UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CODY LON SMITH, §

TDCJ No. 02089602, §

 §

Petitioner, §

 § 

v. § CIVIL NO. SA-20-CA-0179-OLG

 § 

BOBBY LUMPKIN,

1 Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioner Cody Lon Smith’s Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 and supplemental memorandum in support (ECF No. 1), as well as

Respondent Bobby Lumpkin’s Answer (ECF No. 10) thereto. Having reviewed the record and 

pleadings submitted by both parties, the Court concludes Petitioner is not entitled to relief under 

the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA). See 28 U.S.C. § 2254(d). Petitioner is also denied a certificate of appealability.

I. Background

In June 2016, a Kerr County jury found Petitioner guilty of aggravated assault with a 

deadly weapon as charged in the amended indictment. State v. Smith, No. B15-631 (198th Dist. 

Ct., Kerr Cnty., Tex. June 9, 2016) (ECF No. 11-20 at 94, 173-74). Petitioner originally elected 

to be sentenced by the jury as well but changed this election after he was found guilty. (ECF 

Nos. 11-20 at 142; 11-34 at 177-80). Following the conclusion of a pre-sentence investigation 

1 The previous named Respondent in this action was Lorie Davis. On August 10, 2020, Bobby Lumpkin 

succeeded Davis as Director of the Texas Department of Criminal Justice, Correctional Institutions Division. Under 

Rule 25(d) of the Federal Rules of Civil Procedure, Lumpkin is automatically substituted as a party.

FILED

DEPUTY 

CLERK, U.S. DISTRICT COURT

WESTERN DISTRICT OF TEXAS 

BY: ________________________________ July 06, 2021

 JU
2

and separate punishment hearing, the trial court sentenced Petitioner to fifty years of 

imprisonment. (ECF Nos. 11-20 at 271-72; 11-36 at 26). 

The Texas Fourth Court of Appeals affirmed Petitioner’s conviction and sentence in an 

unpublished opinion on direct appeal. Smith v. State, Nos. 04-16-00630-CR and 04-16-00631-

CR (Tex. App.─San Antonio, Feb. 27, 2019, pet. ref’d); (ECF No. 11-23). The Texas Court of 

Criminal Appeals then refused his petition for discretionary review on June 19, 2019. Smith v. 

State, Nos. 0318-19 and 0319-19 (Tex. Crim. App.). A few months later, Petitioner filed a state 

habeas corpus application challenging the constitutionality of his state court conviction, but the 

Texas Court of Criminal Appeals denied the application without written order on November 13, 

2019, based on the findings of the trial court. Ex parte Smith, No. 87,797-02 (Tex. Crim. App.); 

(ECF Nos. 11-47; 11-48 at 17). 

Petitioner initiated the instant proceedings by filing a petition for federal habeas relief on 

February 13, 2020. (ECF No. 1). In the petition and supplemental memorandum filed with it, 

Petitioner raises the same two allegations that were rejected by the Texas Court of Criminal 

Appeals during his state habeas proceedings: (1) his trial counsel rendered ineffective assistance 

by incorrectly advising him that he could receive probation if he elected to be sentenced by the 

trial court instead of the jury, and (2) trial counsel rendered ineffective assistance by failing to

object to the amended indictment prior to the first day of trial. 

II. Standard of Review

Petitioner’s federal habeas petition is governed by the heightened standard of review 

provided by the AEDPA. 28 U.S.C.A. § 2254. Under § 2254(d), a petitioner may not obtain 

federal habeas corpus relief on any claim that was adjudicated on the merits in state court 

proceedings unless the adjudication of that claim either: (1) resulted in a decision that was 
3

contrary to, or involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court of the United States, or (2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence presented in the state 

court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). This intentionally difficult 

standard stops just short of imposing a complete bar on federal court relitigation of claims 

already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing 

Felker v. Turpin, 518 U.S. 651, 664 (1996)). 

A federal habeas court’s inquiry into unreasonableness should always be objective rather 

than subjective, with a focus on whether the state court’s application of clearly established 

federal law was “objectively unreasonable” and not whether it was incorrect or 

erroneous. McDaniel v. Brown, 558 U.S. 120 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21

(2003). Even a strong case for relief does not mean the state court’s contrary conclusion was 

unreasonable, regardless of whether the federal habeas court would have reached a different 

conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was 

objectively unreasonable, which is a “substantially higher threshold.” Schriro v. Landrigan, 550 

U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). 

So long as “fairminded jurists could disagree” on the correctness of the state court’s 

decision, a state court’s determination that a claim lacks merit precludes federal habeas 

relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In 

other words, to obtain federal habeas relief on a claim previously adjudicated on the merits in 

state court, Petitioner must show that the state court’s ruling “was so lacking in justification that 

there was an error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103; see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
4

III. Merits Analysis

Petitioner alleges he was denied the right to effective assistance of counsel by his trial 

counsels’ misleading advice on his eligibility for probation and by counsels’ failure to raise a 

timely objection to the amended indictment. Both allegations were raised during Petitioner’s 

state habeas proceedings and rejected by the Texas Court of Criminal Appeals. As discussed 

below, Petitioner fails to demonstrate the state habeas court’s rejection of these allegations was 

either contrary to, or an unreasonable application of, Supreme Court precedent. 

A. The Strickland Standard

Sixth Amendment claims concerning the alleged ineffective assistance of trial counsel

(IATC claims) are reviewed under the familiar two-prong test established in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner cannot establish a violation of 

his Sixth Amendment right to counsel unless he demonstrates (1) counsel’s performance was 

deficient and (2) this deficiency prejudiced his defense. 466 U.S. at 687-88, 690. According to 

the Supreme Court, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. 

Kentucky, 559 U.S. 356, 371 (2010). 

When determining whether counsel performed deficiently, courts “must be highly 

deferential” to counsel’s conduct, and a petitioner must show that counsel’s performance fell 

beyond the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-

89. Counsel is “strongly presumed to have rendered adequate assistance and made all significant 

decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 571 U.S. 12, 22 

(2013) (quoting Strickland, 466 U.S. at 690). To demonstrate prejudice, a petitioner “must show 

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 694. Under this prong, the 
5

“likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 

112. A habeas petitioner has the burden of proving both prongs of the Strickland test. Wong v. 

Belmontes, 558 U.S. 15, 27 (2009).

Finally, IATC claims are considered mixed questions of law and fact and are analyzed 

under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(1). See Gregory v. Thaler, 

601 F.3d 347, 351 (5th Cir. 2010). Where, as here, the state court adjudicated the IATC claims 

on the merits, a court must review a petitioner’s claims under the “doubly deferential” standards 

of both Strickland and Section 2254(d). See Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) 

(citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)); Knowles v. Mirzayance, 556 U.S. 111, 

112 (2009). In such cases, the “pivotal question” is not “whether defense counsel’s performance 

fell below Strickland’s standards,” but whether “the state court’s application of the Strickland

standard was unreasonable.” Richter, 562 U.S at 101. That is to say, the question to be asked in 

this case is not whether counsel’s actions were reasonable, but whether “there is any reasonable 

argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. 

B. Eligibility for Probation (Claim 1)

Petitioner first contends his trial counsel, Mr. Clay Steadman and Mr. Steve Pickell, 

rendered ineffective assistance by erroneously advising Petitioner that he could receive probation 

if he elected to be sentenced by the trial court instead of the jury. According to Petitioner, he 

relied on this advice when he opted to be sentenced by the trial court, which deprived him of the 

right to seek a probated sentence from the jury. 

1. Relevant Facts

Prior to trial, Petitioner originally elected to have the jury assess the punishment. (ECF 

No. 11-20 at 142). Following the jury’s guilty verdict, however, trial counsel informed the trial 
6

court that Petitioner wished to change this election so that the trial court assessed punishment. 

(ECF No. 11-34 at 177). The following discussion between Petitioner and his counsel then took 

place on the record:

[COUNSEL]: [Petitioner], in private you and I talked about it a little bit 

before the trial started while we were in private in 

conference, I told you that I would seek—if you wanted me

to, we would seek the permission of the State to change 

your election and go to the Court rather than the jury for

punishment. Do you recall that conversation?

[PETITIONER]: Yes, sir.

[COUNSEL]: Did I answer any and all questions you had?

[PETITIONER]: Yes, sir.

[COUNSEL]: And were you satisfied with that answer that I gave you?

[PETITIONER]: Yes, sir.

[COUNSEL]: And I told you that there was no way of knowing what a 

jury would do, no way of knowing what the Court would 

do, because it hasn’t heard any additional punishment 

evidence. You understand that?

[PETITIONER]: Yes.

[COUNSEL]: And I explained to you the process by which that would 

happen if you went to the Court, correct?

[PETITIONER]: Yes, sir.

[COUNSEL]: Based on knowing all those alternatives and based on 

knowing that you know you are subject to the full range of 

punishment, first degree felony, which is five years in 

prison up to life or, you know, even probation, I mean, you 

understand that you are subject to that full range of 

punishment if you were to go to the Judge?

[PETITIONER]: Yes, sir.

THE COURT: And based upon that information that I have discussed with 

you, is it your desire at this time to inform the Court that 

you want to change your election and go to the Court for 

punishment?
7

[PETITIONER]: Yes, sir.

[COUNSEL]: Is that a freely and voluntarily made decision?

[PETITIONER]: Yes, sir.

[COUNSEL]: I didn’t say you had to do it? I told you we would do 

whatever you would like to do; is that correct?

[PETITIONER]: Yes.

[COUNSEL]: Okay. Based on that—based on my client’s request, Your 

Honor, we would ask that the State consent—if the State 

will agree and consent, then we will proceed to the Court 

for punishment.

(ECF No. 11-34 at 177-79) (emphasis added). The trial court then allowed the prosecutor for the 

State, Mr. Scott Monroe, to ask Petitioner a few questions regarding the change in election:

MR. MONROE: [Petitioner], I don’t want to know what all y’all talked 

about. I am not entitled to know that, but I want to make 

sure that you feel Mr. Steadman fully explained all of your 

rights.

[PETITIONER]: Yes, sir.

MR. MONROE: And you believe you understand them?

[PETITIONER]: Yes, sir.

MR. MONROE: And you are satisfied that he and Mr. Pickell have 

represented your interests and that all the decisions you 

have made, including this one, are eyes wide open, you 

understand everything you are doing?

[PETITIONER]: Of course.

Id. at 178-80. Based on these responses, the State did not object to Petitioner changing the 

election and a new punishment hearing before the trial court was scheduled for a later date. 

2. Analysis under Strickland

Petitioner contends trial counsel rendered ineffective assistance by incorrectly advising 

him that the trial court had the option of sentencing him to probation. Under Texas law, a judge 
8

may not grant probation to a defendant if there is a deadly weapon finding. See Tex. Code. 

Crim. Proc. Art. 42A.054(b). There was such a finding in this case. (ECF No. 11-20 at 174). As 

such, Petitioner argues that his election decision was based on erroneous information given by 

counsel both before he changed his election and during the conversation with counsel that was 

on the record. According to Petitioner, he would have opted for the jury to assess punishment 

had counsel correctly advised him. 

Petitioner raised this exact allegation during his state habeas proceedings. In response, 

both trial counsel submitted affidavits stating they did not advise Petitioner that the trial court 

could consider a probated sentence if he changed his sentencing election, but that their advice to 

change the election was strategic based on a number of other factors. (ECF No. 11-48 at 109-

18). Relying on counsels’ affidavits, the state habeas trial court issued these findings: 

1. [Petitioner] elected to have the jury assess punishment.

2. Jury Trial began on June 7, 2016, with the Court carrying the B07-57 

Motion to Proceed through Trial thereby also utilizing the evidence 

presented at Trial to rule on the Motion to Proceed.

3. Jury returned a guilty verdict on June 9, 2016.

4. On June 9, 2016, after the guilty verdict was returned, [Petitioner] and his 

two defense attorneys privately conferred.

5. Defense counsel discussed State’s notice of intent to use bad acts and 

extraneous offenses.

6. State’s extraneous notice was extensive and included numerous allegations 

of violent and assaultive behavior against multiple women, including the 

victim of the case on trial.

7. [Petitioner] indicated to his counsel that he did not want to testify.

8. The State, through discovery, provided multiple electronic recordings of 

[Petitioner] and victim fighting including alleged threats to the victim and 

discussion of a prior stabbing.
9

9. Said electronic recordings would have undermined the Defense strategy 

presented at trial.

10. The Trial Court, outside the presence of the Jury, entered a finding in 

Cause No. B07-57 Motion to Proceed of true on the lesser included 

offense of Criminal Negligent Homicide.

11. Defense counsel informed [Petitioner] that he could present evidence 

without testifying through a pre-sentence investigation, if he elected to 

change his sentencing election to the Judge.

12. Defense counsel, in private conference with [Petitioner], did not discuss 

any probation eligibility.

13. [Petitioner], taking into consideration the extraneous notice, his desire to

not testify, his desire to avoid cross examination, his ability to provide 

evidence, the possibility of avoiding the electronic recordings, his ability 

to preserve Appellate issues, and the Court’s lesser included finding in the 

Motion to Proceed, made a strategic decision with his two Defense 

attorneys to change his election for sentencing from Jury to Judge. This 

decision was made in private conference prior to entering the courtroom 

and seeking a change. 

14. [Petitioner]’s decision to change his sentencing election was made prior to

Mr. Steadman’s inadvertent probation statement to the Court.

15. [Petitioner], in open Court, was asked “And based upon the information 

that I have discussed with you (in private), is it your desire at this time to 

inform the Court that you want to change your election and go to the Court 

for punishment? . . . Yes, Sir.”

16. The State did not object.

17. [Petitioner], through the PSI was able to refute multiple extraneous issues 

and was able to present a thorough sentencing defense.

(ECF No. 11-48 at 157-58). The court then concluded counsel were not deficient because: 

(1) Petitioner made a strategic decision to change his sentencing election, (2) counsel did not 

make any probation representations during the private discussion of sentencing strategy, (3) there 

was no credible evidence that Petitioner relied on counsel’s inadvertent statement to the trial 

court that he could be sentenced to probation by the trial court, and (4) there was credible 
10

evidence that Petitioner relied on the private communications with counsel to make his decision. 

Id. at 158-59. The Texas Court of Criminal Appeals adopted the trial court’s findings when it 

denied relief without written order. (ECF No. 11-47).

Petitioner fails to show that the state court’s ruling was contrary to, or involved an 

unreasonable application of, federal law, or that it was an unreasonable determination of the facts 

based on the evidence in the record. The trial court’s findings—based on the affidavits given by 

trial counsel—explain that Petitioner’s decision to change his punishment election was not based 

on any alleged misrepresentations made by counsel regarding probation eligibility, but was 

rather a strategic decision based on numerous other factors made after thoroughly discussing the 

matter with counsel. Petitioner has not shown that this determination “was so lacking in 

justification that there was an error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Consequently, viewing 

the allegations under the “doubly” deferential review encompassed by Strickland and the 

AEDPA, Petitioner’s claim cannot survive. See Richter, 562 U.S at 105.

C. Amended Indictment (Claim 2)

Petitioner next contends that his trial counsel were ineffective for failing to object to the 

amended indictment prior to the beginning of trial. According to Petitioner, the amended 

indictment did not sufficiently allege acts that would have constituted recklessness under Article

21.15 of the Texas Code of Criminal Procedure. By failing to properly object to the amended 

indictment, Petitioner argues, counsel failed to preserve error and allowed the State to proceed on 

a fundamentally defective indictment. 

Petitioner raised this allegation during his state habeas proceedings. In recommending 

the denial of Petitioner’s application, the state habeas trial court made the following findings: 
11

1. On November 23, 2015 [Petitioner] was indicted.

2. On March 7, 2016 [Petitioner] filed a Motion to Quash and Exception to

the Indictment.

3. On March 11, 2016 the Trial Court granted the Motion.

4. On March 17, 2016 the State moved to amend the indictment.

5. On March 21, 2016 [Petitioner]’s attorney objected to the amended 

indictment with State’s Motion.

6. The Trial Court overruled [Petitioner]’s objection.

7. On June 7, 2019 in open court and outside the presence of the Jury, 

[Petitioner] renewed his objection to the amended indictment. The Trial 

Court granted a running objection to the amended indictment through trial.

(ECF No. 11-48 at 156). The court then concluded that trial counsels’ performance was not 

deficient because counsel “timely objected to the State’s amendment and preserved said 

objection through trial.” Id. at 158. These findings and conclusions were then adopted by the 

Texas Court of Criminal Appeals. (ECF No. 11-47).

Contrary to Petitioner’s assertions, the record supports the trial court’s findings and 

conclusions. Prior to trial, Petitioner filed a motion to quash the original indictment, arguing the 

indictment failed to allege the act or acts relied upon to constitute recklessness as required by 

Article 21.15 of the Texas Code of Criminal Procedure. (ECF No. 11-20 at 69-72). The trial 

court granted this motion on March 11, 2016. Id. at 87-88. Thereafter, the State moved to 

amend the indictment to allege the act or acts relied upon to constitute recklessness. Id. at 91-92. 

At a pretrial hearing on March 21, 2016, counsel renewed his original objection that the amended 

indictment still did not properly plead recklessness pursuant to Article 21.15. (ECF No. 11-48 at 

134-41). The trial court overruled counsel’s motion and amended the indictment the next day. 

(ECF No. 11-20 at 94). Counsel renewed his objection just prior to trial on June 6, 2016, and 
12

was granted a running objection by the trial court. (ECF No. 11-33 at 11-12) (stating the 

objection to the amended indictment is based on “the manner and method in which it was pled as 

to the definition and specifications of reckless conduct”). 

As the record demonstrates, Petitioner’s trial counsel cannot reasonably be faulted for 

failing to object to the amended indictment filed in this case. To the extent Petitioner contends 

counsel should have objected further, counsel cannot be considered deficient or prejudicial for 

failing to raise a futile or non-meritorious argument. See Miller v. Thaler, 714 F.3d 897, 904 n.6 

(5th Cir. 2013) (counsel is not required to make futile motions or objections); Roberts v. Thaler, 

681 F.3d 597, 612 (5th Cir. 2012) (“the failure to lodge futile objections does not qualify as 

ineffective assistance”) (quoting Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)). Petitioner 

therefore fails to show that the state court’s ruling was either contrary to, or involved an 

unreasonable application of Strickland or an unreasonable determination of the facts based on the 

evidence in the record. 

IV. Certificate of Appealability

The Court must now determine whether to issue a certificate of appealability (COA). See

Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322, 

335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a district 

court rejects a petitioner’s constitutional claims on the merits, the petitioner must demonstrate 

“that reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to 

show “that reasonable jurists could debate whether the petition should have been resolved in a 
13

different manner or that the issues presented were ‘adequate to deserve encouragement to 

proceed further.’” Miller–El, 537 U.S. at 336 (citation omitted). 

A district court may deny a COA sua sponte without requiring further briefing or 

argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set 

forth above, the Court concludes that jurists of reason would not debate the conclusion that 

Petitioner was not entitled to federal habeas relief. As such, a COA will not issue.

V. Conclusion and Order

Petitioner has failed to establish that the state court’s rejection of the aforementioned 

claims on the merits during his state habeas corpus proceedings was either (1) contrary to, or 

involved an unreasonable application of, clearly established federal law, as determined by the 

Supreme Court of the United States, or (2) based on an unreasonable determination of the facts 

in light of the evidence presented in the petitioner’s state trial, appellate, and habeas corpus 

proceedings. As a result, Petitioner’s federal habeas corpus petition does not warrant federal 

habeas corpus relief.

Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that: 

1. Federal habeas corpus relief is DENIED and Petitioner Cody Lon Smith’s

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED 

WITH PREJUDICE;

2. No Certificate of Appealability shall issue in this case; and

3. All remaining motions, if any, are DENIED, and this case is now CLOSED.

SIGNED this the ________ day of July, 2021.

____________________________________ 

ORLANDO L. GARCIA 

 Chief United States District Judge

6th