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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LARRY WAYNE RICHARDSON, §

No. 1100851, §

Petitioner, §

§

v. § NO. 3:05-CV-1225-B

§

DOUG DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court in

implementation thereof, the subject cause has previously been referred to the United States

Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as

evidenced by his signature thereto, are as follows: 

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant

to 28 U.S.C. § 2254. 

Parties: Petitioner Larry Wayne Richardson (“Richardson” or “Petitioner”) is confined at

the Clements Unit of the Texas Department of Criminal Justice, Correctional Institutions

Division (“TDCJ-CID”) at Amarillo, Texas. Respondent is the Director of the TDCJ-CID.

Statement of the Case: Richardson pled not guilty in cause number F-01-74553-I to the

offense of aggravated robbery enhanced by two prior felonies. After a jury trial, Petitioner was

found guilty and the judge sentenced him to 60 years imprisonment. 

 

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 Under the “mailbox rule,” a prisoner’s federal habeas corpus petition is deemed filed

when he delivers it to prison officials for mailing to the district court. Spotville v. Cain, 149

F.3d 374, 378 (5th Cir. 1998). Richardson signed his federal habeas petition on June 7, 2005. It

was filed stamped on June 15, 2005. For the purposes of the recommendation, it is assumed that

Richardson placed his § 2254 petition in the prison mail system on the date he signed his

petition.

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Petitioner appealed his sentence to the Fifth District Court of Appeals and on July 8,

2003, the court affirmed the trial court’s judgment. Richardson v. State, No. 05-02-00786-CR

(Tex. App.-Dallas July 8, 2003). Richardson’s petition for discretionary review (“PDR”) was

refused by the Texas Court of Criminal Appeals on November 5, 2003, and his motion for

rehearing was denied on January 14, 2004. 

On November 12, 2004, pursuant to Texas Code of Criminal Procedure article 11.07,

Richardson filed a habeas application challenging his conviction. Ex parte Richardson, Appl. 

No. 60,991-01 at 2. The application was denied by the Texas Court of Criminal Appeals

without written order on May 18, 2005. Ex parte Richardson, Appl. No. 60,991-01 at cover. 

Petitioner filed the instant petition on June 7, 2005.1

 On September 16, 2005,

Respondent filed his answer contending that all of Richardson’s claims are without merit. 

Richardson did not file a traverse.

Findings and Conclusions: Review of Richardson’s claims is governed by the provisions

of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) because he filed his § 2254

petition after the effective date of the AEDPA. The AEDPA, in pertinent part, provides that a

federal court cannot grant relief under § 2254 of the act unless the adjudication of a state

prisoner’s claim in the state court system, “(1) resulted in a decision that was 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

 

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unreasonable determination of the facts in light of the evidence presented in the state court

proceeding.” 28 U.S.C § 2254(d)(1)-(2) (1996). Findings of fact made by a state court are

presumed to be correct absent clear and convincing evidence rebutting the presumption. 

§ 2254(e)(1). Where a petitioner challenges a state court’s application of federal law under 

§ 2254(d)(1), the petitioner must also show that the state court’s decision was not only

erroneous, but objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 

1, 4 (2003) (citing Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 1521 (2000)); see

also Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004), cert. denied, 125 S. Ct. 421 (2004)

(“[F]ederal habeas relief is only merited where the state court decision is both incorrect and

objectively unreasonable.”).

Where state habeas relief is denied without an opinion, the AEDPA inquiry is not altered. 

See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003), cert. denied, 540 U.S. 1154, 124 S.

Ct. 1156 (2004). In such a situation, a federal court: “(1) assumes that the state court applied the

proper ‘clearly established Federal law’; and (2) then determines whether its decision was

contrary to or an objectively unreasonable application of that law.” Id. (citations omitted).

Richardson asserts three grounds of error in his petition. He argues that: (1) his due

process rights were violated by the submission of a charge to the jury that contained an

erroneous statement of the law, (2) his due process rights were violated when the Fifth District

Court of Appeals improperly modified the trial court’s judgment without holding a hearing to

determine if the instrument he used to commit the robbery was a deadly weapon, and (3) trial

counsel was ineffective for failing to investigate the medical injuries of the victim, failing to

retain a medical expert witness, and failing to challenge the in-court identifications of Petitioner

 

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by two witnesses to the robbery.

Denial of Due Process

Richardson alleges that the charge submitted to the jury contained erroneous statements

of law and that the submission of this legally flawed charge violated his Fifth Amendment right

to due process. Specifically, Richardson argues that the charge, as submitted, effectively

relieved the State of its burden to prove that the simulated handgun exhibited by Petitioner in the

course of the robbery met the statutory definition of a “deadly weapon” and erroneously led the

jury to believe that they could convict Petitioner of aggravated robbery merely by finding that he

displayed a simulated metal handgun during the robbery.

 Generally, the submission of improper jury instructions in a state criminal trial is not a

basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 481-

82 (1991); see also Weeks v. Scott, 55 F.3d 1059, 1065 (5th Cir. 1995). Federal habeas relief is

warranted only where the petitioner demonstrates that “the ailing instruction by itself so infected

the entire trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72, 112 S. 

Ct. at 482. When reviewing whether an allegedly erroneous jury instruction violated due

process, the court’s instruction “may not be judged in artificial isolation, but must be considered

in the context of the instructions as a whole and the trial record.” Id. The court inquires

“whether there is a reasonable likelihood that the jury has applied the challenged instruction in a

way that violates the Constitution.” Id. Any errors are subject to harmless-error analysis. 

Galvan v. Cockrell, 293 F.3d 760, 765 (5th Cir. 2002).

Petitioner fails to demonstrate how the application paragraph in the jury charge violated

his due process rights. He argues that the application paragraph of the jury charge defines a

 

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simulated metal handgun as a per se deadly weapon, but wholly ignores the definition of deadly

weapon included by the court earlier in the charge. While Richardson may choose to examine

only a portion of the charge in order to find error, this court may not conduct such a narrow

review. Instead, a review of the entire jury charge demonstrates that the judge accurately

defined “deadly weapon.” (Rep.’s R. v. 3 at 206) (“Deadly weapon means anything manifestly

designed, made, or adapted for the purpose of inflicting death, serious bodily injury, or anything

in the manner of its use or intended use that is capable of causing death or serious bodily

injury.”); see Tex. Pen. Code Ann. § 1.07(a)(17)(A)-(B) (Vernon 2001) (definition of deadly

weapon). The judge also accurately instructed the jury on the elements of aggravated robbery

and informed them that if they found beyond a reasonable doubt that Petitioner committed a

robbery and “then and there exhibit[ed] a deadly weapon in the commission of the said acts,

namely, a simulated metal handgun,” they were to find Petitioner guilty of aggravated robbery. 

(Rep.’s R. v. 3 at 206-07.); see Tex. Pen. Code Ann. § 29.03 (Vernon 2001) (elements of

aggravated robbery). Based on these instructions, the jury was necessarily tasked with

determining not one, but two issues: (1) whether Petitioner used a simulated metal handgun in

the course of committing a robbery and (2) whether said weapon was a deadly weapon. 

Therefore, the elements of the charge challenged by Petitioner are not erroneous and thus, his

due process claim is without merit.

Petitioner also argues that his due process rights were violated when the Fifth District

Court of Appeals improperly modified the trial court’s judgment without holding a hearing to

determine if the instrument he used to commit the robbery was a deadly weapon. 

In a jury trial, a trial court is required to enter a deadly weapon affirmative finding where

 

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the jury has found guilt as alleged in the indictment and the deadly weapon was specifically pled

in the indictment. Vasquez v. State, 56 S.W.3d 46, 47 (Tex. Crim. App. 2001). If the trial

court fails to enter a deadly weapon affirmative finding, an appellate court has the power to

modify the incorrect judgment to make the record “speak the truth.” See Tex. R. App. P.

43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813

S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref’d) (court may modify incorrect judgment

sua sponte; failure to make affirmative finding is a “clerical” error). 

In Petitioner’s case, the indictment specifically alleged the use of “a deadly weapon, towit: a simulated metal handgun.” (Clerk’s R. v. 1 at 2.) The jury found Petitioner guilty “as

charged in the indictment.” (Rep.’s R. v. 3 at 224.) However, the judgment of the trial court

including “no finding” regarding the use of a deadly weapon. (Clerk’s R. v. 1 at 33.) Because

the trial court failed to enter a deadly weapon affirmative finding, the Fifth District Court of

Appeals acted appropriately when it modified the judgment to reflect the jury’s finding of guilt

as alleged in the indictment. Therefore, Petitioner’s argument is without merit.

Ineffective Assistance of Counsel

Richardson alleges that his trial counsel rendered ineffective assistance because he 

failed to: (1) investigate the medical injuries of the victim, (2) retain a medical expert witness,

and (3) challenge the in-court identifications of Petitioner that were derived from impermissibly

suggestive pre-trial photographic identifications of Petitioner. 

An attorney’s conduct is governed by the standards set out in Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052 (1984). There is a strong presumption that an attorney’s conduct

falls within the broad range of reasonable professional assistance required under the Sixth

 

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Amendment. Id. at 690, 104 S. Ct. at 2066. To overcome this presumption a habeas petitioner

must establish that: (1) the attorney’s conduct was constitutionally deficient (causation) and (2)

but for such unprofessional errors, the result probably would have been different (prejudice). Id.

at 687, 694, 104 S. Ct. at 2064, 2068. Failure to prove either prong of the two-part test

forecloses relief. Id. at 697, 104 S. Ct. at 2069.

Petitioner argues that if his counsel had conducted an investigation regarding the injuries

the victim suffered and retained a medical expert, he could have discovered information that

might have raised a reasonable doubt in the minds of the jury regarding whether the victim

suffered a serious bodily injury. Richardson correctly asserts that the State had the burden of

proving that the simulated metal handgun was capable of causing serious bodily injury. 

However, contrary to Richardson’s assertions, the State was not required to prove that the

weapon Petitioner used and exhibited actually caused death or serious bodily injury. See

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (citing Tex. Penal Code Ann. §

1.07(a)(17)(B)) (emphasis added). Instead, an object meets the statutory definition of “deadly

weapon” if the defendant “intends a use of the object in which it would be capable of causing

death or serious bodily injury.” Id. (holding that there was sufficient evidence for the jury to

find that a butcher knife carried by the defendant in his pocket was a deadly weapon, even

though the defendant never displayed nor referred to the knife while he attacked the victim with

his fists). 

In this case, the jury was presented with testimonial and videotaped evidence that

Petitioner hit the victim with the handgun and, therefore, the jury did not have to guess as to

Richardson’s intended use of the weapon; it was clearly used as a bludgeon. Therefore, the only

 

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determination left for the jury was whether the weapon, in its use as a bludgeon, was capable of

causing death or serious bodily injury. See McCain, 22 S.W.3d at 503. While the severity of the

injuries suffered by the victim is certainly evidence of the weapon’s capability to cause serious

bodily injury, a defensive effort to minimize the severity of the injuries would have been

irrelevant to the issue of whether the handgun was capable of inflicting serious injury. Whether

the victim suffered a minor head wound or whether the victim needed 22 stitches (as was the

testimony in this case) is only tangentially related to the capability of the weapon to cause

serious bodily injury. (Rep.’s R. v. 3 at 23.) The evidence more relevant to this determination

includes: the testimony of the witness regarding whether he feared that he would be killed or

seriously hurt, the size and shape of the weapon, and the manner in which it was used to beat the

victim. See Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978) (holding that the

victim of a stabbing is capable of testifying that the knife was a deadly weapon capable of

causing death or serious bodily injury); Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App.

1986) (noting that the State can prove that a knife is a deadly weapon by introducing evidence of

the knife’s “size, shape and sharpness, the manner of its use, or intended use and its capacity to

produce death or serious bodily injury”). And, to this effect, at Richardson’s trial the State

introduced: (1) the actual weapon, (2) testimonial and videotaped evidence that Richardson

threatened the victim with the weapon, and (3) testimonial and videotaped evidence showing

Richardson bludgeoning the victim on the head and face with weapon (and with pieces of the

weapon after it broke apart), (4) testimony from the victim that he feared for his life, and (5)

testimony from a Dallas police officer that the simulated weapon was made of “heavy metal” and

was capable of causing death or serious bodily injury. (Rep.’s R. v. 3 at 21-24, 29-33, 40, 175-

 

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76.) Therefore, Richardson’s focus on medical evidence is misplaced, because the extent of the

victim’s injury was not relevant to the jury’s determination of whether the handgun was a deadly

weapon. His claims of ineffective assistance due to failure to investigate and failure to retain a

medical expert are wholly lacking in merit.

Richardson also asserts that his attorney should have objected to the in-court

identification of Petitioner by two witnesses because their identification testimony was derived

from impermissibly suggestive photo show-ups conducted by a police officer investigating the

robbery. 

The standard for determining whether the admission of identification testimony violates

the due process rights of a defendant is one of “fairness.” Manson v. Brathwaite, 432 U.S. 98,

113, 97 S. Ct. 2243, 2252 (1977). “Convictions based on eyewitness identification at trial

following a pretrial identification by photograph will be set aside on that ground only if the

photographic identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377,

384, 88 S. Ct. 967, 971 (1968). The factors to be considered in determining whether a pretrial

photographic identification was impermissibly suggestive include: “(1) the opportunity of the

witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the

accuracy of the witness’ prior description of the criminal, (4) the level of certainty demonstrated

by the witness at the confrontation, and (5) the length of time between the crime and the

confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382 (1972). If the court

determines that the identification procedure was not impermissibly suggestive, the due process

inquiry ends. See United States v. Honer, 225 F.3d 549, 553 (5th Cir. 2000). However, if the

 

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court determines that the pretrial identification procedure was impermissibly suggestive, the

court then examines, based on a totality of the circumstances, whether the suggestive nature of 

the pretrial identification created a substantial likelihood of irreparable misidentification such

that any in-court identification would be unreliable. Id. 

Despite Richardson’s assertion that his attorney failed to object to admission of

identification testimony resulting from an impermissibly suggestive pretrial identification, the

record demonstrates otherwise. The record reflects that in the middle of Petitioner’s trial, the

court held a hearing outside the presence of the jury to determine whether either of the out-ofcourt photographic identifications of Petitioner made by witnesses Sharmilla Behrarry

(“Behrarry”) and Robert Gomez (“Gomez”) were conducted under impermissibly suggestive

conditions. (Rep.’s R. v. 3 at 67-68, 71.) At the hearing, the state offered the photographic

arrays that were shown to both witnesses and the testimony of the detective who conducted the

identification. (Rep.’s R. v. 3 at 83, 95; v. 5 at 27-28.) Both Behrarry and Gomez also took

the stand and testified that: they viewed the photographic array approximately one month after

the robbery, they were given sufficient time to examine all of the photographs, they were not

pressured to identify Petitioner, and that all six persons in the photographic array were AfricanAmerican males of the same size, build, and haircolor. (Rep.’s R. v. 3 at 71-79, 84-92.) 

Richardson’s counsel, George Conkey (“Conkey”), extensively cross-examined Behrarry and

Gomez regarding their opportunity to see the person who was robbing the store and the

procedures used by the police officer who displayed a sheet of six photographs to each witness. 

(Rep.’s R. v. 3 at 79-83, 92-95). Conkey also cross-examined the police detective. (Rep.’s R. 

v.3 at 104-06.) At the close of the hearing, Conkey did not object to Behrarry’s identification of

 

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 If Richardson’s petition is also read to raise a general due process challenge to the

reliability of the in-court identification of him made by Behrarry, Petitioner’s argument is

without merit. Behrarry testified that she was able to see Petitioner during the robbery, she

immediately picked Petitioner out of a photographic array that occurred one month after the

robbery, and she never identified any other person as the perpetrator of the robbery. (Rep.’s R. 

v. 3 at 71-79); see Neil, 409 U.S. at 199-200, 93 S. Ct. at 382. While Behrarry later voiced

hesitancy about her identification of Petitioner after she learned that she would have to testify in

court, her hesitancy did not negate the reliability of her identification. (Rep.’s R. v. 3 at 99-

100); see Neil, 409 U.S. at 199-200, 93 S. Ct. at 382. 

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Petitioner because the evidence presented was wholly consistent with the constitutional

mandates for admissibility of an in-court identification.2

 (Rep.’s R. v. 3 at 107.) However, he

did object to any introduction of evidence that Gomez had identified Petitioner’s photograph

pretrial, due to the fact that Gomez did not actually witness the robbery. (Rep.’s R. v. 3 at 107.) 

 The judge sustained Conkey’s objection regarding Gomez’ pretrial identification. (Rep.’s R. v. 

3 at 108-09.)

A review of the entire record demonstrates that Conkey’s representation of Richardson

was not constitutionally deficient. Conkey tested the reliability of both witnesses’ pretrial

identifications of Petitioner through cross examination. While he did not object to Behrarry’s

identification of Petitioner, the record contains ample evidence demonstrating that any objection

to the admissibility of her in-court identification would have been futile. On the other hand,

Conkey successfully objected to the admission of Gomez’s pretrial identification. Therefore,

Petitioner’s argument in wholly without merit.

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court find that the claims

asserted are without merit and deny the petition. A copy of this recommendation shall be

transmitted to Petitioner and to counsel for Respondent.

Signed this 23rd day of January, 2006.

_________________________

 Wm. F. Sanderson Jr.

United States Magistrate Judge

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten (10) days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415 (5th Cir.

1996)(en banc), a party=s failure to file written objections to these proposed findings of fact and

conclusions of law within such ten (10) day period may bar a de novo determination by the

district judge of any finding of fact and conclusion of law and shall bar such party, except upon

grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court. 

 

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