# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 40356

**Kirk Ross Engle,**

Petitioner

— Appellant **,**

versus

**Bobby Lumpkin,** Director, Texas Department of Criminal Justice, Correctional Institutions Division **,** Respondent

— Appellee

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 6:18

- CV

- 8

Before **Willett, Engelhardt,** and **Wilson,** Circuit Judges

**. Don R. Willett,**  Circuit Judge **:** In 2016, a Texas jury convicted Kirk Engle of felony aggravated assault with a deadly weapon. Engle initiated this postconviction proceeding in
federal district court after unsucc essfully petitioning Texas state courts for a writ of habeas corpus. The district court rejected all of Engle’s claims of trial

error. Engle then sought a certificate of appealability , which this court granted as to the claim of prosecutorial misconduct. W e now consider that claim on the merits. Although we agree with Engle that certain conduct by the prosecutor during the trial violated the D ue P rocess C lause , we conclude United States Court of Appeals Fifth Circuit 

### FILED May 12, 2022 Lyle W. Cayce Clerk Case: 19-40356 Document: 00516317380 Page: 1 Date Filed: 05/12/2022No. 19

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2 that Engle was not prejudiced by the violat ion . We therefore **AFFIRM** the judgment below denying habeas relief.

**I**
According to trial testimony, the events that gave rise to Engle’s conviction occurred on the evening of August 19, 2014 in Yorktown, Texas. Firefighters from the Yorktown Volunteer Fire Department were called to the scene of a brush fire. When they arrived, Engle was standing nearby a nd told them he had started the fire intentionally. He taunted the firefighters, saying “f*** the fire department” a nd discourag ing them from putting out
the fire. As firefighter Brian Smolik prepared to extinguish the blaze anyway , Engle said, “ D o you wan t to die tonight?” and then stabbed Smolik in the
stomach with a knife . When Smolik’s fellow volunteer Monte Riedel moved to intervene, Engle threatened , “Do you want to get stabbed tonight, too ? ” before fleeing on foot

. Eric Von Helbing , another firefight er on the scene , called the police and paramedics. Smolik was transported to the hospital , where he remained for four days , three of which he spent in the **ICU**

. Police quickly found Engl e wandering the streets and placed him
under arrest. U pon being handcuffed , Engle told the officers, “I was waiting for you,” explaining that he “wanted to go back home” and that “the penitentiary [wa]s [his] home.” The officers discovered through a pat

- down of Engle that he had disposed of the knife . Despite thoroughly searching the area, police never recovered the weapon

. As the officers were transporting Engle to booking, he explained to them that Smolik was “ in the wrong place at the wrong time .” Engle further expressed that h e found it “ hard making it outside of prison ” and “ didn ’ t want to get out. ” At one point during the ride, Engle overheard one of the officers misspell Engle’s name to dispatch and spoke up to correct the error

. Shortly after Engle arrived at the DeWitt
Cou nty Sheriff’s Office , Texas Ranger Troy Wilson attempted to question Case: 19-40356 Document: 00516317380 Page: 2 Date Filed: 05/12/2022No. 19

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3 Engle about the stabbing

. Ranger Wilson entered the interview room, activated his digital audio recorder , and introduced himself to Engle. Engle responded by express ing that he wanted to go back to prison and that “ this [ was ] what it took .” Wilson then gave Engle the Miranda warnings, followed by the warning required by state statute of his right to terminate police questioning. 1 Engle then responded, “terminate” before standing up and being escorted out of the room.
A DeWitt County grand jury indicted Engle for felony aggravated assault with a deadly weapon. 2 Engle pleaded not guilty and the case proceeded to a jury trial. Engle did not dispute that he stabbed Smolik

. I nstead , Engle raised a defense of temporary insanity due to involuntary
intoxication

. Taking the stand in his own defense, Engle testified that an adverse reaction to the common antidepressant Lexapro caused him to suffer blackouts and fits of rage. Engle admitted on cross examination, h owever, that he had a longstanding tendency to fly into violent rages even years before he began taking Lexapro , and that he was telling acquaintances in the months leading up to the stabbing that he wanted to return to prison

. Importantly for present purposes, the prosecutor also cross

- examined Engle regarding his actions when Ranger Wilson attempted to question Engle about the stabbing incident, leading to the foll owing exchange:
Q. So

— and then [ Ranger Wilson ] started reading you your rights. Do you remember that?

A. I heard it. Q. And he said you have the right to terminate the interview at any time, didn’t he?

1 See **Tex. Code Crim. Proc. art.**  38.22 , § 2 (a)(5).

2 See **Tex. Penal Code** § 22.02(a)(2). Case: 19-40356 Document: 00516317380 Page: 3 Date Filed: 05/12/2022No. 19

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4 A. Yes, sir. Q. And what did you say?

A. Termin ate. Q. You said terminate. Stood up and walked out. Sounds like you knew exactly what was going on then, doesn’t it? A. It would have made more sense if I tried to tell him my side of the story. Q. Would it make more sense in what way? What do you mean ? A. Like right now, if I talked to him I’ll tell him my side. Q. Uh

- huh. A. At that time I was not in my right mind. I was talking but I was not in my right mind. Q. But, for whatever reason, he reads you your rights, he gives you one of them, which i s that you’ve got the right to terminate this at any time, and you said terminate, stood up and walked out. Right? A. Yes, sir. Q. It sounds as if you knew exactly what he was telling you in your warnings and you understood them and you chose to exercise one of your rights, doesn’t it? A. That’s what it sounds like, sir. In support of his defense, Engle offered testimony from a psychiatrist, Dr. Thomas Demoor, who testified that selective serotonin reuptake
inhibitors ( **SSRI** s) such as Lexapro can cause mania, characterized by “increasing agitation or irritability or aggression , ” in patients with bipolar depression

— a condition from which, “in [De m oor’s] opinion,” Engle
suffered

. De m oor believed that Engle’s adverse reaction to Lexapro “led to a manic state that caused his aggressive outburst.” De m oor admitted , however, that he “ couldn’t evaluate [Engle’s] state of mind at the time of the

event .

. . [b] ecause [Engle] told [him] he didn ’ t remember the event. ” Case: 19-40356 Document: 00516317380 Page: 4 Date Filed: 05/12/2022No. 19

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5 Instead, De m oor formed his opinion based on a “ review [] [of] [Engle’s]
medical records ,” “ the witness statements from the assault ,” and “[the
S tate’s expert witness] Dr. Kutnick ’ s reports.”

The defense also offered the testi mony of three other witnesses . One was a nurse at the DeWitt County Jail who was tasked with administering inmates’ medications. She testified only that Engle began refusing to take Lexapro when he arrived at the facility on the weekend of August 23, 2014, though the prosecutor stressed on cross

- examination that this was five days after Engle was arrested for stabbing Smolik. The defense also called a corporal at the same jail who also helped dispens e medications to inmates. She testified that shortly after Engle was housed at the jail in connection with the stabbing, he had become “agitated” on occasion after taking Lexapro, “pacing in the cell and yelling and talking loud” before wearing himself out. The corporal admitted on cross

- examination that Engle di d not harm himself or otherwise act violently during these periods. Engle’s mother also testified on his behalf that she noticed him becoming more “forgetful” and “angry,” and “crying” more often , after starting Lexapro. She admitted on cross

examination t hat she nonetheless continued to bring the medication to the jail for Engle to use even after his arrest, and that some of his hostile behavior persisted even when he was off Lexapro.

The S tate’s case was naturally aimed at rebutting Engle’s defense of insanity due to involuntary intoxication. The prosecutor elicited testimony
about the events surrounding the stabbing and Engle’s subsequent arrest, including Engle’s taunting of the firefight ers, his admission to the police that he had been “waiting” for them, and his express ed desire to return to prison.
D uring the prosecutor’s direct examination of Ranger Wilson, Wilson was
asked about his question ing of Engle after the arrest , result ing in the following exchange: Case: 19-40356 Document: 00516317380 Page: 5 Date Filed: 05/12/2022No. 19

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6 A. . . . . I didn’t ask [Engle] any questions at that time, I needed to read him his Miranda rights and other things, that was before, and so did a little housekeeping, read him his Miranda . He said he understood it and as soon as I finished reading his Miranda warnings, the 38.22 warnings, he terminated the interview and walked out. Q. Terminated the interview?

A. Yes. Q. How did he terminate it?
A. I said , “ you have the right to terminate the interview at any time. ” He said “ termin ate, ” stood up and walked out.

A fter some further back

- and

- forth, a recording of the interview was then played for the jury, and the prosecutor then asked,
Q. So as you’re going through these warnings that we just heard, what’s the defendant doing, if anyt hing, when you’re asking do you understand that? A. He’s nodding in the affirmative that he understood that right. Q. Show us what you mean. A. Nodding his head up and down. Q. Okay. And at the end when you said he can terminate this interview at any time, what did he say?

A. Terminate. Q. Terminate? And then what did he do? A. Stand up and start walking towards the door.
The State also brought forth its own expert witness, psychiatrist Dr. Joel Kutnick , who testified that Lexapro was not known to cause rag e attacks or temporary “blackouts” of the kind complained of by Engle, and that Engle’s prescribed dose of Lexapro at the time was “a standard dosage

. ”
Kutnick also reviewed multiple reports from mental health professionals who
treated or evaluated Engle in the period leading up to the stabbing. Kutnick Case: 19-40356 Document: 00516317380 Page: 6 Date Filed: 05/12/2022No. 19

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7 testified , based on the contents of the reports ( which were also admitted into
evidence as exhibits ) , that E ngle had never complained to his presc ribing
doctor about Lexapro’s effects in the past (and had at one point even asked for a higher dose) , and that Engle had stated during an evaluation conducted before he began taking Lexapro that he used “rage stages” “as an excuse to
become violent.” Kutn i c k conced ed that **SSRI** s such Lexapro can cause mania in patients with bipolar disorder

. Nevertheless, after review ing the
hour

- long police footage of Engle’s arrest and subsequent transport to booking so as to observ e his demeanor as these events unfolded , Kutnick testified that, in his professional judgment, Engle was not in a manic state at the time

. Furthermore, Kutnick explained, Engle was also taking Seroquel ( a mood stabili zer) during the period in question , and it was “much more rare”
for **SSRI** s to cause mania even in patients suffering from bipolar depression if they are also taking a mood stabilizer.

The State also called a caseworker from the mental health facility that had overseen Engle’s treatment in the roughly four

- month period leading u p to his attack on Smolik. T hroughout that time , Engle was on Lexapro as part
of his course of treatment. T he caseworker testified that he spent an hour
each week with Engle at his home

— mainly “to remind him to take medication and reorder prescriptions on time, keep doctors’ appointments” and meet with his parole officer

— but that Engle never once reported any complaints about his medication.
The prosecutor chronicled all of this evidence of Engle’s sanity in his lengthy summation , during which he also made th is comment: Well, [Ranger Wilson ] says [to Engle] , “ okay, well, let me give you your rights and let’s see, you know, let’s talk about it some

more ,” and he goes , “ you have the right to terminate your interview. ” What does [Engle] say? He says “ terminate, ” Case: 19-40356 Document: 00516317380 Page: 7 Date Filed: 05/12/2022No. 19

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8 stands up and walks out. Now, that doesn’t sound like an insane person to me. The jury found Engle guilty of the charged offense of felony aggravated assault with a deadly weapon

. The trial judge then found that Engle was a
habitual offender under **Tex. Penal Code** § 12.42 and accordingly sentenced him to forty years’ incarceration. His conviction was affirmed on direct appeal , with the appellate court rejecting Engle’s sole point of error regarding the limitations on his expert witness’s testimony

. 3
In September 2017, Engle filed a petition for a writ of habeas corpus
in Texas state court, raising several cla ims of error, including prosecutorial
misconduct. The Texas Court of Criminal Appeals denied his petition without a written opinion. Engle then initiated this postconviction proceeding in federal district court, seeking habeas relief under 28 U.S.C. § 2254 . The district court rejected all five of Engle’s grounds for relief

. 4 Engle then moved this court for a certificate of appealability ( **COA** ), 5 which was denied as to all his claims except:
whether the prosecution engaged in misconduct by commenting on En gle’s post

- arrest, post

- Miranda silence to rebut his defense of insanity by involuntary intoxication, Doyle v. Ohio , 426 U.S. 610 (1976); Wainwright v. Greenfield , 474 U.S. 284 (1986), and, if so, whether this misconduct had a “substantial and injurious ef fect or influence in determining

3 See E ngle v. State , No. 13

- 16

- 00270

- CR, 2017 WL 219119 (Tex. App.

— Corpus Christi Jan. 19, 2017, pet. ref’d)

.

4 See Engle v. Davis , No. CV V

- 18

- 0008, 2019 WL 1429623 (S.D. Tex. Mar. 28, 2019)

.

5 See 28 U.S.C. § 2253(c)(2)

. Case: 19-40356 Document: 00516317380 Page: 8 Date Filed: 05/12/2022No. 19

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9 the jury’s verdict.” United States v. Chavez , 193 F.3d 375, 379 (5th Cir. 1999)

. Th ese are the only issues before us in this appeal.

**I I** 

Our review of collateral attacks on state criminal convictions is governed by the federal Antiterrorism and Effective Death Penalty Act ( **AEDPA** )

. **AEDPA** states , in relevant part, that a federal court cannot grant

a state prisoner’s habeas petition “ with resp ect to any claim that was adjudicated on the merits in State court proceedings ”

— as both parties agree Engle’s claim was

— unless the state court’s decision “ was contrary to, or involved an unreasonable application of, clearly established Federal law, as
dete rmined by the Supreme Court of the United States

. ” 6 This provision
establishes a “‘ highly deferential standard for evaluating state

- court rulings ’” that requires federal courts to give those rulings “ the benefit of the
doubt. ” 7 We cannot conduct “ our own independent inquiry into whether the

state court was correct as a de novo matter.

. . . Relief is available under [ **AEDPA** ] only if the state court ’ s decision is objectively unreasonable. ” 8 The question is whether “ fairminded jurists could disagree ” as to how the Supreme Court’s caselaw appl ies to the circumstances that the state court
confronted ; if so, then we cannot set aside the state court’s conclusion. 9 This deference applies even where, as here, the state court has den ied habeas relief

6 28 U.S.C. § 2254(d)(1).

7 Woodford v. Visciotti , 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy , 521 U.S. 320, 333, n.7 (1997) ).

8 Yarborough v. Alvarado , 541 U.S. 652, 665 (2004)

.

9 Id. at 664. Case: 19-40356 Document: 00516317380 Page: 9 Date Filed: 05/12/2022No. 19

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10 without a written opinion . I n such cases, the habeas petitioner must “ show [] there was no reasonable basis for the state court to deny relief. ” 10

At the same time , however, “ **AEDPA** does not ‘ require state

. . . courts to wait for some nearly identical factual pattern before a legal rule must be applied

. ’” 11 O n the contrary, a state court’s application of a principle
established by Supreme Court caselaw may still be “ unreasonable ” for
**AEDPA** purposes even if the state court confron t ed “ a set of facts ‘ different from those of the case in which the principle was announced. ’ ” 12 “ Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt. ” 13

* * *

With these principles in mind, we consider Engle’s claim of prosecutorial misconduct. During his trial, the prosecutor elicited testimony that Engle had invoked his right to terminate police interrogation after being
advised of this right

. T he prosecutor then argued to the jury during his
summation that Engle’s termination of the interview w as evidence that Engle was sane at the time of the offense. Engle argues that the prosecutor’s conduct in doing so deprived Engle of “ due process of law ” in violation of
the Fourteenth Amendment. 14 Moreover, Engle contends, the Supreme Court’s caselaw clearly establishes that the prosecutor’s actions violated the
D ue P rocess C lause. We agree with Engle on both points.

10 Harrington v. Richter , 562 U.S. 86, 98 (2011)

.

11 Panetti v. Quarterman , 551 U.S. 930, 953 (2007) (quoting Carey v. Musladin , 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment )).

12 Id. (quoting Lockyer v. Andrade , 538 U.S. 63, 76 (2003) ).

13 Yarborough , 541 U.S. at 666

.

14 See **U.S. Const.** amend. XIV, § 1 cl. 3. Case: 19-40356 Document: 00516317380 Page: 10 Date Filed: 05/12/2022No. 19

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11 In Doyle v. Ohio , the Supreme Court hel d that the “ use for impeachment purposes” of a criminal defendant’s “ silence, at the time of arrest and after receiving Miranda warnings, violate [s] the Due Process
Clause .” 15 The Court reasoned that, although “ the Miranda warnings contain no express assur ance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings , ” and hence

“ it would be fundamentally unfair ” to allow that person ’ s “ silence to be used to impeach an explanation subsequently offered at trial

. ” 16 It made no difference that the defendants in that case, “ when cross

- examined about their silence, did not offer reliance on Miranda warnings as a justification.

. . . After an arrested person is formally advised ” that “ he has a right to remain
si lent, the unfairness occurs when the prosecution

. . . undertake [s] impeachment on the basis of what may be the exercise of that right. ” 17 The
Court relied on Doyle a decade later i n Wainwright v. Greenfield , which held
that the Due Process Clause also prohibits a prosecutor from rebutting an insanity defense by using a defendant’s “ silence after receiving Miranda warnings [] as evidence of his sanity

. ” 18 Moreover, the Court explained,
“silence” in this context “ does not mean only muteness; it includes t he

15 426 U.S. 610 , 619 (1976) . Note that Doyle ’s holding was grounded in the Due Process Clause rather than the right against compelled self

- incrimination; the latter, the Court has explained, “ is not violated when a defendant who testifies in his own defense is impeached with his prior silence .” Jenkins v. Anderson , 447 U.S. 231, 235 (1980)

.

16 426 U.S. at 618. Though we presume most are familiar with the famous Miranda warnings, we nonetheless offer a brief refresher: “ when an individual is taken into custod y” and “ subjected to questioning,

. . . [h] e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a cou rt of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him. ” Miranda v. Arizona , 384 U.S. 436, 478

– 79 (1966)

.

17 426 U.S. at 619 n.10 (emphasis added).

18 474 U.S. 284 , 285 (1986). Case: 19-40356 Document: 00516317380 Page: 11 Date Filed: 05/12/2022No. 19

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12 statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted. ” 19
On the other hand, the Supreme Court has declined to apply Doyle in
cases where defendants had not been Mirand ized , reasoning that, “ [i] n the
absence of the sort of affirmative assurances embodied in the Miranda warnings, ” it does not “ violate [] due process of law for a State to permit

cross

- examination as to postarrest silence when a defendant chooses to take
the stand. ” 20 The key difference between such cases and those in which the
Court found a due

- process violation was that the latter involved government action that frustrated defendants’ reliance on official assurances of their rights. 21
We think it follows naturally and neces sarily from this caselaw that the
prosecut i o n in this case violated Engle’s due

- process rights. At the outset of custodial interrogation following his arrest, Ranger Wilson gave Engle the statutorily required warning that he “ha [d] the right to terminate t he interview at any time .” Engle immediately invoked th is right. The prosecutor subsequently relied on that invocation at trial as evidence of Engle’s sanity. Just as in the cases discussed earlier in which the Supreme Court f ound a due

process violation, the State advised Engle of his right s and thereby

“ implicitly promise [d] that any exercise of th ose right s w [ould] not be penalized ,” but “ then s [ought] to make use of [his] exercise of th ose right s

19 Id. at 295 n.13.

20 Fletcher v. Weir , 455 U.S. 603, 607 (1982) (per curiam); see also Anderson v. Charles , 447 U.S. 404 (1980) (per curiam); Jenkins , 447 U.S. at 240

.

21 See Wainwright , 474 U.S. at 292 (“ The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him ” and then “ breach that promise by using the silence to impeach his trial testimony. ”). Case: 19-40356 Document: 00516317380 Page: 12 Date Filed: 05/12/2022No. 19

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13 in obtaining his conviction. ” 22 Th e State, in doing so , violated the clearly established strictures of the Due Process Clause, as construed by the Court.

The State argues, however, that Doyle and Wainwright are different
from this case in an important respect: the defendants in the former two cases
invoked the ir right to silence in reli ance (or at least presumed reliance) on the warnings required by Miranda , whereas Engle invoked his right to terminate police questioning in reliance on a warning required by Article 38.22 of the
Texas Code of Criminal Procedure

. 23 The State correctly points out that , although Miranda established a right to terminate custodial questioning, this

was not one of t he rights of which the Court held that suspects must be apprised before questioning begins. 24 Thus, i n the State’s view, the Supreme
Court has not spoken to the question at hand

— that is, whether a defendant ’s
reliance on warnings required by mere state statute should be treated the
same as a defendant’s reliance on warnings required by the Miranda decision.

22 Id.

23 See **Tex. Code Crim. Proc. art.** 38.22 §§ 2 , 3 ( “ No oral or sign language

statement ,” nor any “written statement,” made by “ an accused

. . . as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless ,” inter alia , “ the accused, prior to making the statement, .

. . received .

. . a warning that .

. . he has the right to terminate the interview at any time.” ).

24 See Miranda , 384 U.S. at 47 1

– 7 5. While we have never expressly recognized that Miranda does not require the authorities to warn su spects of the right to cut off questioning, Miranda itself arguably makes this clear, see id. , and other courts have uniformly (and, in our view, rightly) read Miranda as requiring no such warning. See, e.g. , Robertson v. State , 871 S.W.2d 701, 713 (Tex. C rim. App. 1993) ; Wofford v. State , 952 S.W.2d 646, 657 ( Ark. 1997); State v. McGhee , 280 N.W.2d 436, 441 (Iowa 1979) ; State v. Lowery , 427 P.3d 865, 893 ( Kan. 2018) ; Com. v. Lewis , 371 N.E.2d 775, 776

– 77 ( Mass. 1978) ; People v. Castille , 29 Cal. Rptr. 3d 71, 88 ( Ct. App. 2005) ; State v. Mitchell , 482 N.W.2d 364, 373 ( Wis. 1992) ; United States v. Lares

- Valdez , 939 F.2d 688, 689 (9th Cir. 1991) ; United States v. Crumpton , 824 F.3d 593, 610

– 11 (6th Cir. 2016) ; 2 **Wayne R. LaFave et al., Criminal Procedure**  § 6. 8(d) (4th ed. Nov. 2021 update) (citing cases). Case: 19-40356 Document: 00516317380 Page: 13 Date Filed: 05/12/2022No. 19

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14 W e do not believe that the State’s proffered distinction between this
case and the applicable Supreme

- Court precedent is material

. Doyle and the
Court’s subsequent cases applying its holding, as we read them, establish that
a due

- process violation occurs whenever ( 1) a defendant is assured by the
authorities that he has a certain right, ( 2) the defendant exercises the right,
and ( 3) the prosecut ion uses the defendant ’ s exe rcise of the right as evidence against him at trial. It makes no difference whether the assurance given to the
defendant was required by the federal Constitution or instead by statute , as in this case ; it is the defendant’s frustrated reliance on an offici al assurance that violates the Constitution. The warning required by Article 38.22 of the
Texas Code of Criminal Procedure of a suspect ’s right to terminate interrogation, no less tha n the warnings required by Miranda , carries with it
the “ implicit [ assurance ] to any person who receives the warning []” that invoking the right to terminate “ will carry no penalty, ” and hence it would
be just as “ fundamentally unfair

. . . to allow ” such an invocation to be used against a defendant at trial as it would to do the same with a defendant’s
Miranda

- induced choice to remain silent

. 25 “ The implicit promise, the breach, and the consequent penalty are identical in both situations. ” 26
Indeed, the Court’s reasoning in Doyle confirms that the source of the right on wh ose assurance a defendant relies is irrelevant. The Doyle majority supported its holding by citing a prior case where the Court had held that it was improper for a prosecutor to ask jur ors to draw adverse inferences from

a defendant ’s refusal to answer a question at trial that the judge ( incorrectly )

25 Doyle , 426 U.S. at 618.

26 Wainwright , 474 U.S. at 292; see also Phelin v. Kenderdine , 20 Pa. 354, 363 (1853) ( “ When a witness declines answering a question” and “the privilege claimed by the witness be allowed, the matter is at an end.

. . . [N]o inferences whatever can be legitimately drawn by .

. . the claim of privilege [or] its allowance .

. . . The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.”)

. Case: 19-40356 Document: 00516317380 Page: 14 Date Filed: 05/12/2022No. 19

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15 told the defendant he had the right not to answer. 27 “[B] ecause the privilege had been granted , even if erroneously, ” the Doyle Court explained , “ the requirements of fair trial made it error for t he trial court to permit comment upon the defendant ’ s silence. ” 28 Obviously, then, Doyle ’s due

- process holding is not confined to instances in which defendants have detrimentally
relied on assurances of their rights under the federal Constitution , since Do yle favorably cited a case in which a defendant had detrimentally relied on an
assurance that was not required by any provision of law

. And i f it violate d the
D ue P rocess Clause to frustrate a defendant’s reliance on an incorrect
assurance that he ha d a right not to answer a particular question , then surely
it violate d the D ue P rocess Clause to frustrate Engle’s reliance on a correct assurance that he had the right to terminate po lice questioning.

Our confidence in our understanding of the Supreme Court ’s
decisions is fortified by caselaw from other courts that reflects a similar understanding

. 29 For instance , the Texas Court of Criminal Appeals has
relied on Doyle to h old that a defendant’s invocation of the right to an attorney after being advised of that right could not be offered as evidence against him at trial, even though the advisement was given prematurely ( that is, before the right of which the defendant was advis ed had attached) :

27 See Johnson v. United States , 318 U.S. 189 (1943). While Johnson itself justified this holding as an exercise of the Supreme Court ’ s supervisory power over inferior federal courts, the Court subsequently made clear in Doyle that the basic requirements of due process would have compelled the same conclusion

. See D oyle , 426 U.S. at 619 n.9

.

28 Doyle , 426 U.S. at 619 n.9 ( int’l quotes/cites omitted )

.

29 While **AEDPA** “restricts the source of clearly established law to Supreme Court precedent , a federal court may consider other authorities” as persuasive authority in determining “whether [a] state court’s adjudication was contrary to or an unreasonable appl ication of the Supreme Court’s clearly established precedents.” **Brian R. Means, Postconviction Remedies**  § 29:28 (June 2021 update) ; accord Reed v. Quarterman , 504 F.3d 465, 487 (5th Cir. 2007); Grim v. Fisher , 816 F.3d 296, 308 n.6 (5th Cir. 2016). Case: 19-40356 Document: 00516317380 Page: 15 Date Filed: 05/12/2022No. 19

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16 [A] dverse use of evidence that a defendant invoked a right or privilege which has been granted him, is constitutionally impermissible. This is true even though the right or privilege was erroneously extended to a defendant, because the

r equirements of a fair trial make it impermissible to tell a defendant that he has a right, even if erroneously, and then use his exercise of that right against him. 30 The high courts of Kentucky and Vermont have also cited Doyle in reaching
the same conc lusion on similar facts. 31 Collectively, these cases stand for the proposition that Doyle ’s due

- process holding is not limited to defendants’ detrimental reliance on assurances required by the U.S. Constitution or Miranda , but rather extends to similar ass urances grounded in other sources
of law ( and even to assurances given by mistake )

. Most on

- point of all, however, is a 1993 decision of the California
C ourt of Appeal s in which a criminal defendant had been assured by the authorities that he enjoyed certa in statutory rights, yet the prosecutor later
introduced the defendant’s exercise of those right s as evidence against him.
The court held that th e prosecutor’s action violated the Due Process Clause , rejecting an argument reminiscent of the one made by the S tate in this case : [The state] note[s] that while the rights at the center of Doyle are constitutionally

- based, the rights accorded defendant here are statutory creations

. . . . [T] his is a distin ction without a difference because the principle of unfairness is the same

. . . whether the rights at issue are statutorily

- created or constitutionally

- based

. . . . What implicates due process here is not the derivation of the legal rights at issue

— const itutional or statutory

— but rather the principle that the state cannot

30 Hardi e v. State , 807 S.W.2d 319, 322 (Tex. Crim. App. 1991)

.

31 See Bartley v. Com. , 445 S.W.3d 1, 9

– 10 (Ky. 2014); State v. Mosher , 465 A.2d 261, 265 (Vt. 1983)

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17 provide a right, implicitly assure that its exercise carries no penalty, and then use that e xercise as prosecution evidence. 32
To the same effect is a Connecticut court’s decision holdin g that warnings required by state statute may induce the type of reliance that triggers Doyle

. 33
We are persuaded by this reasoning, as well as by that of o ther courts that have likewise found Doyle

- style due process violation s wher e defendant s detrimenta lly relied on assurance s of their right s or privilege s , even though such rights or privileges were non

- constitutional in nature

. 34 The parties
have not cited , nor have we identified , any cases reaching the opposite
conclusion. We submit that “ fairminded jurists ” could reasonably reach only
one conclusion as to how the Supreme Court’s caselaw applies to the facts before us: the prosecutor violated the Due Process Clause when he used Engle’ s invocation of his right to terminate custodial interrogation as

32 People v. Sutton , 23 Cal. Rptr. 2d 632, 638 ( Ct. App. 1993)

.

33 See State v. Crosby , 641 A.2d 406, 409 (Conn. App. 1994) (accepting defendant’s

“ argu [ment] that the giving of warnings at his arraignment

. . . , pursuant to General Statutes § 54

– 1b and Practice Book § 637, triggers the application of Doyle ”).

34 See People v. Brown , 756 P.2d 204, 212

– 13 (Cal. 1988) (reliance on trial court’s ruling grant ing immunity); State v. Woomer , 284 S.E.2d 357, 358 (S.C. 1981) (reliance on trial court ’ s imposition of ex ante limitations on scope of cross

- examination). It is true that the Supre me Court in South Dakota v. Neville , a subsequent case declining to extend Doyle ’s holding, noted that one way in which that case differed from Doyle was that “the right to silence underlying the Miranda warnings is one of constitutional dimension.” 459 U. S. 553, 565 (1983). This observation, however, did not form the core of the Court’s reasoning in Neville , and we certainly do not understand th e remark as a holding that due process is only implicated if a defendant relies on assurances that he has a feder al constitutional right . At any rate, even if th is statement from Neville were so understood, it would not change our conclusion that Engle’s due process rights were violated in this case. After all, the Miranda Court made clear that the right to terminate police questioning is of a c onstitutional dimension (even though the police are not required to warn the defendant that he has such a right). See 384 U.S. at 473

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18 evidence of sanity, since Engle ostensibly invoked that right in reliance on an official assurance that he was entitled to terminate questioning at any time.

**I II** 

Th at Engle’s due

- process ri ghts were violated does not necessarily mean, however, that he is entitled to habeas relief. He must also demonstrate prejudice

— that is, that the constitutional error was sufficiently serious as to
call the outcome of his trial into doubt. 35 This is where Engle falls short.
In considering Doyle claims raised on collateral attack, federal courts apply the test of prejudice established by the Supreme Court in Brecht v.
Abrahamson , which calls on us to “ review[] the record to determine whether
the alleged error had substantial and injurious effect or influence in determining the jury’s verdict. ” 36 Under this standard, “ a constitutional
trial error is not so harmful as to entitle a defendant to habeas relief unless ”
he shows that “ there is more than a mere reasonable possibility that it
contributed to the verdict. It must have had a substantial

. . . influence in determining the verdict.” 37 “ The Brecht standard applies even when, as here, the state court did not analyze the issue. ” 38
We begin our prejudice inquiry by noting that Engle raised the

“ affirmative defense to prosecution ” recognized by Texas law “ that, at the time of the alleged offense, the defendant, as a result of a severe mental defect caused by involuntary intoxication, did not know that his conduct was

35 See U nited States v. Chavez , 193 F.3d 375, 379 (5th Cir. 1999 ).

36 Id. (citing Brecht , 507 U.S. 619 , 637 (1993) )

.

37 Woods v. Johnson , 75 F.3d 1017, 1026 (5th Cir. 1996)

.

38 Atkins v. Hooper , 979 F.3d 1035, 1049 (5th Cir. 2020)

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19 wrong. ” 39 “‘[W] rong ’ in this context means ‘ illegal. ’ ” 40 The defendant
bears the burden of proving insanity due to involuntary intoxication by a preponderance of the evidence. 41 Engle does not dispute that t he j ury charge
in his case accurately explained the elements of this defense

. Our careful review of the record leaves us with the firm impre ssion
that the constitutional violation did not have a substantial effect on the
verdict. 42 For one, the prosecut i o n ’s references to Engle’s termination of question ing were relatively infrequent. 43 Th at fact was mentioned in the prosecutor’s opening argument and again during his direct examination of Ranger Wilson, but only twice did the prosecutor suggest a ny kind of connection between Engle’s termination of questioning and his sanity: during an exchange with Engle on cros s

- examination ( which comprised less than two pages of an approximately 70

- page transcript of Engle’s cross

39 Mendenhall v. State , 77 S.W.3d 815, 818 (Tex. Crim. App. 2002) (citing **Tex. Penal Code**  § 8.01(a)).

40 Ruffi n v. State , 270 S.W.3d 586, 592 (Tex. Crim. App. 2008)

.

41 See **Tex. Penal Code** § 2.04(d).

42 Although we could have disposed of this case based on our conclusion that any constitutional violation was not prejudicial and thereby avoided deciding whether a violation (or at least a violation sufficiently obvious to warrant relief under **AEDPA** ) did in fact occur during Engle’s trial, see Cotton v. Cockrell , 343 F.3d 746, 752 (5th Cir. 2003) , we elect to address both issues here “ in order to provide clarity and guidance ” for officials and

courts going forward

— as we often do in cases involving qualified immunity, despite enjoying “ discretion to leapfrog the merits and go straight to whether the alleged violation offended clearly established law, ” Joseph v. Bartlett , 981 F.3d 319, 331 (5th Cir. 2020) ; see also Buehler v. Dear , 27 F.4th 969, 982 (5th Cir. 2 022) . We are not alone in this regard; the Supreme Court, too, “ ha [s] often recognized the existence of a constitutional right

. . . and then gone on to find that the claim at issue fails .” Stop the Beach Renourishment, Inc. v. Fla. Dep ’ t of Env ’ t Prot. , 5 60 U.S. 702, 716 (2010) (plurality opinion) (citing cases).

43 See Brecht , 507 U.S. at 639 (finding no prejudice in part because “[t] he State ’ s references to petitioner ’ s post

- Miranda silence were infrequent, comprising less than two pages of the 900

– page trial transcript in this case ”). Case: 19-40356 Document: 00516317380 Page: 19 Date Filed: 05/12/2022No. 19

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20 examination and a nearly 300

- page guilt

- phase trial transcript ) , a nd once

more during the prosecutor’s roughly 6,100

- word summation, of which less
th an 60 words (about four sentences) made any reference to Engle’s termination of questioning.
Moreover, the prosecutor’s fleeting mentions of Engle ’s invocation of his right to terminate police questioning were merely cumulative of the
S tate’s other, far st ronger evidence of Engle’s lucidity at the time he stabbed
Smolik. 44 The prosecution elicited testimony that, just before the assault, Engle explained to the firefighters that he had started the fire on purpose , as well as that Engle told the police who ar rest ed him that he had been “waiting for [them]” and had wanted to return to prison. Engle apparently had the presence of mind at the time of his arrest that, upon overhearing one of the
officers mis spelling Engle’s name to dispatch, he interjected to correct the spelling. Engle then explained to Ranger Wilson after arriving at the Sheriff’s
Office that he wanted to go back to prison and that “this [ was ] what it took

. ” Once the jury had heard the fore going evidence of Engle’s lucidity at the time of the offense, it is quite implausible that testimony that Engle terminated police interrogation by uttering a single word

— a fact far less probative of his sanity than the extensive testimony about his contem poraneous interactions
with police and firefighters 45

— could have substantially affected the verdict.

On the whole , e ven setting aside the improper mentions of Engle’s invocation of his right to terminate police interrogation , the evidence offered

44 See Brecht , 507 U.S. at 639 (improper admission of evidence was not prejudicial, in part because evidence was merely “cumulative” of other, properly admitted evidence).

45 An arrestee’s refusal to talk to police i s, as the Supreme Court has remarked, often “ambiguous and thus of dubious probative value,” “for in a given case there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation.” Doyle , 426 U.S. at 61 9 n.8. Case: 19-40356 Document: 00516317380 Page: 20 Date Filed: 05/12/2022No. 19

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21 by the S t ate to rebut his claim of temporary insanity was overwhelming. 46 First, there was the testimony recounted earlier regarding his interactions with firefighters and police on the night he was arrested, which indicated that Engle was alert and coherent around the time of the offense . Similarly, the
S tate introduced substantial evidence that Engle had planned the stabbing in
advance in order to get himself sent back to prison . That Eng le planned his crime beforehand is probative of sanity, 47 and his understanding that stabbing someone would land him in prison reflects Engle’s appreciation of the wrongfulness

— that is , illegality

— of such conduct. T her e was also considerable testimony tending to show that Engle’s claims of having been rendered insane by Lexapro were spurious. The S tate ’s expert Dr. Kutnick
testified that rage attacks or “blackouts” of the kind Engle claimed to have
suffered were not com mon side effects of Lexapro and were especially unlikely given that he was simultaneously taking a mood stabilizer. Kutnick also testified as to his professional opinion, based on the video evidence and Engle’s mental

- health records , that Engle was not exp eriencing mania or any other form of temporary insanity when he committed the assault. Those records, which were admitted into evidence as exhibits, gave no indication
that Engle had ever complained to prescribers about Lexapro’s effects in the
past , and i ndeed indicated that he had once asked for a higher dose. Engle’s
mental health caseworker during the months preceding the assault likewise testified that Engle had never mentioned any adverse effects from Lexapro. Finally, there was a wealth of testimony and documentary evidence that Engle had a history of aggressive and violent behavior that began long before

46 See Brecht , 507 U.S. at 639 (finding no prejudice in part because “ the State ’ s evidence of guilt was, if not overwhelming, certainly weighty ”).

47 See Arnold v. State , 873 S.W.2d 27, 32 (Tex. Crim. App. 1993)

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22 he began taking Lexapro

. The prosecutor recapped all this evidence in his
summation.

T he evidence Engle offered in support of his insanity defense , on the other hand, was comparatively far weaker and, more importantly, would not have been any stronger if the prosecution had merely omitted mention of his termination of the interview with Ranger Wilson

— a fact that was, as was previously explain ed, cumulative of the State’s other , far stronger evidence of Engle’s lucidity at the time he committed the offense.
In light of the other evidence that Engle was not so intoxicated that he could not appreciate the wrongfulness of his conduct, it is virtu ally
inconceivable that the jury would have bought Engle’s defense and acquitted him if the prosecutor had merely omitted mention of the fact that Engle exercised his right to terminate police questioning. Engle has thus failed to
rais e “ grave doubt as to the harmlessness ” of the due

- process violation at his trial, and accordingly he is not entitled to habeas relief. 48

**I V** 

For the reasons explained above , the district court’s judgment denying a writ of habeas corpus is **AFFIRMED**

.

48 O ’ Neal v. McAninch , 513 U.S. 432, 437 (1995)

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