Andrus, Terence Tramaine

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-84,438-01

Ex parte TERENCE TRAMAINE ANDRUS, Applicant

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

FROM CAUSE NO. 09-DCR-051034 IN THE 240TH DISTRICT COURT

FORT BEND COUNTY

KELLER, P.J., delivered the opinion of the Court in which YEARY, KEEL,

SLAUGHTER, and MCCLURE, JJ., Joined. NEWELL, J., filed a dissenting opinion in which

HERVEY, RICHARDSON, and WALKER, JJ., joined.

This case is on remand to us from the Supreme Court of the United States. Regarding one

of Applicant’s ineffective-assistance claims, the Supreme Court held that Applicant satisfied the

deficient-performance prong of Strickland v. Washington,1 but the Court remanded to us for further

proceedings because it perceived that we might not have engaged in a prejudice inquiry. In addition,

the Supreme Court criticized the concurring opinion in our Court for unduly relying upon Wiggins

1

466 U.S. 668 (1984).

ANDRUS — 2

v. Smith2 in its prejudice analysis. We now reiterate—and to the extent our holding was not clear,

clarify—that we decided the issue of prejudice when the case was originally before us. In an

abundance of caution, we set forth our reasoning on the issue of prejudice and do so based on an

independent review of the circumstances to determine whether there is a reasonable probability that

the outcome of Applicant’s sentencing proceeding would have been different.3 Although the

concurrence did use Wiggins as a guide, that opinion nevertheless made some valid points with

respect to the mitigating and aggravating evidence, and our prior order outlined some of the evidence

consistent with those points. The mitigating evidence is not particularly compelling, and the

aggravating evidence is extensive. Based on our independent review, we reaffirm our earlier

conclusion that Applicant has failed to show prejudice, and we deny relief.

A. This Court’s Prior Habeas Order

In November 2012, Applicant was convicted of capital murder and sentenced to death. On

automatic appeal to this Court, his conviction was affirmed.4 He later filed a habeas application in

which he claimed, among other things, that counsel was constitutionally ineffective for failing to

conduct a reasonable investigation and present available mitigating evidence. This Court rejected

that claim, concluding that he “fail[ed] to meet his burden under Strickland v. Washington to show

by a preponderance of the evidence that his counsel’s representation fell below an objective standard

2

539 U.S. 510 (2003).

3

See Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (“He must show there

is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable

doubt respecting guilt and/or the sentence of death.”).

4

Andrus v. State, No. AP-76,936, 2016 Tex. Crim. App. Unpub. LEXIS 1158 (Tex. Crim.

App. March 23, 2016) (not designated for publication).

ANDRUS — 3

of reasonableness and that there was a reasonable probability that the result of the proceedings would

have been different, but for counsel’s deficient performance.”5 In a footnote to this holding, we

pointed out that the trial court had “misstate[d] the Strickland prejudice standard by omitting the

standard’s ‘reasonable probability’ language.”6 Although the trial court had recommended granting

relief on the claim, we disagreed and declined to adopt any of the trial court's findings of fact and

conclusions of law regarding the claim.7

In our order, we explained that the current offense involved the attempted carjacking of

Avelino Diaz in a Kroger parking lot.8 Applicant shot and killed Diaz, and while fleeing the scene,

shot at two occupants of another car—killing the passenger, Kim-Phuong Vu Bui, and wounding

Kim’s husband, Steve Bui.9 Applicant later confessed to the killings.10

We further outlined Applicant’s history of criminal and violent conduct.11 Applicant was

adjudicated as a juvenile for felony possession of a controlled substance in a drug-free zone and for

criminal solicitation to commit aggravated robbery (involving a firearm).12 He later had to be

5

Ex parte Andrus, No. WR-84,438-01, 2019 Tex. Crim. App. Unpub. LEXIS 81, *6 (Tex.

Crim. App. February 13, 2019) (not designated for publication) (citation omitted).

6

Id. at *6 n.2.

7

Id. at *6 (“[W]e decline to adopt any of the trial court’s findings of fact and conclusions

of law, or its recommendation to grant relief regarding Claim 1.”).

8

Id. at *1.

9

Id.

10

Id. at *2.

11

Id. at *3-4.

12

Id. at *3.

ANDRUS — 4

transferred from Texas Youth Commission (TYC) facilities to adult prison due to his general failure

to make progress in TYC’s rehabilitation program and his behavior problems, which included

aggressive or assaultive behavior towards other youths and staff.13 A month before the current capital

offense, Applicant committed an aggravated robbery, during which he kicked and beat his victim and

threatened him with a knife.14 While awaiting trial in this case in the Harris County and Fort Bend

County jails, Applicant also engaged in behavior that was significantly disruptive, violent, and

threatening.15

We also pointed out that Applicant had numerous gang-related tattoos and that he admitted

to having been a member of the “59 Bounty Hunter Bloods” street gang.16

We also noted that Applicant testified that he was exposed to drugs as early as age six

because his mother sold them, that he rarely had adult supervision at home, and that he started using

drugs regularly when he was fifteen.17 He claimed that he had recently given his life to God and no

longer acted out.18

B. Concurring Opinion

A four-judge concurring opinion engaged in a more extensive analysis of Applicant’s claim

13

Id. at *3-4.

14

Id. at *3.

15

Id. at *4.

16

Id. at *3.

17

Id. at *4.

18

Id.

ANDRUS — 5

with respect to the issue of prejudice.19 Using the Supreme Court’s case of Wiggins v. Smith as a

guide,20 the concurrence concluded that Applicant failed to show prejudice.21

In arriving at this conclusion, the concurrence observed that the additional lay witness

testimony that Applicant said should have been presented was not particularly strong: it would have

shown merely that “Applicant grew up primarily among street hustlers and drug dealers, that

Applicant raised his siblings while his mother was dealing drugs out of the house or on the street,

and that Applicant lacked a stable, supportive parental figure.”22 And much of this information “had

already been introduced through the testimony of Applicant, his mother, and his father.”23 Also,

19

Id. at *7-23 (Richardson, J., concurring).

20

Id. at *18.

21

Id. at *23.

22

Id. at *20.

23

Id. Earlier in its opinion, the concurrence summarized the testimony from Applicant, his

mother, and his father, as follows:

Applicant, his mother, and his father testified regarding Applicant's background and

upbringing. To summarize, Applicant was raised by a single mother who sold drugs.

Applicant was exposed to drugs as early as six years of age, and started using drugs

regularly at age fifteen. Throughout his childhood and early teenage years, Applicant

and his siblings were often left unattended for extended periods of time and

Applicant “practically raised his little brothers and sisters.” Applicant’s father was

incarcerated for drug-related offenses for most of Applicant's life, although Applicant

did live with his father during his freshman year of high school until his father was

arrested on new drug charges. Applicant did fairly well in school, but he dropped out

of school in tenth grade and started getting in trouble with the law.

Id. at *14-15. We note that the evidence that Applicant’s mother sold drugs, that applicant was

exposed to drugs, and that applicant used drugs came solely from Applicant. See 49 TRR 67-68, 78

(mother testified that Applicant did not have access to drugs in her household and that she never saw

Applicant use drugs in her home), 50 TRR 16-17 (father testified that he never saw Applicant use

drugs but heard about one instance of smoking “weed”). See also infra at n.77.

ANDRUS — 6

much of the evidence that Applicant said should have been presented was “double-edged.” As an

example, the concurring opinion cited Applicant’s expert witness’s report, which included

potentially mitigating evidence but also included potentially extremely aggravating evidence such

as Applicant’s history of abusing and killing animals.24

The concurrence noted that Applicant had presented multiple mitigating factors to the jury:

testimony about his “background and dysfunctional upbringing,” testimony from an expert about

“the effects that drugs, alcohol, and an unstable family environment can have on adolescent brain

development,” and testimony from “a professional counselor that Applicant was beginning to show

remorse for the murders.”25 But Applicant had “an extensive record of violent conduct” that would

offset this evidence and his proposed additional mitigating evidence.26 The concurrence also listed

much of Applicant’s criminal and violent history, similar to what was outlined in this Court’s order.27

The concurrence noted that this evidence contrasted with the situation in Wiggins, in which

the defendant had no prior convictions and no violent conduct the State could introduce to offset the

mitigating evidence.28 The concurrence further noted that the mitigating evidence in Wiggins that

counsel had failed to present was “powerful and not double-edged.”29 Wiggins had suffered “severe

privation and abuse in the first six years of his life while in the custody of his alcoholic absentee

24

Id. at 20-21.

25

Id. at 21.

26

Id. at 22.

27

Id.

28

Id. at 17, 21.

29

Id. at 17.

ANDRUS — 7

mother” as well as “physical torment, sexual molestation and repeated rape during his subsequent

years in foster care.”30 And the concurrence noted that Wiggins was “homeless at times and had

diminished mental capacities.”31

C. The Supreme Court’s Decision

The Supreme Court granted certiorari and vacated our decision.32 In its initial summary, the

Court concluded, contrary to our holding, that the record demonstrated that counsel’s performance

was deficient.33 The Court further concluded that we “may have failed properly to engage with the

follow-on question whether [Applicant] has shown that counsel’s deficient performance prejudiced

him.”34

Noting the trial court’s characterization of the new evidence proffered by Applicant as a

“tidal wave of information . . . with regard to mitigation,”35 the Supreme Court went on to discuss

Applicant’s evidence. The Court believed that it “revealed a childhood marked by extreme neglect

and privation, a family environment filled with violence and abuse.”36 The Court recounted that

Applicant was born into a neighborhood “known for its frequent shootings, gang fights, and drug

30

Id. at 19.

31

Id.

32

Andrus v. Texas, 140 S. Ct. 1875 (2020).

33

Id. at 1878.

34

Id.

35

Id. at 1879 (ellipsis in Supreme Court’s opinion).

36

Id.

ANDRUS — 8

overdoses”37 and that Applicant was one of five children, whose fathers never stayed as part of the

family.38 According to the Court, one of the fathers raped Applicant’s younger half-sister, other

fathers were physically abusive toward Applicant’s mother, and all of the fathers were addicted to

drugs and had criminal histories.39 The Court stated that Applicant’s mother engaged in prostitution

and sold drugs and that the drug sales were often from home and in view of Applicant and his

siblings.40 The Court also believed that the mother habitually used drugs, being high more often than

not.41 According to the Court, the children were often left to fend for themselves, and many times,

there was not enough food to eat.42 Applicant, the Court believed, assumed responsibility as head

of the household, caring for an older brother with special needs, cleaning the house, putting siblings

to bed, cooking meals, getting siblings ready for school, and helping siblings with their homework.43

Applicant was characterized by habeas witnesses as “a protective older brother” and “very caring and

very loving,” but he was also described as struggling with mental-health issues, and at age ten or

eleven, was being diagnosed with affective psychosis.44

The Supreme Court said that Applicant allegedly served as a lookout while he and his friends

37

Id.

38

Id.

39

Id.

40

Id.

41

Id. at 1879-80.

42

Id. at 1880.

43

Id.

44

Id.

ANDRUS — 9

robbed a woman of her purse.45 The Court then recounted that Applicant was sent to TYC, where

he was “prescribed high doses of psychotropic drugs carrying serious adverse side effects” and where

he “spent extended periods in isolation, often for purported infractions like reporting that he had

heard voices telling him to do bad things.”46 The Court also pointed to evidence of multiple

instances of self-harm and threats of suicide, including an attempted suicide while awaiting trial in

this case.47 The Supreme Court also noted that the fatal attempted carjacking resulting in Applicant’s

capital murder convictions occurred when he was age eighteen, shortly after his release from

incarceration.48

The Supreme Court found counsel to be deficient in three ways: First, counsel conducted

almost no mitigation investigation, overlooking a vast amount of mitigating evidence.49 Second,

because of this failure, the evidence that counsel did present backfired by bolstering the State’s

aggravation case.50 Finally, counsel did not adequately investigate the State’s aggravating evidence,

losing critical opportunities to rebut the case on aggravation.51

Because the Supreme Court has concluded that counsel’s representation was deficient, we

need not address in detail the Court’s opinion regarding the first prong of Strickland. But our

45

Id.

46

Id.

47

Id.

48

Id.

49

Id. at 1881.

50

Id.

51

Id. at 1881-82.

ANDRUS — 10

discussion of the second prong of Strickland requires us to address some of the matters the Court

considered in analyzing the first prong. In the next two paragraphs, we detail certain alleged failures

by counsel that we address later in our prejudice analysis. These involve some instances in which

the Court believed that counsel lost critical opportunities to rebut the State’s aggravation case.

First, the Supreme Court said that Applicant’s disruptive behavior in TYC “principally

comprised verbal threats, but also included instances of [Applicant’s] kicking, hitting, and throwing

excrement at prison officials when they tried to control him.”52 The Supreme Court concluded that

a proper investigation would have shown that Applicant’s “behavioral problems there were notably

mild, and the harms he sustained severe.”53 Alternatively, the Court concluded that, “with sufficient

understanding of the violent environments [Applicant] inhabited his entire life, counsel could have

provided a counternarrative of [Applicant’s] later episodes in prison.”54

Second, the Supreme Court indicated that some research by counsel would have revealed that

the evidence connecting Applicant to the robbery a month before the instant offense was

questionable, with an ex-girlfriend recanting her statement and the police admitting that the belated

inclusion of Applicant’s photo in a photo array gave rise to “numerous reliability concerns.”55 The

Supreme Court indicated that Applicant’s photo was conspicuously placed in a central position in

the photo array, as the “[o]nly one . . . looking directly up and out.”56 The Supreme Court also

52

Id. at 1884.

53

Id.

54

Id.

55

Id. at 1885.

56

Id. at 1885 n.4.

ANDRUS — 11

suggested that the ex-girlfriend’s original statements inculpating Applicant could have been

impeached because the ex-girlfriend said at the habeas hearing that Applicant committing the offense

was “impossible.”57

Turning to the issue of prejudice, the Supreme Court explained that “the reviewing court

must consider ‘the totality of the available mitigation evidence—both that adduced at trial, and the

evidence adduced in the habeas proceeding”’—and ‘reweig[h] it against the evidence in

aggravation.’”58 A finding of prejudice requires “a reasonable probability that at least one juror

would have struck a different balance” regarding Applicant’s “moral culpability.”59

The Supreme Court found unclear whether we “considered Strickland prejudice at all.”60 It

opined that our one-sentence denial of Applicant’s claim “does not conclusively reveal whether [the

Court of Criminal Appeals] determined that Andrus had failed to demonstrate deficient performance

under Strickland’s first prong, that Andrus had failed to demonstrate prejudice under Strickland’s

second prong, or that Andrus had failed to satisfy both prongs of Strickland.”61 The Supreme Court

noted that, unlike the concurrence, we “did not analyze Strickland prejudice or engage with the effect

the additional mitigating evidence highlighted by Andrus would have had on the jury.”62 And the

Supreme Court observed that the concurring opinion did not garner a majority of the judges on the

57

Id. at 1885 n.3.

58

Id. at 1886 (quoting Williams v. Taylor, 529 U.S. 362, 397-98 (1999)).

59

Id. (quoting Wiggins, 539 U. S. at 537-38).

60

Id.

61

Id.

62

Id.

ANDRUS — 12

Court of Criminal Appeals.63 The Supreme Court concluded, “Given the uncertainty as to whether

the Texas Court of Criminal Appeals adequately conducted that weighty and record-intensive

analysis in the first instance, we remand for the Court of Criminal Appeals to address Strickland

prejudice in light of the correct legal principles articulated above.”64

In a footnote, the Supreme Court criticized the concurrence for relying too heavily upon

Wiggins.65 The Court indicated that the concurrence was wrong to “assume that the prejudice inquiry

here turns principally on how the facts of this case compare to the facts in Wiggins.”66 The Court

noted that it had “never before equated what was sufficient in Wiggins with what is necessary to

establish prejudice.” The Court then cited a passage in Wiggins that characterized the mitigating

evidence in its case as “stronger, and the State’s evidence in support of the death penalty far weaker,

than in Williams, where we found prejudice as the result of counsel’s failure to investigate and

present mitigating evidence.”67

D. Analysis

1. Our prior order decided the issue of prejudice adversely to Applicant.

Under Strickland, an applicant must satisfy two prongs to show ineffective assistance of

counsel: (1) that “counsel’s representation fell below an objective standard of reasonableness,” and

(2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

63

Id.

64

Id. at 1887.

65

Id. at 1886 n.6.

66

Id.

67

Id. (citing Williams, 529 U. S. at 399).

ANDRUS — 13

the proceeding would have been different.”68 When we said that Applicant “fails to meet his burden

. . . to show . . . that his counsel’s representation fell below an objective standard of reasonableness

and that there was a reasonable probability that the result of the proceedings would have been

different . . .,” we were holding that Applicant failed to make the requisite showing on both prongs

of Strickland.

We did not set forth our reasons for denying habeas relief, but we are not aware of any

constitutional requirement to do so.69

2. Applicant has failed to show prejudice

Nevertheless, in an abundance of caution, we now set forth our reasoning on the issue of

prejudice. The Texas statutory mitigation special issue asks:

Whether, taking into consideration all of the evidence, including the circumstances

of the offense, the defendant’s character and background, and the personal moral

culpability of the defendant, there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment without parole rather

than a death sentence be imposed.70

The question at this stage is whether there is a reasonable probability that at least one juror would

have struck a different balance in answering the mitigation special issue.71 To answer that question

we evaluate the totality of the aggravating and mitigating evidence adduced at trial and in the habeas

68

Hinton v. Alabama, 571 U.S. 263, 272 (2014) (internal quotation marks omitted).

69

See Ex parte Graves, 70 S.W.3d 103, 120 n.3 (Tex. Crim. App. 2002) (Price, J.,

dissenting) (“. . . we are not required to write an opinion explaining the reason or reasons we deny

relief on applications of habeas corpus . . .”).

70

TEX. CODE CRIM. PROC. art. 37.071, § 2(e)(1).

71

See Andrus, 140 S. Ct. at 1886.

ANDRUS — 14

proceedings.72 Doing so, we find no reasonable probability that at least one juror would have struck

a different balance in answering the special issue because the mitigating evidence offered at the

habeas stage was relatively weak in that it was not specific to Applicant, was contradicted by other

evidence, or overlapped evidence heard by the jury, and because the aggravating evidence was

strong.

For example, there is habeas evidence that Applicant lived in a bad neighborhood, that some

of his family members suffered physical and sexual abuse, that his mother was a drug addict who

sometimes abandoned her children, and that the various fathers of those children were drug-addicted

criminals who never stayed with the family. But there was no evidence that Applicant suffered

sexual abuse himself, and he consistently denied it.73 As for physical abuse, Applicant told Dr.

Brown that his mother would beat him with a board that left bruises on him and that her boyfriends

would beat him with their fists at her behest.74 But in a 2005 evaluation at TYC he denied a history

of physical abuse.75 Nevertheless, the jury heard some evidence of physical abuse because Applicant

testified that he “got whoopings, you know, extensive whoopings” and “got beat,” though he did not

72

Ex parte Gonzales, 204 S.W.3d 391, 398 (Tex. Crim. App. 2006).

73

See Applicant’s trial testimony, 51 TRR 64; Report of Dr. Jerome Brown and Dr.

Cassandra Smisson, dated 10-12-12, 10 HRR 174 (State’s Exh. 32, p. 4); Josh Ethridge, TYC Psych.

Eval., dated 2-28-05, 10 HRR 133 (State’s Exh. 25, p. 1) (Applicant “denied history of physical,

emotional, or sexual abuse”).

74

He said that his mother used to give him “whoopings,” that she paddled him with a board

with tape on it, and that the “beatings” left bruises but his school never knew about them because

the bruises were covered. 10 HRR 172 (State’s Exh. 32, p. 2). He said that “his mother’s boyfriends

hit him with their fists, when his mother told them to and knocked the wind out of him.” 10 HRR

174 (State’s Exh. 32, p. 4).

75

10 HRR 133 (State’s Exh. 25, p. 1).

ANDRUS — 15

elaborate further and did not contradict the prosecutor’s assertion that he had not suffered physical

abuse.76 Other evidence about family dysfunction was also presented to the jury: Applicant’s mother

testified at trial that he was very helpful in raising the other children and was in the position to help

her the most; his father testified that his own imprisonment made him largely absent from

Applicant’s childhood, and Applicant testified to his exposure to drugs as early as age six, his

mother’s drug dealing and periodic abandonment of her children, and his own drug use beginning

at age fifteen.77

Some habeas evidence suggested that Applicant’s mother sometimes left her children without

enough food to eat and that Applicant was sometimes hungry, but Applicant told Dr. Brown that his

family never went without food or utilities.78 Applicant testified twice at trial about food but not that

he suffered hunger as a child.79 His first reference to food was a volunteered comment. He testified

that his mother “fed us” by selling drugs in response to the question, “Who did she sell drugs to?”80

He also volunteered the comment, “I practically raised my little brothers and sisters” in response to

the question, “During the day, she was working? She was working from time to time?”81 Given two

opportunities to talk about food, and his willingness to volunteer non-responsive comments, it seems

76

10 TRR 64-65.

77

See 49 TRR 52-54 (mother’s testimony), 50 TRR 13-14 (father’s testimony) 51 TRR 48-

50 (Applicant’s testimony). See also supra at nn.17, 23.

78

See 10 HRR 173 (State’s Exh. 32, p. 3).

79

See 51 TRR 49.

80

Id. His second reference to food was an affirmation that his family was on food stamps.

Id.

81

Id.

ANDRUS — 16

that he would have volunteered that he sometimes was hungry as a child if that had been the case.

Habeas evidence also suggested that Applicant had mental health issues, possibly including

schizophrenia, but this evidence, too, deserves some skepticism. Whatever his mental health issues

were, those issues were not so severe or persistent as to keep him from—according to his own

testimony—taking care of his siblings. Furthermore, on the one hand Applicant now claims he had

mental health issues, but on the other hand he decries having been treated for them while in TYC.

The TYC records offered at the habeas stage documented Applicant’s refusal to take psychotropic

medications prescribed for him and the discontinuation of those medications and one analyst’s

conclusion that Applicant’s lack of progress in rehabilitation was “behavioral” rather than stemming

from a mental health disorder.82 When he was on medication in TYC he had fewer violent incidents,

but not zero, and one analyst theorized that the decrease in violence was a result of Applicant’s effort

to manipulate the system and to avoid going to adult prison.83

Even taking the evidence of Applicant’s mental health issues at face value, it was not purely

mitigating; it was also aggravating. For example, Dr. Brown’s report revealed that Applicant had

a disturbing history of animal cruelty.84 Applicant told Dr. Brown that he had “accidentally” killed

a puppy by holding its nose and a dog that drowned in the shower; he killed birds and “blew up

frogs”; and he lit firecrackers that he had inserted into cats’ anuses.85 The report also revealed that

82

TYC Analyst note, dated 5-2-06, 10 HRR 150 (State’s Exh. 27, p. 2).

83

Leslie Blizzard, TYC Psych. Assessment., dated 1-13-06, 10 HRR 101 (third page of

the last four pages of State's Exh. 16).

84

See 10 HRR 174 (State’s Exh. 32, p. 4).

85

Id.

ANDRUS — 17

Applicant enjoyed playing with fire and once set fire to his mother’s apartment, though she was able

to put out the fire.86 Juvenile records indicated that Applicant was diagnosed with “conduct

disorder” (the juvenile precursor to antisocial personality disorder)87 and later records documented

that he had antisocial personality disorder.88

TYC records documented 295 total instances of misconduct, including many assaults against

other juveniles and staff, with authorities having to remove him from the general population 77

times.89 His assaultive behavior in TYC, as well as his general failure to make progress on

rehabilitation, ultimately led to his transfer to adult prison.90 Although the Supreme Court described

Applicant’s infractions at TYC as “notably mild,” we conclude that a jury would have been

convinced otherwise. The habeas witness who testified to the mildness of Applicant’s behavior91

nevertheless acknowledged that Applicant had made multiple threats and assaults against other

juveniles and staff.92 The sheer number of times Applicant was removed from the general population

indicates he posed a serious, ongoing problem of violence, which was considered so serious that he

86

See id.

87

See 10 HRR 135 (State’s Exh. 25, p. 3).

88

See 10 HRR 175 (State’s Exh. 32, p. 5).

89

See document titled In the Matter of Terence Andrus TYC # 109556a, 10 HRR 158 (within

State’s Exh. 28).

90

See 10 RR 73-76 (within State’s Exh. 16) (transfer order); 10 HRR 147 (State’s Exh. 26)

(transfer document); 150 (State’s Exh. 27, p. 2) (analyst note recommending transfer), 10 HRR 157-

161 (within State’s Exh. 28) (document recommending transfer).

91

See Andrus, 140 S. Ct. at 1884 n.2 (citing 5 HRR 189).

92

See 5 HRR 202-204. There appear to be two sets of overlapping volumes for the writ

record: a seven volume set and a forty-one volume set, but the first seven volumes do not line up in

the two sets. We refer to volumes in the forty-one volume set.

ANDRUS — 18

was transferred to adult prison. Applicant points to the bad conditions under which juveniles were

often placed in TYC while he was there, but even assuming that evidence was admissible, on balance

it would have been outweighed by the evidence showing that Applicant was far more dangerous and

disruptive than the typical juvenile held in custody of TYC. The number of Applicant’s incidents,

the obvious violence of many of those incidents, and his later violent incidents during adult

incarceration would lead a jury to believe that Applicant’s misbehavior during TYC incarceration

was a preview of, and consistent with, his behavior as an adult.

The mitigating evidence offered at the habeas stage must also be weighed against the strong

and substantial aggravating evidence offered at trial. Applicant’s instant capital murder arose from

his effort to carjack someone at a supermarket. He first approached Diaz’s car after Diaz dropped

his wife off at the store. He shot and killed Diaz but abandoned the carjacking when he discovered

the car was a stickshift, which he could not drive. He then found another car occupied by a married

couple. As the husband tried to drive away, Applicant fired several shots at the fleeing vehicle, one

of which killed the wife and another of which wounded the husband. Applicant was later arrested

in New Orleans on unrelated charges.93

Applicant committed other crimes when he was not in custody. As a juvenile he committed

the offense of drug possession in a drug-free zone. The jury also heard about his aggravated robbery

of a woman at her parents’ house and the commission of a robbery at a dry-cleaning establishment.

The Supreme Court discounted these crimes, but we do not, for reasons detailed below.

Two weeks into his probation for the drug offense, he committed the offense for which he

93

See Andrus, 2016 Tex. Crim. App. Unpub. LEXIS 1158, *2-6, for a discussion of the

events in this paragraph.

ANDRUS — 19

was adjudicated as a juvenile for solicitation to commit aggravated robbery. In that offense, he and

two others followed a woman to her parents’ home, and Applicant held the woman at gunpoint while

her purse and gym bag were taken.94 The Supreme Court discounted this crime, however, saying that

Applicant was sentenced to TYC for “allegedly” acting as a “lookout.” Although Applicant

characterized his participation that way,95 the victim’s testimony was to the contrary. As our opinion

on direct appeal explained, the victim identified Applicant at “the arrest scene . . . stating that he was

wearing the same clothes as the gunman.”96

The Supreme Court pointed to the victim’s testimony “that she did not and could not identify

faces or individuals.”97 However, the victim did testify that she could identify the clothing,98 and she

testified that the gunman wore a red shirt and black shorts.99 The Supreme Court said that

she“described at least two individuals as wearing such clothing,”100 but the victim denied that

assertion. When asked, “Was there any other person there who was wearing the same type of

clothing, red shirt, black shorts?” she responded, “No. I don’t recall.”101 The record reference

supplied by the Supreme Court to support its contrary assertion on this point does not lead to the

94

See id. at *8-9 for a discussion of this incident.

95

See Affidavit of J. Sidney Crowley, 10 HRR 15, para. 38 (State's Exh. 1) (summarizing

a statement Applicant made during a recording after arrest in New Orleans).

96

Andrus, 2016 Tex. Crim. App. Unpub. LEXIS 1158, at *9.

97

Andrus, 140 S. Ct. at 1880 n.1.

98

See 46 TRR 17.

99

See 46 TRR 15.

100

Andrus, 140 S. Ct. at 1880 n.1.

101

See 46 TRR 15.

ANDRUS — 20

victim’s testimony but to that of Sergeant Fernando Flores,102 and Flores did not testify that the

victim described two or more assailants wearing a red shirt and black shorts. Instead, Flores testified

that he encountered two men at the scene of the arrest:103 Applicant, who was wearing a red shirt and

black shorts and another person who was wearing gray pants and a different shirt over a red t-shirt

and black shorts.104 On cross-examination Flores agreed that the zipper and button of the other

person’s pants were open, “possibly indicating he was concealing clothing underneath.”105 The trial

evidence solidly pointed to Applicant as the gunman.106

Just a month or two before the present double murder, Applicant committed a robbery at a

dry-cleaning establishment. He chased and beat the owner and threatened him with a knife until he

handed over the money Applicant demanded.107 The victim was too afraid to identify Applicant at

trial but testified that the robber was in the courtroom and said he could point in the robber’s general

direction.108 He also testified that his pre-trial, photo-array identification was indeed an identification

of the robber, and Applicant stipulated that he was the person shown in that photo.109 The Supreme

102

See 46 TRR 21-28.

103

See 46 TRR 24.

104

See 46 TRR 25.

105

See 46 TRR 26.

106

Even if we were to accept at face value Applicant’s claim that he was only a “lookout,”

which we do not, the episode could not be discounted completely because even serving as a lookout

in an aggravated robbery is aggravating.

107

See Andrus, 2016 Tex. Crim. App. Unpub. LEXIS 1158, at *9 for a discussion of this

incident.

108

46 TRR 59-60.

109

46 TRR 65-70.

ANDRUS — 21

Court, however, questioned the reliability of the identification due in part to police testimony on

habeas about the impact of a delay between a crime and an identification.110 But the testimony was

that such a delay could impact reliability in a given case, not that it did so in the robbery at issue

here.111 Citing to and quoting from defense counsel’s questioning in the habeas record, the Supreme

Court also criticized the photo and its placement in the array for depicting Applicant as the only

subject in the array who was looking “directly up and out,”112 But the detective who responded to

that question did not entirely agree with that characterization, saying that photo three (a different

subject) “may be looking out.”113 Our inspection of the photo reveals that Applicant’s head is tilted

back slightly, but he is not looking up, and his posture and gaze are not distinctly different from

those of other subjects shown in the array. Consequently, we do not judge the photo array to be

unduly suggestive, and we append a copy of it to this opinion as Appendix 1.114

Moreover, Applicant had confessed the robbery to his sometime-girlfriend, whom the

Supreme Court refers to as an “ex-girlfriend.” The Supreme Court relied on the girlfriend’s

recantation in a habeas affidavit to question Applicant’s guilt in the robbery, but the Supreme Court

overlooked the fact that this recantation was later shown to be false. Before the girlfriend testified

at the habeas hearing, habeas defense counsel had moved to withdraw the girlfriend’s affidavit

110

See Andrus, 140 S. Ct. at 1885 n.4 (citing portions of the habeas record).

111

See 8 HRR 31.

112

See Andrus, 140 S. Ct. at 1885 n.4 (quoting defense counsel’s question in the habeas

record).

113

See 8 HRR 35.

114

See 54 TRR, State’s Exhibit 183. See also Appendix 1.

ANDRUS — 22

because he had “learned information that caused us to doubt [her] reliability.”115 Her subsequent

testimony at the habeas hearing made clear that habeas counsel’s reason to doubt her reliability was

that she had perjured herself. In the habeas affidavit, the girlfriend had denied telling the police that

Applicant had confessed the offense to her, but during testimony at the habeas hearing she admitted

that this denial was not true, that she had given the police the information, that her statements to the

police had been captured by an audio recording, and that Applicant had in fact confessed to her that

he committed the offense.116 In fact, the girlfriend was offered immunity by the State to testify

about the falsity in the affidavit she had given to habeas defense counsel.117

The Supreme Court also relied upon the girlfriend’s statement that Applicant’s participation

in the robbery was “impossible.” When questioned further about her statements on the audio

recording, the girlfriend said, “I do remember saying that I don’t believe he was telling the truth

because of that particular day it was impossible.”118 But she did not explain why it would have been

impossible or when exactly she made the impossibility claim—when she told the police or when she

first recanted in her affidavit—nor did she say whether she still believed the impossibility of it when

she testified at the habeas hearing. There was also evidence that the girlfriend had rekindled her

relationship with Applicant during the pendency of the habeas proceedings—further undermining

the credibility her testimony.119

115

See 8 HRR 5.

116

See 8 HRR 54, 56, 57, 62, 64-65.

117

See 8 HRR 62.

118

See 8 HRR 57.

119

See 8 HRR 64.

ANDRUS — 23

Applicant was also violent in county jail awaiting trial in this case. In April 2009, he

assaulted another inmate. When a detention officer intervened, Applicant said, “I don’t give a f—,”

and, “I’m getting the needle anyway.” On May 9, 2009, he punched an officer in the face twice.

That day, a broken razor blade and a sharpened key ring were found in his cell. On May 11, he

jammed open a “panhole” used to pass food to high security inmates, and when an officer came to

investigate, Applicant threw urine in the officer’s face. He then did a celebratory dance and taunted

the officer, “Come on in and get me. There is nothing you can do to me.”120

On July 5, he attempted to pass pills to another inmate. When the pills were intercepted, he

demanded them back and threatened to throw a cup of urine on the officer. Afterwards, he broke the

sprinkler head and flooded his cell. He threatened an officer on duty, saying “[I’m] going to get

him, you just wait and see,” and, “Once you take these handcuffs [off of] me, you are going to see

how hard I hit.” He told the rest of the staff that he was “going to get all of you.” Two hours later,

he was taken to a medical clinic because he was complaining of chest pains. When he was returned

to his cell he injured the escorting officers by kicking and punching them. He yelled, “I’m going to

kill y’all. I told you I’m going to kill y’all.” A special response team was called, and it took five

officers to subdue him.121

On January 4, 2010, he threw an unknown liquid at an officer. When officers sought to

handcuff him, he wrapped his arms in a blanket to make them inaccessible. A special response team

was called to move him to a more secure cell. On July 10, 2010, Applicant covered the window of

his cell so that officers could not see inside. When a special response team went inside, it found that

120

See id. at *10-11 for a discussion of events in this paragraph.

121

See id. at *11-12 for a discussion of the events in this paragraph.

ANDRUS — 24

Applicant had stopped up the toilet and shower drain and used the shower to flood his cell. The cell

wall was covered in feces and two and a half inches of water and feces covered the floor. Applicant

was naked, he threw water on the officers, and he resisted attempts at handcuffing by striking at the

officers.122

On July 27, 2011, Applicant stuck his arms through the panhole of his cell door and refused

to remove them. When a special response team was called, Applicant kicked and struck at the team

members. He yelled that he was “going to f— somebody up.” He was moved to a padded cell, and

he covered the new cell window with feces. The next day, Applicant told a guard at meal time,

“Don’t bring that tray over here, bitch. I’m going to throw it and hit somebody with it.” While he

was again being moved to a padded cell, Applicant said, “I have three caps. I have nothing to lose.

This will be everyday.” Once he was in the cell, he said that he “will kill an officer” if given the

chance.123

The evidence also showed that, while awaiting trial for capital murder, he had the words

“murder weapon” tattooed on his hands and a smoking gun tattooed on his forearm.124

In saying that the concurring opinion improperly relied on Wiggins, the Supreme Court

mentioned that the mitigating evidence in Wiggins was “stronger, and the State’s evidence in support

of the death penalty far weaker, than in Williams,” in which the Supreme Court also granted relief.125

In Williams, mitigating evidence included the fact that Williams voluntarily turned himself in for an

122

See id. at *12-13 for a discussion of the events in this paragraph.

123

See id. at *13-14 for a discussion of the events in this paragraph.

124

See 51 TRR 65-68.

125

See supra at n.67.

ANDRUS — 25

unsolved crime and expressed immediate remorse.126 As a child, he had been severely and repeatedly

beaten by his father, and his parents had been imprisoned for criminal neglect of their children.127

Williams was also “borderline mentally retarded.”128 And with one significant exception noted

below, Williams seems to have had an otherwise exemplary record during periods of incarceration.

Prison records show he received commendations for helping crack a prison drug ring and for

returning a missing guard’s wallet, and prison officials described Williams as among the inmates

“least likely to act in a violent, dangerous or provocative way.”129

Aside from Williams’s conviction of capital murder and robbery in the primary case, the

State introduced aggravating evidence in the form of his prior criminal record.130 As an adult, he

committed an armed robbery, grand larceny, two auto thefts, two (possibly three) separate violent

assaults on elderly victims, and an arson followed by a robbery.131 He also had an arson conviction

arising from his setting fire in jail awaiting trial in the case before the court.132 Expert witnesses

employed by the State testified that there was a high probability that he would be a future danger to

society.133 The habeas evidence Williams sought to introduce included him being committed three

126

Williams, 529 U.S. at 398.

127

Id. at 395.

128

Id. at 396.

129

Id.

130

Id. at 368.

131

Id.

132

Id.

133

Id. at 368-69.

ANDRUS — 26

times to the juvenile system: for aiding a larceny, pulling a false fire alarm, and breaking and

entering.134

We do not rely upon Williams as a definitive guide, but it is worth mentioning that, while the

aggravating evidence in Williams might be roughly comparable to the aggravating evidence in

Applicant’s case (Williams had a more extensive criminal history, but Applicant had a far more

extensive history of violent and disruptive incidents during periods of incarceration), the mitigating

evidence in Applicant’s case is far weaker. Williams had intellectual impairments and a history of

being physically abused. He turned himself in for the primary crime that was otherwise unsolved

and expressed immediate remorse. And while there was one substantial dark spot in Williams’s

record of behavior during incarceration, there was substantial evidence of exemplary behavior, with

prison officials saying he was among the least dangerous of inmates. By contrast, Applicant has not

shown that he personally suffered physical or sexual abuse nor that he has intellectual

impairments.135 Applicant’s expression of remorse was belated, recent, and incomplete at best. And

Applicant has not shown himself to be an exemplary prisoner—quite the opposite, his extensive

record of violence while being incarcerated strongly suggests he will be a threat to other inmates and

staff.

But we do not come to our conclusion because Applicant’s case compares unfavorably to

Williams. Our independent review reveals that Applicant’s proposed new mitigating evidence is

relatively weak and that some of that sort of evidence—about his family and background—was

134

Id. at 396.

135

IQ testing indicated that Applicant had a full-scale score of 86 (verbal 86, performance

90), a low average score.

ANDRUS — 27

presented at trial. Moreover, much of Applicant’s proposed new mitigating evidence could be

considered aggravating in some respects. And, if his proposed mitigating evidence is admitted, it

would likely be accompanied by significant additional aggravating evidence. Finally, the

aggravating evidence presented at trial was strong and substantial, and notably, extensive with

respect to violence during incarceration. We conclude that Applicant has not shown that the

balance of aggravating and mitigating evidence would shift enough to create a reasonable probability

that the outcome of Applicant’s sentencing hearing would have been different.

We deny relief.

Delivered: May 19, 2021

Publish

ANDRUS — 28

Appendix 1

ANDRUS — 29

ANDRUS — 30