IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JEREMY DAVID SPIELBAUER, §

§

Petitioner, §

§

v. § 2:22-CV-164-Z-BR

§

DIRECTOR, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

Before the Court is the Petition for a Writ of Habeas Corpus by a Person in State Custody 

filed by Petitioner, Jeremy David Spielbauer. For the following reasons, Petitioner’s habeas 

application should be DENIED.

I. PROCEDURAL HISTORY

Petitioner is serving a sentence of life in prison pursuant to his conviction under Case No. 

26626C in the 251st District Court, Randall County, Texas, for the lesser included offense of 

murder in the first degree. (ECF 9-29 at 59). He appealed, and his conviction was initially 

overturned. Spielbauer v. State, 597 S.W.3d 516 (Tex. App.—Amarillo 2020). The Texas Court 

of Criminal Appeals (TCCA) granted the State’s petition for discretionary review and reversed. 

Spielbauer, 622 S.W.3d 314 (Tex. Crim. App. 2021). On remand, the appellate court affirmed the 

trial court’s judgment. Spielbauer, 634 S.W.3d 962 (Tex. App.—Amarillo 2021). 

On March 28, 2022, Petitioner filed his state application for writ of habeas corpus.1 (ECF 

1 The mailbox rule does not apply because Petitioner used an intermediary to present the application on his behalf. 

Dison v. Whitley, 20 F.3d 185, 187 (5th Cir. 1994).

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9-29 at 13). On June 8, 2022, the TCCA denied the application without written order. (ECF 9-30). 

Petitioner timely filed his federal habeas application.

II. PETITIONER’S ALLEGATIONS AND PERTINENT FACTS

Petitioner sets forth two grounds in support of his application:

1. The trial court abused its discretion in denying challenges for cause to venire members 

Terry Freethy and Joseph Havlik.

2. Petitioner was denied effective assistance of counsel because attorneys he retained 

before he was charged with a crime allowed him to submit to interviews with investigators under 

the auspices of a “use immunity agreement” without any understanding of the evidence possessed 

by the investigators.

(ECF 5 at 62

). 

With regard to the first ground, venire members summoned for Petitioner’s trial were 

required to answer a questionnaire, which asked, among other things, whether they had heard about 

Petitioner’s case and whether they had formed an opinion about his guilt or innocence. Six 

members answered the questions affirmatively and the trial court questioned them individually 

about their answers. Four of the six were excused for cause, but the trial court denied the request 

to excuse Freethy and Havlik for cause. Petitioner was forced to use peremptory challenges to 

strike them from the jury. On appeal, Petitioner urged that the trial court had abused its discretion 

in denying his challenges for cause as to Freethy and Havlik. The appellate court agreed, 

determining that the affirmative answers to the questionnaire mandated discharge without further 

interrogation. Spielbauer, 597 S.W.3d 516. On petition for discretionary review, the TCCA

determined that further questioning of the venire members was proper because the questionnaires 

2 The page number references are to “Page __ of 11” assigned by the Court’s electronic filing system and shown at 

the top right portion of the document.

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were answered before voir dire began and the answers would not by themselves support a 

challenge for cause. Spielbauer, 622 S.W.3d 314. 

The facts pertinent to the second ground are set forth in the appellate court’s opinion on 

remand. Spielbauer, 634 S.W.3d at 964–65. Briefly, Petitioner’s first wife, Robin, with whom he 

was then having an affair, was murdered, and Petitioner’s second wife, Katie, with whom he had 

been having an affair during his marriage to Robin, was initially suspected. Beginning the day 

after the murder, the local sheriff’s office began an investigation. After his first interview with the 

sheriff’s office, Petitioner retained two attorneys, Dennis Boren and Len Walker, to assist him in 

entering into a “Use Immunity Agreement,” pursuant to which Petitioner agreed to provide 

“truthful, accurate, and complete information about the death of Robin.” If he did so, the 

information would not be used against him in any prosecution. After entering into the agreement, 

Petitioner was interviewed twice more. He was not considered a suspect until more than a year 

after the murder; he was not charged and arrested until more than two years after being first 

interviewed. On appeal, Petitioner urged that Boren and Walker had provided ineffective 

assistance of counsel. The appellate court determined that the alleged ineffective assistance had 

occurred at a time when Petitioner had no Sixth Amendment right to counsel, much less the right 

to effective representation, and overruled his complaints. Id. at 966–67. 

III. STANDARDS OF REVIEW

A. Section 2254

A writ of habeas corpus on behalf of a person in custody under a state court judgment shall 

not be granted with respect to any claim that was adjudicated on the merits in state court 

proceedings unless the petitioner shows that the prior adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme

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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 proceedings.

28 U.S.C. § 2254(d). 

A decision is contrary to clearly established federal law if the state court arrives at a 

conclusion opposite to that reached by the United States Supreme Court on a question of law or if 

the state court decides a case differently than the Supreme Court has on a set of materially 

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405–06 (2000); see also Hill v. Johnson, 

210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of 

clearly established precedent if it correctly identifies the applicable rule but applies it objectively 

unreasonably to the facts of the case. Williams, 529 U.S. at 407–09; see also Neal v. Puckett, 286 

F.3d 230, 236, 244–46 (5th Cir. 2002) (en banc) (focus should be on the ultimate legal conclusion 

reached by the state court and not on whether that court considered and discussed every angle of 

the evidence). A determination of a factual issue made by a state court is presumed to be correct. 

28 U.S.C. § 2254(e)(1). The presumption of correctness applies to both express and implied factual 

findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 

948 n.11 (5th Cir. 2001). Absent express findings, a federal court may infer fact findings consistent 

with the state court’s disposition. Marshall v. Lonberger, 459 U.S. 422, 433 (1983). Thus, when 

the TCCA denies relief without written order, such ruling is an adjudication on the merits that is 

entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The 

petitioner has the burden of rebutting the presumption of correctness by clear and convincing 

evidence. 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 486.

In making its review, the Court is limited to the record that was before the state court. 28 

U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

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B. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) 

counsel’s performance fell below an objective standard of reasonableness and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings 

would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Missouri 

v. Frye, 566 U.S. 133, 147 (2012). “[A] court need not determine whether counsel's performance 

was deficient before examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies.” Strickland, 466 U.S. at 697; see also United States v. Stewart, 207 F.3d 750, 751 

(5th Cir. 2000) (per curiam). “The likelihood of a different result must be substantial, not just 

conceivable,” Harrington v. Richter, 562 U.S. 86, 112 (2011), and a petitioner must prove that 

counsel’s errors “so undermined the proper functioning of the adversarial process that the trial 

cannot be relied on as having produced a just result.” Cullen, 563 U.S. at 189 (quoting Strickland, 

466 U.S. at 686). Judicial scrutiny of this type of claim must be highly deferential and the petitioner 

must overcome a strong presumption that his counsel=s conduct falls within the wide range of 

reasonable professional assistance. Strickland, 466 U.S. at 689. 

Where the state court adjudicated the ineffective assistance claims on the merits, this Court 

must review a petitioner’s claims under the “doubly deferential” standards of both Strickland and 

§ 2254(d). Cullen, 563 U.S. at 190. In such cases, the “pivotal question” for the Court is not 

“whether defense counsel’s performance fell below Strickland’s standard”; it is “whether the state 

court’s application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101, 

105. In other words, the Court must afford “both the state court and the defense attorney the benefit 

of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting Cullen, 563 U.S. at 190); Knowles 

v. Mirzayance, 556 U.S. 111, 123 (2009).

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Simply making conclusory allegations of deficient performance and prejudice is not 

sufficient to meet the Strickland test. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).

IV. ANALYSIS

In his first ground, Petitioner contends that the trial court abused its discretion in denying 

challenges for cause against Freethy and Havlik. A claim that the trial court made an evidentiary 

error under state law does not justify federal habeas corpus relief, however, “unless it is of such 

magnitude as to constitute a denial of fundamental fairness under the due process clause.” Skillern 

v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983). Federal courts are limited to deciding whether a 

conviction violates the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 

U.S. 62, 68 (1991). They do not function to review a state’s interpretation of its own laws. Weeks 

v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983).

Here, Petitioner has not made any attempt to show that the Constitution, laws, or treaties of the 

United States were violated. As Respondent notes, in the state court appeal Petitioner only argued 

that the trial court’s denial of his challenges for cause violated the Texas Code of Criminal 

Procedure. (ECF 15 at 14–15). And, although he mentioned “his 6th amendment right to an 

impartial jury” in his state habeas application (ECF 9-29 at 9–10), Petitioner’s application was 

denied. He has made no attempt to show that the denial was in conflict with, or an unreasonable 

application of, clearly established federal law, or that it was based on an unreasonable 

determination of the facts in light of the record. 28 U.S.C. § 2254(d). Petitioner has not shown that 

his jury was not impartial; thus, the fact that he had to use peremptory strikes to achieve that result 

does not mean that the Sixth Amendment was violated. Ross v. Oklahoma, 487 U.S. 81, 88 (1988).

In his second ground, Petitioner urges that he received ineffective assistance of counsel 

“during the course of the investigation” when his former attorneys allowed him to be interviewed 

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“without any understanding of the evidence possessed by the investigators.” (ECF 5 at 6). He gives 

no further explanation of what he is contending. His conclusory allegations are insufficient to raise 

a ground for relief. Miller, 200 F.3d at 282.

As noted, the Court of Criminal Appeals denied the state habeas application raising this 

ground. (ECF 9-30). The last reasoned opinion3 was that of the appellate court, including the 

following discussion:

The Fifth and Sixth Amendments of the United States Constitution protect different 

interests. The Fifth Amendment provides a privilege against self-incrimination to a 

suspect who is in custody and the privilege is triggered once that suspect has been 

given his Miranda warning. Pecina v. State, 361 S.W.3d 68, 74–75 (Tex. Crim. 

App. 2012) (citing Miranda v. Arizona, 384 U.S. 436, 441, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966)). The Sixth Amendment right to trial counsel attaches once the 

“adversary judicial process has been initiated.” Pecina, 361 S.W.3d at 76 (citing 

Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 

(2009)). The Sixth Amendment right guarantees a defendant the right to counsel at 

all “critical” stages of a criminal proceeding. Montejo, 556 U.S. at 786, 129 S. Ct. 

2079. “[C]ritical stages include arraignments, post-indictment interrogations, postindictment lineups, and the entry of a guilty plea.” Missouri v. Frye, 566 U.S. 134, 

140, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) (note the United States Supreme 

Court did not specifically include pre-indictment interviews or interrogations). 

Moreover, the Sixth amendment right to counsel is offense specific and attaches 

only to an offense for which a prosecution has been initiated. Texas v. Cobb, 532 

U.S. 162, 167–68, 121 S. Ct. 1335, 149 L. Ed. 2d 321 (2001); Rubalcado v. State, 

424 S.W.3d 560, 570 (Tex. Crim. App. 2014).

Generally, in Texas, the right to trial counsel is triggered by judicial arraignment or 

by being taken before a magistrate as described in article 15.17 of the Texas Code 

of Criminal Procedure. [] Magistration marks the initiation of adversary judicial 

proceedings and “plainly signals” the attachment of a defendant’s right to trial 

counsel. Pecina, 361 S.W.3d at 77 (citation omitted). An uncharged suspect may 

invoke his Fifth Amendment right to counsel at any stage in a criminal proceeding, 

including pre-indictment. Id. at 78. A defendant who has been arraigned, however, 

may invoke his Sixth Amendment right to counsel for purposes of custodial 

interrogation after his Miranda warnings have been administered. Id.

Here, Appellant, with counsel present, was interviewed by Sergeant Mongold as a 

witness in the investigation into Robin’s murder. He was not considered a suspect 

until more than a year after the murder when Katie was cleared of the charges 

3 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

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against her. Furthermore, he was not charged and arrested until April 16, 2016, 

more than two years after being interviewed by Sergeant Mongold. 

Regardless of his status as a witness to the investigation, Appellant retained counsel 

to negotiate a Use Immunity Agreement. At that time, no adversary judicial process

or prosecution against him had been initiated and thus, the constitutional right to 

counsel had not yet attached. Ergo, he had no constitutionally protected right to the 

effective assistance of counsel. 

. . . 

We conclude the complaints raised by Appellant that he characterizes as being 

“ineffective assistance” occurred at a time when he had no Sixth Amendment right 

to counsel, much less the right to effective representation. 

634 S.W.3d at 966–67 (citation omitted). Petitioner fails to address the analysis. In any event, even 

if Petitioner had shown that he had a right to counsel, he has not shown that he received ineffective 

assistance at any time.

V. RECOMMENDATION

For the reasons discussed herein, it is the RECOMMENDATION of the United States 

Magistrate Judge to the United States District Judge that the petition for writ of habeas corpus filed 

by Petitioner, Jeremy David Spielbauer, be DENIED.

VI. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Findings, Conclusion and 

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED.

ENTERED April 10, 2023.

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the 

event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is 

fourteen (14) days from the date of filing as indicated by the “entered” date directly above the 

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by 

electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the 

fourteenth (14th) day after this recommendation is filed as indicated by the “entered” date. See

28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).

Any such objections shall be made in a written pleading entitled “Objections to the 

Findings, Conclusions and Recommendation.” Objecting parties shall file the written objections 

with the United States District Clerk and serve a copy of such objections on all other parties. A 

party’s failure to timely file written objections shall bar an aggrieved party, except upon grounds

of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal 

conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district 

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en 

banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS 

Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 

F.2d 275, 276-77 (5th Cir. 1988).

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