Case: 10-40982     Document: 00511915687         Page: 1     Date Filed: 07/10/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           July 10, 2012

                                       No. 10-40982                        Lyle W. Cayce
                                                                                Clerk

JAMES LOUIS ROSE

                                                  Petitioner-Appellant
v.

RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division

                                                  Respondent-Appellee



                Appeal from the United States District Court for the
                   Eastern District of Texas, Sherman Division
                            U.S.D.C. No. 4:07-CV-445


Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Petitioner James Louis Rose appeals the district court’s denial of his
petition for writ of habeas corpus based on his claim that he received ineffective
assistance of appellate counsel. We affirm.
        On June 20, 2002, Petitioner was convicted under Texas Penal Code
22.021 for Aggravated Sexual Assault of a Child for sexual acts he performed on


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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his 4 year old daughter.1 That statute is violated when a person intentionally
or knowingly:
      (i) causes the penetration of the anus or female sexual organ of a
      child by any means;
      (ii) causes the penetration of the mouth of a child by the sexual
      organ of the actor;
      (iii) causes the sexual organ of a child to contact or penetrate the
      mouth, anus, or sexual organ of another person, including the actor;
      (iv) causes the anus of a child to contact the mouth, anus, or sexual
      organ of another person, including the actor; or
      (v) causes the mouth of a child to contact the anus or sexual organ
      of another person, including the actor

Tex. Penal Code 22.021. (emphasis added). The statute is written in the
disjunctive, so a defendant commits this crime if he performs any of these acts.
       Rose’s indictment charged him in the disjunctive with one count of
Aggravated Sexual Assault of a Child, essentially for performing oral sex on his
victim, or for having his victim perform oral sex on him, or for sexually
penetrating his victim. At trial, at the close of the Government’s case Rose’s
trial counsel moved for an order requiring the state to elect which act it was
relying on. The court denied the motion. The jury was then charged that it
could convict if it found beyond a reasonable doubt that Petitioner had
committed any of the acts. Petitioner’s trial counsel objected to the charge. He
argued the state should be required to elect on which act it was proceeding, and
that the charge allowed the jury to convict him even though the jurors may not
unanimously agree he had committed any single one of these acts. The trial
court overruled the objection.        The jury returned a verdict of guilty, and
Petitioner was sentenced to life imprisonment.




       1
        Rose was also charged in the alternative with one count of indecency with a child.
Because he was convicted of the aggravated sexual assault charge, the jury did not consider
the indecency count.

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                                       No. 10-20876

       Petitioner appealed. A different lawyer represented him on appeal. His
appellate counsel argued various points of error but the Texas Fifth District
Court of Appeals held that the objection to the court’s refusal to require an
election by the state and to the court’s refusal to require a unanimous verdict on
a single act was not presented sufficiently on appeal to preserve the issue.2 The
appellate court rejected Rose’s other points of error on the merits and affirmed
his conviction. The Texas Court of Criminal Appeals (CCA) declined his petition
for discretionary review, which also did not raise the issue.
       Petitioner filed a state habeas application, arguing his appellate counsel’s
failure to properly raise the issue constituted ineffective assistance of counsel
under Strickland v. Washington, 

(1984). The CCA denied the
petition without comment.
       Petitioner then filed a federal habeas petition asserting the Strickland
claim, among others. The district court denied relief, holding that even if
Petitioner’s appellate counsel had raised the issue preserved in the trial court,
he would not have prevailed in his appeal under Texas law as it existed at the
time of appeal. It cited Bethune v. State, which held that the repeated rape of
a victim was one criminal transaction requiring no election because the acts of
rape occurred in the same bed on the same night. 

, 464 (Tex.
Crim. App. 1962). Petitioner appealed and was granted, by order of this Court,
a Certificate of Appealability as to the Strickland claim.



       2
          Petitioner’s appellate counsel did assert a charge error “stemming from the trial
court's failure to require the State to elect upon which of the various paragraphs under each
count of the indictment it intended to rely for conviction.” However, as noted by the appellate
court, he argued this was an error because the trial judge instructed the jury not to consider
a lesser indecency charge unless it first acquitted Petitioner of the aggravated sexual assault
charge, not because it permitted a non-unanimous verdict. Rose v. State, 

, at
**2-3 (Tex.App.–Dallas 2004). On this basis, and because Petitioner’s appellate counsel did
not adequately brief the issue, the court found the trial objection waived and did not decide
it on the merits. 

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                                  No. 10-20876

      Because the Strickland claim was denied on the merits by the CCA, the
sole issue here is whether the CCA’s decision was an “objectively unreasonable”
application of the clearly established federal law concerning ineffective
assistance of counsel. 28 U.S.C. § 2254(d); Yarborough v. Gentry, 

, 5
(2003). In reviewing a state court habeas decision unsupported by explanation,
a federal court must “determine what arguments or theories . . . could have
supported the state court’s decision,” and then ask “whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision” of the United States Supreme
Court. Lockyer v. Andrade, 

, 71 (2003); see also Harrington v.
Richter, 

, 786 (2011) (reiterating the “no possibility fairminded
jurists could disagree” standard).
      To prove ineffective assistance of counsel, a petitioner must show deficient
performance and prejudice. 

. To show prejudice, a
petitioner must show that, but for appellate counsel’s performance, there is a
reasonable probability he would have prevailed on appeal. Smith v. Robbins,

, 285 (2000). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 

.
      Regarding whether Petitioner would have prevailed on appeal had counsel
argued that the charge was erroneous, it is undisputed that under current Texas
law that charge would be reversible error. See Pizzo v. State, 

(Tex. Crim. App. 2007). However, at best, this issue was unsettled at the time
of Petitioner’s trial and appeal, in 2002 and 2004 respectively. In Kitchens v.
State, 

, 257-58 (Tex. Crim. App. 1991), a capital felony murder
case, the jury was instructed that it could find the defendant guilty if the murder
occurred while he was committing or attempting to commit the offense of
robbery, or the offense of sexual assault. 

CCA held that the
jury did not have to reach an agreement on the preliminary factual issues

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underlying the verdict and that the jury could return a general verdict if the
evidence was sufficient to support a finding of guilty under any of the alternative
theories alleged in the indictment. 

CCA stated:
         [A]lternate pleading of the differing methods of committing one
         offense may be charged in one indictment[, and] . . . it is proper for
         the jury to be charged in the disjunctive. It is appropriate where the
         alternate theories of committing the same offense are submitted to
         the jury in the disjunctive for the jury to return a general verdict if
         the evidence is sufficient to support a finding under any of the
         theories submitted. . . . [T]here is no general requirement that the
         jury reach agreement on the preliminary factual issues which
         underlie the verdict.

of this rule was recognized in sexual assault cases where
multiple acts were alleged to have occurred as part of a single incident. See

. This rule was summarized by the CCA in O’Neal
v. State as follows:
         The general rule is that where one act of intercourse is alleged in
         the indictment and more than one act of intercourse is shown by the
         evidence in a sexual assault trial, the State must elect the act upon
         which it would rely for conviction. An exception to the rule is where
         several acts of intercourse were committed by one continuous act of
         force and threats, and are part of the same criminal transaction.

, 771 (Tex. Crim. App. 1988) (internal citations omitted). The
CCA concluded that because O’Neal’s indictment charged that “numerous
repetitions of sexual acts” occurred “over a considerable period of time,” the state
was required to elect which act it relied on; it classified this as a “single count,
multiple transactions” case. 

court nonetheless upheld the
defendant’s conviction because it found the error to be “harmless.” 

though evidence of multiple sexual acts over several years was presented,
“it was clear” from the way the state argued that it was relying for conviction on


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                                  No. 10-20876

one act committed on a single night, so “the delay in the election did not
embarrass the accused by leaving him in doubt as against which offense he
would be called upon to defend.” 

      Similarly, in Francis v. State, the CCA vacated the conviction of a
defendant charged with a single count of indecency with a child for touching his
victim’s breast or genitals in separate incidents. 

, 122 (Tex. Crim.
App. 2000). The court carefully pointed out that the state introduced evidence
of four different acts of indecency committed during four separate incidents;
“[t]here was never a single incident alleged in which the appellant touched both
the breasts and the genitals of the victim.” 

trial, when the
defendant requested that the state be required to elect, the state proceeded on
two separate incidents, one in which the defendant touched the victim’s breast,
and another in which he touched the victim’s genitals. 

refused to require the state to elect between these two incidents. 

that “[t]hese incidents constitute two separate offenses” which it was
improper to charge in the same count, and vacated the conviction. 

argues that an election by the state was required
because the evidence “clearly shows that the alleged offenses did in fact occur at
different times and location.” Petitioner points to the following evidence:
      The Child Protective Services Investigator testified that the case
      could have been prosecuted in Collins County and / or Johnson
      County, Texas, because her investigation led her to believe the
      assaults took place in two locations. The babysitter testified that
      the victims told her the assault happened at the “new house.” The
      victim testified that the assault occurred at the “old house.”

The trial court and the federal district court here disagreed with Petitioner’s
interpretation of the record. They noted that the victim – who testified when she
was 5 years old – never testified that the acts were performed on her at different
times or locations, or that they occurred during more than one incident. The


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                                       No. 10-20876

trial court also noted that the indictment did not charge multiple assaults over
multiple dates, and the Government did not argue such at trial. For these
reasons, it found that the record did not support Petitioner’s argument that the
acts occurred in separate incidents.
       Our review of the record leads us to conclude that the CCA reasonably
could have agreed with the trial court’s assessment of the record in denying
Petitioner’s habeas petition. The evidence pointed to by Petitioner is the
unexplained speculation of a single investigator, and an easily explainable
inconsistency between the victim and a witness who was relating what she said
the victim had told her previously. The victim’s testimony does not support
multiple incidents, and the Government did not argue such at trial. These are
all factors that could have led the CCA reasonably to conclude that the evidence
did not support Petitioner’s argument that the acts occurred in separate
incidents.
       Second, Petitioner argues that even if the different acts occurred as part
of a single incident, Texas law at the time required the state to elect which
incident it would rely on, or alternatively that to convict the jury should have
been instructed to unanimously find the state had established that the
defendant committed at least one of the alleged acts.3 In our view, Texas law at


       3
         He argues this on the basis of the cases discussed above, as well as Vick v. State, 

(Tex. Crim. App. 1999) and Huskey v. State, 

(Tex. App.–Dallas
2000) (unpublished). Vick was a double jeopardy case where the state charged a defendant
with one count of sexual assault based on multiple acts but elected to proceed on the basis of
only one act at trial, and the defendant was acquitted. The court ruled that the state could
charge him with a new count of sexual assault on the basis of a different act and not violate
the double jeopardy clause. In Huskey, a child alleged her stepfather molested her nightly in
different ways for two years. 

at *1. While the trial court charged the jury
that it had to find at least one of the charged sexual acts occurred on a single night, the
appellate court noted that “the State did not focus on a particular incident to support the
conviction” but “argued that [the victim] was the victim of chronic sexual abuse.” 

the court found that an election should have been required, that the disjunctive
charge was improper, and vacated the conviction.

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                                  No. 10-20876

that time was at best unclear as to whether appellate counsel would have
prevailed had he argued either the election or the unanimous verdict issue. As
demonstrated by the above discussion of Texas case law at the time of the
appeal, the prevailing view was that unless the evidence reflected that the
numerous sexual acts that the defendant was charged with committing were
committed on separate occasions, the state was not required to elect, and the
court was not required to instruct that the jury must unanimously agree that a
single act was committed. Counsel perhaps should have anticipated that the
case law was moving in the direction ultimately settled on by the CCA in Pizzo.
However, the CCA reasonably could have concluded that, to be constitutionally
effective, counsel was not required to anticipate the court would adopt this view.
      We therefore agree with the district court that the state court’s denial of
relief to Petitioner was not unreasonable. See 

.
      AFFIRMED




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