Givens v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-40532
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TRACY LEE GIVENS,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
September 6, 2001
Before JONES, SMITH, and DeMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Tracy Givens appeals the denial of his
petition for writ of habeas corpus. Finding no
error, we affirm.
I.
In 1992, Givens attended a party with three
friends. When they heard that some revelers
had brought shotguns to the party, the group
retrieved their own firearms. A verbal skir-
mish ensued between two of the young men
and quickly escalated into shots fired at ran-
dom into the air, prompting most of those
present to flee in a panic.

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Givens and Adrian Oliver rode away from
the melee with friends. As another car ap-
proached their vehicle, Givens and Oliver
thought they heard a gunshot and began firing
at the other car; no one in that car had a gun.
The shots from Oliver’s weapon mortally
wounded a passenger in the other car, and in
the subsequent trial of Givens and Oliver, Giv-
ens was convicted of “murder as a party.”
During the punishment phase of Givens’s
trial, the state presented evidence that he had
been placed on a type of probation for six
months for burglary. The state also presented
evidence of arrests for aggravated assault,
theft of a semi-automatic pistol, and posses-
sion of cocaine. None of these arrests ever
was adjudicated.
Givens’s counsel did not object to the ad-
mission of these unadjudicated offenses as evi-
dence. On cross-examination, counsel ob-
tained admissions that Givens was never found
guilty of any juvenile delinquent conduct and
voluntarily had participated in the juvenile
probation program. Givens appealed, but his
counsel did not challenge the admission of this
evidence; the Texas Court of Criminal Appeals
affirmed.
Givens filed a state habeas application, ar-
guing, inter alia, that the trial court had erred
in allowing the introduction of extraneous, un-
adjudicated offenses and that his lawyer’s fail-
ure to object at trial or raise the issue on ap-
peal had denied him effective assistance of
counsel. The state court and the federal dis-
trict court denied his habeas petitions, but we
granted a COA to examine whether (1) the
trial court had denied him a fair trial by allow-
ing the presentation of evidence of unadjudi-
cated extraneous offenses during the punish-
ment phase; (2) counsel’s failure to object to
this presentation rendered his assistance inef-
fective; and (3) counsel’s failure to raise this
issue on appeal rendered his assistance ineffec-
tive.
II.
Because Givens filed his habeas petition
before the effective date of the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”),
his petition is governed by the pre-AEDPA
standards. Green v. Johnson, 160 F.3d 1029,
1035 (5th Cir. 1998). “Under pre-AEDPA
law, 28 U.S.C. § 2254(d) required federal
courts in habeas corpus proceedings to accord
a presumption of correctness to state court
findings of fact, while state court determina-
tions of law were to be reviewed de novo.”
Magouirk v. Warden, 237 F.3d 549, 552 (5th
Cir. 2001). There are no factual findings, be-
cause the trial court did not issue an order on
Givens’s application, and the Court of Crimi-
nal Appeals denied the application without
written order.
A.
Givens complains of the presentation of evi-
dence of unadjudicated extraneous offenses
during the punishment phase. We grant ha-
beas relief only when “the violation of the
state’s evidentiary rules results in a denial of
fundamental fairness.” Herrera v. Collins, 904
F.2d 944, 949 (5th Cir. 1990). “[T]he errone-
ous admission of prejudicial evidence can jus-
tify habeas corpus relief only if it is material in
the sense of a crucial, critical, highly significant
factor.” Anderson v. Maggio, 555 F.2d 447,
451 (5th Cir. 1977) (internal quotation omit-
ted).
Givens was sentenced in September 1992,
when Texas permitted the introduction of evi-
dence “as to any matter the court deems
relevant to sentencing, including the prior

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criminal record of the defendant.” TEX. CRIM.
PROC. CODE art. 37.07 § 3(a) (Vernon Supp.
1991) (emphasis added). The legislature had
amended the statute to include the italicized
language in 1989, but before that amendment,
the Court of Criminal Appeals had held such
evidence inadmissible. See Murphy v. State,
777 S.W.2d 44, 57 (Tex. Crim. App. 1989).
From the 1989 amendment until shortly af-
ter Givens’s trial, Texas courts generally con-
strued the amended statute as allowing evi-
dence of unadjudicated extraneous offenses at
the sentencing phase of a noncapital trial,1
though a minority had reached the opposite
conclusion.2 Not until three months after Giv-
ens’s conviction and sentencing did the Court
of Criminal Appeals resolve the debate in favor
of the minority position. See Grunsfeld v.
State, 843 S.W.2d 521, 523-26 (Tex. Crim.
App. 1992).3 Thus, because the law was un-
settled at the time of Givens’s sentencing, the
trial court did not err in following the current
majority rule, so the admission of the evidence
did not deprive Givens of a fair trial.
B.
Givens contends that his attorney was inef-
fective because he did not object to the evi-
dence of the unadjudicated extraneous offens-
es. To prevail on an ineffective-assistance
claim, Givens must show both that “counsel’s
performance was deficient” and that the “de-
ficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687-
88 (1984). A “deficient performance” is one
that “fell below the objective standard of rea-
sonableness.” Id. at 688.
Because Texas law was unsettled, counsel
reasonably could have believed that the law
permitted such evidence. See Sharp v. John-
son, 107 F.3d 282, 289-90 (5th Cir. 1997).
Therefore, Givens cannot show that the failure
to object was deficient performance.4 Because
1 See, e.g., Lafayette v. State, 835 S.W.2d 131,
133 (Tex. App.SSTexarkana 1992, no writ) (find-
ing that the additional language reflected a leg-
islative intent to broaden the spectrum of acceptab-
le evidence); Robles v. State, 830 S.W.2d 779, 783
(Tex. App.SSHouston [1st Dist.] 1992, pet. ref’d);
Rexford v. State, 818 S.W.2d 494, 496 (Tex.
App.SSHouston [1st Dist.] 1991), pet. ref’d);
Gallardo v. State, 809 S.W.2d 540, 541-42 (Tex.
App.SSSan Antonio 1991), vacated, 849 S.W.2d
825 (Tex. Crim. App. 1993); Hubbard v. State,
809 S.W.2d 316, 319-20 (Tex. App.SSFort Worth
1991) aff’d in part, rev’d in part, 892 S.W.2d 909
(Tex. Crim. App. 1995); McMillian v. State, 799
S.W.2d 311, 314 (Tex. App.SSHouston [14th
Dist.] 1990), vacated, 844 S.W.2d 749 (Tex.
Crim. App. 1993); Huggins v. State, 795 S.W.2d
909, 911 (Tex. App.SSBeaumont 1990, pet. ref’d).
2 See, e.g., Grunsfeld v. State, 813 S.W.2d 158,
171 (Tex. App.SSDallas 1991), aff’d, 843 S.W.2d
521 (Tex. Crim. App. 1992); Blackwell v. State,
818 S.W.2d 134, 141 (Tex. App.SSWaco 1991, no
writ) (following Grunsfeld).
3 See also Chatham v. State, 889 S.W.2d 345,
352 (Tex. App.SSHouston [14th Dist.] 1994, pet.
ref’d) (explaining the fluctuations in the law in this
area). The legislature amended the statute again
after Grunsfeld to allow the admission of evidence
of unadjudicated extraneous offenses at the sen-
tencing phase of a noncapital crime. See Voisine v.
State, 889 S.W.2d 371, 372 (Tex. App.SSHouston
[14th Dist.] 1994, no writ). This amendment,
however, applied only to offenses committed on or
after September 1, 1993. Brown v. State, 6
S.W.3d 571, 583 n.7 (Tex. App.SSTyler 1999, pet.
ref’d).
4 We have held that an attorney’s failure to ob-
ject to the admission of evidence of unadjudicated
offenses in a presentence report is conduct that
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a failure to prove either deficiency or prejudice
prevents Givens from prevailing, we need not
reach the issue of prejudice. See Washington,
466 U.S. at 687.
C.
Givens asserts that counsel was ineffective
for neglecting to challenge the admission of
the extraneous-offense evidence on appeal.
“Persons convicted of a crime are entitled to
receive effective assistance of counsel in their
first appeal of right,” but counsel is not re-
quired to raise every nonfrivolous issue.
Green, 160 F.3d at 1043. We apply the Wash-
ington test to counsel’s performance on ap-
peal. Id. Additionally, Givens must show that
the failure to raise the issue on appeal rendered
the entire proceedings, trial and appeal, funda-
mentally unfair. See Goodwin v. Johnson, 132
F.3d 162, 174-75 (5th Cir. 1997). Givens
bears the “highly demanding and heavy burden
in establishing actual prejudice,” not merely
that “the errors had some conceivable effect on
the outcome of the proceeding.” Williams v.
Taylor, 529 U.S. 362, 394 (2000).
On appeal, counsel challenged (1) the suf-
ficiency of the evidence to support the convic-
tion and (2) the refusal of the trial court to
give jury instructions for lesser included of-
fenses. The only issue before us is whether his
failure to raise this particular objection ren-
dered the trial and appeal fundamentally unfair.
Under Texas law at that time, if counsel failed
to lodge an objection at trial, nothing was
preserved for appellate review. See TEX. R.
APP. P. 52(a) (Vernon Supp. 1991).5 Thus,
challenging the admission of unadjudicated ex-
traneous offenses on appeal would have been
frivolous.
Givens’s counsel acted objectively reason-
ably in declining to raise an unreviewable is-
sue. Because the court could not review the
alleged error, no prejudice could have resulted
from the failure to raise it.
AFFIRMED.
4(...continued)
falls below an objective standard of reasonable-
ness. Spriggs v. Collins, 993 F.2d 85, 89-90 (5th
Cir. 1993). In Spriggs, however, we construed
Texas law before the 1989 amendments. More-
over, Grunsfeld had been decided, clarifying the
law and affirming the pre-1989 position. Thus,
Spriggs is inapplicable to the narrow time span
relevant to this case, in which the interpretation of
the applicable statute was unsettled.
5 See also Esquivel v. State, 595 S.W.2d 516,
522 (Tex. Crim. App. 1980); Reyna v. State, 797
S.W.2d 189, 193 (Tex. App.SSCorpus Christi
1990, no writ).

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