-court statement on material 
points;  and 4) the overall  strength of the State’s case.  Verdine,  2020 
WL  1584468, at *6 (citing Scott v.  State, 227 S.W.3d 670, 690 (Tex. 
Crim. App. 2007))}. The court explained “we must ask whether there is 
a reasonable possibility that the error moved the jury from a state of 
non-persuasion to one of persuasion on a particular issue.” Jd. The court 
concluded “Ultimately, we must be satisfied, to a level of confidence 
beyond  a  reasonable  doubt,  that  the  error  did  not  contribute  to  the 
conviction to conclude that the error was harmless and affirm.” Id. 
    The court of appeals found that the 9-1-1 call merely corroborated 
other evidence in the state’s  case  and was thus cumulative.  Verdine, 
2020 WL  1584468, at *7. The court noted that the responding officer 
testified he received a dispatch call and, within minutes, encountered 
Verdine, on foot, only 150 feet from the store. Jd. Because Verdine was 
sweaty on a February evening, the officer concluded that Verdine had 
been  running.  Jd.  The  same  officer  testified  that  he  found  money 
wadded up in Verdine’s pants pocket. /d.  The court of appeals further 
noted that  another investigating  officer testified that he watched the 
store’s  surveillance video  and interviewed Verdine. Jd.  According to 
the second officer, the robber shown in the store’s surveillance video 
matched  Verdine’s  appearance   during  the   interview,   including 
matching physical characteristics and shoes. Jd. 
    The court of appeals found that the 9-1-1 call merely described the 
robbery and the robber and was cumulative of the testimony from the 
two officers and the video evidence. Verdine, 2020 WL 1584468, at *7. 
The  court  concluded  that  “Because  of its  cumulative  character,  we 
conclude there is not a reasonable possibility the trial court’s admission 
of the 9-1-1 recording moved the jury from a state of non-persuasion to 
one of persuasion on the issue of Verdine’s guilt or punishment.” Jd.

     The court agrees with the court of appeals’ analysis. There are no 
facts or conclusions stated in the recording that were not shown in the 
video or observed by the officers. Verdine has not shown that the state 
court applied an incorrect legal standard or that its assessment of the 
evidence  was  inaccurate.  An  independent  review  of  the  evidence 
confirms that the State’s case against Verdine was strong even without 
the 9-]-1  recording. Based on this record, Verdine does not show that 
his conviction was tainted by constitutional error that had a “substantial 
and  injurious  effect  or  influence  in  determining  the jury’s  verdict.” 
Brecht, 507 U.S. at 637; see also Fry v. Pliler, 551  U.S,  112,  121-22 
(2007) (Brecht standard of harmless error applies whether or not the 
state   appellate  court  conducted  a  harmlessness  review).  More 
importantly,  Verdine  does  not  demonstrate  that  the  state  court’s 
 conclusion  was  unreasonable  or  wrong.  Accordingly,  the  court 
concludes that Verdine is not entitled to relief. 
6.  Conclusion 
     The  court  recommends  that  the  respondent’s  motion  for 
summary judgment be granted and that Verdine’s petition for writ of 
habeas corpus be dismissed with prejudice. 
     The parties have fourteen days from service of this report and 
recommendation to file written objections. See Rule 8(b) of the Rules 
Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1}(c); Fed. R. Civ. 
P, 72. Failure to timely file objections will preclude appellate review of

factual findings or legal conclusions, except for plain error, See  Thomas 
y.  Arn, 474 U.S.  140,  147-49  (1985); Rodriguez v.  Bowen,  857 F.2d 
275, 276-77 (Sth Cir.  1988). 

        Signed at Houston, ‘Texas, on February [9. , 2023, 

                                            Peter bay 
                                   United States Magistrate Judge 

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