United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 19-40356 May 12, 2022 Lyle W. Cayce Clerk 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 unsuccessfully 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. We now consider that claim on the merits. Although we agree with Engle that certain conduct by the prosecutor during the trial violated the Due Process Clause, we conclude Case: 19-40356 Document: 00516317380 Page: 2 Date Filed: 05/12/2022

No. 19-40356

that Engle was not prejudiced by the violation. 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 and told them he had started the fire intentionally. He taunted the firefighters, saying “f*** the fire department” and discouraging them from putting out the fire. As firefighter Brian Smolik prepared to extinguish the blaze anyway, Engle said, “Do you want 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 firefighter 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 Engle wandering the streets and placed him under arrest. Upon 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 he 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 County Sheriff’s Office, Texas Ra