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finding prejudice prong satisfied when record included summary of expert's qualifications and specific matters to which expert would have testified; concluding that expert's "credibility combined with his testimony would have had a strong impact on the jury and sufficiently undermine[d] the outcome of the trial"
Summary of this case from Garza v. StateOpinion
No. WR–75804–02.
09-17-2014
Ex Parte Hannah Ruth OVERTON, Applicant.
Cynthia E. Orr, San Antonio, TX, for Appellant. Douglas K. Norman, Assistant District Attorney, Corpus Christi, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.
Cynthia E. Orr, San Antonio, TX, for Appellant.
Douglas K. Norman, Assistant District Attorney, Corpus Christi, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.
OPINION
MEYERS, J., delivered the opinion of the Court, in which PRICE, WOMACK, JOHNSON, HERVEY, COCHRAN, ALCALA, JJ., joined.
A jury convicted Applicant of capital murder for the death of a four-year-old child she and her husband were in the process of adopting. The trial court sentenced her to life imprisonment without parole. Her conviction and sentence were upheld by the court of appeals and we refused her petition for discretionary review. Overton v. State, No. 13–07–00735–CR, 2009 WL 3489844, 2009 Tex.App. LEXIS 8312 (Tex.App.–Corpus Christi Oct. 29, 2009, pet. ref'd) (mem. op., not designated for publication); In re Overton, No. PD–1807–09, 2010 Tex.Crim.App. LEXIS 124 (Tex.Crim.App. Mar. 24, 2010). Applicant filed an article 11.07 application for writ of habeas corpus alleging that she is actually innocent based upon newly discovered evidence, that she received ineffective assistance of counsel, and that the State failed to turn over exculpatory evidence. We ordered the trial court to conduct an evidentiary hearing for further factual development of Applicant's claims. Ex parte Overton, No. WR–75,804–02, 2012 WL 1521978, 2012 Tex.Crim.App. Unpub. LEXIS 85 (Tex.Crim.App. Feb. 8, 2012). In response, the habeas judge conducted the hearing and entered findings of facts and conclusions of law, ultimately recommending that relief be denied. We ordered the application be filed and set for submission to determine whether:
(1) Applicant received ineffective assistance of counsel at trial. Specifically, whether counsel were ineffective for failing to enter into evidence the deposition of Dr. Michael Moritz or to otherwise attempt to secure his availability to testify at Applicant's trial, and whether counsel provided conflicting advice regarding lesser included offense instructions being included in the jury charge. The parties shall also address whether Applicant was prejudiced by mis-communication among the defense team regarding the pre-trial investigation; and
(2) The State failed to disclose exculpatory evidence in this case.
Because we conclude that Applicant did receive ineffective assistance of counsel, relief is granted.
BACKGROUND
In October 2006, Applicant and her husband brought the four-year-old boy they were in the process of adopting, A.B., into an urgent care center. According to one of the nurses present at the center, A.B. was not breathing and began to vomit excessively when chest compressions were performed on him. The nurse testified that the vomit had the color and odor of chili, which is what Applicant had said she fed him before bringing him into the center. One of the doctors at the center testified that there was a huge amount of vomit and that they had to suction the contents from the child's mouth. Paramedics arrived and established an airway into the child, but he was not making any spontaneous movements. He was eventually taken across the street to Spohn South Hospital and then transferred to Driscoll Children's Hospital, where he died the next day.
Dr. Alexandre Rotta, the pediatric critical-care specialist at Driscoll who treated A.B., testified that when the child arrived from Spohn, he had to be connected to a ventilator and receive minutes of CPR before a pulse returned. A computer axial tomogram (“CAT”) scan was ordered to observe the child's brain and it revealed that he had brain swelling as well as bleeding inside and around his brain. Dr. Rotta also ordered a second sample of A.B.'s blood to be tested when he learned of the Spohn blood test that showed the child's sodium level to be “incredibly high” at 242. Dr. Rotta explained that normal levels of sodium should be between 135 and 145. The second blood test showed the child's sodium level to be greater than 250, which was the highest Dr. Rotta had ever seen.
Dr. Rotta went on to testify about the symptoms an individual with sodium intoxication would experience. He stated that one would first feel general discomfort with the possibility of nausea and vomiting. Within thirty minutes, the patient would have “pronounced thirst” and “try to seek water at any cost” because people cannot “tolerate having a high sodium without wanting to fix it.” Following this would be more discomfort, changes in consciousness and behavior, difficulty breathing, loss of consciousness, seizures, and then cardiorespiratory arrest. Dr. Rotta stated that he thought the seizures and loss of consciousness would occur within one to one-and-a-half hours after the salt intoxication.
Although Dr. Rotta knew that A.B. had a “much greater chance of not surviving than surviving,” they continued to try to resuscitate him. Dr. Rotta explained that when a child goes into cardiac arrest outside of the hospital, there is less than a ten-percent chance of survival and those who do survive have “significant neurological devastation.” Dr. Rotta did conclude that the child could have survived if he had been taken to the hospital more quickly. Dr. Rotta also testified that he thought Applicant's description of the timeline was unusual and did not understand why she would take him to an urgent care clinic if he was in full arrest.
The medical examiner determined that A.B.'s death was a homicide, and Applicant was charged with capital murder. The indictment alleged that she caused the death of A.B. by giving him an acute toxic level of sodium or by failing to provide him with adequate or timely medical care.
At trial, Applicant testified that A.B. was “obsessed with eating” and ate more than her other children at every meal. She explained that he was having worsening problems with eating off of the floor, getting into the trash, and even eating the cat food. She said that he would become upset whenever she prevented him from eating what he wanted, and that she had reported his excessive and inappropriate eating behaviors to the adoption supervisor.
On the day of the incident, Applicant testified that she fed the children breakfast when they woke up and then they went to bed to watch cartoons. Applicant said that she fell asleep at that point and when she awoke, A.B. was in the pantry on a stool, eating an unknown substance. She put him in timeout for three minutes and explained that they would go to eat when Larry, Applicant's husband, arrived home from work. A.B., however, upset over not getting food, threw a tantrum, defecated in his pants, and then threw his feces at Applicant. This behavior had occurred before, so Applicant gave him a wipe and helped him change his clothes. Upon getting everything cleaned up, however, A.B. did the same thing again, this time smearing his feces on the floor. Applicant eventually told him that she would give him something to eat, and fed him a leftover soup and chili mixture from the night before.
Larry Overton returned home while A.B. was eating and cleaned up the mess he had made. Applicant, Larry, A.B., and one of Applicant's children then went to Applicant's chiropractor appointment. On the way, they stopped at McDonald's to get food for Larry and Applicant; A.B. became upset when he was not allowed to get anything because he had already eaten. When they returned home from the appointment, Larry went back to work and A.B. again went to the kitchen and complained he was hungry. After he began crying, Applicant decided to give him more chili with Zatarain's seasoning added to it. When she refused to give him a second serving, however, A.B. became extremely upset and threatened to defecate on her. She decided to give him a cup of water with “a couple of sprinkles of the Zatarain's” in it so that he would get the flavor she thought he wanted and calm down. She filled a full cup of water and then poured some out thinking it would be too much for the child. She then put the mixture in a sippy cup and A.B. drank it.
After finishing with the water, A.B. asked for more chili and began to throw a fit. He tantrumed for “20 minutes or so” when he suddenly stumbled to the floor, said he was cold, and threw up. Applicant simply “thought that he had gotten himself so worked up that he threw up.” She called Larry and told him A.B. was “freaking out” and that he needed to come home. While waiting for Larry, Applicant and A.B. started to clean up the vomit when A.B. began to shake. He went to his bedroom and Applicant wrapped him in blankets and put a heating pad under him.
Larry returned home and Applicant consulted her EMT and nursing books and decided that A.B. might be “in some sort of shock,” but she was not overly worried because that had happened before. However, in order to warm him further, Applicant and her husband placed him in a warm bath. At that point, she testified that A.B.'s breathing began to sound congested, so she used a nebulizer on him until his breathing got better. According to Applicant, when they took him out of the tub and dressed him, he was moaning and “lethargic.” Although Applicant determined that his vital signs were normal, she began to think there was something more seriously wrong with him when the abnormal breathing returned. As he became less responsive, Applicant sensed the situation had become “serious.” She had not realized this sooner, she said, because his behavior had been similar to her youngest son's when he had pneumonia a few months prior and to her other children when they had the flu.
At this point, Larry and Applicant drove A.B. to the urgent care center. On the way, Applicant called the adoption coordinator for the necessary forms for him to see the doctor. She told the coordinator that the child had “funny” breathing and was not “responding well.” During the ride, however, A.B. stopped breathing altogether and Applicant began CPR. She stated that he vomited into her mouth and then began breathing again. However, as they were taking him out of the car in the parking lot of the urgent care center, he stopped breathing again. They took him inside the center, which eventually transferred him to Spohn, which then transferred him to Driscoll Children's Hospital where he died the next day.
The jury convicted Applicant of capital murder and the trial court sentenced her to life imprisonment. A jury poll was conducted and each juror stated that he or she found Applicant guilty based on her failure to obtain medical care for A.B., rather than on the theory that she forced the child to consume the sodium. On direct appeal, Applicant challenged the sufficiency of the evidence; claimed there was error in the indictment and jury charge; alleged that the State withheld material exculpatory evidence and presented “extra-record” evidence to the jury; asserted that there was newly discovered evidence; alleged that there was prosecutorial misconduct; and claimed that the trial court abused its discretion in allowing testimony from the State's expert witnesses. Overton, 2009 WL 3489844, at *1, 2009 Tex.App. LEXIS 8312, at *1. The court of appeals overruled all of Applicant's issues and affirmed the judgment of the trial court. Id. at *47, 2009 Tex.App. LEXIS 8312, at *159–60. We then refused Applicant's petition of discretionary review and she filed this application for writ of habeas corpus.
DR. MORITZ
Dr. Michael Moritz is a leading expert on hypernatremia, or sodium intoxication, and has written extensively on the subject. He was hired by Applicant's defense team and gave a deposition, but that deposition was never entered into evidence at Applicant's trial and he did not otherwise testify. Applicant now claims that the defense team's failure to present his testimony or deposition constitutes ineffective assistance of counsel.
His Testimony
Dr. Moritz's deposition was conducted during the middle of the criminal trial by Brad Condit, the Overtons' civil lawyer in the child-custody case. Only two of Applicant's criminal-defense attorneys, David Stith and Chris Pinedo, either attended or watched a portion of the deposition, neither seeing the entire thing. Pinedo, however, recommended to John Gilmore, the lead trial counsel, that the deposition not be used. At the habeas hearing, Pinedo testified that he did this because the deposition contained objectionable material and was too “messed up” to be edited and played for the jury. He believed that interruptions and invalid objections made by the prosecution during the deposition rendered it “useless,” and he asserted that “cutting and pasting a deposition can be very difficult with a lot of needless interruptions.” He also explained that, although they originally planned to call Dr. Moritz live at trial, it was postponed twice. Rather than ask the Court for a continuance to accommodate the doctor, who could not travel on the Sabbath, the deposition was conducted by Brad Condit in the middle of the criminal trial so that the doctor could return home.
As a result of A.B.'s death, Applicant's other children were removed and custody proceedings initiated.
Dr. Moritz's deposition was about two hours in length and contained much testimony that was favorable to the defense. It began with a lengthy history of his work, his research, and his published papers on the subject of hypernatremia. He then went on to describe, in detail, emotional deprivation syndrome, which is often associated with extreme eating habits and explained how many of its features were present in A.B. He refuted much of what Dr. Rotta testified to, such as the amount of Zatarain's A.B. would have had to ingest for his sodium to be at the level it was, and determined that Dr. Rotta did not evaluate the cause of A.B.'s hypernatremia at all, a significant oversight. He described the difficulty Applicant would have had in forcing that amount of salt or Zatarain's into A.B., who would have fought back, spit it out, or vomited, but asserted that if A.B. had a psychological problem, such as emotional deprivation syndrome, he could have consumed it voluntarily. Dr. Moritz also ultimately concluded that Applicant did not poison the child and that A.B. consuming something himself was the most likely cause of his sodium intoxication.
Dr. Moritz did make some statements in the deposition that were helpful to the State's case. He discussed a case in which an infant had a sodium level of 274, higher than A.B.'s, and did recover. He admitted that the only information he received regarding the possibility of child abuse by Applicant was given to him by the defense. He also stated that the mortality rate of a person in A.B.'s situation would be “a minimum of a thirty to fifty percent,” which could be considered favorable to the State's case.
However, Dr. Moritz also specifically testified about the issue of Applicant's omission in not getting A.B. medical care sooner. The following includes that pertinent testimony:
Q: [By Brad Condit] Doctor, are you a father yourself?
A: [By Dr. Moritz] I am.
Q: How many children do you have?
A: I have six.
Q: Based on your life experience, your training, your research, your experience as a doctor, what would be the window of opportunity, assuming that [A.B.] consumed the amount of sodium you have calculated, in an acute period of time, for the parents to have sought treatment that would have resulted in a recovery?
Sandra Eastwood, for the State: Objection. Calls for the ultimate finding by the factfinder. “Being a father himself” is not a reason to be commenting on this. If from a medical perspective he can define the window of opportunity, the State does not object. But as to him being a father, I would object to that.
Q: Take out the fact that you have experience as a father. Please answer the question.
A: [By Dr. Moritz] On a medical basis, what we know from the literature, animals, humans, case studies, we know that salt poisoning and acute hypernatremia, meaning sodium levels that goes very rapid, goes high very rapidly, is lethal. That's what we know. And regardless of what treatment is offered, we know that the mortality, the death rate, of sodiums in this range are very high. Many cases of sodiums this high have actually happened in the hospital under physicians' supervision or in the emergency room where they gave salt as an emetic in the emergency room. And many times, even though therapy is introduced, there is no guarantee that a person could survive that. Now when it happens in the field, and we're talking about a sodium level
Q: Field. You mean in a home?
A: Yeah, in the home. You're talking about a sodium level that is clearly amongst the highest ever reported in a child of that age-the 274 we have is an infant-of a child of that age, and understanding that there is going to be a period of time, just a physical period of time, for the child to get from the home to the hospital. Give it whatever, a half of an hour, forty minutes. If the child has the acute sodium ingestion, it will take at least an hour for the child to manifest significant amount of symptoms for the patient to say ‘Wow, I think this child is deathly ill and needs to go to the hospital.’ This is very different
Sandra Eastwood: Objection. That's a psychological conclusion. It is up to the jury with what point a parent should say ‘Wow, I need to go to the hospital.’
A: Well, for example, most of the times if someone would bring someone to the emerg– you know call 9–1–1 and bring them to the emergency room, it would be for something like the child can't breathe
Sandra Eastwood: Objection. He's not qualified himself as being familiar with ER procedures.
A: This would be just examples. Just examples. Uh, the child can't breathe, the child turned blue, the child passed out. Or bleeding, the child cut themselves and is bleeding. These are things where someone would say, ‘Wow, I need to bring someone to the emergency room.’ But when you have something like vomiting, confusion, lethargy, meaning sleepy, not acting right, these are things that are more subtle. And for a parent who doesn't know what salt poisoning is, has never seen it before, it would take a period of time for them to figure out what's going on out of the blue when someone poisons themselves, and you don't know that they've poisoned themselves, it takes a while to figure out what is going on. And if it took an hour, then whatever, a half an hour to get to the hospital, and then blood needs to be taken, and it takes usually anywhere between 45 and 75 minutes to get a sodium level back from the lab. And when you would get a sodium value of 245, which would be the highest ever reported, you would want to repeat that value. And you're talking another hour to get that back. There's going to be a minimum three or four hours, under the best circumstances, before you can address it, then most people, including myself, have, in fact, never managed someone with a sodium of 245. And there's limited things that you have at your disposal to treat that then what we call good supportive care: maintaining the blood pressure, giving the fluids, and hoping that things work out. But there's no quote unquote specific therapy. And I'm someone whose published on using dialysis for this situation and I've used dialysis for this situation. It's not clear what you do. And I've published on how to, it's not clear what you have at your disposal and if someone lives or if someone dies, to a large degree, it's luck. There's no way you could predict, no one could say that ‘I could treat this and guarantee survival,’ with this situation. The mortality is very high. A minimum of a thirty to fifty percent mortality with someone who has a sodium of that, that high. And that's what the animal data shows. With sodium values in the 200s ...
Sandra Eastwood: Objection. Narrative.
Dr. Moritz's opinion remained the same after trial, as evidenced by this testimony at the habeas hearing:
Q: [By Mr. Raley, for the Applicant] All right. Back to our question about if she'd called 9–1–1 and the ambulance had come as quickly as they could, took him to the hospital as quickly as they could, triaged, decided to do labs at some point. Lab results came back; lab results had to be repeated. Do you have an opinion based on reasonable medical certainty and your education, your experience in this field as someone who has studied dozens of hypernatremia cases even since the trial of this case, do you have an opinion whether or not with a sodium level of 245 he could have saved even in the best of care, even if that 9–1–1 call had been made immediately, the ambulance had come immediately, and they'd taken him in and gave him the very, very best of care? With a blood sodium level of 245, do you have an opinion as to whether it is more likely than not that he still would have died no matter what?
Mr. Norman, for the State: I would object as speculative, Your Honor.
The Court: Overruled.
Q: You can answer.
A: I would say it would be exceedingly unlikely for him to live; and if he did, in all probability or almost certainly there
would be irreversible neurological injury.
Ineffective Assistance of Counsel
In order for us to grant habeas corpus relief for ineffective assistance of counsel, an applicant must establish, by a preponderance of the evidence, that: (1) trial counsel's performance fell “below an objective standard of reasonableness”, and (2) there was a reasonable probability that the result of the proceedings would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
There is a strong presumption that counsel's conduct was reasonable and judicial scrutiny of it will be highly deferential. Ex parte Flores, 387 S.W.3d 626, 636 (Tex.Crim.App.2012) ; Ex parte Rogers, 369 S.W.3d 858, 862 (Tex.Crim.App.2012). In fact, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. However, where counsel's deficient conduct is sufficient to undermine confidence in the outcome of the proceeding, “reasonable probability” that the result would have been different exists. Id. at 694, 104 S.Ct. 2052. The Strickland test is judged by the viewpoint of counsel at the time he acted, rather than through hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.Crim.App.2012).
At the habeas hearing, Applicant's trial attorneys testified. David Jones, one of the attorneys who was supposed to advise the team on medical issues, testified that he did not view Dr. Moritz's deposition and that the decision to not use him during the trial was “completely ineffective.” He thought Dr. Moritz's testimony would have been “extremely valuable for the jury,” as “he rebutted everything that Rotta said,” and would have “firmly convinced [the jury] of Hannah's innocence.” John Gilmore, the senior criminal lawyer on Applicant's defense team, testified that he also did not review the tape of Moritz's deposition himself and that he agreed with Mr. Jones's testimony about their ineffectiveness.
The decision to not present Dr. Moritz's testimony to the jury does not appear to be the result of any thoroughly investigated trial strategy and was not a reasonable decision by Applicant's defense attorneys. Chris Pinedo described the choice not to present it as a product of the difficulty in editing around the prosecution's improper comments, not as a strategic decision by the Applicant's defense team. Further, there was no strategy described in not requesting a continuance to accommodate Dr. Moritz's travel restrictions. It is clear from the habeas hearing and deposition itself that Dr. Moritz's testimony would have directly supported Applicant's defense and refuted much of the State's evidence. Pinedo even states in an affidavit that “Dr. Moritz's testimony was essential to prove that [A.B.] would not have survived from the sodium poisoning he suffered. Even if he had ingested the sodium at a hospital, it is highly unlikely he would have survived.” Given the pertinence of that testimony, and no convincing strategy or reason to keep it from the jury, it was objectively unreasonable for Applicant's counsel to not attempt to present it.
With the first prong of the Strickland test established, we now consider whether there is a reasonable probability that counsel's performance affected the result of the trial. Dr. Moritz was an extremely well-qualified expert on salt intoxication, as evidenced by the discussion during his testimony about his career path, research, and published papers. In his deposition, he was knowledgeable and able to explain complicated medical concepts with ease. During his testimony, he not only refuted much of what Dr. Rotta testified to for the State, but also established that he was better informed on the subject of salt intoxication than Dr. Rotta. Further, Dr. Moritz testified that A.B.'s survival, regardless of when he was brought to the hospital, would have been determined largely by luck. He described the mortality rate with salt intoxication as very high and said that it was extremely unlikely that A.B. would have lived, irrespective of how quickly medical care was given. Because the jury convicted Applicant based on a theory of failing to provide A.B. with adequate or timely medical care, this testimony goes directly to the verdict rendered in her trial.
We believe that Dr. Moritz's credibility combined with his testimony would have had a strong impact on the jury and sufficiently undermines the outcome of the trial. But for the defense team's failure to present Dr. Moritz's testimony to the jury in some way, there is a reasonable probability that the outcome of Appellant's trial would have been different. Both prongs of the Strickland test have been established.
CONCLUSION
Applicant has met her burden in satisfying both prongs of the Strickland test and established that she received ineffective assistance of counsel. Because defense counsel's performance fell below a reasonable standard and there is a reasonable probability that the outcome of Applicant's trial would have been different but for that performance, we grant relief. Because we are granting relief on Applicant's first claim of ineffective assistance of counsel, there is no need for us to address the second issue of whether the State failed to disclose exculpatory evidence. We reverse Applicant's conviction and remand her case to the trial court for a new trial.
COCHRAN, J., filed a concurring opinion, in which JOHNSON and ALCALA, JJ., joined.
KELLER, P.J., filed a dissenting opinion, in which KEASLER, J., joined.
COCHRAN, J., filed a concurring opinion in which JOHNSON and ALCALA, JJ., joined.
I join the majority opinion. I write separately to explain how the proceedings in this case were problematic from the beginning.
We know that four-year-old A.B. died of salt poisoning. But the question at the capital murder trial was whether (1) applicant forced A.B. to eat that salt and/or delayed taking him to a hospital until she knew that it was too late to save his life, or (2) unbeknownst to applicant, A.B. had an eating disorder that made him binge on salt, and he became so ill that no medical care could save him. The jury found that applicant did not feed A.B. salt, but that she knowingly caused his death by failing to take him to the hospital in time to save his life. Because the jurors were not instructed on lesser-included offenses, they convicted applicant of capital murder and sentenced her to life in prison without the possibility of parole. In this writ proceeding, applicant makes numerous constitutional claims, including “actual innocence,” Brady, and ineffective assistance of counsel. As the majority concludes, she is entitled to relief and a new trial.
The application paragraph of the jury charge read as follows:
Now if you find from the evidence beyond a reasonable doubt that HANNAH RUTH OVERTON, defendant, on or about the 2nd day of October, 2006, in Nueces County, Texas, did then and there intentionally or knowingly cause the death of an individual younger than six years of age, namely [A.B.], by causing [A.B.] to ingest a substance containing acute toxic levels of sodium, and/or intentionally or knowingly cause the death of [A.B.] by omission, failing to provide or to seek medical care or treatment for [A.B.] and the defendant had a statutory or legal duty to act or the defendant had assumed care, custody or control of [A.B.]; then you will find the defendant, HANNAH RUTH OVERTON, guilty of Capital Murder as charged in the indictment.
After returning its verdict, the jury was officially polled as to which theory it had based its verdict. Every juror said that he had found that applicant intentionally or knowingly failed to provide or seek medical care for A.B.
One might question whether capital murder under Section 19.03(a)(8) includes a “murder” under 19.02(b)(1) caused by the defendant's omission. See Section 6.01(c). The present indictment and jury charge appears to be a pastiche of the elements of injury to a child under Section 22.04(a), which does include criminal liability for omissions as well as affirmative acts, and capital murder. Although applicant complained about this aspect of the jury charge in the trial court, she did not raise this particular issue on appeal. Overton v. State, No. 13–07–00735–CR, 2009 WL 3489844, at *30 n. 90 (Tex.App.–Corpus Christi Oct. 29, 2009, pet. ref'd) (not designated for publication). That issue is not presently before us.
When asked how much was administered for punishment, the child responded, “Like two peppers, like sprinkles.”
A. Brady Issues
The majority does not address applicant's Brady claims because it grants relief based on one of her ineffective assistance of counsel claims. It is helpful, however, to place that ineffective-assistance claim within the broader context of applicant's claims concerning the fundamental unfairness of her trial. Without that broader context, it might appear that the failure to call Dr. Moritz as an expert concerning salt poisoning did not necessarily infect the entire trial and lead to a reasonable probability that the result of this trial would have been different but for trial counsels' deficient performance in that regard.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
First, applicant raises Brady claims concerning discovery disputes with the lead prosecutor. One Brady issue concerns the alleged withholding of records showing the low sodium content of A.B.'s vomit when he was brought to the Urgent Care Center. The second Brady issue concerns the purported failure to disclose Dr. Cortes's medical records and knowledge that A.B. suffered from undiagnosed cognitive deficiencies that caused him to have temper tantrums, throw feces, and eat inappropriate items, such as salt.
1. The Vomit Exhibit and Mislabeled Experiment.
At the habeas hearing, the lead prosecutor conceded that, during this 2007 trial, she was an alcoholic who was also taking prescription diet pills that affected her memory. She was later fired by the District Attorney (who had been the second-chair prosecutor during this trial) for unrelated ethical violations. During the habeas hearing, the prosecutor repeated seventy-two times that she did not recall or did not know the answers to questions concerning the investigation or trial of applicant. She could not remember documents that she had written during the trial and did not recognize her handwriting; she did not remember writing the e-mails that came from her e-mail address, nor receiving other e-mails at that address; she could not remember if she saw any vomit when she previewed the evidence with one of applicant's counsel before trial, and she did not remember asking the police to have it tested.
She testified that she is now in recovery and that her “sobriety date is January 20th of 2011.”
The second-chair prosecutor (later appointed as the District Attorney by the Governor) testified that the lead prosecutor told her that “she would do anything it would take to get an advantage over the Defense,” including sending a “spy” to applicant's church group to learn the defense strategy. The second-chair prosecutor testified that the lead prosecutor was not ethical and was “not truthful.” She said that the lead prosecutor told her that no vomit samples had been saved as evidence. She said that she was “concerned with the fact that [the lead prosecutor] was violating the Court's orders.”
When confronted with various court documents and exhibits that purportedly contained her signature and initials and referred to A.B.'s vomit that was recovered at the Urgent Care Center, the lead prosecutor could not “remember,” “recall,” or “identify” anything, even though she had explicitly requested that this vomit be tested. When shown a picture of the Bemis cannister containing the vomit, the prosecutor said, “No. I do not remember specifically seeing it. That doesn't mean I didn't see it. I just don't remember.” When asked about the experiment that the medical examiner conducted with this vomit at her request, the lead prosecutor could only “vaguely” recall it, but nothing refreshed her recollection of what the results of that experiment were.
This cannister containing the vomit was, according to applicant, crucial to her defense in showing that A.B. had himself binged on salt earlier in the day because that vomit contained just exactly what applicant said it would-a little Zatarain's creole seasoning and a little chili. The fatal salt ingestion had, according to the defense, occurred earlier when applicant was resting and A.B. got into the kitchen cupboard and helped himself.
Applicant's Brady claim was that the prosecution never told her about this specific vomit exhibit, where it had been recovered, or that the prosecutor had had its contents tested. The discovery material showed that the results of the medical examiner's experiment on the vomit were not mailed to the defense, but the lead prosecutor could not recall anything about that, even though her handwritten notes were on the test results.
The prosecution had turned over some information about the vomit to the defense, but it was labeled as “gastric contents” collected “from Hospital” which implied that the material was collected from inside A.B.'s stomach at the Spohn Hospital. The defense knew that vomit had been suctioned from A.B.'s mouth when he first arrived at the Urgent Care Center, but they were repeatedly told that no such vomit had been preserved. Furthermore, when Dr. Fernandez conducted an experiment with both the vomit and a solution of Zatarain's and water, the labels for each item were reversed so it looked like specimen D—the “Hospital gastric contents”—was really Specimen E-the Zatarain's and water slurry. Dr. Fernandez's report shows that the “Hospital gastric contents” (the vomit recovered from A.B.'s mouth at the Urgent Care Center) had a low sodium content of 48 while the Zatarain's mixture had a high sodium content of 250 (about the same sodium level that was in A.B.'s blood system at the Spohn Hospital). The State did not inform the defense of this mislabeling error or of the actual source of the “gastric contents.”
Dr. Melinek, the defense expert at trial, testified at the writ hearing. She said that, before trial, she had asked one of the defense attorneys why the hospital gastric exhibit had such a low level of sodium if A.B. had consumed a great deal of salt. The attorney told her that “[i]t probably came from the hospital and it may have happened after gastric lavage, which is washing out of the stomach.” The defense was misleading its own expert witness based upon those attorneys having been misled by the mislabeled experiment and the mistitled vomit exhibit. Dr. Melinek, based on the inaccurate information, therefore discounted the importance of the exhibit in forming her opinion at trial. She now believes that this exhibit was “crucial” and would have changed her trial testimony.
The significance of the vomit sample is that it had a low sodium level of 48 milliequivalents while A.B.'s blood sodium level, first measured at the Spohn Hospital about an hour later, was at a lethal level of 242. The defense theory is that this vomit proves that the little bit of chili and Zatarain's that applicant fed A.B. right before he started to fall ill had nothing to do with his death. A.B., on the verge of death, would have vomited up anything that he had eaten after the earlier fatal salt ingestion. It was the discrepancy between the small amount of salt in A.B.'s vomit (recently ingested) and the fatal amount of salt in A.B.'s blood (ingested earlier in the day or over several days or weeks and absorbed from the stomach and intestines into the blood stream) that was significant.
Dr. Michael Moritz, as the majority notes, is a leading expert on hypernatremia or salt poisoning. He testified during the writ hearing that a person experiences “severe hypernatremia” at the level of 170 milliequivalents and above. I refer to Dr. Moritz's writ hearing testimony not to prove certain facts or issues but to show how critical his testimony was to the defensive theory.
The State's expert testified that it would require 23 teaspoons of Zatarain's creole seasoning to raise A.B.'s blood sodium level to 245 milliequivalents. According to the Zatarain's company, a serving size is 1/4 teaspoon, so A.B. would have had to ingest close to 100 servings of Zatarain's. http://www.mccormick.com/Zatarains/Products/Spices-and-Seasonings/Spices-and-Extracts/Creole-Seasoning.
However, as Dr. Moritz explained at the writ hearing, some children have a rare condition that shuts off the mechanism that makes one who eats a salty food become very thirsty. He said,
There is a variety of neurological conditions or structural abnormalities of the brain, in particular related to the hypothalamus, different brain tumors or whatnot, where the children do not sense thirst normally or these mechanisms that keep the sodium, in a normal range don't kick in or shut off unless they're well outside of that normal range.
It was, therefore, possible that A.B. had a condition that made his baseline sodium level unusually high, and it would not take so much salt to get to 245. However, the medical examiner did not preserve any part of A.B.'s hypothalamus, so it is now impossible to test that theory.
Applicant had testified at trial that she (six months pregnant and recovering from whiplash injuries ), her two-year-old son, and A.B. rested together in bed that morning and watched cartoons. She fell asleep and, when she woke up, A.B. was no longer in the room. She found him standing on a stool in the kitchen pantry, having knocked something down from the shelf. It was a couple of hours after this pantry incident that A.B. began throwing a tantrum, defecated and smeared feces everywhere, was thirsty, and wanted more salt. 2. A.B.'s Pre–Existing Developmental Problems.
Photographs of the pantry show a Morton salt container on a shelf near the stool A.B. was standing on, as well as candy that had been moved around.
At the writ hearing, Dr. Moritz stated that this was “a perfect storm.” He meant that A.B.
[w]ould have voluntarily ingested a solution that had ... a lethal dose of sodium, that it would have been palatable to the point for him that he could have ingested it without vomiting, that it was at a concentration not so high that it would induce a severe gag reflex, that it was a liquid that could be rapidly absorbed, that his behavior prior to that was unusual enough that a well-intentioned caretaker wouldn't necessarily immediately notice what happened, and there were periods where he was unobserved because Hannah is watching other children, she's pregnant, she has an injury, she's taking oxycodone, there's other people coming to the door.
At the motion for new trial hearing, based on a Brady claim concerning whether the State failed to disclose exculpatory evidence, Dr. Cortes, A.B.'s regular pediatrician, testified that he had told the prosecutors that he did not think that applicant intended to kill A.B. But the lead prosecutor testified and denied that he had told her this. Dr. Cortes explained,
I've been very consistent in that from the very beginning that I didn't think it was [applicant's] intent to kill him or harm him, that I think that this was a case of her trying to discipline a frustrating child to parent and that the discipline went wrong.
The lead prosecutor said that Dr. Cortes never said any such thing. “In fact, he kept mentioning situations in the ER room, how parents even come when a child has a fever, that there was no excuse for her doing this.” A member of the prosecution team, Adolfo Aguilo, and the lead prosecutor both testified that they felt like Dr. Cortes was a “member of the prosecution team,” not simply a neutral medical witness.
On direct appeal, the court of appeals rejected this Brady claim because “there is conflicting evidence regarding whether the State knew of the alleged exculpatory evidence[.]” And the evidence was conflicting on that particular issue. Just as the evidence was conflicting on the issue of whether the lead prosecutor failed to disclose the vomit evidence obtained from the Urgent Care Center. The lead prosecutor's testimony conflicted with that of several different witnesses.
Overton v. State, No. 13–07–00735–CR, 2009 WL 3489844, at *32 (Tex.App.–Corpus Christi Oct. 29, 2009, pet. ref'd) (not designated for publication). The court also concluded that, even if the prosecutor failed to turn over exculpatory evidence, it would not have made any difference to the outcome because “Dr. Cortes did not testify at the motion for new trial hearing that he believed that Overton did not commit the offense knowingly.” Id. at *33. It explained that the State asked, “Doctor, it's not your testimony that Ms. Overton wouldn't have understood the seriousness of her child's condition at the time, is it, at the time he was suffering from salt intoxication?” Dr. Cortes replied, “Well, you have to remember that when something like this occurs, you go from being in a normal state to gradually going into a coma. So, I would imagine that at some point she should have known that he was having difficulties and that she should call 911.” Id. The court held that this testimony sufficed to show that applicant knowingly caused A.B.'s death by omission, but evidence that, at some point, applicant should have called 911 because A.B. was having “difficulties” and eventually slipped into a coma, does not prove that she knew, before starting for the Urgent Care Center, that he would die if she did not call 911.
The court of appeals's discussion of this point is illuminating because it shows the critical importance of Dr. Moritz's testimony to the defensive theory. According to Dr. Moritz, an LVN such as applicant would not have received any training on hypernatremia, its causes, effects, or symptoms when she was certified more than ten years earlier. Dr. Moritz stated that hypernatremia cases are “notoriously difficult diagnoses” for doctors, and it would not be fair to expect a lay person to diagnose it. In fact, from what Dr. Moritz had read about this case, “every step along the way [applicant] provided reasonable care.” He also stated that calling 911, waiting for the ambulance to come, taking the 15 minute drive to the hospital, taking the time to do the necessary sodium value testing (two tests because the first sodium test would register above the reference range and a “stat” dilution test would have to be performed, but typically the turn-around for such a “stat” test is within one hour), would have taken more than a hour, but it was “exceedingly unlikely” that a child with 245 milliequivalents in the blood could survive for more than an hour. Dr. Moritz concluded that there was “no delay” by applicant “that caused any harm” to A.B. He would have died no matter how quickly she reacted to his lethargic state.
Part of applicant's current Brady claim centers on a different aspect of Dr. Cortes's potential testimony: it is that the State intentionally hid Dr. Cortes's medical records that showed that A.B. had been diagnosed with developmental problems. The second-chair prosecutor testified at the writ hearing that Dr. Cortes had been moved from room to room during the trial and was becoming frustrated about when he was going to testify. When the second-chair told the lead prosecutor that Dr. Cortes wanted to know when he was going to testify, the lead prosecutor told her that “she did not want to call him ... [b]ecause she was concerned that he would testify that [A.B.] had behavioral problems.”
Dr. Cortes explained at the writ hearing that he had showed the prosecutor his medical records “and the fact that I was concerned about some of his speech and cognitive function and referred him for hearing tests and for an evaluation with a child neurologist.” According to the defense, this medical history was crucial because the State had insisted throughout the trial that A.B. was a perfectly normal four-year-old who had no prior medical problems.
Three days after the trial, Dr. Cortes called the lead defense attorney because he felt he had been “tricked” by the State. “I felt like the Prosecution had its own theory about what happened.” Dr. Cortes knew that Dr. Rotta's testimony “championed” the State's theory while he, Dr. Cortes, felt that A.B. had “other kinds of neurological problems.” Dr. Cortes “wanted the whole truth to have been presented to the jury.” After the trial Dr. Cortes discovered that the prosecutor had told the judge during the trial that she was not going to call him, so when she attempted to call Dr. Cortes in rebuttal, the judge would not allow it.
At trial, A.B.'s foster mother, Sharon Hamil, testified that A.B. had no behavioral or developmental problems and that he was a “normal” four-year-old. Dr. Cortes's medical records show, however, that Ms. Hamil brought A.B. to him because “he didn't talk or act like other children his own age and that he was a very late talker. And when he did talk, sometimes she couldn't understand him.” A.B.'s school records also showed that Ms. Hamil expressed concerns to his teachers at special education meetings about his abnormal behavior. Indeed, as early as November 2004, two years before A.B.'s death, Ms. Hamil was aware that he suffered from a “solid” developmental delay of eight months in both language and cognitive skills.
A.B. already had eating issues when he was under Ms. Hamil's care. She stated that “[A.B.] liked to eat every day, all day, any time.” He once ate five large slices of pizza; he ate chicken and dumpling soup until he threw up. He ate and ate and ate.
Based on symptoms that Sharon Hamil, A.B.'s foster mother relayed to Dr. Cortes, A.B. was referred to a neurologist, Dr. Gary Bobele, at the Driscoll Children's Hospital. Ms. Hamil, A.B.'s foster mother, reported to Dr. Bobele that A.B. “[h]ad exhibited echolalia during the time that she had him. This is a condition in which the child repeats the last word or two of an instruction that's given to him.” That symptom is important because it “is seen with children who have other kinds of neurological problems, like mental retardation or autism spectrum disorder.” Dr. Cortes explained that children who are intellectually delayed first experience difficulties in speech and communication, but they also have “a shorter fuse and get angrier more quickly. They throw temper tantrums.... They can also exhibit bizarre behaviors like smearing feces on things, the wall, or eating things that are inappropriate.” Those were the same behaviors that applicant and her husband had seen in A.B. and which support applicant's trial theory that A.B. died from self-induced salt poisoning. But she, unlike Sharon Hamil, had never been told of A.B.'s malady. Sharon Hamil testified that A.B. had no medical problems, but his medical records, which the prosecutor had in her possession, showed that he had been assessed for a neurological disability.
During the writ hearing, Dr. Moritz read from one of his recent articles on hypernatremia that many severe hypernatremia cases have resulted from voluntary sodium ingestion, but they “may have been misclassified in the literature as child abuse when they likely were not. Fatal voluntary salt poisoning is well described in adults, but primarily in patients with psychiatric or developmental conditions.” Dr. Moritz's article stated that, out of his case studies of about twenty children, “[t]here is only one documented report of forced salt poisoning to an older child in the literature, a five-year-old. All other reports are in infants.”
Since the trial, Dr. Cortes had reviewed applicant's trial testimony and modified his opinion even more.
Up until now everybody has been of the opinion that [A.B.] was given a large dose of sodium. And to be honest with you, as I've reviewed his behaviors and also the fact that he had Zatarain's the night before, he had stew with Zatarain's again on the morning of his death, and then he had a cup of those spices when he insisted on eating more, I believe that this child's sodium intoxication was either subacute or chronic.
Dr. Cortes distinguished an acute intoxication as “where you took a large amount of a poison,” whereas a chronic exposure is a lesser amount over a longer period of time, “then you reach a point where even a small amount of that material can throw you into an acute intoxication and you become symptomatic.”
Dr. Cortes now believes that A.B. could have picked up a salt shaker and eaten its contents because he was a chronic salt consumer. Based on the evidence at trial, Dr. Cortes now thinks it's possible that A.B. had an undiagnosed intellectual disability, and that his eating disorder and temper tantrums could be traced to that problem, a medical disability of which applicant was wholly unaware.
Although she was unaware of A.B.'s medical problem, she did tell the CPS worker assigned to A.B.'s adoption during a home visit the week before A.B.'s death that A.B.'s “behavior had been more difficult since the accident,” and that A.B. “had started picking up things from the floor and the trash and he was trying to eat those [things].” The CPS worker, trained to spot problematic behavior, told applicant of a condition called “pica” that includes the symptom of eating from the trash and, if A.B.'s strange behavior continued, applicant should “seek advice from a pediatric or other professionals.”
A.B.'s tantrums and strange eating behavior had increased after a car accident the family had been in two weeks earlier. Applicant's husband accidentally ran a stop sign and another car hit them. Applicant was thrown against the windshield and cut her forehead badly. She had blood streaming down her face which terrified all of the children, especially A.B. Applicant suffered whiplash, her face was cut and bruised, four front teeth were loose, and her lip was “busted.” She spent most of the next two weeks in bed or going to a chiropractor.
According to one scientific case study on fatal salt poisoning that Dr. Moritz referred to, “mental or emotional disorders are crucial for voluntary ingestion of toxic amounts of salt. We suggest that this phenomenon be called ‘psychogenic salt intake.’ ... We call for increased awareness by practising doctors of this rare, yet widely available, form of intoxication.” Y. Ofran, et al., Fatal voluntary salt intake resulting in the highest ever documented sodium plasma level in adults (255 mmol L–1), 256 J. Internal Med.525, 527 (2004).
Dr. Cortes agreed that he would not have called 911 at the first symptoms that A.B. experienced, vomiting. Nor would he have called 911 when a child says that he has chills; he, like applicant, would check his vitals and try to warm him up. He would not necessarily call 911 when a child started to have congested breathing as A.B. did, because the nebulizer treatment temporarily cleared it up. Dr. Cortes agreed that when A.B. “became more lethargic and less communicative with the parents, [he] would expect her then to make haste and take him to a medical facility.” According to the defense theory, that is precisely what applicant did. But it was already too late.
The symptoms of hypernatremia (salt poisoning ) are vomiting, chills, and irregular breathing, leading to lethargy, cessation of breathing and heart failure. Up until the child becomes lethargic, the symptoms are not alarming and indicate only a mild condition. Dr. Cortes, who, unlike applicant, is familiar with hypernatremia, testified that once the child becomes lethargic and less communicative, “brain injury, neuronal injury, has occurred; and I think the likelihood of being able to save somebody at that point is very small.” Hypernatremia is so rare that the hospital doctors did not recognize that A.B. had high salt levels for several hours. During that time, they gave him three rounds of sodium bicarbonate and well as intravenous saline solution.
That treatment did not contribute to his death; A.B. was effectively brain dead by the time he experienced an incident of cardiac arrest in the car on the way to the Urgent Care Center.
3. The Significance of the Vomitus and of Dr. Cortes's Medical Records to the Defense Theory of A.B.'s Cause of Death.
Dr. Melinek, the defense expert at trial, testified at the writ hearing that once she knew that A.B.'s vomit at the Urgent Care Center was so low in sodium, she could now say that it was “crucial” to find out what other substances were in the vomit. That analysis would help determine whether A.B. ate straight sodium or whether he ate another substance that contained sodium shortly before he vomited. Based upon all of the information that she had learned both before and after the trial, Dr. Melinek was now of the opinion that A.B. had a pre-existing “baseline neurologic dysfunction ... in terms of abnormal behaviors, eating inappropriate things, going through the garbage, being found in the pantry on the day that his sodium went sky high.” She knew that applicant gave A.B. “some baseline sodium in the form of the chili and the Zatarain's” that was consistent with the vomit exhibit. “But he probably at some point ingested a load of salt on his own, either through getting into the pantry or dumping it into his own chili when Mrs. Overton was not paying attention because she was paying attention maybe to another child.”
Indeed, she was in the bedroom with her two-year-old son while A.B., the four-year-old, was out in the kitchen pantry.
Dr. Melinek also explained that salt poisoning will lead to coagulopathy or blood clotting that makes small scars, insect bites, and scratches appear gorged with blood and more pronounced. Sodium poisoning also affects the brain and makes it swell. So by the time that A.B. suffered a cardiac arrest as applicant and her husband pulled into the Urgent Care Center, A.B. already had signs of impending death. But, according to Dr. Melinek, this seizure “happened precipitously” and “there's no way it could have been predicted or expected.” A.B.'s gorging on salt several hours earlier was “a potentially fatal insult, and no amount of medical care is going to necessarily recover his functions.” Even immediate and massive hydration at a hospital will not help.
Dr. Melinek testified that salt poisoning affects the blood system
on the osmolality but also on the clotting mechanisms of the body, cause a person to go into what's called DIC, or disseminated intravascular coagulation. So what happens is the small blood vessels get clotted off. And I saw that under the microscope when I testified the first time. And it informed me to the fact that [A.B.] would therefore be more likely to bleed and it would enhance the appearance of a lot of the lesions on his body that were noted at the time of the autopsy.
Don't you wish medical experts learned to speak English? A person with coagulopathy bleeds and bruises very easily. The condition is similar to hemophilia.
Dr. Melinek testified that, taking into consideration all of the newly discovered evidence, including the vomitus from the Urgent Care Center, A.B.'s full prior medical records, and applicant's trial testimony, it was her opinion that A.B.'s death was an “accident.” However, Dr. Melinek repeatedly said that, in making finer distinctions concerning death by salt poisoning, she would defer to Dr. Moritz, who had published numerous articles in the field of hypernatremia, so she would trust him and his opinion more than that of any critical-care pediatrician.
Dr. Melinek explained that her opinion at trial was that A.B.'s cause of death was “undetermined” because she did not have enough information. Now she did.
At the time of trial and given that I didn't have all the additional information, this gastric information, the information about the full medical records, and also with regards to Hannah Overton, her own testimony-because I didn't get to hear other people's testimony; I only got to testify by what I reviewed up until that point-now reviewing everything, I think that this is an accident.
In sum, applicant contends that, if the prosecution had turned over (1) the correct information concerning the vomitus, its origin, and the time it was collected at the Urgent Care Center, and (2) Dr. Cortes's full medical records that showed that Ms. Hamil was wrong about A.B. being a normal, healthy four-year-old, then applicant would have called Dr. Cortes to testify on her behalf and Dr. Melinek would have been confident that A.B.'s death was a tragic accident that applicant could not have anticipated or prevented once A.B. climbed into the pantry by himself that morning.
The Court does not resolve applicant's Brady claims because it properly grants applicant relief on one of her ineffective assistance of counsel claims. But those claims and the evidence that, she argues, supports them provide a broader context in which to assess the harm that the failure to call Dr. Moritz caused to the reliability of the verdict.
B. Applicant's Lawyers—Too Many Cooks in the Kitchen
Although applicant's five lawyers at trial were individually highly experienced and competent, they suffered from a serious failure to communicate competently with each other, with the doctors and experts, with the prosecution, and with applicant.
For example, one lawyer was in charge of all discovery, but he was not a criminal defense attorney and was unaware of criminal procedure or Brady disclosures. He was the one who saw a labeled brown bag at the police station, but did not open it. This was the bag that contained the crucial Beemis container of vomitus. If he had opened the brown bag and seen the Beemis container, he would surely have asked, “What's this?” And the prosecutor would have had to tell him precisely what it was and where it came from.
One lawyer attempted to visit with Dr. Cortes in the courtroom hallway, but was first told by the second-chair prosecutor that Dr. Cortes was “the prosecution's witness” and he couldn't talk to the doctor. Then she relented and said that he could talk to him for just a few minutes. Dr. Cortes thought he wasn't supposed to talk to the defense so he was guarded, and the lawyer quickly ended the conversation. Dr. Cortes, of course, is a medical doctor and A.B.'s treating pediatrician. He had a wealth of information about A.B.'s prior medical condition and would have shared it with the defense had he been reassured by both the prosecutor and the defense that he didn't “belong” to either party. He was a Dr. Friday, “Just the facts, ma'am,” witness who could help the jury get to the truth of A.B.'s life and death.
Further, all of the defense counsel must shoulder some degree of responsibility for failing to fully explain the law of lesser-included offenses to applicant. She apparently believed that, if the defense requested any lesser-included offenses, that was tantamount to pleading guilty to those lesser offenses and she would not be able to appeal if the jury found her guilty of one of them.
To be fair to defense counsel, the law up until shortly before the trial was that a defendant who requested a lesser-included offense could not attack the sufficiency of the evidence of that lesser offense. In McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App.2006), we explained that when a defendant requests an instruction on a lesser-included offense, he is not admitting that the evidence is sufficient to prove that lesser offense.
This factual scenario is one in which any competent defense counsel should seek, along with intervening lesser-included offenses, an instruction on criminally negligent homicide for failing to recognize the seriousness of A.B.'s medical condition.
If a defendant “intelligently” chooses to limit her options to either a capital murder conviction with a sentence of life without parole or a “not guilty” (especially given the extensive adverse pretrial publicity in a “baby killing” case), and rejects the option of a two-year sentence for criminally negligent homicide, defense counsel has an obligation to both himself and his client to put that difficult-to-understand decision fully on the record. Even the lead prosecutor in this case agreed that the jury would probably have returned a conviction on a lesser-included offense in this case rather than a capital-murder conviction.
Applicant's lead counsel, an attorney experienced in criminal law, testified that applicant was given incorrect advice by an attorney who was not a criminal defense lawyer. Lead counsel explained to her
[t]hat if she were convicted of capital murder, she would get a life sentence without parole. She would be taking a chance doing that. If some of the jurors thought that she was not guilty of capital murder and some of them thought she was guilty, then there was a chance that they could compromise on a lesser offense. So I advised her I thought that there was evidence that supported lesser offenses, such as criminally negligent homicide.
Good advice. He should have delivered it more strongly-at least delivered it on the record in front of the trial judge and asked her if she really wanted to forego a potential compromise.
The lead prosecutor's post-trial affidavit stated,
Based on my experience and considering the factors applicable to the Hannah Overton trial, particularly the jury's “omission poll,” the jury in the Hannah Overton case in all likelihood would have returned a verdict on a lesser-included offense had the jurors been given that option.
Of course, as the majority explains, the failure to introduce Dr. Moritz's deposition or otherwise obtain his testimony was a glaring error, one that, by itself, establishes defective performance and harm to applicant under Strickland v. Washington. If it had not been so tragic, led to an unreliable verdict, and created such a waste of scarce judicial resources, this failure would smack of the Abbott and Costello skit, “Who's on First?”
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
This baseball comedy routine was first made famous on the Kate Smith Radio Hour in 1938. The skit begins with the following:
Abbott: Strange as it may seem, they give ball players nowadays very peculiar names.
Costello: Funny names?
Abbott: Nicknames, nicknames. Now, on the St. Louis team we have Who's on first, What's on second, I Don't Know is on third—
Costello: That's what I want to find out. I want you to tell me the names of the fellows on the St. Louis team.
Abbott: I'm telling you. Who's on first, What's on second, I Don't Know is on third—
Costello: You know the fellows' names?
Abbott: Yes.
Costello: Well, then who's playing first?
Abbott: Yes.
Costello: I mean the fellow's name on first base.
Abbott: Who.
From there it gets worse.
These are some of the problems with the attorneys' actions concerning the deposition:
• The deposition was conducted by one civil attorney while another watched and a third attorney watched a portion of it (no attorney of record participated in the deposition).
• None of the criminal-defense attorneys were aware of, or informed of, Dr. Moritz's opinion before trial, thus, they could not develop testimony from other witnesses to support that opinion.
• None of the criminal-defense attorneys viewed the videotape of the deposition, thus, they could not have intelligently decided whether the testimony was important enough to spend time splicing out the prosecutor's objections and inadmissible matters.
• The criminal-defense lawyer who was in charge of the medical aspects of the defense did not attend the deposition or ever view it during trial.
At the writ hearing, this lawyer broke down in tears, admitting that he had been ineffective for failing to attend Dr. Moritz's deposition and failing to even view the videotape before the end of the trial. After watching the videotape shortly before the writ hearing, the lawyer realized that he had “failed miserably” by not presenting Dr. Moritz's testimony to the jury.
• The lead defense counsel failed to look at the videotaped deposition. He relied on a co-counsel who told him the deposition was “not usable.”
Part of the reason that the co-counsel thought that the deposition was “unusable” was because the lead prosecutor, during her cross-examination, suggested that applicant's children had said that she punished them for mouthing off by putting a piece of pizza pepper on their tongues. Such cross-examination would not be admissible as it is hearsay. The prosecutor would have to call the children to testify. According to applicant, one of her former pastors had told her that this was a good way to instruct children that words and the use of one's tongue can cause harm to others. The truth of this matter is not before us, but admissible evidence of extraneous offenses may be offered under Rules 404(b) and 403 at a retrial.
There was no excuse for this. During the trial, the trial judge repeatedly asked defense counsel if they wanted to offer Dr. Moritz's videotaped deposition. The prosecutors said that they did not object to having the tape edited. During the writ hearing, the prosecutor forcefully cross-examined one of the defense attorneys on his failure to offer Dr. Moritz's edited deposition, perhaps unwittingly establishing applicant's ineffective-assistance claim.
In sum, I agree with the Court that Dr. Moritz's testimony was essential to applicant's defense. His opinion concerned the probability that A.B. could not have survived the ingestion of so much salt even if applicant had called 911 or raced him to the hospital at the first whisper of a symptom of illness. If the jurors concluded that applicant knowingly caused A.B.'s death because she failed to seek medical care for him (as they said when polled), Dr. Moritz's testimony directly and fully rebuts that theory of criminal liability. Of course, a jury is not required to believe this testimony, but, if believed, Dr. Moritz's testimony exonerates applicant from criminal liability. Defense counsel was constitutionally ineffective for not permitting the jury to hear it and make its own assessment of credibility and scientific reliability. The present conviction “resulted from a breakdown in the adversary process that render[ed] the result unreliable.” Applicant is entitled to relief.
The majority quotes that testimony on pages 11–13 of the opinion.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
KELLER, P.J., filed a dissenting opinion in which KEASLER, J., joined.
During applicant's trial, Dr. Michael Moritz's deposition was taken and videorecorded. The defense attorneys chose not to seek the admission of the deposition at trial. The Court says that this decision was not based upon any reasonable trial strategy. I disagree, because the habeas judge found and the deposition shows that there was a risk that the deposition would have opened the door to evidence that would have been profoundly damaging to the defense.
The State had two theories of criminal liability at trial: (1) that applicant poisoned the child A.B. with salt, and (2) that applicant failed to timely seek appropriate medical attention. Both theories were based on evidence that A.B. had ingested Zatarain's, which is a spicy seasoning mix with a high salt content. Applicant had an expert witness at trial who testified in response to these theories: Dr. Judy Melinek. Dr. Melinek testified for the defense regarding the possibility that A.B. consumed salt on his own due to a mental or emotional disorder, and she gave opinions regarding the physical evidence that supported the defense theory that the death was not the result of abuse. Dr. Melinek also testified that the evidence did not show an undue delay in bringing the child to the hospital because the child's initial symptoms of stumbling, feeling cold, and vomiting were not necessarily sufficient to place a reasonable parent on notice that the child needed to go to the hospital and because the child's body temperature upon arrival at the hospital was fairly warm at 96.2 degrees.
Because applicant had the benefit of Dr. Melinek's testimony, Dr. Moritz's testimony was not essential to advancing a viable defensive case. Furthermore, much of Dr. Moritz's deposition testimony involved matters that were discussed at trial by Dr. Melinek. The Court's Strickland analysis entirely fails to take into account Dr. Melinek's testimony, neglecting to even mention that the defense had an expert witness at trial. Contrary to a proper Strickland analysis, the Court's opinion fails to take into account most of the State's evidence at trial, viewing Dr. Moritz's deposition only as it compared to Dr. Rotta's testimony instead of in the context of all of the evidence.
There is a part of Dr. Moritz's testimony that would have supplied an additional defensive theory for the jury to consider: the possibility that regardless of how the sodium was ingested, A.B.'s life could not have been saved by taking him to the hospital more quickly. But the defense could reasonably decide not to avail itself of this additional defensive theory if doing so would risk opening the door to evidence that was seriously damaging to the defense.
The habeas judge, who was also the judge at trial, cited this concern about opening the door to damaging evidence in support of his finding that the defense attorneys' conduct was not deficient. The habeas judge found credible Chris Pinedo's testimony that he was effective, but, instead of focusing on Pinedo's articulated reasons for his conduct, the habeas judge focused on portions of the deposition. The habeas judge cited to a part of the State's cross-examination, where it became clear that Dr. Moritz did not review statements made by applicant's husband and children and where Dr. Moritz admitted that he would feel misled if there was a witness not provided to him who would testify that the child was punished by being forced to ingest salt. Based on this evidence, the court found that Pinedo was faced with the possibility that admission of the deposition would open the door to testimony that was harmful to the defense.
The State has supplied excerpts from interviews of two of applicant's children that show the basis for the State's questions at the deposition. One of the children stated: “Well, if I lie, I get pepper.” When asked what that meant, the child responded, “Well, it's spicy stuff. It's spicy and it hurts your mouth, and you have to eat it and it hurts your mouth.”1 The other child stated that A.B. was punished with “pepper”:
Q. Well, what happens to [A.B.] when he gets in trouble.
A. He gets pepper.
Q. Pepper? What happens with the pepper?
A. It was—His mouth will get hot.
Q. His mouth will get hot?
A. Yeah.
Q. Okay. Who gives him pepper?
A. My mom.
The defense attorneys exerted significant efforts to keep out this evidence, and they were successful in doing so. This evidence was excluded at trial as hearsay, but it might have been admissible to rebut Dr. Moritz's opinions or at least for the purpose of questioning Dr. Moritz (as the State did at the deposition) about whether his opinion would change in light of this information. Dr. Moritz admitted in the deposition that he had not seen any statements from the children and that eyewitness testimony that salt was used as punishment could change his opinion. Eyewitness evidence from applicant's own children that “spicy stuff” was used as punishment could have devastated applicant's case in the eyes of the jury.
See Wheeler v. State, 67 S.W.3d 879, 884–85 & fns. 10–11 (Tex.Crim.App.2002) (Keller, P.J., concurring); Moranza v. State, 913 S.W.2d 718, 727–28 (Tex.App.–Waco 1995).
There was also testimony at trial that A.B. was covered in scratches and had sores from being forced to sleep on bare commercial-grade plywood. Dr. Moritz admitted that he had not been informed of this and that such evidence would be evidence of poor parenting and perhaps child abuse.
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Evidence that applicant punished her children in this manner would have been relevant not only to the “commission” theory—that applicant was responsible for the salt poisoning in the first place, but also to the “omission” theory. Dr. Moritz's testimony that the child probably could not have been saved was based on his timeline estimating how long it would take a person to recognize how ill the child was and get him to the hospital and how long it would take the hospital to test and retest the blood before finding out why he was sick and beginning treatment. If the jury had been provided with evidence that applicant forced salty seasoning into the child's mouth, Dr. Moritz's timeline would have been undermined at both the front and the back ends: applicant would have recognized earlier what was causing A.B.'s symptoms, and she could have told the hospital immediately so that appropriate treatment could have begun right away.
It is true that defense counsel did not articulate as a trial strategy the danger of opening the door. As the Court explains, Pinedo described the choice not to present the deposition as a product of the difficulty in editing the deposition around what he thought were the prosecutor's improper comments. Pinedo said that the deposition was “personally so messed up it could not be done” and “that the activity of the prosecution during the deposition of Dr. Moritz in my opinion rendered it useless.” Pinedo claimed that the deposition was filled with interruptions, invalid objections, and dialogues that would render a transcript useless. He further stated that it appeared to him that the prosecutor was “purposefully trying to interrupt the deposition, in violation of ethical obligations.”
I have watched the deposition video. The number of interruptions does not appear to be excessive—certainly not enough to impair the ability to present Dr. Moritz's opinions to a jury. And I find the claim that the prosecutor was somehow violating her ethical obligations to be baseless. Although Pinedo's articulated justifications for his conduct lack substance, the danger that Dr. Moritz's testimony would open the door to extremely damaging evidence was very real, and one that any reasonable attorney would have recognized. Given the efforts of the defense team to keep out this damaging evidence at trial, the habeas judge was within his discretion to believe that Pinedo was such a reasonable attorney and did not perform deficiently.
I respectfully dissent.