# Harris, Roderick

> Court of Appeals of Texas · June 1, 2015

URL: https://www.frixlaw.com/law-library/cases/4056268

## Case

- **Court:** Court of Appeals of Texas
- **Decided:** June 1, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4056268

## How later opinions describe it (automated extraction)

- acknowledging Tennard's language that no nexus is required between mitigating evidence and the crime

## Opinion text

WR-80,923-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/1/2015 2:03:46 PM
Accepted 6/1/2015 2:28:04 PM
ABEL ACOSTA
CLERK

No. WR-80,923-02 RECEIVED
COURT OF CRIMINAL APPEALS
6/1/2015
In the Court of Criminal Appeals ABEL ACOSTA, CLERK
of Texas

In re RODERICK HARRIS,
Relator

No. W09-00409-Y(A)
Criminal District Court No.7
of Dallas County, Texas

STATE'S RESPONSE

To Relator Roderick Harris's Motion for Leave to File Application
for Writ of Prohibition, Application for Writ of Prohibition,
and Request for Injunction

Susan Hawk Shelly 0 'Brien Yeatts
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24033487
133 N. Riverfront Blvd., LB-19
Dallas, TX 75207-4399
(214) 653-3625
(214) 653-3643 fax
syeatts@dallascounty .org

REAL PARTY IN INTEREST
IDENTITY OF PARTIES AND COUNSEL

1. Relator is Roderick Harris, who is represented by the Office of Capital
Writs. Counsel of record is Brad Levenson, Robert Romig, and Jeremy
Schepers.

2. Respondent is the Honorable Elizabeth Frizell, Presiding Judge of the
Criminal District Court No.7 of Dallas County, Texas.

3. The Real Party in Interest is Susan Hawk, Criminal District Attorney of
Dallas County, Texas. Counsel of record is Shelly O'Brien Yeatts.

ii
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF AUTHORITIES ............................................................................... ;.... iv

STATE'S RESPONSE ............................................................................................... 1

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF THE CASE AND STATEMENT OF FACTS ........................... 1

ARGUMENT ............................................................................................................. 4

PRAYER .................................................................................................................. 11

VERIFICATION ...................................................................................................... 11

CERTIFICATE OF SERVICE ................................................................................ 12

EXHIBITS .................................................................................................................. .

Exhibit A: Initial Application for Writ of Habeas Corpus (without exhibits)
Exhibit B: Order Designating Issues for an 11.071 Hearing
Exhibit C: Trial Court's Amended Order on State's Motion for Disclosure
of Roderick Harris's Trial Files, issued April 24, 2015

111
TABLE OF AUTHORITIES

Cases·

Burnett v. State,
642 S.W.2d 765 (Tex. Cr~m. App. 1982) ........................................................................ 9

Cameron v. State,
241 S.W.3d 15 (Tex. Crim. App. 2007) .......................................................................... 6

Carmona v. State,
941 S.W.2d 949 (Tex. Crim. App. 1997)........................................................................ 6

Harris v. State, No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517
(Tex. Crim. App. May 21, 2014) (not designated for pUblication) ................................. 1

In re McCann, .
422 S.W.3d 701 (Tex. Crim. App. 2013) ............................................................... passim

Pope v. State,
207 S.W.3d 352 (Tex. Crim. App. 2006) ........................................................................ 6

Simon V. Levario,
306 S.W.3d 318 (Tex. Crim. App. 2009) ........................................................................ 5

State ex rei. Lykos v. Fine,
330 S.W.3d 904 (Tex. Crim. App. 2011) ........................................................................ 4

State ex rei. Wade V. Mays,
689 S. W.2d 893 (Tex. Crim. App. 1985) ........................................................................ 5

State V. Thomas,
428 S.W.3d 99 (Tex. Crim. App. 2014) .......................................................................... 7

Strickland V. Washington,
466 U.S. 668 (1984) ......................................................................................................... 3

Woodruff V. State,
330 S.W.3d 709 (Tex. App.-Texarkana 2010, pet. rerd) ............................................. 7

IV
Statutes

Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8(a), 9(a) (West Supp. 2014) ..................... 7, 8

Rules

Tex. R. Evid. 104(a)............................................................................................................. 6

Tex. R. Evid. 503(a), (b) ...................................................................................................... 6

Tex. R. Evid. 503(b)(2) ......................................................................................................... 6

Tex. R. Evid. 503(c) ............................................................................................................. 9

Tex. R. Evid. 503(d)(3) ........................................................................................................ 7

v
STATE'S RESPONSE

The Real Party in Interest, Susan Hawk, the Criminal District Attorney of

Dallas County, Texas, hereinafter referred to as "the State," submits this response

to Relator Roderick Harris's Motion for Leave to File Application for Writ of

Prohibition, Application for Writ of Prohibition, and Request for Injunction.

ISSUE PRESENTED

Whether the trial court, pursuant to its authority to direct the gathering of

evidence for the resolution of habeas claims under Article 11.071 of the Code of

Criminal Procedure, may exercise discretion to order Relator Roderick Harris to

produce to the State the portions of his trial files relevant to his habeas claims of

ineffective assistance of prior counsel.

STATEMENT OF THE CASE AND STATEMENT OF FACTS

Relator Roderick Harris was convicted and sentenced to death in May 2012

for the capital murder of Alfredo Gallardo in the course of a ro~bery. This Court

affirmed his conviction and sentence on direct appeal. Harris v. State, No. AP-

76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim. App. May 21,

2014) (not designated for pUblication). Attorneys-Brad Lollar, Doug Parks, Mike

Howard, and Calvin 10hnson represented Harris at trial. After trial, the court

.appointed the Office of Capital Writs (OCW) to represent Harris in his Article
1
11.071 application for writ of haheas corpus. With Harris's authorization, trial

counsel t~ndered Harris's original trial files to DCW. See generally In re McCann,

422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (explaining that the contents of

the trial file belongs to the defendant).

Following an investigation, OCW filed a post-conviction application for writ

of habeas corpus on Harris's behalf, challenging his conviction and death sentence.

(Exhibit A). The application is pending in the trial court. Five out of six of

Harris's claims for relief in the application (not counting subparts) allege

ineffective assistance of counsel. These claims encompass counsel's performance

during the pre-trial investigation, the guilt-innocence phase, and the punishment

phase and include allegations that trial counsel was ineffective for:

• failing to sufficiently investigate and present punishment phase
evidence that Harris suffers from fetal alcohol spectrum disorder
and was exposed to toxic levels of lead as a child (Application at
16-41);

• failing to present sufficient expert testimony in the punishment
phase to explain the mitigating impact of Harris's life history
(Application at 41-70);

• failing to offer punishment phase evidence in the form of Harris's
own gang expert testimony to rebut the State's evidence of his
involvement in a West Da~las street gang (Application at 70-75);

• failing to object to evidence in the punishment phase that Harris
wore a restraint device while being transported in a courthouse
elevator during jury selection (Application at 75-83);

2
• failing to object during the guilt-innocence phase to the
admission of autopsy photos of the second decedent at the scene,
Carlos Gallardo, and to the medical examiner's corresponding
testimony (Application at 84-95);

• failing to raise guilt-innocence phase objections to the admission
of (a) crime scene photographs and police officer testimony
regarding attempts to save the complainant's life at the scene, (b)
references in police officers' testimony that Harris shot at the
officers when he exited the Gallardo family's trailer, (c) evidence
regarding a gun, ammunition, and gloves seized from Harris's
vehicle, which authorities found parked in the driveway next door,
and (d) a jail book-in sheet which identified Harris's vehicle
(Application at 96-104).

(Exhibit A). Harris's across-the-board challenges to trial counsel's investigation,

treatment of certain guilt-innocence evidence, and failure to present sufficient or

particular mitigation evidence in this case place trial counsel's entire performance

at issue. In light of these claims, the trial court must make findings of fact and

conclusions of law regarding whether Harris's attorneys performed deficiently and,

if so, whether that performance prejudiced his defense. See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

The trial court's "Order Designating Issues" in the habeas proceeding

designated all of Harris's ineffective assist~ce claims for further fact gathering

and scheduled an evidentiary hearing. (Exhibit B). On the State's motion and in

preparation for the evidentiary hearing, the trial court ordered OCW to provide the

State with access to the portions of Harris's trial files relevant to his claims of

ineffective assistance. (Exhibit C).
3
OCW filed an application for writ of prohibition and request for injunction

with this Court, seeking extraordinary relief from th~ trial court's order. I Before

making a decision on Harris's motion for leave to file, this Court has provided the

State and the trial court an opportunity to respond.

ARGUMENT

Harris fails to demonstrate he is entitled to the extraordinary relief he

requests, namely, to be free from the trial court's order to provide the State with

access to the portions of his trial fi~es relevant to his ineffective assistance of

counsel claims.

Relief on a petition for writ of prohibition is available only if a relator shows

that he has (1) a clear and indisputable right to the relief sought and (2) no other

adequate legal remedy available. McCann, 422 S.W.3d at 704; State ex reI. Lykos

v. Fine, 330 S.W.3d 904, 907 (Tex. Crim. App. 2011). The State agrees that Harris

has no other vehicle for obtaining relief from the trial court's order to provide the

State access to his trial files; however, he cannot" show a clear right to relief.

I In other Dallas eounty death penalty Writs in which oew has been appointed to represent an
applicant, oew has acknowledged the waiver of privileges in relation to ineffective assistance
of counsel claims and agreed to release the files. In Ex parte Medina, No. W07-32923-S(A),
oew turned over all the trial files. In Ex parte Garry Green, No. W09-59380-S(A), oew
turned over portions of the files and provided a privilege log of excepted items. In Ex parte Juan
Lizcano, No. W05-59563-S(A), oew agreed to release the files but the trial court substituted
other counsel before the release actually occurred. Despite -its position on release of trial files in
the past, oew has in this instance declined to release the trial files.
4
To demonstrate a clear right to relief, Harris must show the act he seeks to

prohibit is ministerial and does not involve a discretionary or judicial decision. An

applicant satisfies this requirement if the facts and circumstances dictate but one

rational decision under unequivocal, well-settled, and clearly controlling legal

principles. See Simon v. Levario, 306 S. W.3d 318, 320 (Tex. Crim. App. 2009)

(citing State ex reI. Young v. Sixth Judicial District Court of Appeals, 236 S. W.3 d

207, 210 (Tex. Crim. App. 2007»; State ex rei. Wade v. Mays, 689 S.W.2d 893,

897 (Tex. Crim. App. 1985). The relator on a writ of prohibition "must make a

clear showing that under certain facts, the law is subject to but one interpretation;

he then must show that undisputed facts exist which entitle him unequivocally to a

right flowing from that single interpretation." Wade, 689 S.W.2d. at 898 n.ll.

Even if the issue is one of first impression, a relator may establish a clear right to

relief where well-settled law governs the issue. McCann, 422 S.W.3d at 704.

Evidence which may later reflect and be relevant to a defense team's

effective or ineffective representation of a client takes many forms, including

communications between the attorneys and the client, communications among the

attorneys and their experts or consultants, materials generated and collected by the

attorneys and their agents, evaluations performed at the attorneys' request, the

attorneys' mental impressions and analysis, and the tangible records and files

maintained by the attorneys. Harris's assertions of post-conviction ineffective

5
assistance of counsel claims constitute a waiver of the attendant attorney-client and

work-product privileges and allow the State access to communications and

materials which would usually be protected from disclosure, including the contents

of his trial files.

The attorney-client privilege is an evidentiary privilege which protects

against the compelled disclosure of confidential communications. Pope v. State,

207 S.W.3d 352, 357 (Tex. Crim. App. 2006); see Tex. R. Evid. 503(a), (b). The

attorney-client privilege belongs to and protects the client. Pope, 207 S. W.3d at

357; Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Preliminary

questions concerning the existence of a privilege shall be determined by the trial

court. Tex. R. Evid. 104(a). In determining whether the attorney-client privilege

has been waived, a court examines the totality of the circumstances and reasonable

inferences therefrom. Carmona, 941 S.W.2d 954.

The attorney work-product doctrine or privilege functions as a qualified

privilege to prevent an attorney from being compelled to disclose his work product

to an adversary. Pope, 207 S.W.3d at 357-358. The purpose of the doctrine is to

stimulate the production of information for trials. Id. Although not expressly

provided for, the attorney work-product privilege falls within Texas Rule of

Evidence 503(b)(2). Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.

2007); see Tex. R. Evid. 503(b)(2) (ind:icat~ng that a criminal client has a privilege

6
to prevent his attorney or the attorney's representative from disclosing facts which

developed as a result of the attorney-client relationship).

Harris's assertions of post-conviction ineffective assistance of counsel

claims have resulted in a waiver of the attorney-client and work-product privileges.

See State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014) ("When counsel

faces an ineffective-assistance claim, the attorney-client privilege is waived, and

trial counsel has the opportunity to explain his actions"); Tex. R. Evid. 503{d){3)

(establishing that the attorney-client privilege does not extend to communications

"relevant to an issue of breach of duty by the lawyer to the client or by the client to

the lawyer"); Woodruff v. State, 330 S.W.3d 709, 728 (Tex. App.-Texarkana

2010, pet. ref d) (holding that the exceptions of Texas Rule of Evidence 503{d)

also apply to the work-product privilege in the proper circumstances).

The parties agree that Harris's assertions of ineffective assistance of counsel

constitute a waiver of his attorney-client privileges. The parties disagree whether

the trial court may, based on Harris's waiver, order his habeas counsel to disclose

to the State the contents of the trial files relevant to his claims.

Article 11.071 of the Code of Criminal Procedure, which governs habeas

proceedings in death penalty cases, requires the trial court to determine what, if

any, fact issues require resolution and the manner in which those issues should be

resolved. See Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8{a), 9{a) {West Supp.

7
2014). The statute gives the trial court discretion to use various avenues for

resolving issues, including requiring affidavits, depositions, interrogatories, and

evidentiary hearings and using personal recollection. Id. § 9(a). Through these

avenues, including an evidentiary hearing, the trial court receives evidence relevant

to the contested fact issues. In conjunction with its authority to hold an evidentiary

hearing in this habeas proceeding and receive evidence, the trial court ordered

DeW to provide the State access to the' portions of Harris's trial files that are

relevant to his ineffective assistance of trial counsel claims prior to the hearing.

Nothing in Article 11.071 prohibits a trial judge from ordering. such discovery

during the evidence gathering process.

Moreover, there is no other legal bar to ordering this discovery. Harris does

not claim the files are not discoverable. Indeed, he concedes that his ineffective

assistance of counsel complaints act as a waiver of his privilege. He argues,

however, that the court must order his trial lawyers-not his writ lawyers-to tum

the files over. Harris does not explain why the court must go elsewhere for the

files, and no legal reason is otherwise apparent. The trial files belong to Harris.

See McCann, 422 S.W.3d at 704-705 (reaffirming that a client owns the contents

of his or her file). And his current counsel has possession of originals and/or

copIes.

8
Harris seeks to place the burden on the individual trial attorneys to

determine the application and scope of Harris's attorney-client waiver, i.e. to

identify which documents in the files are relevant to his ineffective assistance of

counsel claims. However, the right to claim or waive the attorney-client privilege

belongs to Harris, not his trial attorneys. See Burnett v. State, 642 S.W.2d 765,

770 (Tex. Crim. App. 1982) ("The law is 'perfectly plain that the waiver [of the

client-attorney privilege], like the privilege, belongs solely to the client, and not to

the attorney. "'); Tex. R. Evid. 503(c) (indicating that the lawyer may claim the

privilege "only on behalf of the client").

The State agrees with OCW that it does not "represent" trial counsel for

purposes of this writ proceeding; however, the State is in the position of defending

against Harris's habeas claims, which he has elected to formulate and file. Harris

contends that "[hlow trial counsel chooses to defend themselves from these claims,

and to what extent the limited waiver of privileged information will be effectuated,

is a decision for trial counsel, not the State to make." (Application at 8). This

inference that trial counsel is responsible for release of documents from the files

ignores this Court's holdings that a criminal defendant's file is the defendant's

property. See McCann, 422 S.W.3d at 704-705; Burnett, 642 S.W.2d at 769

(holding a tape recording of the defendant's pre-hypnotic interview was the

defendant's property and subject to the attorney-client privilege). Moreover, that

9
the trial files might be available through an alternative source does not mean the

trial court did not have discretion to order Harris to release them.

The trial court determines the extent of the waiver of privileged information

based on the relevancy of the information to the asserted claims. These

determinatioI)s properly lie solely within the trial court's discretion. Contrary to

Harris's contentions, the State is not seeking to determine the extent of the waiver.

Furthermore, Harris acknowledges that documents from his trial files relevant to

his ineffective assistance of counsel claims may be disclosed and admitted into

evidence at a hearing. Nothing deprives the trial court of the discretion to regulate

the timing of the disclosure of the files and to order it to occur earlier.

By accusing his counsel of ineffectiveness, Harris has waived any privileges

attendant to his trial files, which in effect record much of the repr~sentation. The

trial court's order for Harris to produce the files to the State prior to an evidentiary

hearing was discretionary; Harris presents this Court with no authority that

deprives the trial court of its discretion to order production of the files. The trial

court here exercised a manifestly judicial-not a ministerial-function.

Accordingly, this Court should deny Harris's request for the extraordinary remedy

of prohibition.

10
PRAYER

The State prays that this Court deny Harris's motion for leave to file his

application for a writ of prohibition and the application itself. Moreover, the State

asks this Court to lift its order staying the discovery order and any hearings on the

habeas application.

Susan Hawk Shelly Brien Y tts
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24033487
133 N. Riverfront Blvd., LB-19
Dallas, TX 75207-4399
(214) 653-3625
(214) 653-3643 fax
syeatts@dallascounty.org

VERIFICATION

STATE OF TEXAS §
§
COUNTY OF DALLAS §

I, Shelly O'Brien Yea~s, attest and affirm that I have reviewed the response,
that I have personal knowledge of the factual statements it contains, and that those
factual statements are true and correct and supported by competent evidence
included in the appendix or record.~

~Brien Y. atts

11
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing response has been served on the
following on June 1,2015:

Hon. Elizabeth Frizell
Criminal District Court No.7
133 N. Riverfront Blvd.
Dallas, Texas 75207

Brad D. Levenson
Robert Romig
Office of Capital Writs
1700 N. Congress Ave., Suite 460
Austin, Texas 78711
Brad.Levenson@owc.texas.gov
Robert.Romig@ocw.texas.gov
ATTORNEYS FOR RELATOR ~~

Shelly 0 rien Yes

12
EXHIBIT A

Roderick Harris's Initial Application for Writ of
Habeas Corpus (without exhibits)
'-Ii
I
FO \/J IOq- (J)-/CY1-Y (fl)
IN CRIMINAL DISTRICT COURT NO.7
0 --

2014 JUN 11 PM 3: 21 DALLAS COUNTY, TEXAS
G;,io 0 0 ,:-HYHiS
to:, i :,", ~~LEHK
0"\ ;,~, '-! , iEXAS
", /h1 ;';1 PUTY
) Trial Cause No.
EX PARTE ) F09-00409
RODERICK HARRIS, )
APPLICANT )
)
)

INITIAL APPLICATION FOR WRIT OF HABEAS CORPUS (FILED
PURSUANT TO TEX. CODE CRIM. PROC. ART. 11.071)

BRAD D. LEVENSON (No. 24073411)
Director, Office of Capital Writs
(E-mail: Brad.Levenson@ocw.texas.gov)
ROBERT ROMIG (No. 24060517)
(E-mail: Robert.Romig@ocw.texas.gov)
SAM FARINA-HENRY (No. 24082979)
(E-mail: Sam.Farina-Henry@ocw.texas.gov)
RYAN CARLYLE KENT (No. 24090205)
(E-mail: Ryan.Kent@ocw.texas.gov)
Post-Conviction Attorneys
Office of Capital Writs
1700 North Congress Avenue, Suite 460
Austin, Texas 78711
(512) 463-8600
(512) 463-8590 (fax)

Attorneys for Applicant
TABLE OF CONTENTS

APPLICATION FOR A WRIT OF HABEAS CORPUS ......................................... 1

PROCEDURAL HISTORy ...................................................................................... 4

A. Trial Court Proceedings .................................................................................. 4

B. State Appellate Proceedings ........................................................................... 6

C. State Habeas Proceedings ............................................................................... 6

STATEMENT OF FACTS ....................................................................................... 6

A. Guilt/Innocence Phase Presentation ............................................................... 6

B. Punishment Phase Presentation ...................................................................... 7

STANDARD OF CARE ........................................................................................... 9

A. Ineffective Assistance of Trial CounseL ........................................................ 9

B. Ineffective Assistance of Appellate CounseL .............................................. 13

C. Scope of the Waiver of Attorney-Client Privilege ....................................... 13

ARGUMENT .......................................................................................................... 16

CLAIM ONE: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
BY FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN
MITIGATING EVIDENCE DURING HARRIS'S TRIAL ................................... 16

A. Trial Counsel Was Ineffective for Failing to Investigate and Present
Available Evidence that Harris Suffers from Fetal Alcohol Spectrum
Disorder ......................................................................................................... 20

B. Trial Counsel Failed to Uncover and Present Information That Harris Was
Exposed to Toxic Levels of Lead as a Child ................................................ 34

C. Trial Counsel Failed to Retain and Present Testimony from Expert
Witnesses to Explain the Mitigating Impact of Harris's Life History ......... 41

D. Trial Counsel's Failure to Present This Mitigating Information Was
Deficient and Prejudiced Harris's Trial.. ...................................................... 69
..
11
CLAIM TWO: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
PRESENT A GANG EXPERT TO OFFER AN EXPERT OPINION TO REBUT
THE PROSECUTION'S EVIDENCE OF HARRIS'S GANG INVOLVEMENT 70

A. Relevant Facts ............................................................................................... 70

B. Trial Counsel Was Ineffective for Failing to Rebut the Prosecution's
Evidence of Harris's Gang Affiliation by Presenting Testimony from a Gang
Expert ............................................................................................................ 72

C. Harris was Prejudiced by Trial Counsel's Failure to Present Testimony from
a Gang Expert ............................................................................................... 75

CLAIM THREE: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO INHERENTLY PREJUDICIAL TESTIMONY INFORMING THE
JURY THAT HARRIS WAS RESTRAINED ....................................................... 75

A. Restraint Evidence Presented to Jury at Harris's TriaL ............................... 76

B. Restraint Evidence Was Objectionable ........................................................ 78

C. Trial Counsel Was Ineffective for Failing to Object to Restraint Evidence 80

D. Harris Was Prejudiced by Trial Counsel's Failure to Object. ...................... 82

CLAIM FOUR: HARRIS WAS DENIED DUE PROCESS BY TRIAL
COUNSEL'S FAILURE TO OBJECT OT THE ADMISSION OF FORENSIC
EVIDENCE CONCERNING CARLOS GALLARDO ......................................... 84

A. Relevant Facts ............................................................................................... 84

B. Legal Standards ............................................................................................. 86

C. Trial Counsel Performed Ineffectively by Failing to Object to Testimony and
Exhibits Concerning the Death of Carlos Gallardo ...................................... 89

D. Conclusion .................................................................................................... 95

CLAIM FIVE: HARRIS WAS DENIED DUE PROCESS BY TRIAL
COUNSEL'S FAILURES TO OBJECT TO PREJUDICIAL, CUMULATIVE,
AND INADMISSIBLE EVIDENCE ...................................................................... 95

A. Relevant Facts ............................................................................................... 96

III
B. Legal Standards ............................................................................................. 96

C. Trial Counsel Performed Ineffectively by Failing to Object to Prejudicial
and Cumulative Testimony Concerning the Crime Scene and Harris's
Shooting at Police Officers, as well as to Prejudicial and Inadmissible
Evidence Seized from the Ford Crown Victoria .......................................... 97

D. Conclusion .................................................................................................. 103

CLAIM SIX: HARRIS'S CONSTITUTIONAL RIGHTS WERE VIOLATED
WHEN THE TRIAL COURT REFUSED TO INSTRUCT THE JURY THAT A
VOTE BY ONE JUROR WOULD RESULT IN A LIFE SENTENCE .............. 104

A. As Applied to Harris's Jury, the "10-12 Rule" Unconstitutionally Impaired a
Juror's Ability to Answer Special Issue Three ........................................... 106

B. The Supreme Court Has Invalidated Jury Instructions That Place an Added
Burden on the Sentencer Before Finding Mitigating Circumstances ......... 109

C. Conclusion .................................................................................................. 111

PRAYER FOR RELIEF ........................................................................................ 112

IV
TABLE OF AUTHORITIES

Cases
Allen v. United States, 164 U.S. 492 (1896) ......................................................... 108
Arizona v. Washington, 434 U.S. 497 (1978) ....................................................... 108
Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ............................................... 14
Bobby v. Van Hook, 558 U.S. 4 (2009) ................................................................... 10
Cullen v. Pinholster,_U.S._, 131 S. Ct. 1388 (2011) ....................................... 10
Downum v. United States, 372 U.S. 734 (1963) ................................................... 108
Evitts v. Lucey, 469 U.S. 387 (1985) ...................................................................... 13
Harrington v. Richter, _ U.S. _, 131 S. Ct. 770 (2011) ................................ 10, 12
In re Nat 'I Mortg. Equity Corp. Mortg. Pool Certificates Sec. Litig., 120 F.R.D.
687 (C.D. Cal. 1988) ........................................................................................... 15
Johnson v. Alabama, 256 F .3d 1156 (1Ith Cir. 2001) ............................................ 15
Laughner v. United States, 373 F.2d 326 (5th Cir. 1967) ....................................... 14
Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876 (B.D. Pa. 1976) ...................... 15
McKoy v. North Carolina, 494 U.S. 433 (1990) ................................................... 111
Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) ....................................................... 11
Mills v. Maryland, 486 U.S. 367 (1988) ............................................... 109, 110, 111
Padilla v. Kentucky, 559 U.S. 356 (2010) .............................................................. 10
Porter v. McCollum, 558 U.S. 30 (2009) ...................................................... 9, 12, 93
Ries v. Quarterman, 522 F.3d 517 (5th Cir. 2008) ................................................. 13
Rompilla v. Beard, 545 U.S. 374 (2005) ....................................................... 9, 10, 11
Smith v. Robbins, 528 U.S. 259 (2000) ............................................................ passim
Strickland v. Washington, 466 U.S. 668 (1984) .............................................. passim
United States v. Basham, Cr. No. 4:02-992-JFA, 2012 WL 1130657 (D.S.C. Apr.
4,2012) ................................................................................................................ 15
United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) ......................................... 14
Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ......................................................... 9
Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................ passim
Williams v. Taylor, 529 U.S. 362 (2000) ................................................................ 12
Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................... 1
Statutes
Alabama v. Lewis, 36 So. 3d 72 (Ala. Crim. App. 2008) ....................................... 15
Beall v. Ditmore, 867 S.W.2d 791 (Tex. App.-EI Paso 1993) ............................. 80
Boone v. State, 230 S.W.3d 907 (Tex. App.-Houston 2007) ............................... 79
Cedillos v. State, 250 S.W.3d 145 (Tex. App.-Eastland 2008) ............................ 79
Draughon v. State, 831 S. W.2d 331 (Tex. Crim. App. 1992) ...................... 106, 111
Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005) ................................ 70

v
Ex parte Ellis, 233 S.W.3d 324 (Tex. Crim. App. 2007) ........................................ 70
Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) ....................................... 9
Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) .............. 11, 12, 13,41
Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) .................................... 9
Ex parte Martinez, 195 S.W.3d 713 (Tex. Crim. App. 2006) ................................. 12
Ex parte Santana, 227 S.W.3d 700 (Tex. Crim. App. 2007) ............................ 13, 88
Frazierv. State, 600 S.W.2d271 (Tex. Crim. App.1979) ................................... 102
In re Dean, 711 A.2d 257 (N.H. 1998) ................................................................... 15
Joseph v. State, 3 S.W.3d 627 (Tex. App.-Houston [14th Dist.] 1999) ............... 14
Long v. State, 590 S.W.2d 138 (Tex. Crim. App. 1979) ....................................... 102
Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455 (Tex. 1982) ..................... 14
Meza v .State, 206 S.W.3d 684 (Tex. Crim. App. 2006) ........................................ 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................ 87,97,99
Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999) .......................... 87, 88, 97
Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) ...................................... 92
Robertson v. State, 777 S.W.2d 427 (Tex. Crim. App. 1989) ................................ 91
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) .................................. 86, 87
Saldana v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ...................................... 80
Shuffieldv. State, 189 S.W.3d 782 (Tex. Crim. App. 2005) ....................... 87, 94,97
State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) .................................... 88
Stone v. State, 17 S.W.3d 348 (Tex. Crim. App. 2000) .......................................... 91
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ...................................... 9
Waldrip v. Head, 532 S.E.2d 380 (Ga. 2000) ......................................................... 15
West v. Solita, 563 S.W.2d 240 (Tex. 1978) ........................................................... 14
Wiseman v. State, 223 S.W.3d 45 (Tex. App.-Houston [1st Dist.] 2006) ............ 79
Wood v. State, No. 09-10-00195-CR, 2012 WL 1448333 (Tex. App.-Beaumont
Apr. 25, 2012) .................................................................................................... 103
Other Authorities
TEX. CODE CRIM. PROC. art. 37.071 .............................................................. 104, 105
TEX. R. EVID. 101 .................................................................................................... 86
TEX. R. EVID. 402 .................................................................................................... 91
TEX. R. EVID. 403 ............................................................................................. passim
TEX. R. EVID. 404 .............................................................................................. 86,91
TEX. R. EVID. 503 .................................................................................................... 13
TEX. R. EVID. 802 .................................................................................................. 103
TEX. R. EVID. 901 .................................................................................................. 103
TEX. R. EVID. 902 .................................................................................................. 103

Vi
Rules
ABA Standing Comm. on Ethics & Profl Responsibility, Formal Opinion 10-456
(2010) ................................................................................................................... 16
ABA, ABA STANDARDS FOR CRIMINAL JUSTICE (3d ed. 1993) ........................ 10, 11
ABA, Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases, 31 HOFSTRA L. REv. 913 (2003) ............................... passim
State Bar of Tex., Guidelines and Standards for Texas Capital Counsel, 69 TEX.
B.J. 966 (2006) ........................................................................................ 10, 11, 16

Vll
APPLICATION FOR A WRIT OF HABEAS CORPUS

This is a Capital Case
In 1976, the Supreme Court banned the practice of sentencing that made the
death penalty mandatory for all capital murders. Woodson v. North Carolina, 428
U.S. 280 (1976). Because of the "diverse frailties of mankind" the Court held that
the Constitution required "particularized consideration of relevant aspects of the
character and record of each convicted defendant before the imposition upon him
of a sentence of death." Id. at 303-04. This landmark decision recognized the
importance of presenting mitigating evidence specifically tailored to an individual
defendant.
There is a "belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged background ... may be less
culpable than defendants who have no such excuse." Wiggins v. Smith, 539 U.S.
510, 535 (2003). The State attempted to portray Roderick Harris as a defendant
with no mitigating factors in his life story, someone who had "a pretty decent
childhood" who was "so fortunate to have family" testify on his behalf. (66 RR at
40-41, 74-75, 89.) However, this characterization of Harris is wholly inaccurate,
for Harris was destined for disadvantage before he was born.
Harris was born to seventeen-year-old single mother Pamela Maddox. Ms.
Maddox, born and raised in West Dallas, had spent at least a decade prior to
Harris's birth living with her own mother at 3544 Nomas Street, less than half a
mile downwind of a lead smelting facility that was later declared a Superfund
hazardous waste site. As a child, Ms. Maddox was exposed to toxic levels of lead
in the air and in the ground. Because lead accumulates in the bones, and can be
transferred from mother to child during pregnancy, Harris likely was exposed to
lead in utero.

1
Harris lived on Nomas Street, in the shadow of the lead smelter, for
approximately six of the first eight years of his life. Children are particularly
sensitive to lead exposure, which can damage the central nervous system, damage
the brain, and result in cognitive and academic deficits.
Harmful as it is, lead was not the only toxin Harris was exposed to in utero.
Harris's mother consumed alcohol during the first trimester, before she was aware
of her pregnancy. As a result, Harris exhibits deficits in cognitive functioning, and
has a history of neurodevelopmental disorders that are consistent with a diagnosis
of Alcohol Related Neurodevelopmental Disorder, one of the specific diagnostic
conditions of Fetal Alcohol Spectrum Disorder ("FASD"). Individuals with FASD
suffer from deficits in an array of cognitive functions, including attention, learning,
logical thinking, impulse inhibition, and self-regulation. Because of these deficits,
these individuals also struggle socially and are linked to disproportionate rates of
mental illness, drug abuse, and involvement in the criminal justice system.
As he grew up, Harris struggled at home and in school. For most of his
childhood, the relationship between Harris's mother and stepfather was physically
and verbally abusive. Harris and his half-brothers were often left alone, or taken to
adult parties where there was open consumption of alcohol and marijuana. Mr.
Maddox treated Harris more strictly than his two biological sons, and this, in tum,
led Harris to run away from home as a juvenile.
At the age of seven, Harris was diagnosed with Attention Deficit
Hyperactivity Disorder ("ADHD") and he was prescribed Ritalin. Despite the
positive effect Ritalin had on Harris's behavior, his parents frequently took him off
the medication, citing Harris's zombie-like affect when he took it. Harris cycled
on and off the medication until he reached puberty, when the treatment was
discontinued altogether.

2
Along with ADHD, Harris labored with learning disabilities throughout his
time in school. He was continuously placed in special education classes, and he
struggled behaviorally, as well, earning several suspensions and expulsions, which
led to his involvement in the juvenile justice system.
It is not altogether surprising that amidst this chaotic background, Harris
found some solace in a juvenile street gang. Harris joined the gang at the age of
ten but left it before dropping out of high school. The gang he joined was not a
violent, organized criminal enterprise but functioned more as a group of similarly-
situated adolescents from the same neighborhood.
Harris's jury did not hear the full complement of information available to
describe his childhood, adolescence, and early adulthood. Moreover, no evidence
was presented about Harris's prenatal exposure to two poisonous substances-
alcohol and lead-nor the effects of this exposure on his cognitive functioning.
This evidence was available, could have been presented through the testimony of
both lay and expert witnesses, and would have been incredibly relevant and
persuasive to a juror during Harris's trial.
Because Harris's constitutional and statutory rights were violated by the
omission of this evidence from his trial, Harris's verdict and death sentence should
be reversed.

3
I.
PROCEDURAL HISTORY

Roderick Harris is confined under a sentence of death pursuant to the
judgment of Criminal District Court No.7, Dallas County, Texas, cause number
F09-00409, which was rendered on May 21,2012 (66 RR at 107)1 and entered on
the same day (2 CR at 709).
A. Trial Court Proceedings
The Court appointed Brad Lollar, Doug Parks, and Mike Howard to
represent Harris during his capital trial.
1. Indictment
On June 2, 2009, a grand jury indicted Harris with capital murder for
intentionally causing the death of Alfredo Gallardo while in the course of
committing and attempting the offense of robbery. (1 CR at 7.)
2. Recusal Proceedings
Harris's case was initially assigned to the 203rd District Court in Dallas
County, Judge Teresa Hawthorne presiding. On December 19, 2011, Judge
Hawthorne heard arguments pertaining to pretrial motions filed on behalf of
Harris. (4 RR at 5, et seq.) During this proceeding, Judge Hawthorne granted
several defense motions which declared the death penalty unconstitutional. (ld. at
19.) The State filed a motion to recuse Judge Hawthorne on December 21,2011 (2
CR at 572), and a hearing was held on January 3, 2012, before Presiding
Administrative Judge John Ovard. (6 RR at 6, et seq.) Judge Ovard granted the
State's motion to recuse Judge Hawthorne, and the case was assigned to Criminal
District Court No.7, Judge Michael Snipes presiding. (2 CR at 581-82.) Judge

1"CR" refers to the Clerk's Record of Harris's capital trial. "RR" refers to
the Reporter's Record of Harris's capital trial.
4
Snipes later reviewed de novo Judge Hawthorne's constitutional rulings, which he
overturned. (8 RR at 14-34.)
3. Trial
Voir dire began on January 9, 2012, and concluded on March 26, 2012. (9
RR at 4; 52 RR at 75.) Harris was arraigned on May 8, 2012, and entered a plea of
not guilty. (58 RR at 6-7.) Later that day, the State gave an opening statement and
called the first witness. (Id. at 17, 27.) The State rested its case for guilt on May
10,2012. (60 RR at 75.) Defense counsel did not give an opening statement, but
did call one witness before resting its case. (Id. at 79, 81.) Both sides gave closing
arguments, and the case was submitted to the jury for deliberation. (Id. at 92-125.)
The jury returned with a verdict finding Harris guilty of capital murder. (Id. at
126.)
The punishment phase began on May 14, 2012, with the State giving an
opening statement. (62 RR at 19.) The State then presented its case regarding
punishment, and rested on May 16, 2012. (64 RR at 118.) Defense counsel
proceeded to give an opening statement before presenting its case. (Id. at 140.)
After calling a number of witnesses, defense counsel rested on May 17,2012. (65
RR at 233.) The State then presented several witnesses in rebuttal, including five
witnesses who provided victim impact testimony. (Id. at 234-95, 300-16.) The
next day, May 18, 2012, both sides presented closing arguments before the case
was given to the jury. (66 RR at 30, et seq.) The jury did not reach a verdict as to
punishment during the first day of deliberations, so the Court excused the jury for
the weekend. (Id. at 96.) On May 21, 2012, the jury reconvened to continue
deliberations, and returned with a verdict later that day, answering "Yes" to
Special Issue One and "No to Special Issue Two. (Id. at 103-04.) Harris was then
formally sentenced to death by the Court. (Id. at 107.)

5
B. State Appellate Proceedings
Harris was notified of his right to appeal on May 21, 2012. (2 CR at 712.)
He was declared indigent and on May 23, 2012, John Tatum was appointed to
represent Harris for the purpose of filing a direct appeal. (Id. at 713.) Appellate
counsel filed a motion for a new trial on June 15,2012, which was overruled. (Id.
at 714.)
On September 3, 2013, appellate counsel filed an opening appellate brief in
Roderick Harris v. The State a/Texas, cause number AP-76,810. The State filed
its brief in response on January 28, 2014. Both the State and post-conviction
counsel filed motions requesting that the clerk and court reporter supplement the
trial record. The clerk did so and ultimately provided four supplements to the
clerk's record. (See CR Supps. 1-4.) Both the State and direct appeal counsel
presented oral argument before the CCA on April 2, 2014. On May 21, 2014, the
CCA denied Harris's direct appeal in full.
C. State Habeas Proceedings
On May 22, 2012, the Office of Capital Writs ("OCW") was appointed to
represent Harris for the purpose of investigating and filing a writ of habeas corpus
pursuant to Article 11.071 of the Texas Code of Criminal Procedure. This
Application follows.
II.
STATEMENT OF FACTS

A. Guilt/Innocence Phase Presentation
During the guilt/innocence phase of Harris's trial, the prosecution presented
evidence and testimony to show that on March 17, 2009, Harris shot and killed
Alfredo Gallardo while in the course of robbing Alfredo and his family. Though
Harris was only on trial for the death of Alfredo, the State presented evidence that
Harris shot and killed Alfredo's brother, Carlos Gallardo. Specifically, the
6
prosecution presented testimony from three members of the Gallardo family who
described how Harris entered their home, held them at gunpoint, and attempted to
rob them before engaging in a struggle with Alfredo and Carlos, during which both
were shot and killed. (58 RR at 37-151.) Alfredo's son, Omar Gallardo, fled the
scene and notified a security guard, who then called the police. (Id. at 27-37.) As a
result, a number of officers from the Dallas Police Department were present at the
scene when Harris exited the Gallardo's trailer home. Several responding officers
testified about the apprehension of Harris. (Id. at 151-241; 59 RR at 8-48, 146-59.)
A number of police officers, crime scene technicians, and lab analysts were called
to testify regarding the collection and analysis of evidence found at the scene. (59
RR at 49-103, 127-45, 159-261; 60 RR at 52-75.) Two Dallas County medical
examiners testified about the wounds and causes of death for both Alfredo
Gallardo and Carlos Gallardo. (59 RR at 261-302.)
Following the testimony of the medical examiners, it was brought to the
court's attention that a juror had discussed reading newspaper articles about the
trial with several other jurors. After questioning the offending juror, as well as the
remaining jurors, he was dismissed and the first alternate juror seated. Defense
counsel's motion for a mistrial was denied. (60 RR at 5-50.)
The defense presented one witness, recalling Alfredo's daughter Yahaira
Gallardo to the stand. (Id. at 79-81.) Yahaira testified that her father was wearing
a white T-shirt at the time he was shot. Following Yahaira's testimony, the
defense rested its case. (Id. at 81.)
Closing arguments took place shortly thereafter, and, later that same day, the
jury found Harris guilty of capital murder. (Id. at 126.)
B. Punishment Phase Presentation
The State's presentation at punishment initially focused on Harris's
extraneous offenses in middle school and high school (62 RR at 27-38, 72-93), as a
7
juvenile living in Atlanta (id. at 94-118), and as a juvenile and young adult living
in the Dallas area (id. at 119-225; 63 RR at 125-36). The jury also heard testimony
that Harris was affiliated with a street gang. (62 RR at 43-70.) The State also
implicated Harris in an unsolved armed robbery committed on February 15, 2009
(id. at 229-73; 63 RR at 11-125), and in an unsolved robbery-murder committed on
March 3, 2009 (63 RR at 137-316; 64 RR at 24-118). After presenting this
evidence, the State rested. (64 RR at 118.)
The defense's presentation at punishment consisted of three parts. First, trial
counsel sought to undermine a witness's photographic identification of Harris as
the shooter in the unsolved armed robbery committed on February 15, 2009. (64
RR at 155-215.) Second, trial counsel solicited testimony from Harris's mother
Pamela Maddox, stepfather Ramon Maddox, Sf., half-brother Ramon Maddox, Jr.,
and maternal cousin Shamy Conley concerning Harris's upbringing, childhood,
learning disability, and drug use. (ld. at 215-93; 65 RR at 29-63, 70-118.) Finally,
four expert witnesses were presented, testifying about prison conditions (65 RR at
170-92), risk factors for delinquent behavior (id. at 152-70), Harris's drug
addiction (id. at 119-46), and the Texas Department of Criminal Justice's inmate
classification system (id. at 193-233).
The State presented rebuttal testimony regarding Harris's behavior while at
the Dallas County Jail (65 at 261-84), and the impact of Alfredo's death on his
family (id. at 285-95, 308-16). In addition, an investigator with the Dallas County
District Attorney's Office testified about phone calls made by Harris while he was
incarcerated at the Dallas County Jail. (Id. at 295-308; 66 RR at 10-23.)

8
III.
STANDARD OF CARE

A. Ineffective Assistance of Trial Counsel
A criminal defendant is guaranteed the right to trial representation. This
Sixth Amendment right to counsel "preserves the fairness, consistency, and
reliability of criminal proceedings by ensuring that the process is an adversarial
one." Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
An ineffective assistance of counsel claim has two components: Harris must
show that counsel's performance was deficient, and that the deficiency prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Porter v.
McCollum, 558 U.S. 30, 38-39 (2009); Wiggins, 539 U.S. at 521; Virgil v. Dretke,
446 F.3d 598, 608 (5th Cir. 2006); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.
Crim. App. 2012); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)
("[A]ppellant must show a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.").
To establish deficiency, Harris must show his counsel's representation fell
below an objective standard of reasonableness. Porter, 558 U.S. at 38-39 (quoting
Strickland, 466 U.S. at 688). A defendant need only prove ineffective assistance of
counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. This
standard governs the claim as a whole, and does not replace the more lenient
"reasonable probability" standard for the prejudice prong.
The Supreme Court has reiterated that it applies a "case-by-case approach to
determining whether an attorney's perfonnance was unconstitutionally deficient
under Strickland." Rompilla v. Beard, 545 U.S. 374, 393-94 (2005) (O'Connor, J.,
concurring) (citing Strickland, 466 U.S. 668).
Deficient performance is performance that is "inconsistent with the standard
of professional competence in capital cases that prevailed [at the time of the trial]."
9
Cullen v. Pinholster, _U.S._, 131 S. Ct. 1388, 1407 (2011). The Supreme Court
has repeatedly assessed the reasonableness of counsel's performance by looking to
"[p]revailing norms of practice as reflected in [the] American Bar Association
standards." Strickland, 466 U.S. at 688; see also Padilla v. Kentucky, 559 U.S.
356,367 (2010) (noting that the ABA Standards "may be valuable measures of the
prevailing professional norms of effective representation"); Rompilla, 545 U.S. at
387 ('''[W]e long have referred [to the ABA Standards for Criminal Justice] as
"guides to determining what is reasonable."'" (quoting Wiggins, 539 U.S. at 524)).
Because adequacy is based upon "counsel's perspective at the time," Strickland,
466 U.S. at 689, courts must look to the guidelines then in effect. See Bobby v.
Van Hook, 558 U.S. 4 (2009).
At the time of Harris's trial, his attorneys' obligations were governed by the
"prevailing professional norms," even if those norms did not align with a less
rigorous defense based on "most common customs." Harrington v. Richter, _
U.S. _,131 S. Ct. 770, 788 (2011). The Supreme Court instructs courts to look at
the "norms of practice as reflected in the American Bar Association and the like"
and to consider "all the circumstances" of a case. Strickland, 466 U.S. at 688.
These sources of norms include the ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REv. 913
(2003) ("ABA Guidelines"), and the ABA Standards for Criminal Justice (3d ed.
1993) ("ABA Standards"). See also State Bar of Tex., Guidelines and Standards
for Texas Capital Counsel, 69 TEX. BJ. 966 (2006) ("Texas Guidelines").
Defense counsel has a duty to make reasonable investigations or to make a
reasonable decision that l11akes particular investigations unnecessary. Wiggins,
539 U.S. at 521; Strickland, 466 U.S. at 690-91. "[The] Guidelines applied the
clear requirements for investigation set forth in the earlier Standards to death
penalty cases and imposed ... similarly forceful directive[s]." Rompilla, 545 U.S.
10
at 387 n.7. Pursuant to the ABA Guidelines, counsel was required to conduct
"thorough and independent investigations relating to the issues of both guilt and
penalty." ABA Guidelines, Guideline 10.7. A court must consider not only the
quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further. Miller v. Dretke,
420 F.3d 356, 361 (5th Cir. 2005); Wiggins, 539 U.S. at 521. When defense
counsel is not aware of the relevant mitigating evidence, "the issue is not whether
he was ineffective for failing to present [the] evidence ... , but rather whether he
failed to conduct a reasonable investigation to uncover mitigating evidence." Ex
parte Gonzales, 204 S.W.3d 391,396 (Tex. Crim. App. 2006).
Similarly, the ABA Standards state that counsel "should conduct a prompt
investigation of the circumstances of the case and explore all avenues leading to
facts relevant to the merits of the case and the penalty." ABA Standards, Standard
4-4.1; Texas Guidelines, Guideline 11.1. Most significantly, "[t]he duty to
investigate exists regardless of the accused's admissions or statements to defense
counsel of facts constituting guilt or the accused's stated desire to plead guilty."
ld. Similarly, the duty to investigate may exist despite the accused's failure to
mention potentially mitigating evidence or the accused's affirmative denial that
such evidence exists. Romp illa , 545 U.S. at 377; Ex parte Gonzales, 204 S.W.3d
at 396.
Once capital trial counsel completes the necessary pretrial investigation, he
must then formulate a defense theory "that will be effective in connection with
both guilt and penalty, and should seek to minimize any inconsistencies." ABA
Guidelines, Guideline 10.1 0.1. The CCA holds capital counsel to an even higher
standard: "It is not sufficient to inquire generally and leave it up to the defendant to
raise topics or respond to open-ended questions. Like a doctor, [capital] defense
counsel must be anned with a comprehensive check-list of possibilities, and
11
forcefully inquire about each topic." Ex parte Gonzales, 204 S.W.3d at 400-01
(Cochran, 1, concurring).
To establish prejudice, Harris "must show that there is 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. A reasonable
probability is "a probability sufficient to undermine confidence in [the] outcome."
Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693-94). Harris need not
show that counsel's deficient conduct "more likely than not altered the outcome"
in his case, Strickland, 466 U.S. at 693, but he must demonstrate that "the
likelihood of a different result [is] substantial, not just conceivable." Richter, 131
S. Ct. at 792. State courts "must decide whether the undiscovered and unoffered
evidence would have created a reasonable probability that, had the jury heard it,
the jury's verdict would have been different." Ex parte Martinez, 195 S.W.3d 713,
731 (Tex. Crim. App. 2006).
State post-conviction courts must analyze a capital penalty phase
ineffectiveness claim by "reweigh[ing] the evidence in aggravation against the
totality of available mitigating evidence." Wiggins, 539 U.S. at 534. It is not
necessary for the petitioner to demonstrate that the newly presented mitigation
evidence would necessarily overcome the aggravating circumstances. Williams v.
Taylor, 529 U.S. 362, 394-98 (2000). The Constitution requires that state post-
conviction courts "engage with what [a defendant] actually went through," as
expressed in mitigating evidence. Porter, 558 U.S. at 44. It is not only incorrect
but "unreasonable to discount to irrelevance [mitigating] evidence ... [or] to
conclude that [certain mitigating evidence] would be reduced to inconsequential
proportions simply because the jury would also have learned [of related
aggravating evidence]." Jd. The CCA has "adapted the Supreme Court's prejudice
test to require that there is a reasonable probability that, absent the errors, the jury
12
would have answered the mitigation issue differently." Ex parte Gonzales, 204
S.W.3d at 394.
B. Ineffective Assistance of Appellate Counsel
Ineffective assistance of appellate counsel claims are governed by
Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper standard for
evaluating [a petitioner's] claim that appellate counsel was ineffective ... is that
enunciated in Strickland v. Washington"); Evitts v. Lucey, 469 U.S. 387, 396-97
(1985) (the Fourteenth Amendment requires the assistance of counsel to appellants
for their first appeal as of right); accord Ries v. Quarterman, 522 F.3d 517, 531-32
(5th Cir. 2008); Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App.
2007).
An appellate counsel has a duty to reVIew the record and present any
potentially meritorious claims. Meza v. State, 206 S. W.3d 684, 689 (Tex. Crim.
App. 2006) (noting appellate counsel's "constitutional duty to review the record
for any arguable error").
C. Scope of the Waiver of Attorney-Client Privilege
Harris recognizes that raising specific issues of ineffective assistance of
counsel as developed in this Application operates as a limited waiver of privileged
information; however, he asserts his right to have all privileged information not
directly relevant to his claims remain privileged.
Under the Texas Rules of Evidence, confidential communications between a
client and his attorney are privileged. TEX. R. EVID. 503(b)(1)(A) ("A client has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition of
professional legal services to the client ... between the client ... and the client's
lawyer."). The privileged nature of communications between client and attorney

13
remains intact, even upon the tennination of the attorney-client relationship. See
Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455,458 (Tex. 1982).
The privilege between attorney and client is not absolute. It is "well-
established ... that when an attorney's professional conduct is challenged by the
client, the privilege is waived so far as necessary to defend the attorney's
character." West v. So lito , 563 S.W.2d 240,245 n.3 (Tex. 1978). In the context of
criminal law, courts across the nation have consistently "held that a claim of
ineffective assistance of counsel by a defendant against a fonner attorney waives
the attorney-client privilege." Joseph v. State, 3 S.W.3d 627, 637 (Tex. App.-
Houston [14th Dist.] 1999) (citing Laughner v. United States, 373 F.2d 326, 327
(5th Cir. 1967)); see also United States v. Pinson, 584 F.3d 972, 978 (lOth Cir.
2009).
However, any Waiver of the attorney-client privilege only applies to
communications relevant to the claim of ineffective assistance of counsel.
Laughner, 373 F.2d at 327 (where "the client alleges a breach of duty to him by the
attorney, ... he thereby waives the privilege as to all communications relevant to
that issue" (emphasis added)). Courts have consistently limited the scope of these
waivers, pennitting disclosure of only those confidential communications that are
"necessary to prove or disprove [the client's] claims." Pinson, 584 F.3d at 978
(emphasis added).2

2 See also Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003)
("Because a waiver is required so as to be fair to the opposing side, the rationale
only supports a waiver broad enough to serve that purpose. Courts, including ours,
that have imposed waivers under the fairness principle have therefore closely
tailored the scope of the waiver to the needs of the opposing party in litigating the
claim in question."); Johnson v. Alabama, 256 F.3d 1156, 1179 (11 th Cir. 2001)
("[A] habeas petitioner alleging that his counsel made unreasonable strategic
decisions waives any claim of privilege over the contents of communications with
counsel relevant to assessing the reasonableness of those decisions in the
14
Predecessor counsel's duty to limit disclosure to information relevant to the
claim of ineffective assistance also flows from counsel's continuing duty to the
former client. Both the ABA Guidelines and the Texas Guidelines stipulate that,
"[i]n accordance with professional norms, all persons who are or have been

circumstances." (emphasis added)); United States v. Basham, Cr. No. 4:02-992-
JFA, 2012 WL 1130657 at *6 (D.S.C. Apr. 4, 2012) (unpublished) ("the
Government will not use and will not make copies of any material or information
in trial counsel's files that is not related or relevant to a claim in Basham's § 2255
Motion" (emphasis added)); In re Nat'l Mortg. Equity Corp. Mortg. Pool
Certificates Sec. Litig., 120 F.R.D. 687, 692 (C.D. Cal. 1988) (in which the court
"reject[ed] the suggestion made by some parties that 'selective' disclosure should
not be allowed, that if the exception is permitted to be invoked, all attorney-client
communications should be disclosed" as "directly contrary to the reasonable
necessity standard"); Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876, 886-87
(E.D. Pa. 1976) ("In almost any case when an attorney and a former client are
adversaries in the courtroom, there will be a credibility contest between them. This
does not entitle the attorney to rummage through every file he has on that
particular client (regardless of its relatedness to the subject matter of the present
case) and to publicize any confidential communication he comes across which may
tend to impeach his former client. At the very least, the word 'necessary' in the
disciplinary rule requires that the probative value of the disclosed material be great
enough to outweigh the potential damage the disclosure will cause to the client and
the legal profession."); Alabama v. Lewis, 36 So. 3d 72, 77-78 (Ala. Crim. App.
2008) (noting that, by alleging "ineffective assistance of counsel during the trial
and direct appeal of these cases, the defendant waived the benefits of both the
attorney-client privilege and the work product privilege, but only with respect to
matters relevant to his allegations of ineffective assistance of counsel" (second
emphasis added)); Waldrip v. Head, 532 S.E.2d 380, 387 (Ga. 2000) ("[W]e hold
that a habeas petitioner who asserts a claim of ineffective assistance of counsel
makes a limited waiver of the attorney-client privilege and work product doctrine
and the state is entitled only to counsel's documents and files relevant to the
specific allegations of ineffectiveness." (emphasis added)); In re Dean, 711 A.2d
257, 258-59 (N.H. 1998) ("We hold that claims of ineffective assistance of
counsel, whether brought in a motion for new trial or in a habeas corpus
proceeding, constitute a waiver of the attorney-client privilege to the extent
relevant to the ineffectiveness claim; the waiver is a limited one." (emphasis
added)).
15
members of the defense team have a continuing duty to safeguard the interests of
the client." ABA Guidelines, Guideline 10.13; Texas Guidelines, Guideline 11.8.
ABA Formal Opinion 10-456 states that, in the context of an ineffective assistance
of counsel claim, lawyers may disclose information "reasonably necessary" for
resolution of the ineffectiveness claim. ABA Standing Comm. on Ethics & Profl
Responsibility, Formal Opinion 10-456, at 5 (2010). However, the opinion further
states that it is "highly unlikely that a disclosure in response to a prosecution
request, prior to a court-supervised response by way of testimony or otherwise,
will be justifiable." ld.
IV.

ARGUMENT

CLAIM ONE
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY
FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN
MITIGATING EVIDENCE DURING HARRIS'S TRIAL

At the heart of the punishment phase of a capital trial is the presentation of
mitigation evidence and the concept of moral culpability. Moral culpability
acknowledges an elementary psychological reality-that people do not arrive at
their choices from the same path. Thus, it follows that the degree of an individual's
"blameworthiness" for capital murder may vary depending on what factors and
experiences shape, influence, and/or compromise that choice. A jury's
understanding of the evidence affecting the moral culpability of a defendant is
critical to a jury's consideration of the appropriate punishment for a capital
offense.
Mitigating evidence is not developed to provide a defense to the crime or to
challenge evidence of guilt, nor is it an excuse or explanation for a crime. Instead,
it provides a context for the crime by describing an individual's life experiences

16
that serve to inspire compassion, empathy, mercy, and/or understanding. Indeed,
mitigating evidence is any evidence that "might serve' as a basis for a sentence less
than death.'" Tennard v. Dretke, 542 U.S. 274, 287 (2004) (quoting Skipper v.
South Carolina, 476 U.S. 1, 5 (1986)) (emphasis added); Coble v. State, 330
S.W.3d 253,296 (Tex. Crim. App. 2010) (acknowledging Tennard's language that
no nexus is required between mitigating evidence and the crime).
The standards for professional norms for capital representation require that
trial counsel make a thorough investigation into the areas of mitigating evidence
that might be presented on a defendant's behalf. ABA Guidelines, Guideline 10.7
(commentary) (noting that a "penalty phase preparation requires extensive and
generally unparalleled investigation into personal and family history"); ABA,
Supplementary Guidelines for the Mitigation Function of Defense Teams in Death
Penalty Cases, 36 HOFSTRA L. REv. 677, 688 (2008) ("ABA Mitigation
Guidelines") ("It is the duty of counsel to lead the team in conducting an
exhaustive investigation into the life history of the client. It is therefore incumbent
upon the defense to interview all relevant persons and obtain all relevant records
and documents that enable the defense to develop and implement an effective
defense strategy.").
But it is also not enough to simply gather the facts of a defendant's life story
and then present it through lay witness testimony. An expert should also be
retained to synthesize that information into a coherent psycho-social narrative for
presentation to the jury. See ABA Guidelines, Guideline 10.11 (commentary)
(noting the importance of presenting "the client's complete social history" at
punishment); see also ABA Mitigation Guidelines, Guideline 10.11. Such an
expert lises their particularized expertise relevant to the defendant to present his
social history in a cohesive narrative for the jUly. John Blume, Mental Health
Issues in Criminal Cases: The Elements of a Competent and Reliable Mental
17
Health Examination, 17 THE ADVOCATE 4, 10 (Aug. 1995) ("[P]ersuasive expert
testimony must ... enable the jury to see the world from your client's perspective,
i.e., to appreciate his subjective experience.").
Like any subject matter which warrants an expert opinion, the forces that
have helped to determine a defendant's life story must be explained to the jury in a
way that illuminates why they are relevant to moral culpability. It is not sufficient
to present a parade of witnesses discussing the defendant's history-an expert
witness is needed to give that life history context. Put differently,

you have to give the fact-finder a view of the crime from the
defendant's perspective. If you don't, you run the risk of making your
client seem "otherly," frightening and thus expendable. What you
strive for is to enable the fact-finder to look through your client's eyes
and to walk, at least for a few minutes, in his shoes.

Blume, ante, at 1O.
During the defense's presentation on mitigation during the punishment phase
of trial, counsel offered testimony from four family members-Harris's mother,
brother, stepfather, and cousin-to discuss various details of Harris's life story.
(64 RR at 215, 257; 65 RR at 29, 88.) Their testimony explained to the jury that
Harris's family (including his mother) struggled with mental illness; that Harris
was exposed to family violence, physical abuse, and drug abuse as a child; that
Harris was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD")
and put on Ritalin; and that Harris began running away from home, became
involved in juvenile gang and street life, and ultimately dropped out of school. (64
RR at 215, 257; 65 RR at 29, 88.) Counsel understood the potential impact of
these facts when woven together as a narrative, arguing to the jury in closing that
the facts they had presented were meant to tell the jury "how a child, how a baby,
came to where this man is today." (66 RR at 42.)

18
Counsel's investigation and presentation of Harris's mitigation case,
however, failed to fulfill their purpose in two respects. First, counsel failed to
investigate and develop evidence regarding two very serious and mitigating root
causes of Harris's life impairments. Evidence was available that Harris suffered
from prenatal exposure to alcohol, causing cognitive impairments consistent with
Fetal Alcohol Spectrum Disorder ("FASD"). Further, Harris was exposed to toxic
levels of lead from a smelter located in the heart of his childhood neighborhood.
Second, counsel failed to investigate and develop sufficient expert testimony
to explain to the jury why the facts of Harris's life that were presented by family
members should be considered mitigating. The only expert testimony the jury
heard relating to mitigation came from an addictions expert discussing the impact
of Harris's drug use and from a psychologist speaking academically about risk
factors for childhood delinquency. (65 RR at 19, 64, 152.) Without further
explanation from expert witnesses about the mitigating impact of Harris's life
trajectory, the jury was left without a context to understand why Harris's
behavioral issues as a child, his ADHD diagnosis, or his entry into gang life and
drug use were mitigating. Instead, the jury heard the State explain that "from all
accounts," Harris had "a pretty decent childhood, growing up together, playing,
fun, you know, happy." (66 RR at 74.)
Yet, substantial expert testimony was available that would have explained
why Harris's life trajectory was not of his own making but the product of many
environmental, social, and institutional forces. Beginning with his prenatal
exposure to both alcohol and lead, Harris entered the world disadvantaged and
impaired. His family circumstances deprived him of secure attachments and
healthy childhood development. And when Harris's cognitive and developmental
impairments began to manifest, they were misinterpreted by both his parents and
school officials and treated as mere behavioral problems. Harris entered what has
19
become known as the "school to pnson pipeline," pointing his life trajectory
toward street life, gangs, drug abuse, and, ultimately, incarceration through the
juvenile and adult criminal justice systems.
Such testimony would have offered Harris's jury a starkly different
understanding of why Harris's life story was mitigating and why Harris deserved a
life sentence. Counsel's failure to investigate and present the above-mentioned
information constituted deficient performance of capital counsel and prejudiced
Harris's trial. Counsel's ineffective assistance violated Harris's rights under the
state and federal Constitutions, state statutory law, and United States Supreme
Court and state case law. For these reasons, his sentence should be reversed.
A. Trial Counsel Was Ineffective for Failing to Investigate and Present
Available Evidence that Harris Suffers from Fetal Alcohol Spectrum
Disorder
Prior to Roderick Harris's capital murder trial, counsel was aware that
Harris's mother, Pamela Maddox, drank alcohol while she was pregnant with
Harris. However, counsel failed to thoroughly investigate the effect Ms. Maddox's
prenatal drinking had on Harris. Had trial counsel done so, they would have
discovered that Harris suffers from FASD, an umbrella term that encompasses a set
of neurological conditions resulting from prenatal brain damage caused by
maternal consumption of alcohol during pregnancy. This failure deprived the jury
of significant mitigating evidence that reasonably could have influenced the verdict
in Harris's punishment phase.
1. What Is Fetal Alcohol Spectrum Disorder?
F ASD is an umbrella term for several medical diagnoses caused by maternal
consumption of alcohol during pregnancy. (Ex. 1 at '-;11 [Aff. of Dr. Natalie

20
- ---------------------------------------------

Brown].)3 The mother's drinking leads to prenatal brain damage in the developing
embryo or fetus. (ld. ) There are three distinct yet closely-related specific
diagnoses encompassed by FASD: Fetal Alcohol Syndrome ("FAS"), Partial Fetal
Alcohol Syndrome ("Partial F AS"), and Alcohol Related Neurodevelopmental
Disorder ("ARND"). (Jd.) In general, the three conditions do not vary in the
severity of the associated brain damage, but are distinguished by variations in the
external, physical damage attributed to the disorder (e.g., facial abnormalities,
growth deficits). (ld.) Similarly, damage to the central nervous system can be
equally severe, regardless of the specific condition that is diagnosed. (Jd.)
F ASD has a worldwide diagnostic history that at the time of Harris's capital
murder trial spanned nearly forty years. (Ex. 1 at ~12 [Aff. of Dr. Natalie Brown].)
FAS was first recognized in 1973 by researchers at the University of Washington.
(Jd.) Diagnostic criteria for F ASD were published in 1996 by the Institute of
Medicine, the health arm of the independent National Academy of Sciences. (ld.)
In 2004, the Centers for Disease Control and Prevention expanded upon and
quantified the diagnostic criteria, making them more explicit. (ld.)
Under the diagnostic criteria, a diagnosis of F AS requires three present
factors: (1) presence of facial abnormalities (e.g., small palpebral fissures or eye
slits, smooth philtrum or groove between the bottom of the nose and upper lip, and
thin upper lip); (2) a growth deficit at any point in life; and (3) central nervous
system abnormality. (Ex. 1 at,-r13 [Aff. of Dr. Natalie Brown].) A central nervous
system abnormality can be measured structurally (e.g., neuroimaging),
neurologically (e.g., seIzures, gait problems), or functionally (e.g.,
neuropsychological testing). (Jd.)

Dr. Brown is a licensed psychologist who specializes in the evaluation of
3
individuals with FASD. (Ex. 1 at ,-r,-r1-2, 4,6-7 [Aff. of Dr. Natalie Brown].)
21
If there is confirmation of prenatal exposure to alcohol, a diagnosis of Partial
FAS or ARND can be reached. (Ex. I at'i[13 [Aff. of Dr. Natalie Brown].) A
Partial F AS diagnosis requires central nervous system abnormality along with one
or more of the above-mentioned facial abnormalities. (Id.) A diagnosis of ARND
requires only a central nervous system abnormality. (Id.)
Brain damage resulting from F ASD can cause an array of functional deficits
and impaired neurocognitive functioning. (Ex. I at 'i[I4 [Aff. of Dr. Natalie
Brown].) Basic deficits attributed to F ASD are referred to as "primary
disabilities." (Id.) These disabilities include deficits in attention, learning,
memory, language development, logical thinking, impulse inhibition and behavior
control, among others. (Id.) Only about 10% of individuals with FASD have IQ
scores at or below 70, and a score above 70 may mask other significant cognitive
deficits that, when considered together, have a substantial negative impact on
adaptive and/or social functioning. (Id.) This is due to the fact that individuals
with F ASD generally perform best in structured, familiar settings in which they
can rely on external guidance as opposed to their own judgment. (Id. at 'i[I5.)
Thus, IQ test scores reflect the performance of an individual with FASD in a
situation which favors them, i.e., a controlled, structured setting. (Id.) In contrast,
when an individual with F ASD is left to their own devices with little or no
direction, the individual's adaptive deficits are exposed. (Id.) This decline in
adaptive performance is associated with executive dysfunction, which is controlled
by the prefrontal cortex of the brain. (Id.) Neuroimaging studies have revealed
that the prefrontal cortex is particularly sensitive to the teratogenic effects of
maternal alcohol use during pregnancy. (Id.)
The deficits in cognitive functioning attributed to FASD often result in
individuals suffering what are referred to as "secondary disabilities." (Ex. 1 at'i[16
[Aff. of Dr. Natalie Brown].) Secondary disabilities are the product of the
22
interaction between neurological executive dysfunction and traumatic
environmental experiences in childhood. (Jd.) Individuals with F ASD have
deficits in social skills and social judgment (an executive function). (Jd.) When
faced with a stressful situation, individuals with FASD frequently react with
ineffective coping responses (e.g., internalizing or externalizing behaviors). (Jd.)
Thus, these secondary disabilities reflect maladaptive coping reactions to
environmental stress and usually can result in mental health disorders, school
disruption, substance abuse, criminal behavior, confinement, poor work history,
and struggling to live independently as an adult. (Jd.) In fact, nearly two-thirds of
juveniles with FASD will go on to commit a crime at least once in their lives. (ld.)
Epidemiological studies estimate that 5% of the United States population are
afflicted with FASD, and that FASD afflicts between 16% and 23% of individuals
caught up in the criminal justice system. (Jd.)
The effects of these secondary disabilities can be mitigated with early
intervention, such as the provision of developmental disabilities services, and
nurturing, stable, and protective caregiving. (Ex. 1 at ~17 [Aff. of Dr. Natalie
Brown].) However, the risk of secondary disabilities associated with FASD
increases in the absence of a diagnosis early in childhood. (Jd.) Diagnosis of
F ASD is typically conducted in children prior to the onset of puberty, which can
alter facial structures and obscure any abnormalities that previously existed. (Jd.)
However, most children afflicted with FASD (such as those with Partial FAS or
ARND) do not display any external manifestation of their FASD condition, nor are
they intellectually disabled, as discussed above. (ld.) As a result, many
individuals "slip through the cracks" and are never diagnosed with FASD;
consequently, they never receive professional intervention that could ameliorate
their social and adaptive deficits. (Jd.) As an undiagnosed youth with FASD
grows older, adults are increasingly likely to attribute the youth's poor judgment,
23
impulse control, and decision-making to willful misconduct, rather than to the
cognitive impairments of F ASD. (1d.) Diagnosis of FASD in individuals over the
age of eighteen becomes increasingly difficult, largely due to the absence or
destruction of educational and medical records that chronicled childhood deficits.
(ld.)
2. Fetal Alcohol Spectrum Disorder Was Widely Recognized by the
Medical and Legal Communities at the Time of Harris's Trial
At the time of Harris's capital trial, psychologists and medical doctors were
qualified to diagnose the central nervous system damage reSUlting from F ASD as
"consistent with FASD". (Ex. 1 at ,-r18 [Aff. of Dr. Natalie Brown].) By the time
of Harris's trial, FASD was well-recognized in the medical and psychological
community. (ld. at ,-r30.) A sampling of the research and available data includes
that

• In 1973, F AS was first recognized in the United States by researchers at
the University of Washington. Several articles about FAS were
published in the prestigious medical journal Lancet.
• In 1977, the National Institute of Alcohol Abuse and Alcoholism
("NIAAA") issued an advisory that six or more drinks per day put a
pregnant woman at risk of producing a child with birth defects. Later
research would determine that much less exposure also could cause
F ASD conditions.
• In 1978, F AS was an integral part of a specially commissioned report to
the U.S. Congress-the Third Special Report to Congress on Alcohol and
Health: Fetal Alcohol Syndrome-which was published by the
Department of Health and Human Services ("HHS") and the NIAAA.
After more than 250 published case reports, it was clear by this time that
F AS was one of several identifiable disorders associated with maternal
alcohol abuse. The term "Fetal Alcohol Effects" (or "F AE") was coined
to classify F ASD conditions without the full array of facial abnormalities
associated with FAS. (F AE now is an outdated term, having been
replaced in 1996 with the term "Alcohol Related Neurodevelopmental
Disorder" (or "ARND").)

24
• By 1979, over 600 cases of FAS had been reported worldwide. In the
book Fetal Alcohol Syndrome and Fetal Alcohol Effects, Dr. Ernest Abel
reported cases of FAS in articles from Australia, Belgium, Brazil,
Canada, Chile, Czechoslovakia, France, Germany, Hungary, Ireland,
Italy, South Africa, Spain, Sweden, Switzerland, and the United States.
• By 1980, the Research Society on Alcoholism issued the first diagnostic
guidelines for FAS, which involved three diagnostic criteria in the
context of prenatal alcohol exposure: "A pattern of characteristic facial
features, pre-postnatal deficit in height and weight, and central nervous
system damage."
• By 1981, HHS and NIAAA provided more information on FAS in the
Fourth Special Report to Congress on Alcohol and Health: Fetal Alcohol
Syndrome. In this same year, the U.S. Surgeon General issued a national
health advisory recommending that pregnant women or women
considering getting pregnant should abstain from using alcohol because
of possible harm to the unborn child. The Surgeon General noted
adverse effects "with only 1 ounce/day of absolute alcohol or 2 drinks
and risk ofFAS in children of heavy drinkers."
• In 1982, information on FAS appeared in the fourteenth edition of the
Merck Manual. Therein, the Merck Manual noted that "the most serious
consequence [of drinking alcohol during pregnancy] is mental
retardati on."
• In 1983, the Fifth Special Report to Congress on Alcohol and Health:
Fetal Alcohol Syndrome was issued and contained more information
about FAS.
• In 1984, an updated edition of Dr. Ernest Abel's treatise, Fetal Alcohol
Syndrome and Fetal Alcohol Effects, became one of the first medical
textbooks to summarize the mechanisms and laboratory research on the
effects of alcohol in laboratory animals and selected cases.
• In 1985, the first non-medical book on FAS-A Poison Stronger Than
Love by Anastasia Shkilnyk-further brought the condition to the
attention of the lay public.
• In 1987, more infonnation on FAS was published in the Sixth Special
Report to Congress on Alcohol and Health: Fetal Alcohol Syndrome.
• In 1988, the Alcoholic Beverage Labeling Act, PL 100-690, was passed
into law. The law mandated a warning label on every alcoholic beverage
container sold in the United States, which stated: "According to the
Surgeon General, women should not drink alcoholic beverages during

25
pregnancy because of the risk of birth defects." This law was widely
publicized in the media around the time of its passage.
• In 1989, The Broken Cord by Michael Dorris was published. This was
the first nationally distributed book on FAS and its impact on a family.
Dr. Dorris cited 165 articles and books and three videos that addressed
the dangers of drinking during pregnancy. The book became very
popular and is still referred to today as a "classic" in FASD literature in
terms of describing the long-term behavioral and developmental effects
of prenatal alcohol exposure.
• In 1990, Congress received more information on F AS in the Seventh
Special Report to Congress on Alcohol and Health: Fetal Alcohol
Syndrome.
• In 1992, the sixteenth edition of the Merck Manual included F AS, noting
that the condition was "the leading known cause of mental retardation."
The Merck Manual also noted the "severe behavioral effects," "varying
degrees of mental retardation," and "abnormal neurobehavioral
development" associated with the condition.
• In 1993, HHSINIAAA published the Eighth Special Report to Congress
on Alcohol and Health: Fetal Alcohol Syndrome.
• In 1995, Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention
and Treatment, edited by Kathleen Stratton and her colleagues, was
published. This Institute of Medicine ("10M") textbook consolidated the
research and practical knowledge on F AS available in the United States
at the time and provided a uniform basis for diagnosis.
• In 1995, the seventeenth edition of the Merck Manual was published.
Among other things, the Merck Manual noted the behavioral effects of
FAS (e.g., "varying degrees of mental retardation and abnormal
neurobehavioral development").
• In 1996, Alcohol, Pregnancy, and the Developing Child, edited by Hans-
Ludwig Spohr and Hans-Christoph Steinhausen, was published. This
was the European counterpart to the Stratton publication from 1995.
• In 1996, there were two groundbreaking publications in the United
States. The first of these, a publication by the 10M, formalized FASD
diagnosis by publishing diagnostic criteria for five conditions under the
FASD umbrella: FAS with confirmed prenatal exposure, FAS without
confinned prenatal exposure, Partial FAS, ARND, and Alcohol Related
Birth Defects. (The lattermost condition focused solely on damage to
physical structures outside the central nervous system, such as organs,
limbs, and skeletal structure.) With this 10M publication, older

26
terminology (e.g., Fetal Alcohol Effects, encephalopathy) began to be
replaced with newer terms, such as Partial F AS and ARND. Eventually,
the umbrella term "Fetal Alcohol Spectrum Disorders" was promulgated
as an inclusive term for all five 10M diagnostic categories.
• Also in 1996, the Centers for Disease Control and Prevention published
the results of a large research study on secondary disabilities associated
with FASD. The study, led by Dr. Ann Streissguth at the University of
Washington, focused on the developmental trajectory of individuals with
F ASD. Adverse developmental outcomes (i.e., adaptive problems) were
described as "secondary disabilities." Some of the most surprising
findings were that individuals with F ASD were at a high risk to commit
crimes, engage in substance abuse, and have mental health histories that
included inappropriate sexual behaviors. Adults with F ASD were at an
extremely high risk of having employment problems and difficulty living
independently. The authors of the study concluded that secondary
disabilities arose in the context of environmental adversity and lack of
protective factors.
• In 1997, Fetal Alcohol Syndrome: A Guide for Families and
Communities by Ann Streissguth was published by HHS and NlAAA.
This book contained a developmental view of FASD and referenced the
secondary disabilities study that had just been published. On page 241 of
that work, Dr. Streissguth wrote that, "[a]s of 1997, several authors have
described FASIF AE from a criminal justice perspective (see Barnett,
1997; Dagher-Margosian, 1997; Fehr, 1995; LaDue & Dunne, 1997; arid
Novick, 1997)."
• In 1997, HHSINIAAA published the Ninth Special Report to Congress
on Alcohol and Health: Fetal Alcohol Syndrome.
• In 2000, HHSINIAAA published the Tenth Special Report to Congress
on Alcohol and Health: Fetal Alcohol Syndrome.
• In 2001, Craig Lesley's Storm Riders was published. This commercially
successful book focuses on Lesley's adopted son who suffers from FAS
and the condition's effects.
• In 2004, the Centers for Disease Control published a detailed diagnostic
manual for FASD that quantified diagnosis and resolved some of the
ambiguities from the 1996 10M publication.

Furthermore, F ASD was also widely used as mitigating evidence at the time
of Harris's trial. Multiple authors had written about the application ofFASD to the
criminal justice system. (Ex. 1 at ~30 [Aff. of Dr. Natalie Brown].) Numerous
27
cases across the country had already presented FASD as a relevant, mitigating
factor at the punishment stage. (Id. at ~31 (citing twenty-three cases that presented
FASD as mitigating prior to Harris's trial).) Evidence that Harris suffers from
FASD could and should have been presented to the jury.
3. Before Trial, Counsel Possessed Evidence that Harris Suffered from
FASD
A significant body of evidence was available to trial counsel that indicated
Harris was afflicted with F ASD. Trial counsel overlooked these clear signs and
failed to pursue the necessary medical investigation and consultation that would
have revealed Harris suffers from FASD. See Wiggins, 539 U.S. at 522-23.
During the defense presentation at the punishment phase of Harris's trial,
counsel elicited testimony from Harris's mother, Pamela Maddox, that she drank
alcohol, smoked cigarettes, and smoked marijuana during the first six weeks of her
pregnancy with Harris. (64 RR at 222-24.) Trial counsel was in possession of this
information prior to Harris's trial. Defense mitigation investigator Brendan Ross
conducted an interview with Ms. Maddox in November 2011 during which Ms.
Maddox admitted to consuming alcohol during the period immediately prior to her
discovery that she was pregnant with Harris.
Post-conviction investigation has revealed that, at minimum, Ms. Maddox
drank several glasses of wine on the weekends during the first six weeks of her
pregnancy with Harris. (Ex. 11 at ~7 [Aff. of Pamela Maddox].) Ms. Maddox also
confirmed that she smoked marijuana and cigarettes during this time period. (Id.)
Ms. Maddox was unaware that she was pregnant until she went to the hospital with
pneumonia-like symptoms, where she discovered that she was with child. (Id. at
~6.) As she testified at trial, she stated that she stopped drinking once she learned
that she was pregnant. (Id. at ~7.)

28
While pretrial confinuation of prenatal exposure to alcohol alone should
have triggered further investigation into FASD, trial counsel was in possession of
additional infonnation relevant to the cognitive deficits and secondary disabilities
consistent with FASD that further indicated the need to consult an expert in the
field ofF ASD.
While Harris was born at full-term and was a nonnal birth weight, he was
"severely depressed" immediately after he was delivered by cesarean section. (Ex.
1 at ~21 [Aff. of Dr. Natalie Brown].) Harris's Apgar score was initially three and
only increased to eight after five minutes of treatment. 4 (Id.) Pregnancy-induced
hypertension was diagnosed as the etiology behind Harris's neonate distress. Such
hypertension can be caused by prenatal alcohol exposure. (Id.)
Additionally, Harris's family members and school records chronicled his
childhood struggles with two neurodevelopmental disorders, social skill deficits,
and behavioral problems, all of which stemmed from executive functioning
problems. (Ex. 1 at ~~22-23 [Aff. of Dr. Natalie Brown].) Harris was diagnosed
around the age of seven with ADHD, and a 1991 psychological evaluation resulted
in a diagnosis of dysthymia. (Id. at ~~23, 27.) School records also indicated that
Harris struggled with learning disabilities. (ld. at ~~22-23.) A 1994 evaluation
resulted in diagnoses of dysthymia, ADHD, and "developmental problems in
Arithmetic, Expressive Writing, and Reading." (Id. at ~23.) Testing in 2000
indicated concrete thinking, inadequate coping defenses, anxiety, and interpersonal

4 Apgar is a scoring method that assesses the health of newborns
immediately after birth. The score is compiled from adding individual scores for
the infant's respiratory effort, heart rate, skin color, response to a catheter in the
nostril, and muscle tone. Scores for these factors range from zero to two points,
and the scores are summed. Thus, the highest possible Apgar score is ten. A
newborn with a score between zero and three needs immediate resuscitation. (Ex.
1 at ~21, n.2 [Aff. of Dr. Natalie Brown].)
29
skill deficits. (Jd. at ~22.) A 2003 psychological evaluation documented diagnoses
of depression, anxiety, and ADHD, as well as a behavioral history of numerous
runaway episodes. (Jd. at ~23.) Harris's documented struggles in school constitute
examples of deficits in executive function, mood regulation, social skills, and
adaptive coping. (Jd. at ~~22-23.)
Trial counsel elicited testimony from Harris's mother, stepfather, and
younger brother. Each witness described Harris's diagnosis with ADHD, and his
intermittent treatment with Ritalin. Moreover, each of the three witnesses
described Harris's learning disabilities, his depression, and his pattern of running
away from home.
4. This Evidence Establishes That Harris Meets Diagnostic Criteria for
Fetal Alcohol Spectrum Disorder
A diagnosis of FASD requires abnormalities to the central nervous system in
the context of confirmed prenatal alcohol exposure. (Ex. 1 at ~40 [Aff. of Dr.
Natalie Brown].) The more specific diagnosis of ARND does not require the
observation of facial abnormalities. (Id.) Harris possesses qualifying central
nervous system abnormalities which, coupled with his confirmed prenatal exposure
to alcohol, means that he meets diagnostic criteria for ARND, one of the conditions
under the FASD umbrella. (Jd. at ,-r29.)
Trial counsel retained Dr. Antoinette McGarrahan to conduct
neuropsychological testing on Harris. (Ex. 1 at ~25 [Aff. of Dr. Natalie Brown].)5
A review of this testing, which occurred in November 2011, indicates that Harris
has significant deficits in four major cognitive domains: (1) academic

5 At the request of post-conviction counsel, Dr. James Underhill, a licensed
neuropsychologist, reviewed Dr. McGarrahan's raw testing data. (Ex. 6 at ~10
[Aff. of Dr. James Underhill].) Dr. Underhill compiled a list of Harris's scores on
the tests, as well as scores for any subscales within the testing measures. (Jd. at
,-r12.) This list of scores was provided to Dr. Brown for review.
30
achievement; (2) executive functioning; (3) visual spatial integration; and (4)
auditory and visual memory. (Jd.) Harris's testing revealed a WAIS-IV IQ score
of 84, placing him in the low average range. (Id.) Although this score does not
fall into the intellectually deficient range, there were significant discrepancies
among the four WAIS-IV indices, suggesting the possibility of brain damage
consistent with FASD. (Jd.) Harris displayed deficient ability in all academic
areas, and, despite completing the tenth grade, his academic skills ranged from
fifth to seventh grade. (Id.) Harris's results on a visual-spatial integration test
(Hooper Visual Orientation Test) fell more than 1 standard deviation below the
mean. (Jd.) Scores on tests of auditory and visual memory and learning (Wechsler
Memory Scale-4, California Verbal Learning Test, Rey Complex Figure Test) fell
1 to 2.5 standard deviations below the mean. (Id.) Several of Harris's scores on
tests of executive function (Wisconsin Card Sorting Test, Boston Naming Test) fell
1 to 3 standard deviations below the mean. (Id.) Overall, these deficits provide
convergent evidence that is highly suggestive of frontal lobe brain damage, with
some damage in the temporal and parietal lobes. (Jd.) These neuropsychological
deficits mirror deficits observed in individuals with F ASD, and qualify as a central
nervous system abnormality required for a diagnosis ofFASD. (Id. at ,-r40.)
Harris was also diagnosed with two neurodevelopmental disorders that are
correlated with individuals afflicted with FASD, a learning disorder (especially in
mathematics) and ADHD. (Ex. 1 at ,-r35 [Aff. of Dr. Natalie Brown].)
Neurodevelopmental disorders typically stem from brain damage. (Id.) Harris's
birth records provide additional support that he was likely born with brain damage,
as they indicate Harris was in "severe" distress at birth, a complication that, like
developmental disabilities and learning disorders, is associated with F ASD. (Id.)
Screening questionnaires (Fetal Alcohol Behavior Scale) were administered
to three of Harris's family members during post-conviction investigation. (Ex. 1 at
31
~37 [Aff. of Dr. Natalie Brown].) Each response contained scores that placed
Harris's behavior in the FASD range. (Jd.)
Finally, Harris's mother Pamela Maddox confirmed in pretrial and post-
conviction investigation that she consumed alcohol during at least the first six
weeks of her pregnancy with Harris. (See 64 RR at 222-24; Ex. 11 at ~7 [Aff. of
Pamela Maddox].) Given Harris's confirmed prenatal exposure to alcohol, his
deficits in four discrete cognitive domains revealed by neuropsychological testing,
and his lifelong neurodevelopmental disorders (ADHD and learning disorder), it is
clear that Harris meets the diagnostic criteria for ARND, a condition on the
spectrum ofFASD. 6
5. Trial Counsel's Failure to Develop and Present Evidence Harris
Suffered from FASD Constitutes Deficient Performance That
Prejudiced Harris
As discussed above, prior to Harris's capital trial defense counsel was in
possession of numerous pieces of evidence that should have led to an investigation
into whether Harris was afflicted with FASD. First and foremost, counsel knew
that Harris's mother consumed alcohol during the first six weeks of her pregnancy
because Ms. Maddox admitted as much to Brendan Ross, defense counsel's
mitigation investigator. Moreover, trial counsel affirmatively elicited testimony to
this effect from Ms. Maddox during the punishment phase of Harris's trial,
indicating that they were both aware of this information and knew it to be relevant.

6 Examination of a childhood photograph of Roderick Harris indicates
possible facial dysmorphology consistent with FASD. Consultation with a medical
doctor with expertise in FASD could likely result in a diagnosis of FAS or Partial
FAS. Regardless of the specific condition (F AS, Partial FAS, or ARND) , all
FASD conditions involve similar degrees of brain damage and functional
impairment. Thus, the specific diagnostic condition is forensically irrelevant. (Ex.
1 at ~40 [Aff. of Dr. Natalie Brown].) Regardless, Harris intends to undergo
further medical testing and will supplement this application with any updated
FASD information.
32
(64 RR at 222-24.) The fact that trial counsel had maternal confirmation that
Harris was exposed to alcohol in utero should have prompted a consultation with a
psychologist or medical doctor with expertise in FASD.7
In addition to Harris's confirmed prenatal exposure to alcohol, trial counsel
overlooked several clear and consistent "red flags" that Harris suffered from
serious, chronic cognitive difficulties and associated adaptive dysfunction. From
birth, Harris's records indicate a likelihood that he suffered from brain damage.
(Ex. 1 at ~35 [Aff. of Dr. Natalie Brown].) Moreover, Harris's school records
indicate a long history with learning disorders, ADHD, depressed mood,
dysthymia, and suicidal ideations. (Id. at ~~22-23.) Trial counsel elicited
testimony about these factors from Harris's mother, stepfather, and younger
brother during the punishment phase as well. (64 RR at 215-293; 65 RR at 29-62,
70-87.) This information should have operated as a clear warning sign to trial
counsel that Harris had considerable problems with cognitive functioning, which
should have prompted further investigation into the etiology of these
complications.
In light of trial counsel's confirmation of Harris's prenatal exposure to
alcohol, trial counsel's failure to consult a psychologist or medical doctor with
expertise in FASD is a glaring omission. Had trial counsel sought to explain the
underlying cause of the troubling aspects of Harris's cognitive and behavioral
impainnents, such an investigation would have led to consultation with an expert
in the area of FASD who could have testified that Harris meets the diagnostic
criteria for ARND, one of the specific conditions ofFASD. (Ex. 1 at ~39 [Aff. of
Dr. Natalie Brown].)

7 According to Dr. Brown, it is common practice for trial counsel to hire an
F ASD specialist whenever prenatal alcohol exposure is merely suspected. (Ex. 1
at ~38 [Aff. of Dr. Natalie Brown].)
33
A diagnosis of ARND would have proven to be powerful mitigating
evidence for a jury to hear. Individuals with ARND are, through no fault of their
own, born with serious cognitive impairments. These impairments include deficits
in a broad array of neurocognitive functions, such as attention, learning, logical
thinking, impulse inhibition, and self-regulation, which are certainly relevant to the
mitigating circumstances special issue posed to capital juries in Texas. (See Ex.
lat ~l4 [Aff. of Dr. Natalie Brown].) Moreover, individuals with FASD suffer
"secondary disabilities" that inhibit their ability to have successful social
interactions and integration, leading to higher than average rates of criminal
infractions and incarceration. (ld. at ~l6.)
Thus, had trial counsel presented evidence that Harris suffers from ARND, a
condition ofFASD, there is a reasonable probability that the jury's sentence would
have been affected. See Wiggins, 539 U.S. at 534-35; Strickland, 466 U.S. at 694-
95. As such, Harris's death sentence should be reversed and he should be granted
a new punishment phase trial.
B. Trial Counsel Failed to Uncover and Present Information That Harris
Was Exposed to Toxic Levels of Lead as a Child
In addition to fetal alcohol exposure, Harris's cognitive and childhood
development were likely affected by his exposure, both in utero and during
infancy, to toxic levels of lead. For fifty years, a lead smelting facility operated on
a lot at the comer of Westmoreland Road and Singleton Boulevard in West Dallas.
Roderick Harris's mother, Pamela Maddox, grew up near this facility, first in the
housing projects on Delhi Street, and later in a house located at 3544 Nomas
Street, less than half a mile from the smelter. Seventeen-year-old Pamela was still
residing at the Nomas Street house when she gave birth to Roderick Harris in 1984.
Harris spent the first several years of his life on Nomas Street, and spent most of
the first decade of his life in a fourteen-square-mile area of West Dallas that

34
eventually was declared a Superfund site due to lead contamination from the
smelting facility.
Children are highly susceptible to lead poisoning, and the toxic effects of
exposure can include damage to the central nervous system, which can lead to low
IQ scores and deficits in cognitive function and academic skills. Exposure can also
cause behavioral problems, including ADHD. Trial counsel failed to uncover and
present evidence that Harris was exposed to high levels of lead during his early
childhood, which exposure provides an explanation for Harris's cognitive,
adaptive, and behavioral deficits.
1. Toxicological Significance of Exposure to Lead
The toxic effects of exposure to lead have been recognized for more than
two thousand years. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) Ingestion of lead
can have many adverse health effects and can negatively affect several organ
systems in the human body, including the gastrointestinal, immune, and
reproductive systems, as well as the central nervous system. (Id.)
Children are more at risk of suffering the negative effects of lead exposure
than are adults. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) This is both because
children are more likely to ingest more lead than adults and because the effects of
lead ingestion are more pronounced in children. (Jd. at ~6.) However, even before
birth, fetuses in utero can absorb lead from the mother. (Id. at ~7.) Absorbed lead
accumulates in the bones of adults, and can re-enter the bloodstream through a
process known as "bone resorption," which occurs during pregnancy. (Id.)
One of the primary routes of exposure to lead is through the ingestion of
contaminated dirt, soil, and household dust. (Ex. 2 at ~6 [Aff. of Dr. Thomas
Dydek].) Because children spend more time on the ground (for example, while
playing or crawling), they are more likely to ingest or inhale lead particulates. (Id.)
Similarly, children have a habit of ingesting dirt, either intentionally or by way of
35
placing their dirty hands and toys in their mouths. (Id.) Once a child ingests
contaminated material, the absorption of lead into the blood is five to ten times
greater than in adults. (Id.) Furthermore, children are more likely to have
nutritional deficits in certain minerals, such as iron or calcium, which facilitates
greater absorption of lead. (Id.) Finally, the central nervous systems of young
children are not fully developed. (Id.) Thus, it is more likely that lead in the
bloodstream of children will reach, and negatively affect, sensitive brain tissues.
(fd.) Adults who were exposed to high levels of lead as children exhibit damage to
both grey and white matter in the brain. (fd. at -09.) Lead exposure is associated
with damage to the frontal lobes, parietal lobes, basal ganglia, cerebellar
hemisphere, and cerebellar vermix. (fd.) Aside from brain damage, the effects of
lead exposure on the central nervous system include low IQ and deficits in
cognitive functioning and academic skills. (fd. at -08.) Lead exposure has also
been associated with higher incidences of ADHD. (Id.)
2. History of the RSR Corporation Lead Smelting Facility
In the early 1930s, a secondary lead smelting facility opened and began
operations west of downtown Dallas. (Ex. 21 at 5 [Agency for Toxic Substances
and Disease Registry ("ATSDR") Public Health Assessment].)8 Secondary
smelting operations recover lead from pre-existing sources, such as batteries,
cables, pipes, and other metals. (Ex. 22 at 5 [EPA Superfund Record of
Decision].)9 The smelting facility in west Dallas was primarily tasked with the
recovery of lead from recycled automobile batteries. (fd.)

8 Ex. 21 is publicly available at the following website:
http://www.atsdr.cdc.gov/HAC/phalPHA.asp?docid=134&pg=0 (last visited June
8,2014).
9 Ex. 22 is publicly available at the following website: http://www.epa.gov/
superfund/sites/rods/fulltext/r0695 095 .pdf (last visited June 8, 2014).
36
Although the facility was originally located outside the Dallas city limits, the
surrounding area was annexed by the city in the 1950s. (Ex. 21 at 6 [ATSDR
Public Health Assessment].) In the years that followed, residences, schools, and a
major housing project were constructed nearby. (Jd.) Despite this metropolitan
growth, air emissions from the smelter continued without control until 1968. (ld.)
In 1971, the smelter was purchased by the RSR Corporation ("RSR"). (ld.) Over
the next thirteen years, RSR was ordered to upgrade its emissions control devices
due to enforcement actions and lawsuits brought by the City of Dallas, the State of
Texas, and the Texas Air Control Board. (ld. at 7.) A 1983 lawsuit alleged
damages from the air emissions of lead, and RSR was ordered to remove and
replace contaminated soil, implement a comprehensive plan for remediation, and
screen children for lead blood levels. (ld.) In February 1984, RSR ceased
operation of the smelter and sold the facility to the Murmur Corporation. (ld.)
Later that year, the City of Dallas denied Murmur's application for an operating
permit. Remedial work, consisting of the removal of contaminated soils, began in
1984 and continued into 1985. (Jd. at 7.) A second removal effort was initiated in
1991 by the EPA. (Jd.) In 1993, the EPA proposed listing the RSR site and
surrounding area on the National Priorities List of Superfund sites. (Jd. at 8.)
There were several sources for the contamination that plagued the area
surrounding the RSR site. (Ex. 21 at 5 [ATSDR Public Health Assessment].) Air
emissions deposited lead in the residential properties surrounding the smelter,
primarily in the areas north and northeast of the site. (Jd.) Contamination also
occurred due to the use of battery chips (plastic pieces of battery casings generated
from the smelting activities) as residential fill and paving material. (Jd.) Slag, a
toxic byproduct of the smelting operation, was also used as residential fill in the
area and deposited in nearby landfills. (Jd.)

37
3. Harris Likely Was Exposed to Lead as a Young Child and May Have
Suffered Adverse Effects Due to This Exposure
Harris spent much of the first decade of his life within half a mile of the
epicenter of a Superfund site which exposed him to elevated levels of lead as a
child. Hmvever, Harris's exposure to lead likely began before he was even born.
(See Ex. 2 at ,-r,-r7, 15 [Aff. of Dr. Thomas Dydek].)
Roderick Harris's maternal grandmother, Shirley Cook, grew up at 3541
Pueblo Street in West Dallas. (Ex. 8 at ,-r7 [Aff. of Shirley Cook].) Ms. Cook
remembers smelling the RSR plant's emissions in the air. (Id. at 'Il8.) The
emissions smelled like "tar or sulfur, something bad like that." (Id.) Physical
particles from the emissions landed in the neighborhood and were visible on the
windshields and hoods of cars. (Id.) Ms. Cook saw black plastic chips in the
driveways of houses in the Pueblo Street neighborhood where she grew up. (Id. at
,-rIO.)
Ms. Cook gave birth to Harris's mother, Pamela Maddox, in 1967. At the
time of Ms. Maddox's birth, Ms. Cook was living in the housing projects in West
Dallas. (Ex. 8 at,-r7 [Aff. of Shirley Cook].) In the early 1970s, Ms. Cook moved
her family, including Ms. Maddox, to a house located at 3544 Nomas Street in
West Dallas. (Id.) This house on Nomas Street was less than half a mile from the
RSR Corporation lead smelting facility located on the southeast comer of
Westmoreland Road and Singleton Boulevard. (Ex. 23 [Google Maps].) Ms. Cook
found black plastic chips when digging in the yard of this house. (Ex. 8 at ,-rIO
[Aff. of Shirley Cook].)
The smelter was fully operational during Ms. Maddox's childhood when she
would have been most at risk of ingesting toxic levels of lead. (See Ex. 2 at 'Il,-r6,
12 [Aff. of Dr. Thomas Dydek].) Ms. Cook reports that all of her children,
including Ms. Maddox, played in the dirt at the house on Nomas Street. (Ex. 8 at

38
~13 [Aff. of Shirley Cook].) It is likely that Ms. Maddox accumulated a significant
amount of lead in her bones that could have been transferred in utero to Harris.
(See Ex. 2 at ~~7, 15 [Aff. of Dr. Thomas Dydek].)
Ms. Maddox lived with her mother at 3544 Nomas Street when she became
pregnant with Harris. (Ex. 11 at ~11 [Aff. of Pamela Maddox].) She lived at that
house for the duration of her pregnancy, and continued to live at the house for
about a year after Harris's birth on June 12, 1984. (Id.) From there, Ms. Maddox
and Harris moved a few houses down Nomas Street to live with Ms. Maddox's
sister Sherry. (Id.) Ms. Maddox and Harris lived in public housing in Oak Cliff
for a period of time, during which Harris would visit Ms. Cook's house on Nomas
Street several times per week. (Id. at ~12.) When Harris was around four years
old, he and his mother moved into Ms. Cook's house on Nomas Street where they
lived for about four years. (Id.)
As a young child, Harris frequently played in the yard of his grandmother's
house (later his mother's house) at 3544 Nomas Street, and at the home of Ms.
Cook's father at 3541 Pueblo Street. (Ex. 11 at ~12 [Aff. of Pamela Maddox]; Ex.
8 at ~12 [Aff. of Shirley Cook].) Ms. Cook and Ms. Maddox both recall that
Harris played in the dirt and put dirt and dirty toys in his mouth, as many children
are prone to do. (Ex. 11 at ~13 [Aff. of Pamela Maddox]; Ex. 8 at ~13 [Aff. of
Shirley Cook].) Soils within a half mile radius of the smelter, particularly to the
northeast, were found to have very high levels of lead due to air emissions from the
RSR Corporation smelter. (Ex. 21 at 6-7,52 [ATSDR Public Health Assessment].)
Harris and his mother caught crawdads in the ditch near their house on Nomas
Street, which they would later consume. (Ex. 12 at ~12 [Aff. of Ramon Maddox,
Sr.].)
Harris was also taken to play in nearby parks, including the park at Amelia
Earhart Leaming Center, where Harris later attended school for two years. (Ex. 11
39
at ~13 [Aff. of Pamela Maddox]; Ex. 12 at ~14 [Aff. of Ramon Maddox, Sr.].)
Amelia Earhart Learning Center was one of the sites where the remedial removal
of soil occurred in the early 1990s. (See Ex. 24 [Dallas News Photos].)lo Harris
then attended Priscilla Tyler Elementary School in West Dallas. (Ex. 12 at ~14

[Aff. of Ramon Maddox, Sr.].) Harris and his family moved away from the house
at 3544 Nomas Street in 1992. (Id. at ~10.)
Throughout his life, and from a young age, Harris exhibited medical,
psychological, and neurodevelopmental conditions that are associated and
correlated with childhood exposure to lead. (Ex. 2 at ~18 [Aff. of Dr. Thomas
Dydek].) Harris was diagnosed with ADHD at the age of seven, and ADHD has
been associated with exposure to lead. (Id. at ~8.) Harris struggled with learning
disabilities that plagued him during his time in school and required him to enroll in
special education classes until he dropped out of high school in the eleventh grade.
The central nervous system of children is particularly sensitive to the effects of
lead, and exposure can cause declines in academic achievement and learning
disabilities. (Id.) Lead exposure as a child can also cause damage to the brain,
particularly in the frontal and parietal lobes. (Id. at ~9.) Neuropsychological
testing of Harris revealed damage to these areas of his brain. (Ex. 1 at ~25 [Aff. of
Dr. Natalie Brown].)
4. Conclusion
Capital trial counsel has a duty to conduct an investigation to uncover
mitigating evidence. In the context of mitigation, evidence that a defendant has
been disadvantaged is particularly important "because of the belief, long held by

Ex. 24 consists of Photos 13, 14, and 15 from a publicly-available photo
10
gallery found at http://www.dallasnews.com/news/photos/20121212-the-burden-
of-Iead-historic-photos-of-west-dallas-rsr-smelter-and-environmental-
contamination.ece?ssimg=820213#ssTop820217 (last visited June 8, 2014).
40
this society, that defendants who commit criminal acts that are attributable to a
disadvantaged background ... may be less culpable than defendants who have no
such excuse." Wiggins, 539 U.S. at 535 (citing Penry v. Lynaugh, 492 U.S. 302,
319 (1989)); see also Ex parte Gonzales, 204 S.W.3d at 399 (granting habeas relief
due to trial counsel's ineffective assistance for failing to present evidence that the
defendant suffered post-traumatic stress disorder due to childhood trauma). Here,
trial counsel neither discovered nor presented evidence that Harris was chronically
exposed to a highly toxic substance, lead, from before his birth through the early,
formative years of his life. Lead exposure is associated with a number of
cognitive, behavioral, intellectual, and neurodevelopmental problems, problems
which plagued Harris throughout his life. He faced disadvantages from a young
age partly because of where he was born. Evidence that Harris was exposed to
toxic amounts of lead would have been powerful mitigating evidence, and there is
a reasonable probability that the result of his punishment phase would have been
different had it been presented to the jury. See Strickland, 466 U.S. at 694.
C. Trial Counsel Failed to Retain and Present Testimony from Expert
Witnesses to Explain the Mitigating Impact of Harris's Life History
As discussed above, presenting lay witnesses to describe various facts about
a defendant's life will typically fall short of the complete mitigation presentation
necessary to explain to a jury the reasons a death sentence is not warranted. The
reason is two-fold. First, a single lay witness often will be unable by his or her
testimony alone to tell the entire story of a defendant in a cohesive manner. Even
close family members will not have witnessed every aspect of a defendant's life;
thus, a jury presented with lay witness testimony alone receives what amounts to
pieces of a puzzle, rather than a linear explanation of a life history. Second, having
lived through many of the events they are describing themselves, lay witnesses will
almost always lack both the perspective and the training to fully explain the

41
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significance of life events. Expert witness testimony is necessary to fit the pieces
of the defendant's life story together and explain for the jury the significance of the
resulting picture.
Just as evidence regarding the impacts of prenatal exposure to alcohol and
toxic levels of lead requires the testimony of specialized expert witnesses, so too
does the testimony of Harris's family members require interpretation and
explanation by qualified experts. Through the testimony of Harris's mother,
stepfather, brother, and cousin, the jury learned

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4056268. Public record. Not legal advice.