Case: 21-20579 Document: 00516812389 Page: 1 Date Filed: 07/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 7, 2023
No. 21-20579
Lyle W. Cayce
____________ Clerk
Fidel Flores,
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. 4:20-CV-2252
______________________________
Before King, Jones, and Duncan, Circuit Judges.
King, Circuit Judge:
A Texas jury found Fidel Flores guilty of aggravated sexual assault of
a child under the age of six, and he was sentenced to forty-five years’
imprisonment. Flores challenged his conviction both on direct appeal and
through state habeas proceedings, but the Texas courts denied his requests
for relief. The United States District Court for the Southern District of Texas
denied his subsequent federal habeas petition and his request for a certificate
of appealability. This court granted Flores’ application for a certificate of
appealability on one issue: whether trial counsel rendered unconstitutionally
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ineffective assistance by failing to object to expert and lay opinion testimony
regarding the truthfulness of G.P., the complainant. For the reasons
articulated herein, we AFFIRM the district court’s denial of Flores’ habeas
petition.
I.
A.
In October 2012, G.P., the complainant, told his mother that he was
experiencing rectal pain, and she twice took him to his pediatrician, Dr. Ciro
Porras, for examination. During the second visit, G.P. told the pediatrician
that Flores—G.P.’s uncle—had “put a stick in his bottom several times.”
Upon hearing this, Dr. Porras concluded that G.P. had been sexually abused
and reported the abuse to police and Child Protective Services. Flores was
charged with a single count of aggravated sexual assault of a child.
At trial, the State presented testimony from numerous witnesses.
G.P.’s mother testified that Flores previously lived with her, her husband,
and G.P. in a one-bedroom apartment and, beginning in 2011, would babysit
G.P. on the days that she worked. Around April 2012, G.P. began
complaining of rectal pain and started exhibiting anger and aggression toward
Flores. In May 2012, G.P. told his mother that he did not want to stay with
Flores and that Flores was hurting him.
G.P.’s mother arranged for alternate childcare but, fearing
deportation and lacking the resources to move, did not report the abuse. In
September 2012, however, Flores picked up G.P. from school because his
normal caretaker was unavailable. The next morning, G.P. told his mother
that Flores had hurt him again and that he was hurting “on the inside.” She
took G.P. to Dr. Porras on October 2, 2012, but she did not mention G.P.’s
reports of abuse. Dr. Porras testified that he observed an area of thinning on
the complainant’s anus. He diagnosed constipation, of which G.P. had no
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prior history, and prescribed a stool softener. G.P.’s mother took him to Dr.
Porras again on October 23, 2012, because of continuing rectal pain. Dr.
Porras’ examination of the complainant revealed a small anal fissure, or tear,
and G.P. told Dr. Porras about the abuse, at which point Dr. Porras contacted
the relevant authorities. Soon after, Child Protective Services contacted
Flores about the allegations, and he eventually left for El Salvador, though he
voluntarily returned to the United States after speaking with a Houston
police officer about the charge.
The jury heard testimony over two days of trial from nine witnesses,
including G.P. himself. Flores contends that the trial testimony of multiple
expert and lay witnesses offered direct opinions as to the truthfulness of
children generally and G.P. specifically, which is impermissible under Texas
law. See Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (en banc)
(“[Texas Rule of Evidence] 702 does not permit an expert to give an opinion
that the complainant or class of persons to which the complainant belongs is
truthful.”). He argues that the following statements of seven witnesses all
crossed this line:
First, the State asked Dr. Porras if G.P.’s disclosures to another
witness were “consistent with” what G.P. had told Dr. Porras during his
examination. He replied, “Yes, it was.” He also testified that he “had reason
to believe that there was some sort of a sexual encounter.”
Second, the State asked the investigating police officer why it was
“important to you as an officer investigating a sexual assault crime” that G.P.
was able to provide “sensory details.” The officer replied, “Those kind of
details are important because they lend to the credibility of the outcry.”
Third, the State asked a former forensic interviewer at the Children’s
Assessment Center why it was “important to you as a forensic interviewer”
that G.P. was able to provide “sensory details.” She responded, “Just adds
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validity to what the child has experienced. But also . . . it would be difficult to
describe something that is memorized as opposed to having a sensory [sic]
attached to it.” The State then asked her whether G.P. was consistent in his
telling of the abuse, to which she responded, “Yes.”
Fourth, the State asked several questions to a staff psychologist at the
Children’s Assessment Center. When asked whether there was “any specific
type of emotion you would expect to see with a kid to think that you should
be able to believe their word,” she responded, “No. I’ve seen all sorts of
emotions from kids on the stand.” When asked to list “some factors that
would be important to you to determine reliability or validity of the
disclosure” by children, she answered, “[T]hings that are of importance
would be sensory details. If a child can describe what they felt, what they
smelled, what they heard, what they saw, things of that nature, then you
don’t really need the context of the importance of the sexual act to describe
that.” She also testified,
Children can lie about a lot of things in their lives, but sexual
abuse is not typically one of them. It is one of the most
shameful, embarrassing things for a child to talk about. It’s not
something that would ever be chosen as a form of lying just for
fun. It’s not a fun experience for children. And oftentimes,
their lives significantly change in a negative way.
When asked whether “kids know how to lie about things that they don’t have
knowledge of, such as sex,” she responded,
No. . . . A child to make up something that they have no
knowledge of—because a child that young shouldn’t know
anything about that. So, it wouldn’t make sense that they’d
even be able to conjure up an incident, you know, such as sexual
abuse to come up with something to lie about.
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And when asked “if a kid doesn’t know what anal sex is or anal penetration,
. . . it’s not within his wheelhouse to even try to make something up about it,
is that what you’re saying,” she said, “Yes.”
Fifth, the State asked G.P.’s psychotherapist at the Children’s
Assessment Center whether G.P.’s actions in “play therapy” were “the
kinds of things that five, six year olds come in and just fake to go through the
motions.” She responded, “No. Absolutely he seemed very authentic.”
Sixth, the State asked G.P.’s mother whether the statements she
heard G.P. make to his father, to his mother’s friend, and to Dr. Porras were
“consistent with” what G.P. had told her. Each time, she responded, “Yes.”
She also testified that she “believed the words of the child because he was
only four years old. And the words that he was saying to [her] were terrible.”
Seventh, the State asked Flores whether G.P. “has been consistent
about the type of sexual abuse with every single witness that has testified
here.” He responded, “Yes, I’ve heard that he’s always said the same
thing.”
Flores’ trial counsel did not object to any of this testimony. However,
he objected in other instances to testimony that he argued impermissibly
opined on G.P.’s credibility. Sometimes these objections were sustained, and
other times they were overruled.
On August 20, 2015, the jury found Flores guilty of aggravated sexual
assault of a child under the age of six, and he was sentenced to forty-five
years’ imprisonment.
B.
Flores unsuccessfully appealed his sentence and then filed a state
application for a writ of habeas corpus. He claimed that his trial counsel had
unconstitutionally deprived him of effective assistance by, inter alia, failing
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to object to inadmissible expert and lay testimony concerning truthfulness
and to jury instructions that did not require a unanimous verdict for
conviction. The state habeas trial court entered recommended findings of
fact and conclusions of law regarding this claim, finding that trial counsel’s
failure to object to witness testimony on truthfulness was not deficient, as it
was part of his trial strategy, and that Flores was not prejudiced by his trial
counsel’s performance; however, the trial court recommended that habeas
relief be granted because trial counsel did not object to the jury instruction
concerning unanimity.
The Texas Court of Criminal Appeals (“TCCA”) nonetheless denied
state habeas relief in a written order. Regarding the jury instructions, the
TCCA stated that the trial court incorrectly analyzed the case “under the
appellate standard of review for jury charge issues rather than the Strickland
standard.” More generally, the TCCA ruled that Flores had “not satisfied
the prejudice component of his ineffective assistance of trial counsel claim.”
Flores subsequently filed a federal habeas petition in the Southern
District of Texas that listed four grounds for relief, including his claim that
trial counsel repeatedly failed to object to inadmissible testimony concerning
truthfulness. Applying the Antiterrorism and Effective Death Penalty Act’s
(“AEDPA”) deferential standard of review, the district court denied his
petition in a summary judgment. Regarding Flores’ claim concerning witness
testimony, the court determined that “trial counsel set forth a thorough
explanation of his actions, his reasons for those actions, and how the actions
fit his trial strategies.” Though this strategy was ultimately unsuccessful, the
court concluded that such assistance was not unconstitutionally ineffective.
The district court also denied Flores a certificate of appealability (“COA”).
Flores then motioned this court for a COA with respect to two of his
habeas claims: his claim that trial counsel failed to object to inadmissible
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testimony concerning truthfulness, and his claim that trial counsel failed to
object to jury instructions that did not require a unanimous verdict. This
court granted the motion in part, granting Flores a COA concerning his claim
that “his trial counsel was ineffective for failing to object to improper expert
and lay testimony commenting on the victim’s truthfulness.”
II.
Because the district court denied Flores’ habeas petition in a summary
judgment, we review the district court’s factual and legal conclusions de novo.
Guy v. Cockrell, 343 F.3d 348, 351 (5th Cir. 2003).
The parties agree that Flores’ claim is subject to the deferential
standard set out in AEDPA because it was adjudicated by Texas courts on
the merits. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal
claim has been presented to a state court and the state court has denied relief,
it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the
contrary.”). Under that standard, a federal court may not grant habeas
corpus relief with respect to any claim that was adjudicated on the merits in
state court proceedings unless the state court’s adjudication “resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,” or
“resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.”
28
U.S.C. § 2254(d).
Under AEDPA, “[a] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S.
at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). A state
court’s findings of fact must be presumed correct unless the petitioner rebuts
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the presumption “by clear and convincing evidence,” 28 U.S.C.
§ 2254(e)(1), and its application of clearly established law is not unreasonable
unless it is “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter,
562 U.S. at 103.
III.
Flores contends that the TCCA erroneously applied Strickland v.
Washington, 466 U.S. 668 (1984), which provides the benchmark for
constitutionally ineffective assistance of counsel, in its denial of his habeas
petition. Under Strickland, Flores must satisfy a two-part test and show that
(1) “his counsel provided deficient assistance,” and (2) “there was prejudice
as a result.” Richter,
562 U.S. at 104; see also Strickland,
466 U.S. at 687.
We may review these prongs in either order, and a failure to satisfy
one part of the test dooms the entire claim. See Bouchillon v. Collins, 907 F.2d
589, 595 (5th Cir. 1990) (“[T]he Strickland decision does not require us to
analyze these criteria in any particular order; if we can dispose of this case on
the prejudice prong the Strickland Court urged that we do so.”). Concluding
that Flores cannot satisfy the prejudice prong under its onerous standard of
review, we do not reach the deficiency prong of the test.
A.
To establish prejudice under Strickland, a defendant must
demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694; see also
id. (“A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”). But Flores must show
more, because under AEDPA our review of a state court’s application of
Strickland is “doubly” deferential. See Richter,
562 U.S. at 105 (quoting
Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)); Anaya v. Lumpkin,
976 F.3d
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545, 554 (5th Cir. 2020) (viewing the prejudice prong “with the requisite
double deference”).
To satisfy this doubly deferential standard of review, we must be
convinced that “every reasonable jurist would conclude that it is reasonabl[y]
likely” that Flores would have been acquitted had his trial counsel objected
to the contested testimony. Adekeye v. Davis, 938 F.3d 678, 684 (5th Cir.
2019); see also Fears v. Lumpkin, No. 20-40563,
2022 WL 3755783, at *5 (5th
Cir. Aug. 30, 2022). “[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Adekeye,
938 F.3d at 684
(quoting Richter,
562 U.S. at 102).
B.
Flores argues that his trial was a contest of credibility—his credibility
against the credibility of G.P.—and that there is a reasonable probability that,
without the inclusion of inadmissible credibility testimony by lay and expert
witnesses, the result of the proceedings would have been different. He thinks
that “[t]rial counsel’s repeated failure to properly object to this testimony
had the effect of repeatedly hammering home for the jury the ‘most
important piece of evidence to know [is] if that child is being truthful.’”
But as this court has previously explained, such testimony is arguably
cumulative evidence of G.P.’s credibility—and therefore harmless—where
the jury had other opportunities to assess the complainant’s credibility itself.
Fears, 2022 WL 3755783, at *6. Here, the jury heard from G.P. directly,
providing it with the opportunity to evaluate his demeanor in court firsthand
and to compare his trial testimony to the earlier statements other witnesses
alleged that he made. Because “[o]ne rationally could conclude that the
bolstering evidence gave the jury nothing it didn’t already have,”
id.,
whether trial counsel’s supposed error prejudiced Flores is debatable by
reasonable jurists.
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Furthermore, the jury was provided with more than enough evidence
to convict Flores without the challenged testimony, and we are unable to say
that every reasonable jurist would believe it reasonably likely that Flores
would have been acquitted if trial counsel had objected. Under Texas law, a
sexual assault conviction “is supportable on the uncorroborated testimony of
the victim of the sexual offense if the victim informed any person, other than
the defendant, of the alleged offense within one year after the date on which
the offense is alleged to have occurred.” Tex. Code Crim. Proc. Ann.
art. 38.07(a). G.P. testified at trial and told multiple people—including his
mother and his pediatrician—about the assaults well within one year of their
taking place. The jury could have convicted Flores on this testimony alone,
which is detrimental to Flores’ prejudice argument.
The jury was presented with other evidence supporting Flores’
conviction as well. Dr. Porras testified at length about his multiple
examinations of G.P., and the jury was presented with G.P.’s medical records
from these visits, which together support the jury’s guilty verdict. The
medical records and testimony show that in early October 2012, Dr. Porras
observed thinning of a portion of G.P.’s rectum, which could have resulted
from constipation or penetration. He diagnosed G.P. with constipation and
prescribed Miralax, a stool softener, in addition to a robust treatment plan.
G.P. returned later that month, at which point Dr. Porras observed a tear in
G.P.’s anal lining, which, for Dr. Porras, “raise[d] a big red flag that this is
actually a case of potential sexual abuse.” This led to Dr. Porras’ diagnosis
of sexual abuse. In December 2012, Dr. Porras again treated G.P. and
observed “complaints related to genitalia and anus” that he suspected were
“related to psychological trauma of the incident.” In addition to the medical
evidence, the jury could have considered Flores’ flight to El Salvador after
finding out that there were sexual abuse allegations against him as an
acknowledgment of wrongdoing.
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Ultimately, we are unconvinced that every reasonable jurist would
believe it reasonably likely that Flores would have been acquitted absent the
challenged testimony. AEDPA’s demanding standard of review thus requires
us to defer to the TCCA’s decision, and we AFFIRM the judgment of the
district court.
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