1

 Under Texas law, an application for writ of habeas corpus filed after a final conviction in a felony case "must

be filed with the clerk of the court in which the conviction being challenged was obtained[.]" Tex. Code Crim. Proc.

Ann. art. 11.07, § 3(b). The convicting court then reviews the writ and the state's answer to determine whether there are

any controverted, previously unresolved facts. Contested issues, such as whether the defendant received ineffective

assistance of counsel, may be resolved by way of affidavits, depositions, or an evidentiary hearing. Id. art. 11.07, § 3(d).

After the convicting court makes findings of fact and conclusions of law, the entire record is transmitted to the Texas

Court of Criminal Appeals. Id. 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AGAPITO PETE MENDOZA §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0042-M 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

MEMORANDUM ORDER

Petitioner Agapito Pete Mendoza, Jr., appearing pro se, hasfiled amotion for reconsideration

of the July 13, 2005 order adopting the magistrate judge's report and recommendation denying his

application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The only argument that merits

discussion is that the magistrate judge improperly determined that petitioner failed to exhaust

available state remedies with respect to one of his ineffective assistance of counsel claims. At issue

is the claim that defense counsel allowed petitioner to incriminate himself when testifying during

the punishment phase of the trial. Petitioner first raised this claim in a "response" filed in the state

habeas case. The "response" was filed directly with the Texas Court of Criminal Appeals and was

never presented to the trial court as required by Tex. Code Crim. Proc. art. 11.07, § 3.1 The court

therefore questions whether petitioner presented this claim to the Texas courts in a procedurally

 

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correct manner. Nevertheless, because petitioner is not entitled to relief in any event, the court will

consider his self-incrimination claim on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for

writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.").

Petitionertestified during the guilt/innocence phase of the trial and denied sexually assaulting

his six year-old stepdaughter. (SF-IV at 35). After the jury returned a guilty verdict, petitioner

testified at the punishment hearing in support of his request for probation. (SF-V at 5-12). On crossexamination, the prosecutor repeatedly asked petitioner if he accepted responsibility for his actions.

(Id. at 12-14). Petitioner was equivocal in his answer, finally admitting that he would do "whatever

it takes" to get a lighter sentence. (Id.). He now criticizes defense counsel for failing to object to

this line of questioning and for not protecting his Fifth Amendment rights.

The Fifth Amendment privilege against self-incrimination applies to the sentencing phase

of a non-capital case if the defendant has a legitimate fear of incriminating himself. See United

States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir. 1992). However, that right, like all other

constitutional rights, may be waived by the defendant. Petitioner has failed to show that his decision

to testify at the punishment phase of the trial was anything but informed and voluntary. Rather, the

decision to have petitioner testify appears to have been part of a reasonable trial strategy focused on

counsel's efforts to obtain probation for his client. Petitioner already had been found guilty of

aggravated sexual assault and did not further incriminate himself by his testimony. Because

petitioner was questioned by his attorney on direct examination, he was subject to cross-examination

by the prosecutor. There was no legitimate basis for counsel to object to that line of questioning.

For these reasons, the court determines that petitioner did not receive ineffective assistance

of counsel. This ground for relief is overruled. Petitioner's motion for reconsideration is denied.

 

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SO ORDERED.

DATED: September 12, 2005.

_________________________________

BARBARA M. G. LYNN

UNITED STATES DISTRICT JUDGE

NORTHERN DISTRICT OF TEXAS

 

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