Petition for Writ of Certiorari — Terence Tramaine Andrus, Petitioner v. Texas

No. _________

(CAPITAL CASE)

In the

Supreme Court of the United States

________________________

TERENCE TRAMAINE ANDRUS,

Petitioner,

v.

TEXAS,

Respondent.

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

____________________________

APPENDICES A-H

____________________________

Clifford M. Sloan

GEORGETOWN UNIVERSITY LAW CENTER

600 New Jersey Ave NW

Washington, DC 20001

(202) 662-9387

Cliff.Sloan@georgetown.edu

Kathleen Shelton

1440 New York Ave. NW

Washington, DC 20005

(202) 371-7079

kathleen.shelton@probonolaw.com

Gretchen Sims Sween

Counsel of Record

P.O. Box 5083

Austin, Texas 78763-5083

(214) 557-5779

gsweenlaw@gmail.com

TABLE OF CONTENTS

Appendix A

(AppA)

Decision of the Texas Court of Criminal Appeals

on remand, May 19, 2021

Ex parte Terence Tramaine Andrus, 622 S.W.3d

892 (2021)

App001-015

Appendix B

(AppB)

Decision of the Supreme Court of the

United States, June 15, 2020

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

App016-026

Appendix C

(AppC)

Decision of the Texas Court of Criminal Appeals

on appeal from trial habeas court, Feb. 13, 2019

Ex parte Terence Andrus, No. WR-84,438-01,

2019 Tex. Crim. App. Unpub. LEXIS 81

(Tex. Crim. App. Feb. 13, 2019)

App027-034

Appendix D

(AppD)

State District Court’s Findings of Fact &

Conclusions of Law, September 8, 2017

App035-055

Appendix E

(AppE)

Brief of Applicant Terence Tramaine Andrus

on remand, September 10, 2020

App056-122

Appendix F

(AppF)

State’s Response

on remand, September 11, 2020

App123-175

Appendix G

(AppG)

Reply Brief of Applicant Terence Tramaine Andrus App176-195

on remand, September 23, 2020

Appendix H

(AppH)

Texas Code of Criminal Procedure, article 11.071

(statutory procedure for habeas proceedings in

Texas death-penalty cases)

App196-211

Appendix A

App001

App002

App003

App004

App005

App006

App007

App008

App009

App010

App011

App012

App013

App014

App015

Appendix B

App016

Andrus v. Texas

Supreme Court of the United States

June 15, 2020, Decided

No. 18-9674.

Reporter

140 S. Ct. 1875 *; 207 L. Ed. 2d 335 **; 2020 U.S. LEXIS 3250 ***; 88 U.S.L.W. 3386; 28 Fla. L. Weekly Fed. S 279

TERENCE TRAMAINE ANDRUS v. TEXAS

Notice: The LEXIS pagination of this document is subject to

change pending release of the final published version.

Prior History: [***1] ON PETITION FOR WRIT OF

CERTIORARI TO THE COURT OF CRIMINAL APPEALS

OF TEXAS

Ex parte Andrus, 2019 Tex. Crim. App. Unpub. LEXIS 81

(Tex. Crim. App., Feb. 13, 2019)

Judges: Roberts, Thomas, Ginsburg, Breyer, Alito,

Sotomayor, Kagan, Gorsuch, Kavanaugh.

Opinion

[*1877] [**337] PER CURIAM.

Death-sentenced petitioner Terence Andrus was six years old

when his mother began selling drugs out of the apartment

where Andrus and his four siblings lived. To fund a spiraling

drug addiction, Andrus’ mother also turned to prostitution. By

the time Andrus was 12, his mother regularly spent entire

weekends, at times weeks, away from her five children to

binge on drugs. When she did spend time around her children,

she often was high and brought with her a revolving door of

drug-addicted, sometimes physically violent, boyfriends.

Before he reached adolescence, Andrus took on the role of

caretaker for his four siblings.

When Andrus was 16, he allegedly served as a lookout while

his friends robbed a woman. He was sent to a juvenile

detention facility where, for 18 months, he was steeped in

gang culture, dosed on high quantities of psychotropic drugs,

and frequently relegated to extended stints of solitary

confinement. The ordeal left an already traumatized Andrus

all but suicidal. Those suicidal urges resurfaced later in

Andrus’ [***2] adult life.

During Andrus’ capital trial, however, nearly none of this

mitigating evidence reached the jury. That is because Andrus’

defense counsel not only neglected to present it; he failed

even to look for it. Indeed, counsel performed virtually no

investigation of the relevant evidence. Those failures also

fettered the defense’s capacity to contextualize or counter the

State’s evidence [*1878] of Andrus’ alleged incidences of

past violence.

[**338] Only years later, during an 8-day evidentiary

hearing in Andrus’ state habeas proceeding, did the grim facts

of Andrus’ life history come to light. And when pressed at the

hearing to provide his reasons for failing to investigate

Andrus’ history, Andrus’ counsel offered none.

The Texas trial court that heard the evidence recommended

that Andrus be granted habeas relief and receive a new

sentencing proceeding. The court found the abundant

mitigating evidence so compelling, and so readily available,

that counsel’s failure to investigate it was constitutionally

deficient performance that prejudiced Andrus during the

punishment phase of his trial. The Texas Court of Criminal

Appeals disagreed. It concluded without explanation that

Andrus had failed to satisfy [***3] his burden of showing

ineffective assistance under Strickland v. Washington, 466 U.

S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

We conclude that the record makes clear that Andrus has

demonstrated counsel’s deficient performance under

Strickland, but that the Court of Criminal Appeals may have

failed properly to engage with the follow-on question whether

Andrus has shown that counsel’s deficient performance

prejudiced him. We thus grant Andrus’ petition for a writ of

certiorari, vacate the judgment of the Texas Court of Criminal

Appeals, and remand the case for further proceedings not

inconsistent with this opinion.

I

A

In 2008, 20-year-old Terence Andrus unsuccessfully

attempted a carjacking in a grocery-store parking lot while

under the influence of PCP-laced marijuana. During the

bungled attempt, Andrus fired multiple shots, killing car

owner Avelino Diaz and bystander Kim-Phuong Vu Bui. The

State charged Andrus with capital murder.

App017

140 S. Ct. 1875, *1878; 207 L. Ed. 2d 335, **338; 2020 U.S. LEXIS 3250, ***3

At the guilt phase of trial, Andrus’ defense counsel declined

to present an opening statement. After the State rested its

case, the defense immediately rested as well. In his closing

argument, defense counsel conceded Andrus’ guilt and

informed the jury that the trial would “boil down to the

punishment phase,” emphasizing that “that’s [***4] where

we are going to be fighting.” 45 Tr. 18. The jury found

Andrus guilty of capital murder.

Trial then turned to the punishment phase. Once again,

Andrus’ counsel presented no opening statement. In its 3-day

case in aggravation, the State put forth evidence that Andrus

had displayed aggressive and hostile behavior while confined

in a juvenile detention center; that Andrus had tattoos

indicating gang affiliations; and that Andrus had hit, kicked,

and thrown excrement at prison officials while awaiting trial.

The State also presented evidence tying Andrus to an

aggravated robbery of a dry-cleaning business. Counsel raised

no material objections to the State’s evidence and crossexamined the State’s witnesses only briefly.

When it came to the defense’s case in mitigation, counsel first

called Andrus’ mother to testify. The direct examination

focused on Andrus’ basic biographical information and did

not reveal any difficult circumstances in Andrus’ childhood.

Andrus’ mother testified that Andrus had an “excellent”

relationship with his siblings [**339] and grandparents. 49

id., at 52, 71. She also insisted that Andrus “didn’t have

access to” “drugs or pills in [her] household,” and that she

would have “counsel[ed] [***5] him” had she found out that

he was using drugs. Id., at 67, 79.

[*1879] The second witness was Andrus’ biological father,

Michael Davis, with whom Andrus had lived for about a year

when Andrus was around 15 years old. Davis had been in and

out of prison for much of Andrus’ life and, before he appeared

to testify, had not seen Andrus in more than six years. The

bulk of Davis’ direct examination explored such topics as

Davis’ criminal history and his relationship with Andrus’

mother. Toward the end of the direct examination, counsel

elicited testimony that Andrus had been “good around

[Davis]” during the 1-year period he had lived with Davis. 50

id., at 8.

Once Davis stepped down, Andrus’ counsel informed the

court that the defense rested its case and did not intend to call

any more witnesses. After the court questioned counsel about

this choice during a sidebar discussion, however, counsel

changed his mind and decided to call additional witnesses.

Following a court recess, Andrus’ counsel called Dr. John

Roache as the defense’s only expert witness. Counsel’s terse

direct examination focused on the general effects of drug use

on developing adolescent brains. On cross-examination, the

State quizzed Dr. Roache about the [***6] relevance and

purpose of his testimony, probing pointedly whether Dr.

Roache “drove three hours from San Antonio to tell the jury .

. . that people change their behavior when they use drugs.” 51

id., at 21.

Counsel next called James Martins, a prison counselor who

had worked with Andrus. Martins testified that Andrus

“started having remorse” in the past two months and was

“making progress.” Id., at 35. On cross-examination, the State

emphasized that Andrus’ feelings of remorse had manifested

only recently, around the time trial began.

Finally, Andrus himself testified. Contrary to his mother’s

depiction of his upbringing, he stated that his mother had

started selling drugs when he was around six years old, and

that he and his siblings were often home alone when they

were growing up. He also explained that he first started using

drugs regularly around the time he was 15. All told, counsel’s

questioning about Andrus’ childhood comprised four pages of

the trial transcript. The State on cross declared, “I have not

heard one mitigating circumstance in your life.” Id., at 60.

The jury sentenced Andrus to death.

B

After an unsuccessful direct appeal, Andrus filed a state

habeas application, principally alleging that his trial [***7]

counsel was ineffective for failing to investigate or present

available mitigation evidence. During an 8-day evidentiary

hearing, Andrus presented what the Texas trial court

characterized as a “tidal wave of information . . . with regard

to mitigation.” 7 Habeas Tr. 101.

The evidence revealed a childhood marked by extreme

neglect and privation, a family environment filled with

violence and abuse. Andrus was born into a neighborhood of

Houston, [**340] Texas, known for its frequent shootings,

gang fights, and drug overdoses. Andrus’ mother had Andrus,

her second of five children, when she was 17. The children’s

fathers never stayed as part of the family. One of them raped

Andrus’ younger half sister when she was a child. The

others—some physically abusive toward Andrus’ mother, all

addicted to drugs and carrying criminal histories—constantly

flitted in and out of the picture.

Starting when Andrus was young, his mother sold drugs and

engaged in prostitution. She often made her drug sales at

home, in view of Andrus and his siblings. She also habitually

used drugs in front of [*1880] them, and was high more

often than not. In her frequently disoriented state, she would

leave her children to fend for themselves. [***8] Many times,

there was not enough food to eat.

Page 2 of 10

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140 S. Ct. 1875, *1880; 207 L. Ed. 2d 335, **340; 2020 U.S. LEXIS 3250, ***8

After her boyfriend was killed in a shooting, Andrus’ mother

became increasingly dependent on drugs and neglectful of her

children. As a close family friend attested, Andrus’ mother

“would occasionally just take a week or a weekend and binge

[on drugs]. She would get a room somewhere and just go at

it.” 13 Habeas Tr., Def. Exh. 13, p. 2.

With the children often left on their own, Andrus assumed

responsibility as the head of the household for his four

siblings, including his older brother with special needs.

Andrus was around 12 years old at the time. He cleaned for

his siblings, put them to bed, cooked breakfast for them, made

sure they got ready for school, helped them with their

homework, and made them dinner. According to his siblings,

Andrus was “a protective older brother” who “kept on to

[them] to stay out of trouble.” Id., Def. Exh. 18, p. 1. Andrus,

by their account, was “very caring and very loving,” “liked to

make people laugh,” and “never liked to see people cry.”

Ibid.; id., Def. Exh. 9, p. 1. While attempting to care for his

siblings, Andrus struggled with mental-health issues: When

he was only 10 or 11, he was diagnosed with [***9] affective

psychosis.

At age 16, Andrus was sentenced to a juvenile detention

center run by the Texas Youth Commission (TYC), for

allegedly “serv[ing] as the ‘lookout’” while he and his friends

robbed a woman of her purse. 10 Habeas Tr., State Exh. 16, p.

9; 13 id., Def. Exh. 4, p. 4 (“[R]ecords indicate[d that] Andrus

served as the lookout”); 3 id., at 273-274; 5 id., at 206. 1

While in TYC custody, Andrus was prescribed high doses of

psychotropic drugs carrying serious adverse side effects. He

also spent extended periods in isolation, often for purported

infractions like reporting that he had heard voices telling him

to do bad things. TYC records on Andrus noted multiple

instances of self-harm and threats of suicide. After 18 months

in TYC custody, Andrus was transferred to an adult prison

facility.

Not long after Andrus’ release from prison at age 18, Andrus

attempted the fatal carjacking that resulted in [**341] his

capital convictions. While incarcerated awaiting trial, Andrus

tried to commit suicide. He slashed his wrist with a razor

blade and used his blood to smear messages on the walls,

beseeching the world to “[j]ust let [him] die.” 31 id., Def.

Exh. 122-A, ANDRUS-SH 4522.

After considering all the evidence [***10] at the hearing, the

Texas trial court concluded that Andrus’ counsel had been

ineffective for “failing to investigate and present mitigating

evidence regarding [Andrus’] abusive and neglectful

childhood.” App. to Pet. for Cert. 36. The court observed that

the reason Andrus’ jury did not hear “relevant, available, and

persuasive mitigating evidence” was that trial counsel had

“fail[ed] to investigate and present all other mitigating

evidence.” Id., at 36-37. The court explained that “there [is]

ample mitigating evidence which could have, and should

have, been presented at the punishment [*1881] phase of

[Andrus’] trial.” Id., at 36. For that reason, the court

concluded that counsel had been constitutionally ineffective,

and that habeas relief, in the form of a new punishment trial,

was warranted. Id., at 37, 42.

C

The Texas Court of Criminal Appeals rejected the trial court’s

recommendation to grant habeas relief. In an unpublished per

curiam order, the Court of Criminal Appeals concluded

without elaboration that Andrus had “fail[ed] to meet his

burden under Strickland v. Washington, 466 U. S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), to show by a

preponderance of the evidence that his counsel’s

representation fell below an objective standard of

reasonableness and that there was a reasonable

probability [***11] that the result of the proceedings would

have been different but for counsel’s deficient performance.”

App. to Pet. for Cert. 7-8. A concurring opinion reasoned that,

even if counsel had provided deficient performance under

Strickland, Andrus could not show that counsel’s deficient

performance prejudiced him.

Andrus petitioned for a writ of certiorari. We grant the

petition, vacate the judgment of the Texas Court of Criminal

Appeals, and remand for further proceedings not inconsistent

with this opinion. The evidence makes clear that Andrus’

counsel provided constitutionally deficient performance under

Strickland. But we remand so that the Court of Criminal

Appeals may address the prejudice prong of Strickland in the

first instance.

II

1 The dissent states that the victim identified Andrus as the individual

holding the gun, post, at ___, 207 L. Ed. 2d, at 351 (opinion of Alito,

J.), but in fact, the victim testified at Andrus’ trial that she did not

and could not identify faces or individuals, see 4 Tr. 17, 19-20. The

dissent also claims that “the victim matched Andrus’s clothing to the

gunman’s,” post, at ___, n. 1, 207 L. Ed. 2d, at 351, but neglects to

mention that the victim described at least two individuals as wearing

such clothing, see 46 Tr. 25-27.

[1] To prevail on a Sixth Amendment claim alleging

ineffective assistance of counsel, a defendant must show that

his counsel’s performance was deficient and that his counsel’s

deficient performance prejudiced him. Strickland, 466 U. S.,

at 688, 694. To show deficiency, a defendant must show that

“counsel’s representation fell below an objective standard of

reasonableness.” Id., at 688. And to establish prejudice, a

Page 3 of 10

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defendant must show “that there is a reasonable probability

that, but for counsel’s unprofessional errors, [***12] the

result of the proceeding would have been different.” Id., at

694.

A

“It is unquestioned that under prevailing professional norms at

the time [**342] of [Andrus’] trial, counsel had an

‘obligation to conduct a thorough investigation of the

defendant’s background.’” Porter v. McCollum, 558 U. S. 30,

39, 130 S. Ct. 447, 175 L. Ed. 2d 398 (2009) (per curiam)

(quoting Williams v. Taylor, 529 U. S. 362, 396, 120 S. Ct.

1495, 146 L. Ed. 2d 389 (2000)). [2] Counsel in a deathpenalty case has “‘a duty to make reasonable investigations or

to make a reasonable decision that makes particular

investigations unnecessary.’” Wiggins v. Smith, 539 U. S.

510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (quoting

Strickland, 466 U. S., at 691). “‘In any ineffectiveness case, a

particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.’” Wiggins, 539

U. S., at 521-522.

Here, the habeas record reveals that Andrus’ counsel fell short

of his obligation in multiple ways: First, counsel performed

almost no mitigation investigation, overlooking vast tranches

of mitigating evidence. Second, due to counsel’s failure to

investigate compelling mitigating evidence, what little

evidence counsel did present backfired by bolstering the

State’s aggravation case. Third, counsel failed adequately

[*1882] to investigate the State’s aggravating evidence,

thereby forgoing critical opportunities to rebut the case in

aggravation. [***13] Taken together, those deficiencies

effected an unconstitutional abnegation of prevailing

professional norms.

1

[3] To assess whether counsel exercised objectively

reasonable judgment under prevailing professional standards,

we first ask “whether the investigation supporting counsel’s

decision not to introduce mitigating evidence of [Andrus’]

background was itself reasonable.” Id., at 523 (emphasis

deleted); see also id., at 528 (considering whether “the scope

of counsel’s investigation into petitioner’s background” was

reasonable); Porter, 558 U. S., at 39. Here, plainly not.

Although counsel nominally put on a case in mitigation in that

counsel in fact called witnesses to the stand after the

prosecution rested, the record leaves no doubt that counsel’s

investigation to support that case was an empty exercise.

To start, counsel was, by his own admissions at the habeas

hearing, barely acquainted with the witnesses who testified

during the case in mitigation. Counsel acknowledged that the

first time he met Andrus’ mother was when she was

subpoenaed to testify, and the first time he met Andrus’

biological father was when he showed up at the courthouse to

take the stand. Counsel also admitted that he did not get in

touch with the third witness [***14] (Dr. Roache) until just

before voir dire, and became aware of the final witness

(Martins) only partway through trial. Apart from some brief

pretrial discussion with Dr. Roache, who averred that he was

“struck by the extent to which [counsel] appeared unfamiliar”

with pertinent issues, counsel did not prepare the witnesses or

go over their testimony before calling them to the stand. 13

Habeas Tr., Def. Exh. 6, p. 3.

Over and over during the habeas hearing, counsel

acknowledged that [**343] he did not look into or present

the myriad tragic circumstances that marked Andrus’ life. For

instance, he did not know that Andrus had attempted suicide

in prison, or that Andrus’ experience in the custody of the

TYC left him badly traumatized. Aside from Andrus’ mother

and biological father, counsel did not meet with any of

Andrus’ close family members, all of whom had disturbing

stories about Andrus’ upbringing. As a clinical psychologist

testified at the habeas hearing, Andrus suffered “very

pronounced trauma” and posttraumatic stress disorder

symptoms from, among other things, “severe neglect” and

exposure to domestic violence, substance abuse, and death in

his childhood. 6 id., at 168-169, 180; 7 id., at 52. Counsel

uncovered none [***15] of that evidence. Instead, he

“abandoned [his] investigation of [Andrus’] background after

having acquired only rudimentary knowledge of his history

from a narrow set of sources.” Wiggins, 539 U. S., at 524.

On top of that, counsel “ignored pertinent avenues for

investigation of which he should have been aware,” and

indeed was aware. Porter, 558 U. S., at 40. At trial, counsel

averred that his review did not reveal that Andrus had any

mental-health issues. But materials prepared by a mitigation

expert well before trial had pointed out that Andrus had been

“diagnosed with affective psychosis,” a mental-health

condition marked by symptoms such as depression, mood

lability, and emotional dysregulation. 3 id., at 70. At the

habeas hearing, counsel admitted that he “recall[ed] noting,”

based on the mitigation expert’s materials, that Andrus had

been “diagnosed with this seemingly serious [*1883] mental

health issue.” Id., at 71. He also acknowledged that a clinical

psychologist briefly retained to examine a limited sample of

Andrus’ files had informed him that Andrus may have

schizophrenia. Clearly, “the known evidence would [have]

le[d] a reasonable attorney to investigate further.” Wiggins,

539 U. S., at 527. Yet counsel disregarded, rather than

explored, the multiple red flags.

Page 4 of 10

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140 S. Ct. 1875, *1883; 207 L. Ed. 2d 335, **343; 2020 U.S. LEXIS 3250, ***15

In short, [***16]

counsel performed virtually no

investigation, either of the few witnesses he called during the

case in mitigation, or of the many circumstances in Andrus’

life that could have served as powerful mitigating evidence.

The untapped body of mitigating evidence was, as the habeas

hearing revealed, simply vast.

“[4] [C]ounsel’s failure to uncover and present [the]

voluminous mitigating evidence,” moreover, cannot “be

justified as a tactical decision.” Id., at 522; see also Williams,

529 U. S., at 396. Despite repeated questioning, counsel never

offered, and no evidence supports, any tactical rationale for

the pervasive oversights and lapses here. Instead, the

overwhelming weight of the record shows that counsel’s

“failure to investigate thoroughly resulted from inattention,

not reasoned strategic judgment.” Wiggins, 539 U. S., at 526.

That failure is all the more alarming given that counsel’s

purported strategy was to concede guilt and focus on

mitigation. Indeed, counsel justified his decision to present

“basically” “no defense” during the guilt phase by stressing

that he intended to train his efforts on [**344] the case in

mitigation. 3 Habeas Tr. 57. As the habeas hearing laid bare,

that representation blinked reality. Simply put, “the scope of

counsel’s [mitigation] [***17] investigation” approached

nonexistent. Wiggins, 539 U. S., at 528 (emphasis deleted).

2

No doubt due to counsel’s failure to investigate the case in

mitigation, much of the so-called mitigating evidence he

offered unwittingly aided the State’s case in aggravation.

Counsel’s introduction of seemingly aggravating evidence

confirms the gaping distance between his performance at trial

and objectively reasonable professional judgment.

The testimony elicited from Andrus’ mother best illustrates

this deficiency. First to testify during the case in mitigation,

Andrus’ mother sketched a portrait of a tranquil upbringing,

during which Andrus got himself into trouble despite his

family’s best efforts. On her account, Andrus fell into drugs

entirely on his own: Drugs were not available at home,

Andrus did not use them at home, and she would have

intervened had she known about Andrus’ drug habits. Andrus,

his mother related to the jury, “[k]ind of ” “just decided he

didn’t want to do what [she] told him to do.” 49 Tr. 83.

Even though counsel called Andrus’ mother as a defense

witness, he was ill-prepared for her testimony. Andrus told

counsel that his mother was being untruthful on the stand, but

counsel made no real attempt [***18] to probe the accuracy

of her testimony. Later, at the habeas hearing, counsel

conceded that Andrus’ mother had been a “hostile” witness. 3

Habeas Tr. 94. He further admitted that he “[did not] know if

[Andrus’ mother] was telling the truth,” id., at 96, and could

not even say that he had known what Andrus’ mother would

say on the stand, because he had not “done any independent

investigation” of her, id., at 95.

None of that inaction was for want of warning. During the

habeas proceedings, a mitigation specialist averred that she

had alerted Andrus’ counsel to her concerns about Andrus’

mother well before trial. In [*1884] a short interview with

the mitigation specialist, Andrus’ mother had stated that she

“had too many kids,” and had taken out a $10,000 lifeinsurance policy on Andrus on which she would be able to

collect were Andrus executed. 13 id., Def. Exh. 28, p. 5.

Troubled by these comments, the mitigation specialist

“specifically discussed with [Andrus’ counsel] the fact that

[Andrus’ mother] was not being a cooperative witness and

might not have Andrus’ best interests motivating her

behavior.” Id., at 6. But Andrus’ counsel did not heed the

caution.

Turning a bad situation worse, counsel’s uninformed decision

to [***19] call Andrus’ mother ultimately undermined

Andrus’ own testimony. After Andrus testified that his mother

had sold drugs from home when he was a child, counsel

promptly pointed out that Andrus “heard [his] mama testify,”

and that she “didn’t say anything about selling drugs.” 51 Tr.

48. Whether counsel merely intended to provide Andrus an

opportunity to explain the discrepancy (or, far worse, sought

to signal that his client was being deceitful) the jury could

have understood counsel’s statements to [**345] insinuate

that Andrus was lying. Counsel did nothing to dislodge that

suggestion, and the damaging exchange occurred only

because defense counsel had called a hostile witness in the

first place. Plainly, these offerings of seemingly aggravating

evidence further demonstrate counsel’s constitutionally

deficient performance.

3

Counsel also failed to conduct any independent investigation

of the State’s case in aggravation, despite ample opportunity

to do so. He thus could not, and did not, rebut critical

aggravating evidence. This failure, too, reinforces counsel’s

deficient performance. See Rompilla v. Beard, 545 U. S. 374,

385, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005) (“counsel

ha[s] a duty to make all reasonable efforts to learn what they

c[an] about the offense[s]” the [***20] prosecution intends to

present as aggravating evidence).

During the case in aggravation, the State’s task was to prove

to the jury that Andrus presented a future danger to society.

Tex. Code Crim. Proc. Ann., Art. 37.071, §2(b)(1) (Vernon

2006). To that end, the State emphasized that Andrus had

acted aggressively in TYC facilities and in prison while

awaiting trial. This evidence principally comprised verbal

Page 5 of 10

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threats, but also included instances of Andrus’ kicking,

hitting, and throwing excrement at prison officials when they

tried to control him. See App. to Pet. for Cert. 10-13. Had

counsel genuinely investigated Andrus’ experiences in TYC

custody, counsel would have learned that Andrus’ behavioral

problems there were notably mild, and the harms he sustained

severe. 2 Or, with sufficient understanding of the violent

environments Andrus inhabited his entire life, counsel could

have provided a counternarrative of Andrus’ later episodes in

prison. But instead, counsel left all of that aggravating

evidence untouched at trial—even going so far as to inform

the jury that the evidence made it “probabl[e]” that Andrus

was “a violent kind of guy.” 52 Tr. 35.

[*1885] The State’s case in aggravation also highlighted

Andrus’ alleged commission [***21] of a knifepoint robbery

at a dry-cleaning business. At the time of the offense, “all

[that] the crime victim . . . told the police . . . was that he had

been the victim of an assault by a black man.” 3 Habeas Tr.

65. Although Andrus stressed to counsel his innocence of the

offense, and although the State had not proceeded with

charges, Andrus’ counsel did not attempt to exclude or rebut

the State’s evidence. That, too, is because Andrus’ counsel

concededly had not independently investigated the incident.

In fact, at the habeas hearing, counsel did not even recall

Andrus’ denying responsibility for the offense. Had he

looked, counsel would have discovered that the only evidence

originally tying Andrus to the incident was a lone witness

statement, [**346] later recanted by the witness, 3 that led to

the inclusion of Andrus’ photograph in a belated photo array,

which the police admitted gave rise to numerous reliability

concerns. The dissent thus reinforces Andrus’ claim of

deficient performance by recounting and emphasizing the

details of the dry-cleaning offense as if Andrus were

2 See, e.g., 5 Habeas Tr. 189 (TYC ombudsman testifying that it was

“surpris[ing] how few” citations Andrus received, “particularly in

the dorms where [Andrus] was” housed); ibid. (TYC ombudsman

finding “nothing uncommon” about Andrus’ altercations because

“sometimes you . . . have to fight to get by” in the “violent

atmosphere” and “savage environment”); id., at 169 (TYC

ombudsman testifying that Andrus’ isolation periods in TCY

custody, for 90 days at a time when Andrus was 16 or 17 years old,

“would horrify most current professionals in our justice field

today”); id., at 246 (TYC ombudsman testifying that Andrus’

“experience at TYC” “damaged him” and “further traumatized”

him).

3 The

dissent maintains that this witness, Andrus’ ex-girlfriend,

“linked [Andrus] to the robbery,” post, at ___, n. 4, 207 L. Ed. 2d, at

352, even though she testified at the habeas hearing that she thought

“it was impossible” that Andrus had committed the offense, 8

Habeas Tr. 57.

undoubtedly the perpetrator. See post, at ___, 207 L. Ed. 2d,

at 352 (opinion of Alito, J.). The very problem here is that the

jury indeed [***22] heard that account, but not any of the

significant evidence that would have cast doubt on Andrus’

involvement in the offense at all: significant evidence that

counsel concededly failed to investigate. 4

That is hardly the work of reasonable counsel. [5] In Texas, a

jury cannot recommend a death sentence without

unanimously finding that a defendant presents a future danger

to society (i.e., that the State has made a sufficient showing of

aggravation). Tex. Code Crim. Proc. Ann., Art. 37.071,

§2(b)(1). Only after a jury makes a finding of future

dangerousness can it consider any mitigating evidence. Ibid.

Thus, by failing to conduct even a marginally adequate

investigation, counsel not only “seriously compromis[ed his]

opportunity to respond to a case for aggravation,” Rompilla,

545 U. S., at 385, but also relinquished the first of only two

procedural pathways for opposing the State’s pursuit of the

death penalty. There is no squaring that conduct, certainly

when examined alongside counsel’s other shortfalls, with

objectively reasonable judgment.

B

Having found deficient performance, the question remains

whether counsel’s deficient performance prejudiced Andrus.

See Strickland, 466 U. S., at 692. [6] Here, prejudice exists if

there is a reasonable probability that, but for his

counsel’s [***23] ineffectiveness, the jury would have made

a different judgment [*1886] about whether Andrus

deserved the death penalty as opposed to a lesser sentence.

See Wiggins, 539 U. S., at 536; see also Tex. Code Crim.

Proc. Ann., Art. 37.071, §2(e)(1). In assessing whether

Andrus has made that showing, 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

4 The

dissent does not mention that Andrus’ image was

conspicuously placed in a central position in the photo array, as the

“[o]nly one . . . looking directly up and out.” 8 Habeas Tr. 35; see

also id., at 32. Nor does the dissent acknowledge that there was an

approximately 3-month interval between the incident (after which

the victim provided little identifying information about the assailant)

and the police’s presentation of the photo array to the victim. See id.,

at 37; 46 Tr. 65. When asked about the delay, the detective who

prepared the photo array admitted that memory can “deca[y] within a

matter of days after a traumatizing incident like a crime” and that an

“eyewitness identificatio[n]” “can be” “more exponentially

problematic” “the greater the time interval between the incident and

the identification.” 8 Habeas Tr. 31; see also ibid. (detective

confirming that there can be “real problems with reliability” if an

“identification [was] made several months” after).

Page 6 of 10

App022

140 S. Ct. 1875, *1886; 207 L. Ed. 2d 335, **346; 2020 U.S. LEXIS 3250, ***23

in aggravation.” Williams, [**347] 529 U. S., at 397-398;

see also Sears v. Upton, 561 U. S. 945, 956, 130 S. Ct. 3259,

177 L. Ed. 2d 1025 (2010) (per curiam) (“A proper analysis

of prejudice under Strickland would have taken into account

the newly uncovered [mitigation] evidence . . ., along with the

mitigation evidence introduced during [the defendant’s]

penalty phase trial, to assess whether there is a reasonable

probability that [the defendant] would have received a

different sentence after a constitutionally sufficient mitigation

investigation” (citing cases)). And because Andrus’ death

sentence required a unanimous jury recommendation, Tex.

Code Crim. Proc. Ann., Art. 37.071, prejudice here requires

only “a reasonable probability that at least one juror would

have struck a different balance” regarding Andrus’ “moral

culpability,” Wiggins, 539 U. S., at 537-538; see also Tex.

Code Crim. Proc. Ann., Art. 37.071, §2(e)(1).

According to Andrus, effective counsel would have painted a

vividly different [***24] tableau of aggravating and

mitigating evidence than that presented at trial. See Pet. for

Cert. 18. But despite powerful and readily available

mitigating evidence, Andrus argues, the Texas Court of

Criminal Appeals failed to engage in any meaningful

prejudice inquiry. See ibid.

It is unclear whether the Court of Criminal Appeals

considered Strickland prejudice at all. Its one-sentence denial

of Andrus’ Strickland claim, see supra, at ___, 207 L. Ed. 2d,

at 341, does not conclusively reveal whether it 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.

concurring opinion’s analysis of or conclusion regarding

prejudice did not garner a majority of the Court of Criminal

Appeals. 6 Given that, the court may have [*1887]

concluded simply that Andrus [***25] failed to demonstrate

deficient performance under the first prong of Strickland

(without [**348] even reaching the second prong). For the

reasons explained above, any such conclusion is erroneous as

a matter of law. See supra, at ___ - ___, 207 L. Ed. 2d, at

341-346.

The record before us raises a significant question whether the

apparent “tidal wave,” 7 Habeas Tr. 101, of “available

mitigating evidence taken as a whole” might have sufficiently

“‘influenced the jury’s appraisal’ of [Andrus’] moral

culpability” as to establish Strickland prejudice, Wiggins, 539

U. S., at 538 (quoting Williams, 529 U. S., at 398). (That is, at

the very least, whether there is a reasonable probability that

“at least one juror would have struck a different balance.”

Wiggins, 539 U. S., at 537.) That prejudice inquiry

“necessarily require[s] a court to ‘speculate’ as to the effect of

the new evidence” on the trial evidence, “regardless of how

much or little mitigation evidence was presented during the

initial penalty phase.” Sears, 561 U. S., at 956; see also id., at

954 (“We have never limited the prejudice inquiry under

Strickland to cases in which there was ‘little or no mitigation

evidence’ presented”). 7 Given the uncertainty as to whether

the Texas Court of Criminal Appeals adequately conducted

that weighty and record-intensive [***26] 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. See Cutter v. Wilkinson, 544 U.

S. 709, 718, n. 7, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005).

***

Unlike the concurring opinion, however, the brief order of the

Court of Criminal Appeals did not analyze Strickland

prejudice or engage with the effect the additional mitigating

evidence highlighted by Andrus would have had on the jury. 5

What little is evident from the proceeding below is that the

5 The Court of Criminal Appeals did briefly observe that the trial

court’s order recommending relief had omitted the “‘reasonable

probability’” language when reciting the Strickland prejudice

standard. App. to Pet. for Cert. 8, n. 2; cf. Strickland, 466 U. S., at

694 (a defendant “must show that there is a reasonable probability

that, but for counsel’s unpro-fessional errors, the result of the

proceeding would have been different”). Even were there reason to

set aside that “[t]rial judges are presumed to know the law,” Lambrix

v. Singletary, 520 U. S. 518, 532, n. 4, 117 S. Ct. 1517, 137 L. Ed.

2d 771 (1997) (internal quotation marks omitted), the trial court’s

omission of the “reasonable probability” language would at most

suggest that it held Andrus to (and found that Andrus had satisfied) a

stricter standard of prejudice than that set forth in Strickland.

6 The

concurring opinion, moreover, seemed to assume that the

prejudice inquiry here turns principally on how the facts of this case

compare to the facts in Wiggins. We note that we have never before

equated what was sufficient in Wiggins with what is necessary to

establish prejudice. Cf. Wiggins, 539 U. S., at 537-538 (“[T]he

mitigating evidence in this case is 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”); Williams, 529 U. S., at 399

(finding such prejudice after applying AEDPA deference).

7 The dissent trains its attention on the aggravating evidence actually

presented at trial. Post, at ___ - ___, 207 L. Ed. 2d, at 351-352; but

see Sears, 561 U. S., at 956 (Strickland prejudice inquiry “will

necessarily require a court to ‘speculate’ as to the effect of the new

evidence” on the trial evidence); 561 U. S., at 956 (“A proper

analysis of prejudice under Strickland would have taken into account

the newly uncovered evidence . . ., along with the mitigation

evidence introduced during [the] penalty phase trial”).

Page 7 of 10

App023

140 S. Ct. 1875, *1887; 207 L. Ed. 2d 335, **348; 2020 U.S. LEXIS 3250, ***26

We conclude that Andrus has shown deficient performance

under the first prong of Strickland, and that there is a

significant question whether the Court of Criminal Appeals

properly considered prejudice under the second prong of

Strickland. We thus grant Andrus’ petition for a writ of

certiorari and his motion for leave to proceed in forma

pauperis, vacate the judgment of the Texas Court of Criminal

Appeals, and remand the case for the court to address the

prejudice prong of Strickland in a manner not inconsistent

with this opinion.

It is so ordered.

Dissent by: ALITO

Dissent

[**349] JUSTICE ALITO, with whom JUSTICE

THOMAS and JUSTICE GORSUCH join, dissenting.

The Court clears this case off the docket, but it does so on a

ground that is hard to take seriously. According to the Court,

“[i]t is unclear whether the Court of Criminal Appeals

considered Strickland prejudice at all.” Ante, at ——, 207 L.

Ed. 2d, at 347; see Strickland v. Washington, 466 U. S. 668,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). But that reading is

squarely contradicted by the opinion of the Court of Criminal

Appeals (CCA), which said explicitly that Andrus [***27]

failed to show prejudice:

[*1888] “[Andrus] fails to meet his burden under

Strickland v. Washington, 466 U. S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), to show by a

preponderance of the evidence 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, but for counsel’s deficient performance.”

App. to Pet. for Cert. 7-8 (emphasis added).

Not only does the CCA opinion contain this express

statement, but it adds that the trial court did not heed

Strickland’s test for prejudice. See App. to Pet. for Cert. 8, n.

2 (“[T]hroughout its findings, the trial court misstates the

Strickland prejudice standard by omitting the standard’s

‘reasonable probability’ language”). And the record clearly

shows that the trial court did not apply that test to Andrus’s

claim. See App. to Pet. for Cert. 36-37. A majority of this

Court cannot seriously think that the CCA pointed this out

and then declined to reach the issue of prejudice.

How, then, can the Court get around the unmistakable

evidence that the CCA decided the issue of prejudice? It

begins by expressing doubt about the meaning of the critical

sentence reproduced above. According to the Court, that

sentence [***28] “does not conclusively reveal whether [the

CCA] determined . . . that Andrus had failed to demonstrate

prejudice under Strickland’s second prong.” Ante, at ___, 207

L. Ed. 2d, at 347. It is hard to write a more conclusive

sentence than “[Andrus] fails to meet his burden under

Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80

L. Ed. 2d 674 (1984), to show by a preponderance of the

evidence . . . that there was a reasonable probability that the

result of the proceedings would have been different, but for

counsel’s deficient performance.” App. to Pet. for Cert. 7-8.

Perhaps the Court thinks the CCA should have used

CAPITAL LETTERS or bold type. Or maybe it should have

added: “And we really mean it!!!”

Not only does the Court express doubt that the CCA reached

the prejudice prong of Strickland, but the Court is not sure

that the CCA decided even the performance prong. See ante,

at ___, 207 L. Ed. 2d, at 347 (“Its one-sentence denial of

Andrus’ Strickland claim . . . does not conclusively reveal

whether it determined that Andrus had failed to demonstrate

deficient performance under Strickland’s first prong”). The

Court may feel it necessary to make that statement because

the CCA disposed of both prongs in the sentence quoted

above. So if that sentence is not sufficient [**350] to show

that the CCA reached the prejudice [***29] prong, there is no

better reason for thinking that it decided the performance

prong. But if the Court really thinks that the CCA did not

decide the performance issue, why does it treat that issue

differently from the prejudice issue? Why does it decide the

performance question in the first instance? Are we now a

court of “first view” and not, as we have often stressed, a

“court of review”? See, e.g., McLane Co., Inc. v. EEOC, 581

U. S. ___, ___, 137 S. Ct. 1159, 1170, 197 L. Ed. 2d 500

(2017)). The Court’s disparate treatment of the two parts of

the CCA’s dispositive sentence shows that the Court is only

selectively skeptical.

The Court gives two reasons for doubting that the CCA

reached the issue of prejudice, but both are patent

makeweights. First, the Court notes that the CCA’s per

curiam opinion, unlike the concurring opinion, did not

provide reasons for finding that prejudice had not been

shown. But the failure to explain is not the same as failure to

decide. Today’s “tutelary remand” is a misuse of our

supervisory authority and a waste of our and the CCA’s time.

[*1889] Lawrence v. Chater, 516 U. S. 163, 185, 116 S. Ct.

604, 133 L. Ed. 2d 545 (1996) (Scalia, J., dissenting).

Second, the Court observes that the concurring opinion, which

discussed the question of prejudice at some length, was joined

Page 8 of 10

App024

140 S. Ct. 1875, *1889; 207 L. Ed. 2d 335, **350; 2020 U.S. LEXIS 3250, ***29

by only four of the CCA’s nine judges. See App. to Pet.

for [***30] Cert. 9-21 (opinion of Richardson, J., joined by

Keller, P. J., and Hervey and Slaughter, JJ.). But that does not

show that the other five declined to decide the question of

prejudice. The most that one might possibly infer is that these

judges might not have agreed with everything in the

concurrence, but even that is by no means a certainty. So the

Court’s reading of the decision below is contrary to the plain

language of the decision and is not supported by any reason

worth mentioning.

If that were not enough, the Court’s reading is belied by

Andrus’s interpretation of the CCA decision. Andrus nowhere

claims that the CCA failed to decide the issue of prejudice.

On the contrary, the petition faults the CCA for providing “a

truncated ‘no prejudice’ analysis,” not for failing to decide

the prejudice issue at all. Pet. for Cert. ii (emphasis added).

Indeed, the main argument in the petition is that we should

modify Strickland because courts are too often rejecting

ineffective-assistance claims for lack of prejudice. That

argument would make no sense if the CCA had not decided

the prejudice issue, something that is never even implied by

Andrus’s counsel in either the 40-page petition or [***31] the

11-page reply.

Not only did the CCA clearly hold that Andrus failed to show

prejudice, but there was strong support for that holding in the

record. To establish prejudice, Andrus must show “a

substantial, not just conceivable, likelihood” that one of the

jurors who unanimously agreed on his sentence would not

have done so if his trial counsel had presented more

mitigation evidence. Cullen v. Pinholster, 563 U. S. 170, 189,

131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011) (internal quotation

marks omitted). This inquiry focuses not just on the newly

offered mitigation evidence, but on the likelihood that this

evidence would have overcome the State’s aggravation

[**351] evidence. See, e.g., Sears v. Upton, 561 U. S. 945,

955-956, 130 S. Ct. 3259, 177 L. Ed. 2d 1025 (2010) (per

curiam). While providing a lengthy (and one-sided)

discussion of Andrus’s mitigation evidence, the Court never

acknowledges the volume of evidence that Andrus is prone to

brutal and senseless violence and presents a serious danger to

those he encounters whether in or out of prison. Instead, the

Court says as little as possible about Andrus’s violent record.

For example, here is what the Court says about the crimes for

which he was sentenced to death: “Not long after Andrus’

release from prison at age 18, Andrus attempted the fatal

carjacking that resulted in his capital convictions.”

[***32] Ante, at ___, 207 L. Ed. 2d, at 340.

Here is what the record shows. According to Andrus’s

confession, he left his apartment one evening, “‘amped up’ on

embalming fluid [PCP] mixed with marijuana, cocaine, and

beer,” and looked for a car to “go joy-riding.” No. AP-76,936,

p. 5 (CCA, Mar. 23, 2016) (Reh’g Op.); see also 54 Tr., Pl.

Exh. 147 (Andrus’s confession). In the parking lot of a

supermarket, he saw Avelino Diaz drop off his wife, Patty, in

front of the store. By his own admission, Andrus approached

Diaz’s car with a gun drawn, but he abandoned the carjacking

attempt when he saw that the car had a stick shift, which he

could not drive. Alerted by a store employee, Patty Diaz ran

out of the store and found her husband lying by the side of the

car with a bullet wound in the back of his head. He was

subsequently pronounced dead.

[*1890] After killing Avelino Diaz, Andrus approached a car

with two occupants, whom Andrus described as an “old man

and old wom[a]n.” Id., at 2. Andrus fired three shots into the

car. The first went through the open driver’s side window and

hit the passenger, Kim-Phuong Vu Bui, in the head. As the car

sped away, Andrus fired a second shot, which entered the

back driver’s side window, and a third shot, [***33] which

“entered at an angle indicating that the shot originated from a

farther distance.” Reh’g Op. 3. One of these bullets hit the

driver, Steve Bui, in the back. Seeing that blood was coming

out of his wife’s mouth, Steve drove her to a hospital and

carried her inside, where she died.

These senseless murders in October 2008 were not Andrus’s

first crimes. In 2004, he was placed on probation for a drug

offense, but just two weeks later, he committed an armed

robbery. Andrus and two others followed a woman to her

parents’ home, where they held her at gunpoint and took her

purse and gym bag. The woman identified Andrus as the

perpetrator who held the gun. Id., at 7. 1

For this offense, Andrus was sent to a juvenile facility where

he showed such “‘significant assaultive behavior’ toward

other youths and staff ” that he was eventually transferred to

an adult facility. App. to Pet. for Cert. [**352] 11. 2 Shortly

1 The Court credits Andrus’s version of the event and repeats his

allegation that he merely served as a “lookout.” Ante, at ___, ___,

207 L. Ed. 2d, at 337, 340. As the CCA explained on direct review,

however, the victim matched Andrus’s clothing to the gunman’s. See

Reh’g Op. 7; see also 46 Tr. 23-25 (arresting officer explaining that

only Andrus’s clothing matched the suspect description).

2 Just

as the Court provides a one-sided summary of Andrus’s

mitigation evidence, it quibbles at every possible turn with the

aggravation evidence. Thus, the Court states that Andrus’s

behavioral problems at this facility “were notably mild.” Ante, at___,

207 L. Ed. 2d, at 345. But the witness on whose testimony the Court

relies admitted that Andrus’s record included multiple threats and

assaults against staff and other youths. 4 Habeas Tr. 202-204. And

Page 9 of 10

App025

140 S. Ct. 1875, *1890; 207 L. Ed. 2d 335, **352; 2020 U.S. LEXIS 3250, ***33

after his release, he again violated his supervisory conditions

and was returned to the adult facility. Ibid.

When he was released again, he committed an armed robbery

of a dry-cleaning establishment. Around 7 a.m. one morning,

he entered the business and chased the owner, Tuan Tran, to

the [***34] back. He beat Tran and threatened him with a

knife until Tran gave him money. Reh’g Op. 7-8. Andrus’s

ex-girlfriend told the police that he confessed to this robbery.

8 Habeas Tr. 14. 3 In addition, Tran picked Andrus out of a

photo array, 46 Tr. 66, 69-70, 4 and testified [*1891] at trial

that the robber was in the courtroom, id., at 59-60, but he was

too afraid to point at Andrus, ibid. Less than two months after

this crime, Andrus murdered Avelino Diaz and Kim-Phuong

Vu Bui. App. to Pet. for Cert. 11.

While awaiting trial for those murders, Andrus carried out a

reign of terror in jail. He assaulted another detainee, attacked

and injured corrections officers, threw urine in an officer’s

face, repeatedly made explicit threats to kill officers and staff,

flooded his cell and threw excrement on the walls, and

engaged in other disruptive acts. Id., at 11-13. Also while

awaiting trial for murder, he had the words “murder weapon”

tattooed on his hands and a smoking gun tattooed on his

forearm. 51 Tr. 65-66, 68.

aggravating evidence that Andrus [***35] wantonly killed

two innocent victims and shot a third; that he committed other

violent crimes; that he has a violent, dangerous, and unstable

character; and that he is a threat to those he encounters.

The CCA has already held once that Andrus failed to establish

prejudice. I see no good reason why it should be required to

revisit the issue.

References

U.S.C.S., Constitution, Amendment 6

3 Criminal Constitutional Law § 13.08 (Matthew Bender)

L Ed Digest, Criminal Law § 46.12

L Ed Index, Capital Offenses and Punishment

When is attorney's representation of criminal defendant so

deficient as to constitute denial of federal constitutional right

to effective assistance of counsel--Supreme Court cases. 83 L.

Ed. 2d 1112.

End of Document

In sum, the CCA assessed the issue of prejudice in light of

more than the potentially mitigating evidence that the Court

marshals for Andrus. The CCA had before it strong

the record shows that Andrus had needed to be removed from

general population 77 times. 10 id., Pl. Exh. 28. The responsible

corrections officials obviously did not think this record was “notably

mild,” because it prompted them to transfer him to an adult facility.

3 Although

Andrus’s ex-girlfriend later signed an affidavit

contradicting herself, 41 id., Def. Exh. 139, pp. 1-2, she admitted at

the habeas hearing—after learning that she had been recorded—that

she indeed relayed this information, 8 id., at 48-49. Andrus’s counsel

tried to withdraw her affidavit from evidence, having “learned

information that caused [them] to doubt [her] reliability.” Id., at 5.

4 The Court again credits Andrus’s allegation that he did not commit

this robbery. See ante, at ___ - ___, 207 L. Ed. 2d, at 345-346. In

support, the Court points to what Tran told police shortly after being

beaten and to supposed problems with the photo array from which

Tran first identified Andrus. But the Court cannot dispute that

Andrus’s ex-girlfriend linked him to the robbery or that Tran

identified him twice. Nor did the detective to whom the Court refers

in fact testify that “the inclusion of Andrus’ photograph in a belated

photo array . . . gave rise to numerous reliability concerns.” Ante, at

___, 207 L. Ed. 2d, at 346; see 8 Habeas Tr. 31 (testifying, in

response to habeas counsel’s repeated questions whether delays

affect the reliability of identifications, only that they “can”); id., at

42-44 (affirming the bases for Andrus’s inclusion).

Page 10 of 10

App026

Appendix C

App027

Ex parte Andrus

Court of Criminal Appeals of Texas

February 13, 2019, Decided; February 13, 2019, Filed

NO. WR-84,438-01

Reporter

2019 Tex. Crim. App. Unpub. LEXIS 81 *; 2019 WL 622783

EX PARTE TERENCE TRAMAINE ANDRUS

Notice: DO NOT PUBLISH.

PLEASE CONSULT THE

APPELLATE PROCEDURE

UNPUBLISHED OPINIONS.

TEXAS RULES

FOR CITATION

OF

OF

Subsequent History: Vacated by, Remanded by, Motion

granted by Andrus v. Texas, 140 S. Ct. 1875, 207 L. Ed. 2d

335, 2020 U.S. LEXIS 3250 (U.S., June 15, 2020)

Affirmed by, Writ of habeas corpus denied Ex parte Andrus,

2021 Tex. Crim. App. LEXIS 522 (Tex. Crim. App., May 19,

2021)

Prior History: [*1] ON APPLICATION FOR POSTCONVICTION WRIT OF HABEAS CORPUS FROM

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

COURT FORT BEND COUNTY.

Ex parte Andrus, 2017 Tex. Crim. App. Unpub. LEXIS 900

(Tex. Crim. App., Mar. 29, 2017)

Judges: RICHARDSON, J., filed a concurring opinion in

which KELLER, P.J., and HERVEY and SLAUGHTER, JJ.,

joined..

Opinion

Per curiam. RICHARDSON, J., filed a concurring opinion in

which KELLER, P.J., and HERVEY and SLAUGHTER, JJ.,

joined.

ORDER

This is an application for a writ of habeas corpus, filed

pursuant to the provisions of Texas Code of Criminal

Procedure Article 11.071.

In November 2012, a jury convicted applicant of capital

murder for intentionally or knowingly causing the deaths of

Avelino Diaz and Kim-Phuong Vu Bui by shooting them with

a firearm during the same criminal transaction. See TEX.

PENAL CODE § 19.03(a). The trial evidence generally showed

that, on October 15, 2008, a then-unidentified African

American man shot Avelino Diaz to death while trying to

"carjack" Diaz in a Kroger's front parking lot in Fort Bend

County. While fleeing, Diaz's assailant shot at the two

occupants of a car which was entering the Kroger's side lot.

The man killed the passenger (Kim-Phuong Vu Bui) and

wounded the driver (Kim's husband, Steve Bui).

After investigation, Texas law enforcement officers identified

applicant as a suspect. These officers subsequently [*2]

learned that applicant had been arrested in New Orleans on an

unrelated charge. The officers returned applicant to Texas

after he waived extradition.

Applicant initially denied any involvement in the Kroger

shootings. However, applicant ultimately confessed to the

officers that he had shot the complainants. In his written

statement, applicant asserted he was high on a mix of

"embalming fluid" mixed with marijuana (a street name for

marijuana or tobacco cigarettes dipped in phencyclidene

(PCP)), cocaine, and beer when the offense occurred.

Applicant also essentially contended that he had acted in selfdefense. Applicant admitted that he had been trying to take

Diaz's car. However, applicant asserted that he tried to

abandon the attempt after he saw that the car was a stick-shift,

which he could not drive. But then Diaz got out of the car,

trying to pull a pistol out of a holster. While fleeing the scene

of Diaz's shooting, applicant asserted, the Buis tried to run

applicant over with their car. However, applicant's account of

the shootings contradicted the State's physical and testimonial

evidence.

The jury found applicant guilty of capital murder as alleged in

the indictment. See TEX. PENAL CODE § 19.03(a)(7)(A).

At [*3] the punishment phase, the State presented evidence

of applicant's adjudicated and unadjudicated prior offenses.

These included juvenile adjudications for felony possession of

a controlled substance in a drug-free zone and criminal

solicitation to commit felony aggravated robbery (involving a

firearm). They also included evidence that Applicant had

App028

2019 Tex. Crim. App. Unpub. LEXIS 81, *3

committed an aggravated robbery less than a month before the

capital offense. During that offense, applicant kicked, beat,

and threatened his victim with a knife. The State also showed

the jury photographs of applicant's numerous gang-related

tattoos. In addition, when applicant testified at the punishment

phase, he admitted that he had been a member of the "59

Bounty Hunter Bloods" street gang.

Besides the evidence of his criminal history, the State

presented evidence that applicant was confined by the former

Texas Youth Commission (TYC) as a result of his criminalsolicitation juvenile adjudication. However, due to his

behavior problems, which included aggressive or assaultive

behavior towards other youths and staff, and his general

failure to progress in TYC's rehabilitation program, applicant

was transferred to Texas's adult prison system [*4] to

complete his sentence. The State additionally presented

evidence of applicant's significantly more disruptive, violent,

and threatening behavior at the Harris County and Fort Bend

County jails while awaiting trial in this case.

As we summarized previously in our opinion on direct appeal,

the defense presented a punishment case which emphasized

evidence of: applicant's socioeconomic history; his longstanding drug abuse; the effect of drug abuse on adolescent

brain development; and applicant's remorse. See Andrus v.

State, No. AP-76,936, 2016 Tex. Crim. App. Unpub. LEXIS

1158 at *15 (Tex. Crim. App. Mar. 23, 2016) (op. on reh'g)

(not designated for publication).

Applicant also testified in his own defense. Applicant asserted

that: he had been exposed to drugs as early as 6 years of age,

because his mother sold them; he rarely had adult supervision

at home, and he started using drugs regularly when he was 15.

See 2016 Tex. Crim. App. Unpub. LEXIS 1158 at *16.

Applicant acknowledged that he does not like confined spaces

and or being told what to do, and that he had previously acted

out when feeling agitated. See 2016 Tex. Crim. App. Unpub.

LEXIS 1158 at *16. However, Applicant stated that he had

recently given his life to God, and he asserted that he no

longer acted out. See id. Applicant additionally testified that

he could help other inmates to [*5] avoid making the same

mistakes that he had made. See 2016 Tex. Crim. App. Unpub.

LEXIS 1158 at *16.

The jury answered the special issues submitted under Article

37.071 of the Texas Code of Criminal Procedure, and the trial

court, accordingly, set punishment at death. This Court

affirmed applicant's conviction and sentence on direct appeal.

2016 Tex. Crim. App. Unpub. LEXIS 1158 at *1.

In his application, applicant presents seven challenges to the

validity of his conviction and sentence. The trial court held an

evidentiary hearing. The trial court thereafter entered findings

of fact and conclusions of law and recommended that we

grant relief as to Claim 1 of applicant's allegations. However,

the trial court recommended that we deny relief as to

applicant's remaining claims.

We have reviewed the record regarding applicant's

allegations. In Claim 2, applicant alleges that his "due process

rights were infringed when the jury was informed [that

applicant] was wearing physical restraints during the

punishment phase of his trial." In Claim 5, applicant alleges

that his "death sentence was arbitrarily and capriciously

assigned based on the jury's answer to the unconstitutionally

vague [future dangerousness special issue]." Both Claim 2

and Claim 5 are procedurally barred, as they could have been

raised on direct appeal. See Ex parte Chavez, 560 S.W.3d

191, 200 (Tex. Crim. App. 2018) [*6] ; Ex parte Nelson, 137

S.W.3d 666, 667 (Tex. Crim. App. 2004). We accordingly

deny relief on both Claim 2 and Claim 5 without reaching the

merits of either allegation.

In Claims 1, 3, 4, 6, and 7, applicant alleges that trial counsel

were constitutionally ineffective for: failing to conduct a

reasonable investigation and presentation of available

mitigating evidence (Claim 1); failing to preserve potential

Batson1 error (Claim 3); conceding the future dangerousness

special issue (Claim 4); failing to properly object to allegedly

inadmissible victim-impact evidence at the guilt-innocence

phase of trial (Claim 6); and failing to preserve the record for

direct appeal (Claim 7). However, applicant fails to meet his

burden under Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), to show by a

preponderance of the evidence 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,

but for counsel's deficient performance.2 See Ex parte

Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing

Strickland, 466 U.S. at 688). Therefore, we deny relief on the

merits of Claims 1, 3, 4, 6, and 7.

Furthermore, we decline to adopt any of the trial court's

findings of fact and conclusions of law, or its

recommendation to grant relief [*7] regarding Claim 1.

Based on our own review of the record, we deny relief on all

of applicant's habeas claims.

1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69

(1986).

2 We note that, throughout its findings, the trial court misstates the

Strickland prejudice standard by omitting the standard's "reasonable

probability" language.

Page 2 of 7

App029

2019 Tex. Crim. App. Unpub. LEXIS 81, *7

IT IS SO ORDERED THIS THE 13TH DAY OF

FEBRUARY, 2019.

Do Not Publish

Concur by: RICHARDSON

Concur

CONCURRING OPINION

Applicant filed an application for a writ of habeas corpus

pursuant to Texas Code of Criminal Procedure 11.071 and

presented seven challenges to the validity of his conviction

and sentence. The habeas judge held an evidentiary hearing

and subsequently entered findings of fact and conclusions of

law recommending that we deny relief on Applicant's Claims

2-7. The habeas judge, however, recommended that we grant

relief on Applicant's Claim 1. In Claim 1, Applicant alleges

that "trial counsel provided ineffective assistance in failing to

conduct a reasonable investigation and in their presentation of

available mitigating evidence."1 In our written order, the

Court declines to adopt the habeas judge's findings and

conclusions regarding this claim and, based on our own

review of the record, we deny relief on Claim 1.2

I agree with the Court's recitation of the facts and its decision

to deny Applicant relief on all grounds. I write separately only

to elaborate on why I conclude that Applicant is not entitled

to relief on Claim 1. [*8]

BACKGROUND

1 Applicant seems to claim that lead counsel performed deficiently

because he unreasonably failed to: (1) immediately hire a mitigation

specialist, and then, after the first mitigation specialist withdrew, to

hire a replacement specialist; (2) discover and present certain lay

witness testimony to corroborate Applicant's punishment phase

testimony about his upbringing; (3) present testimony from two

expert witnesses whom counsel consulted before Applicant's trial—

S.O. Woods (a prison classification expert) and Dr. Jerome Brown (a

clinical psychologist); (4) consult and present testimony from experts

in: (a) child and adolescent development, (b) Houston's Third Ward,

and (c) scandals, conditions, and the mental health treatment

Applicant received at TYC; and (5) provide their testifying expert,

Dr. John Roache, with more information about Applicant and

Applicant's family.

2 As stated in the Court's order, we also decline to adopt any of the

habeas judge's findings of fact and conclusions of law, and we deny

relief on all of Applicant's habeas claims.

In determining whether trial counsel failed to reasonably

investigate and present mitigating evidence in Applicant's

trial, it is necessary to review the evidence that the parties

actually presented during the punishment phase. The State

presented the following evidence:

• Applicant had two juvenile adjudications for crimes

committed when he was about 15 or 16: (1) a May 2004

felony possession of a controlled substance in a drug-free

zone; and (2) a January 2005 criminal solicitation to commit

felony aggravated robbery (involving a firearm). The juvenile

court put Applicant on probation for the 2004 possession

offense, sent him to an alternative school, and required him to

complete community service hours. But, about two weeks

after the juvenile court adjudicated the possession case, police

arrested Applicant for the solicitation-aggravated robbery

offense.

• While confined in the Texas Youth Commission (TYC) for

the solicitation-aggravated robbery case, Applicant exhibited

"significant assaultive behavior" toward other youths and

staff. TYC's efforts to rehabilitate Applicant were

unsuccessful and thus, he was transferred to the Texas

Department of Criminal Justice (TDCJ) to [*9] complete his

sentence.

• After being transferred from TYC, Applicant served a few

months in TDCJ before being released to parole. In 2007,

shortly after being released, Applicant violated parole by

being convicted of misdemeanor theft. He served a few more

months in TDCJ before being released again.

• On August 21, 2008, Applicant committed aggravated

robbery when he entered a dry cleaning business and

demanded money from an employee. When the employee ran

to the back of the business, Applicant cornered, beat, and

kicked the employee before pulling a knife on him. Applicant

committed the capital murder underlying this application less

than two months after this aggravated robbery.

• Numerous photographs of Applicant's gang-related tattoos.

When Applicant later took the stand in his own defense, he

admitted that those tattoos included "murder weapons"

tattooed on his hands, and that he had been a member of the

"59 Bounty Hunter Bloods" street gang.

• Applicant's conduct while he was in the Harris and Fort

Bend County jails awaiting trial in this case:

‣ On April 18, 2009, Applicant assaulted another inmate.

When a detention officer intervened, Applicant told him,

"I don't give a fuck," and [*10] "I'm going to get the

needle anyway."

Page 3 of 7

App030

2019 Tex. Crim. App. Unpub. LEXIS 81, *10

‣ On May 9, 2009, Applicant, who was housed on the

"super-max" floor of the jail, claimed to be having chest

pains. According to jail protocol, detention officers took

Applicant to the medical clinic to be checked out.

Applicant asked the nurse at the clinic for decongestants,

but she told him that she could not provide those due to

his other medications. Applicant told her, "Fuck you,"

and then screamed and yelled obscenities as detention

officers tried to calm him down. The officers then

escorted Applicant, who was handcuffed and shackled,

back to his cell. Applicant refused to walk on his own, so

the officers had to physically push him into the elevator

to the super-max floor. When they arrived at Applicant's

cell, the officers unshackled him. As soon as one officer

unlocked the handcuffs, Applicant turned and punched

the officer twice in the face before the officers regained

control. That same day, officers also discovered in

Applicant's cell a broken razor blade and a sharpened,

bent key ring. Applicant had apparently cut himself and

used his blood to draw a picture of the world on his cell

wall and to write "Fuck the world. I want to die." [*11]

‣ On May 11, 2009, Applicant jammed open his cell

door's "panhole," the opening where food, papers, and

medicines can be passed to an inmate without the cell

door being opened. When an officer went to investigate

and looked into the panhole, [Applicant] threw urine in

the officer's face. Applicant then danced around his cell

in celebration saying, "I got him, bitch ass, mother

fucker. I got his ass." Applicant then taunted the officer,

"Come on in and get me. There is nothing you can do to

me."

‣ On July 5, 2009, Applicant attempted to pass

contraband pills to another inmate. When a detention

officer intercepted the pills, Applicant angrily demanded

the pills back. Applicant then threatened to throw urine

on the officer. Afterwards, Applicant broke a sprinkler

head and flooded his cell. Officers handcuffed Applicant.

Applicant threatened one of the officers 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." Applicant also told the rest

of the staff that he was "going to get all of you." The

mental-health unit was called to calm Applicant down.

‣ Two hours after the initial July 5, 2009 [*12]

contraband incident, Applicant began complaining of

chest pains. Applicant was taken to the medical clinic

where he attempted to convince the attending officer to

remove his handcuffs. When the officer refused due to

Applicant's earlier threats, Applicant told him, "I haven't

threatened you though." When the officer again refused,

Applicant asked him, "Are you scared?" Two officers

put Applicant back in his cell. They had Applicant lie

down on his bed while they removed his cuffs. Once the

cuffs were removed, Applicant jumped up and began

kicking and punching the officers, injuring them.

Applicant yelled, "I'm going to kill y'all. I told you I'm

going to kill y'all." The Special Response Team (SRT)

was called. It took five officers to subdue Applicant.

‣ On January 4, 2010, Applicant threw an unknown

liquid on an officer as he walked past Applicant's cell.

When asked to back up to the cell bars to be handcuffed,

Applicant wrapped himself in a blanket so that his arms

were inaccessible and the officers had to enter his cell to

handcuff him. The SRT was called to handcuff Applicant

and move him to a more secure cell. Applicant once

again displayed obscenity-laced defiance.

‣ On July 20, [*13] 2010, Applicant covered the window

of his cell so that officers could not see inside. He

refused to remove the cover or to place his hands in the

panhole so that he could be handcuffed. The SRT was

called. Upon entering Applicant's cell, the officers

discovered that Applicant had stopped up the toilet and

the shower drain, and used the shower to flood the cell.

The cell walls were covered in feces and 21/2 inches of

water and feces covered the floor. Applicant was naked,

standing by the toilet. Applicant threw liquid on the

officers and then resisted their attempts to handcuff him

by striking at them.

‣ On July 27, 2011, Applicant stuck his arms through his

cell door's panhole and refused to remove them. He

claimed that he was upset that he was denied recreation

even though he had refused his recreation opportunity

when it was offered to him. Applicant yelled at the

detention officer, "You don't know me, bitch. I'm not

some peon inmate. You won't find out. You'd better ask

around." He continued to refuse the officer's order to put

his arms back inside his cell. The SRT was called and

Applicant kicked and struck at the team members who

tried to subdue him. He yelled that they did not [*14]

know him and that he was "going to fuck somebody up."

The team moved him to a padded cell where Applicant

covered his new cell window with feces.

‣ On July 28, 2011, 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." As a result of his

statements, Applicant was again moved to a padded cell.

While being moved, Applicant told the officers, "I have

three caps. I have nothing to lose. This will be

everyday." Once in the cell, he commented that he "will

kill an officer" if given the chance.

The defense then presented its punishment case. Applicant,

his mother, and his father testified regarding Applicant's

Page 4 of 7

App031

2019 Tex. Crim. App. Unpub. LEXIS 81, *14

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 [*15] 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.

Defense counsel also called Dr. John Roache, a

pharmacologist and psychiatry professor specializing in the

effect of alcohol and drug addiction on the human brain and

behavior, to testify about Applicant's drug use and mental

development. Dr. Roache testified that by age eleven,

Applicant had begun using marijuana, and that his drug use

increased during his teenage years. Applicant also

periodically used Xanax and alcohol. By nineteen, Applicant

was regularly using PCP and ecstasy and was sporadically

using cocaine. Dr. Roache testified that drugs impair

adolescent brain development in the areas of judgment and

impulse control, and that these effects are long lasting. Dr.

Roache also testified that an unstable family environment and

a lack of role models can adversely affect the development of

good judgment and the ability to self-regulate one's emotions.

In addition, defense counsel presented evidence of Applicant's

remorse through the testimony [*16] of James Martin, a

licensed professional counselor with the Fort Bend County

Jail. Martin testified that he assisted Applicant with his

behavioral issues at the jail and noted that Applicant had

hallucinations and a poor history of complying with his

medication schedule. Martin testified that, although Applicant

"[met] every criteria of [antisocial personality] disorder," he

had been making progress and was beginning to show

remorse for the murders.

Applicant's punishment at death.5

LEGAL STANDARD

In Claim 1, Applicant alleges that "trial counsel provided

ineffective assistance in failing to conduct a reasonable

investigation and in their presentation of available mitigating

evidence." To prevail on an ineffective assistance of counsel

allegation, an applicant must establish by a preponderance of

the evidence that (1) counsel's performance fell below an

objective standard of reasonableness, and (2) there is a

reasonable probability that the result of the proceedings would

have been different but for counsel's deficient [*17]

performance.6

In Wiggins v. Smith,7 the United States Supreme Court

specifically discussed and applied Strickland's two-part test to

a claim of ineffective assistance of counsel for failure to

conduct a reasonable mitigation investigation. The Supreme

Court held that counsel's investigation into Wiggins's

background did not reflect reasonable professional judgment

and that counsel's failures prejudiced Wiggins's defense.8 To

assess prejudice, the Court evaluated the "totality of the

evidence-'both that adduced at trial, and the evidence adduced

in the habeas proceedings.'"9 The Supreme Court specifically

explained how counsel's deficient performance prejudiced

Wiggins's defense. First, the mitigating evidence that counsel

failed to discover and present was powerful and not doubleedged.10 Second, Wiggins's jury only heard one significant

mitigating factor—that Wiggins had no prior convictions.11

Third, Wiggins did not have a record of violent conduct that

including the circumstances of the offense, the defendant's character

and background, and the personal moral culpability of the defendant,

that there is a sufficient mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment rather than a death

sentence be imposed?" See TEX. CODE CRIM. PROC. art. 37.071, §

2(e)(1).

5 See TEX. CODE CRIM. PROC. art. 37.071, § 2(g).

Based on this evidence, the jury answered "yes" to the "future

dangerousness" question,3 and "no" to the "mitigating

circumstances" question.4 The judge accordingly set

6 See

Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App.

2014) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984)).

7 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

3 Issue No. 1 in the Court's Charge on Punishment asked: "Do you

find from the evidence beyond a reasonable doubt that there is a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing threat to society?" See

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

8 Id. at 534, 536.

9 Id. at 536 (citing Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.

Ct. 1495, 146 L. Ed. 2d 389 (2000)).

10 Id. at 534-35.

4 Issue No. 2 in the Court's Charge on Punishment asked: "Do you

find from the evidence, taking into consideration all of the evidence,

11 Id. at 537.

Page 5 of 7

App032

2019 Tex. Crim. App. Unpub. LEXIS 81, *17

the State could have introduced to offset the undiscovered

mitigating evidence.12

After evaluating the totality of the evidence, the Supreme

Court concluded that, had the jury been confronted with the

considerable undiscovered mitigating [*18] evidence, there

was a reasonable probability that the jury would have returned

a different sentence.13 When analyzing whether Applicant has

satisfied Strickland's prejudice requirement, it is appropriate

to use Wiggins as a guide.

ANALYSIS

In this case, We need not consider the constitutional adequacy

of defense counsel's performance because Applicant fails to

show prejudice.14 Assuming without deciding that aspects of

defense counsel's performance were deficient, Applicant fails

to establish that, had counsel reasonably investigated and

presented a stronger mitigation defense, there is a reasonable

probability that the jury would have returned a different

sentence.

Proposed Additional Mitigating Evidence

From my independent review of the record, it appears that

Applicant's strongest proposed mitigating evidence would

have been (1) testimony from certain lay witnesses to

corroborate Applicant's punishment phase testimony about his

upbringing, and (2) testimony from Dr. Jerome Brown, the

clinical psychologist who performed a forensic evaluation of

Applicant before trial. Applicant alleges that his mother and

father gave a "sanitized version" of his life history and that

additional [*19] lay witness testimony would have provided

the jury with a more complete, and therefore a more

compelling, narrative of Applicant's life. In regard to Dr.

Brown, the report that he created contained potentially

mitigating information, including that Applicant had selfreported a history of psychological/psychiatric problems

which may have begun as early as childhood, that Applicant's

jail records showed that he was diagnosed with

schizophrenia,15 and that he had a high probability of

substance dependence disorder. However, even if the jury

heard this mitigating evidence, I cannot say that there is a

reasonable probability that the jury would have returned a

different sentence.

First, Applicant's proposed additional mitigating evidence is

not as powerful as the evidence in Wiggins. In Wiggins, the

petitioner "experienced severe privation and abuse in the first

six years of his life while in the custody of his alcoholic

absentee mother" and "[h]e suffered physical torment, sexual

molestation and repeated rape during his subsequent years in

foster care."16 Wiggins was also homeless at times and had

diminished mental capacities.17 This evidence, the Supreme

Court concluded, demonstrated that Wiggins [*20] had the

kind of troubled history that was relevant to assessing his

moral culpability.18

Here, while not insignificant, Applicant's proposed mitigating

evidence does not rise to the level of that discussed in

Wiggins. Applicant alleges that, through additional lay

witness testimony, the jury would have heard the "reality of

[Applicant's] childhood"—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.19 This is not the same caliber of

potentially mitigating evidence that was available, but not

presented, in Wiggins. In addition, much of this information

had already been introduced through the testimony of

Applicant, his mother, and his father, a fact which further

dilutes the potential effect this evidence would likely have

had on the jury. Lastly, unlike in Wiggins, much of

Applicant's proposed mitigating evidence was extremely

double-edged.20 For example, Dr. Brown's report, which

contained some potentially mitigating evidence, also

contained evidence that was potentially extremely

aggravating, [*21] such as Applicant's history of abusing and

killing animals.

generally concluded that Applicant suffered instead from antisocial

personality disorder.

12 Id.

16 Wiggins, 539 U.S. at 535.

13 See id. at 536.

17 See id.

14 Ex

18 See id.

parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009)

(holding that applicant's failure to satisfy both prongs of Strickland's

two-pronged test defeats a claim of ineffective assistance).

19 See Applicant's Initial Application for Writ of Habeas Corpus at

44.

15 Although

this diagnosis appears in Applicant's jail records, the

professionals who had a longer opportunity to observe Applicant

20 See Wiggins, 539 U.S. at 535.

Page 6 of 7

App033

2019 Tex. Crim. App. Unpub. LEXIS 81, *21

Mitigating Evidence Presented

proceedings.

Second, unlike in Wiggins, Applicant's jury actually heard

multiple mitigating factors, but still did not spare Applicant

from the death penalty. Wiggins's jury heard just one

significant mitigating factor—that Wiggins had no prior

convictions.21 Because the jury heard only one aspect of

mitigation, the Supreme Court reasoned that, had the jury

"been able to place [Wiggins's] excruciating life history on the

mitigating side of the scale," there was a "reasonable

probability that at least one juror would have struck a

different balance" on the mitigation issue.22 Applicant's jury,

however, heard the following: testimony regarding

Applicant's background and dysfunctional upbringing;

testimony from an expert witness who opined 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. The jury was

given the opportunity to consider this evidence, to place it on

the "mitigating side of the scale,"23 but still did not resolve

the mitigation [*22] issue in Applicant's favor.

Violent History

CONCLUSION

Even assuming Applicant's lead counsel was deficient,26

Applicant fails to show how his defense was prejudiced. The

State presented a [*23] vast amount of aggravating evidence,

and the evidence Applicant now alleges counsel should have

discovered and presented was largely duplicative, doubleedged, and not particularly helpful. In these circumstances,

even assuming that counsel could have discovered and

presented Applicant's proposed additional mitigating evidence

in an admissible form, I cannot say that there is a reasonable

probability that the result of the proceedings would have been

different. Applicant fails to show prejudice, and that failure

defeats his claim of ineffective assistance.27

With these comments, I concur and join the majority.

FILED: February 13, 2019

DO NOT PUBLISH

End of Document

Third, unlike in Wiggins, Applicant had an extensive record

of violent conduct that the State could have used to offset the

proposed additional mitigating evidence.24 The jury heard

evidence about Applicant's multiple prior convictions,

including a conviction for solicitation of aggravated robbery.

In addition, the jury heard evidence that, just two months

before the capital offense underlying this application,

Applicant committed aggravated robbery when he beat,

kicked, and robbed a victim while brandishing a knife. The

jury also heard evidence of Applicant's assaultive behavior

while in TYC. Further, the jury heard evidence that Applicant

engaged in numerous instances of significant violent and

disruptive behavior while he was in jail awaiting trial. In

short, Applicant did not have the "powerful mitigating

narrative"25 that was available in Wiggins, and the State

presented plenty of potentially aggravating evidence to offset

the potentially mitigating evidence adduced in the habeas

26 It

24 Id. at 537.

is worth noting that, even if lead counsel was deficient,

Applicant had other counsel who arguably performed sufficiently.

Normally, an applicant cannot obtain relief in this situation. See

McFarland v. State, 928 S.W.2d 482, 505-06 (Tex. Crim. App.

1996) (concluding that the defendant had not show prejudice

because, even if one of his attorneys was asleep at trial, his other

attorney was alert and effective).

25 Id.

27 Lane, 303 S.W.3d at 707.

21 Id. at 537.

22 Id.

23 Id.

Page 7 of 7

App034

Appendix D

App035

No. 09-DCR-051034-HCl

EXPARTE

TERENCE ANDRUS

§

§

§

§

§

IN THE 240TH JUDICIAL

DISTRICT COURT OF

FORT BEND COUNTY

FINDINGS OF FACT & CONCLUSIONS OF LAW

On March 4, 2015, Applicant filed an Application for Writ of Habeas

Corpus. This Court held a hearing on Applicant's application and pursuant to

Article 11.07 of the Texas Code of Criminal Procedure, the Court hereby enters the

following Findings of Fact & Conclusions of Law:

Procedural History

(1) On February 2, 2009, Applicant was indicted for the offense of Capital Murder

alleged to have been committed on October 15, 2008. See TEX. PENAL CODE§

19.03(a)(7)(A).

(2) Applicant pleaded not guilty to the charges alleged in the indictment and on

October 1, 2012, Applicant's jury trial began in the 240th Judicial District Court

of Fort Bend County, Texas. 1

(3) On November 6, 2012, Applicant was convicted of Capital Murder as alleged

in the indictment. Pursuant to the Jury's answers to the special issues submitted

at the punishment phase of trial, Applicant was sentenced to death on November

14, 2012. See TEX. CODE CRIM. PRO. Art. 37.071 §§ 2(b), 2(e).

(4) On March 23, 2016, The Texas Court of Criminal Appeals affirmed Applicant's

conviction and sentence. Andrus v. State, No. AP-76,936 (Tex. Crim. App.,

delivered March 23, 2016).

1

The trial was presided over by the Honorable Thomas R. Culver, III, now deceased. The

undersigned was assigned to preside over the Habeas Corpus Proceedings by the Hon. Olen

Underwood, Presiding Judge of the Second Administrative Judicial Region.

1

App036

Applicant's Confession and Statements to Law Enforcement

(5) At trial, the jury was presented with Applicant's written confession and

statements to law enforcement.2 Applicant's trial counsel filed a motion to

suppress that confession and Applicant's statements to law enforcement. The

trial court denied Applicant's motion and entered findings of fact and

conclusions of law with respect to the voluntariness of Applicant's statements.

( 6) The Texas Court of Criminal Appeals, which will ultimately decide the present

case, held that Applicant's confession and his statements to law enforcement

were voluntary and were not the product of a violation of his state or federal

constitutional or statutory rights; and therefore, the trial court did not err in

denying Appellant's motion to suppress. Andrus v. State, No. AP-76,936 (Tex.

Crim. App., delivered March 23, 2016).

(7) During one conversation with law enforcement, after he was properly

3

Mirandized, Applicant described killing the first victim in this case by saying,

"Boom, I shot him." Applicant continued:

I shot him. He was about to pull a pistol out on me. It was life or death

with him. If I'd have turned around and started running, I would have

been dead --which I am now, don't get me wrong, but -so, I ran

towards -out going towards, back towards my house, and people, I

guess they heard the gun shots. So, as I came in front of their car, they

sped up and tried to hit me with their car. They tried to run me over.

So, I started shooting through their windshield, and then I just took

out running. And you know that's the honest to God truth.

See HCEH RRlO: State's Exhibit HC19. 4

2

In addition to his statements and written confession, after returning to Fort Bend County,

Applicant helped the police locate his g1m, a .380 automatic, as well as a shovel Applicant used

to conceal the gun. Three live rounds were still in the gi.m 's eight-round magazine with one

round in the chamber. Investigators recovered four spent bullets from the crime scene that

matched the rounds recovered from the gun used to kill the victims in this case. Andrus v. State,

No. 76,936 (Tex. Crim. App., delivered March 23, 2016).

3

Miranda v. Arizona, 384 U.S. 436 (1966).

4

The Reporter's Record of the Habeas Corpus Evidentiary Hearing will be referred to as

"HCEH."

2

App037

(8) The Texas Court of Criminal Appeals held further that the evidence in this case

is legally sufficient to support Applicant's conviction because "aside from the

confessions, the evidence included eyewitness testimony, video surveillance,

and Andrus's flight after committing the crime." Andrus v. State, No. AP76,936 (Tex. Crim. App., delivered March 23, 2016).

Applicant's Claims

Each of Applicant's claims will be addressed in the order in which it was

presented in Applicant's Petition for Writ of Habeas Corpus filed March 4, 2016.

As a preliminary matter, this Court recognizes that to prevail upon a postconviction petition for a writ of habeas corpus, an Applicant bears the burden of

proving, by a preponderance of the evidence, facts that entitle him to relief. Ex

parte Morrow, 952 S.W.2d 530, 534-35 (Tex. Crim. App. 1997).

(9)Applicant's first claim is as follows:

"TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL

IN FAILING TO CONDUCT A REASONABLE INVESTIGATION AND IN

THEIR PRESENTATION OF AVAILABLE MITIGATING EVIDENCE."

(a) In Wiggins v. Smith, 539 U.S. 510 (2003), the United States Supreme Court held

that the failure to present mitigating evidence in a death penalty case is

unreasonable where the record reflects that trial counsel did not conduct a

thorough investigation into the defendant's background and cited the ABA

Standards for Criminal Justice. Wiggins v. Smith, 539 U.S. 510, 522 (2003).

(b) The Supreme Court emphasized in Wiggins that the question is not whether

counsel should have presented a mitigation case. Rather, the focus is on whether

the investigation supporting trial counsel's decision not to introduce mitigating

evidence was itself reasonable. Wiggins v. Smith, 539 U.S. 510, 523 (2003).

(c) Specifically, in Wiggins, trial counsel's assistance was found to be ineffective

where they failed to investigate and present mitigating evidence regarding the

defendant's abusive childhood. Wiggins v. Smith, 539 U.S. 510, 517 (2003).

(d)At the hearing on Applicant's Petition for Habeas Corpus relief, James Sidney

Crowley testified that he was appointed to represent Applicant in this case on

3

App038

February 17, 2009. HCEH RR2: 172.

(e) Crowley testified that the first time he visited Applicant in jail was on October

4, 2009 and only visited him a total of six times prior to trial. HCEH RR2: 183,

185.

(f) Crowley agreed that between February 17, 2009, and October 4, 2009, he did

not visit Applicant in jail to admonish him that his behavior while incarcerated

could be used against him at the punishment of his capital murder trial. HCEH

RR2: 186.

(g)Crowley agreed further that he was not aware that during February 17, 2009,

and October 4, 2009, Applicant attempted suicide, smeared blood on the walls

of the jail, and engaged in altercations with jail personnel. HCEC RR2: 188-89.

Crowley stated that he did not believe he needed to investigate the foregoing

issues and did not have a mitigation specialist who could have investigated

those issues. HCEH RR2: 189.

(h) Crowley admitted that he did not investigate why Applicant was confined to a

padded cell for sixty-two days in the Fort Bend County Jail or why he was

administered the medications Thorazine and Seroquel. HCEH RR3: 78.

(i) Crowley acknowledged that the first time he had Applicant evaluated by a

mental health professional, Dr. Jerome Brown, was "in 2012 sometime."

HCEH RR2: 191.

(j) Crowley testified that Amy Martin, a mitigation specialist, was appointed in

2010 after second chair counsel, Jerome Godinich, recommended her. HCEC

RR2: 197. However, Crowley never asked Martin to prepare a mitigation

packet. HCEH RR2: 198.

(k)In fact, Crowley asked during the hearing on Applicant's Petition for Writ of

Habeas Corpus, "What do you mean by a mitigation packet?" and indicated his

understanding that a mitigation packet was "something that you give the district

attorney's office." HCEH RR2: 199.

(I) Crowley testified that at the time Martin and Godinich withdrew from this case

in January of 2012, no experts had been retained despite the fact that trial was

set to begin on October I, 2012. HCEH RR2: 212.

4

App039

(m) Crowley agreed that as of January of 2012, he had only put in five hours of

work on Applicant's case and that no one was attempting to define mitigation

themes or determine how to advocate for a life sentence on behalf of Applicant.

HCEH RR2: 212.

(n) Crowley agreed further that between January of2012 and June of 2012, he had

no second chair counsel and no mitigation expert in this case. HCEH RR3: 3738.

(o) Crowley testified that he did not conduct any independent investigation into

any of the extraneous offenses alleged by the State during the punishment phase

of trial and did not test the veracity of any of the extraneous offense evidence

offered by the State, despite Applicant's repeated assertion that he did not

commit at least one of the extraneous offenses. HCEH RR3: 64-66.

(p) Crowley acknowledged that he received infonnation from Martin that

Applicant was diagnosed with a serious mental illness when he was ten or

eleven years old, but did not retain an expert to investigate that mental illness.

HCEHRR3: 71.

(q) Crowley learned that Applicant received medication for mental health issues as

a child but did not consult a mental health or medical expert to investigate why

Applicant received the medication or its affects. HCEH RR3: 73.

(r) Crowley stated that although records from the Texas Youth Commission

indicated Applicant had problems at home, Crowley did not investigate what

those problems were. HCEH RR3: 73-74.

(s) Crowley testified that he did not investigate anything traumatic in Applicant's

background except to speak to Applicant and his mother. HCEH RR3: 88.

However, Crowley did not speak with Applicant's mother until she was

subpoenaed to come to Court. HCEH RR3: 88.

(t) Crowley testified that he did not conduct any independent investigation into

Applicant's mother's version of Applicant's childhood even after Applicant

informed Crowley his mother did not testify truthfully at trial. HCEH RR3: 95.

(u) Crowley testified that he did not have any extensive conversations with

Appellant's father, Mike Davis, before he testified and in fact, it was the State

who brought Davis to the courthouse to testify. HCEH RR3: 98.

5

App040

(v) Crowley called James Martins, a Fort Bend County Jailer, to testify during the

punishment phase of trial, but met with him for the first time during a break in

the middle of trial. HCEH RR3: 99. Martins then testified that Applicant may

suffer from Antisocial Personality Disorder which, Crowley agreed, was not

mitigating. HCEH RR3: 102-03.

(w) Crowley agreed that he retained psychiatrist and pharmacologist Dr. John

Roache in late August of 2012, 5 two months prior to the commencement of voir

dire in this case. HCEH RR3: 103.

(x) Crowley agreed further that Dr. Roache was not given a mitigation report,

memos of interviews with family members or any information from a

mitigation specialist, though he regularly relies on that information to render an

opinion. HCEH RR3: 103-04.

(y) Crowley acknowledged that Dr. Roache only met with Applicant once, just

days before voire dire began, and Crowley took no steps to prepare Applicant

for that meeting. HCEH RR3: 105.

(z) When asked if Dr. Roache did a psychological evaluation of Applicant,

Crowley responded, "No." HCEH RR3: 110. Crowley responded further that

although Dr. Roache was the lone expert that testified at trial, Crowley did not

retain him to perform a psychological evaluation. HCEH RR3: 110.

(aa) Crowley testified that he did not investigate Applicant's neighborhood or his

childhood experiences. HCEH RR3: 116.

(bb) Crowley testified that he did not investigate any of the facts of the underlying

offense that resulted in Applicant's incarceration at the Texas Youth

Commission. HCEH RR3: 119-20.

(cc) Crowley testified that despite the widely-known scandal concerning the Texas

Youth Commission, which occurred prior to the trial of this case, Crowley did

not consult an expert regarding the Texas Youth Commission. HCEH RR3:

122-23.

5

The record reflects "August 2002, late August." HCEH RR3: 103). This appears to be either a

typo by the Court Reporter or an accidental misstatement by Applicant's attorney. The context is

clear that the time period referred to was late August of 2012.

6

App041

(dd) Crowley testified that he did not interview Applicant's brother, Torad Andrus;

his sister, Tafarrah Andrus; his sister, NormaRaye Andrus; his stepmother,

Rosalind Cummings; his stepbrother, Jamontrell Seals; his mother's live-in

boyfriend, Sean Gilbow; or family friend Stephanie Gamer. HCEH RR3: 13536.

(ee) Crowley testified that he received a report from Dr. Brown, dated October 12,

2012, but claimed he did not receive that report until after trial was completed

because Dr. Brown sent the report by email to an old email address. HCEH

RR3: 255,257.

(ff) Crowley agreed that Dr. Brown's report indicated that Applicant was referred

for psychiatric evaluation in 2009 while in the Harris County Jail and received

psychiatric treatment. HCEH RR3: 258.

(gg) Crowley agreed further that Dr. Brown's report indicated that Applicant had

been prescribed psychoactive, antipsychotic, psychotropic and antidepressant

medications. HCEH RR3: 258, 260.

(hh) Crowley agreed further that Dr. Brown's report indicated that Applicant had

suffered auditory hallucinations since the age of fourteen years, suffers from

severe mental illness and had been diagnosed with schizophrenia. HCEH RR3:

261-64.

(ii) Crowley testified that he is not a mitigation specialist and after Martin left the

case, no one he spoke to about Applicant's case was a mitigation specialist.

HCEH RR3: 253. Crowley testified further that he had used mitigation

specialists in the past. HCEH RR3: 254.

(ij) Crowley stated that he expected to be compensated for his time testifying at

the habeas corpus evidentiary hearing. HCEH RR3: 254.

(kk) The Court finds portions of Crowley's testimony credible and portions of

Crowley's testimony not credible.

(11) Diana Olvera testified that she was appointed as second chair trial counsel on

June 7, 2012, four months before trial was set to begin. HCEH RR4: 12-13.

7

App042

(mm) Olvera clarified that she was not a mitigation specialist and that there was no

one in that role when she joined the defense team in this case or any time after.

HCEH RR4: 15. However, in her affidavit, Olvera stated that she was in charge

of presenting mitigating evidence at trial. HCEH RRl 1: State's Exhibit 2.

(nn) Olvera testified that she spoke to Cynthia Andrus, Applicant's mother, on a

few occasions and decided to call her as a witness at trial, but only interviewed

her in person on the day she testified. HCEH RR4: 16-17.

(oo) Olvera agreed that she had not met with any of Applicant's family members in

person before this case went to trial. HCEH RR4: 25-26.

(pp) Olvera testified that she did not investigate the facts of the underlying facts of

the present case and did not discuss the facts of the case with Applicant. HCEH

RR4: 23-24.

(qq) Olvera testified that she contacted the Texas Defender Service prior to trial to

get guidance about a potential expert on the Texas Youth Commission and its

internal problems, and was given the name of John Niland who referred her to

the appropriate expert. HCEH RR4: 30. However, Olvera never contacted the

expert. HCEH RR4: 31.

(rr) Olvera explained that Crowley was in charge of contacting and retammg

experts. HCEH RR4: 33. Olvera testified that it was not reasonable for

Crowley to wait to communicate with potential experts just before voir dire

began in October of 2012, especially considering he was appointed in February

of 2009. HCEH RR4: 34-35.

(ss) Olvera testified that she did not investigate the extraneous offense evidence

presented by the State at the punishment phase of trial. HCEH RR4: 37.

(tt) Olvera testified that Crowley was responsible for the strategic decisions in the

case, including the decision to proceed without a mitigation specialist. HCEH

RR4: 39.

(uu) The Court finds Olvera's testimony credible.

(vv) Fred Felcman, the Fort Bend County First Assistant District Attorney who

prosecuted this case, testified that in another capital murder case, Crowley

8

App043

admitted to misleading the trial court. HCEH RR5: 21-22.

(ww) Felcman testified that no one from the defense team ever approached him

with an offer that Applicant would plead guilty to the offense of capital murder

in exchange for a sentence of life without parole. HCEH RR5: 25.

(xx) The Court finds Felcman's testimony credible.

(yy) Will Harrell, Southern Regional Policy Counsel for the American Civil

Liberties Union, testified that he was appointed by Governor Rick Perry to

serve as the first Chief Independent Ombudsman over the Texas Youth

Commission. HCEH RR5: 112.

(zz) Harrell reviewed Applicant's Texas Youth Commission Records and

determined that Applicant was unfairly held accountable for failing to succeed

in a behaviorial program that has since been discredited and "scrapped" by the

State. HCEH RR5: 121. The result was that Applicant was sent to the Texas

Department of Criminal Justice when he should not have been. HCEH RR5:

121-22.

(aaa) Harrell detailed the scandal which caused the Texas Youth Commission to be

refonned by legislation. He explained that Applicant was incarcerated prior to

the legislative reform and was incarcerated at the Texas Youth Commission

while the events that were uncovered by the scandal were occurring. HCEH

RR5: 140-60.

(bbb) Harrell explained that Applicant was not properly diagnosed while at the

Texas Youth Commission because ofundertrained staff. HCEH RR5: 158.

(ccc) Harrell detailed Applicant's time of incarceration at the Texas Youth

Commission including the dangerousness of the facility he was placed in, the

lack of appropriate mental health care, the fact that he was unduly placed in

isolation for weeks at a time, and the fact that his prescribed medication was not

appropriate or adequately distributed. HCEH RR5: 161-63, 179-81.

(ddd) Harrell testified that Applicant's time at the Texas Youth Commission

damaged and traumatized him and that he got no meaningful assistance from

the program. HCEH RR5: 246.

9

App044

(eee) Harrell testified that he was not contacted by Applicant's trial counsel, but

would have been available to testify at trial in 2012 had he been contacted.

HCEH RR5: 192.

(fff) The Court finds Harrell's testimony credible.

(ggg) Sean Gilbow testified that he met Applicant when they were both living in

the Third Ward because his brother, Seneca Booker, was Applicant's mother's

boyfriend. HCEH RR6: 24, 29. Gilbow characterized the Third Ward as

"[d]rug infested," with prostitution, shootings, crime and violence. HCEH

RR6: 24-26.

(hhh) Gilbow testified that he learned how to obtain and sell drugs from

Applicant's mother, Cynthia Andrus, when he was nineteen years old. HCEH

RR6: 26-27, 35-36. Applicant was ten years old at this time. HCEH RR6: 37.

(iii) Gilbow testified that several other adults used and sold drugs around

Applicant when he was a child. HCEH RR5: 39-40.

(jjj) Gilbow explained that when Applicant's mother was not at home, she would

leave Applicant in charge of his many siblings, including his special needs

brother. HCEH 6: 41-42. Specifically, Applicant cooked, cleaned, made sure

his siblings did their homework and made sure they went to school. HCEH

RR6: 42.

(kkk) Gilbow testified that Applicant and his family later moved to Mission Bend,

but the same problems existed there as in the Third Ward. HCEH RR6: 46-47.

In addition, Applicant and his siblings were exposed to gang activity. HCEH

RR6: 47.

(lll) When Applicant was released from prison, he went to live with Gilbow;

Gilbow's wife, Phyllis Garner; and Garner's daughter. HCEH RR6: 49.

(mmm) Gilbow testified that Applicant was respectful, cooked meals, and "cleaned

up" when he lived with Gilbow. HCEH RR5: 49.

(nnn) Gilbow visited Applicant prior to the trial in this case, but was never

contacted by Applicant's trial counsel. HCEH RR5: 50. Gilbow testified that

he would have talked to trial counsel had they contacted him and would have

10

App045

testified at trial if asked. HCEH RR5: 50-51.

(ooo) The Court finds Gilbow's testimony credible.

(ppp) Phyllis Gamer testified that she is a field staff supervisor for Girling

Community Care and that she and Gilbow have lived together for fourteen

years. HCEH RR6: 75-76.

(qqq) Garner testified that she met Applicant when he was sixteen years old

through Gilbow because Gilbow's brother, Seneca Booker, was Applicant's

mother's boyfriend. HCEH RR6: 79-80.

(rrr) At the time Garner met Applicant, he and his family were living in Public

Assistance Housing in Mission Bend, an area that was infested with drugs and

gangs. HCEH RR6: 83.

(sss) Garner testified that Applicant's mother, Cynthia Andrus, supported herself

and her children by selling drugs and prostitution. HCEH RR6: 85-86. Cynthia

also used drugs in front of her children. HCEH RR6: 88-89

(ttt) Gamer explained that Applicant took care of his brothers and sisters by getting

them dressed and ready for school, making sure they got to bed on time, and

watching out for his brother, Torad, who had special needs. HCEH RR6: 889.

(uuu) Garner explained further that on their days off, she and Gilbow would take

Applicant to the movies or to get a haircut, and then Gamer would cook

Applicant his favorite meal, breakfast, for dinner. HCEH RR6: 90. During

those visits, Applicant was "laughing, talking, smiling and just being a kid"

because he did not have the responsibilities he had at home. HCEH RR6: 91.

(vvv) Garner testified that Applicant came to live with her and Gilbow when he

was released from prison. HCEH RR6: 95. Applicant abided by the rules of the

house and did his assigned chores. HCEH RR6: 96.

(www) Garner testified that no one from Applicant's trial team ever contacted her

but she would have spoken to them if they had and she would have testified at

trial if asked. HCEH RR6: 100.

(xxx) The Court finds Garner's testimony credible.

11

App046

(yyy) Dr. Scott Hammel, a clinical psychologist testified that he was formerly

employed at the Texas Youth Commission. HCEH RR6: 127. Dr. Hammel

interviewed Applicant on three occasions, spoke to his family members and

reviewed relevant records. HCEH RR6: 130.

(zzz) Dr. Hammel testified that his evaluation revealed that Applicant suffered

physiological changes to his brain as a result of trauma in his childhood. HCEH

RR6: 168. Specifically, Dr. Hammel testified that Applicant was exposed to

violence, death, severe emotional neglect, substance abuse, domestic violence

and distrust. HCEH RR6: 168-69.

(aaaa) According to Dr. Hammel, the trauma Applicant suffered stunted his

emotional development. HCEH RR6: 181.

(bbbb) Dr. Hammel detailed Applicant's social history including his relationship to

his relatives, the circumstances of his neighborhood, the incarceration of family

members, and the violence and drug use in Applicant's family. HCEH RR6:

169-215.

(cccc) Dr. Hammel explained that his evaluation revealed that Applicant was

exposed to trauma in such a way that he exhibits post-traumatic-stress-disorder

symptoms and suffers from mood disorder. HCEH RR7: 52.

(dddd) The Court finds Dr. Hammel's testimony credible.

(eeee) Dr. Roache submitted an affidavit, which the Court finds credible, in which

he explains:

"Based on my prior experiences consulting and testifying in capital cases, I was

struck by the extent to which Mr. Crowley appeared unfamiliar or naive with

issues relating to brain development, drug addiction, and other such mitigation

issues relative to other capital attorneys I have worked with. During my

testimony, Mr. Crowley seemed to struggle to provide direction while I was on

the stand. Also, following a rather rough cross-examination by the prosecutor,

who made mocking comments about my testimony, Mr. Crowley seemed to be

at a loss to ask follow up questions to address the prosecution's damaging

statements. Another part of my involvement in the Andrus case that stuck out to

me was that Mr. Crowley asked me to speak to the prosecution prior to my

testimony. Mr. Crowley told me that the prosecutor wanted to know the factual

basis of my intended testimony. I found this to be an unusual request based on

12

App047

my prior capital case experience. During the phone call, I was very

uncomfortable with the extent to which the prosecutor wanted to go broadly

into the subject of my testimony. Our conversation was certainly not limited

merely to my own qualifications to testify." HCEH RR13: Applicant's Exhibit

6.

(ffff) Dr. Brown submitted an affidavit, which the Court finds credible, in which

he explains he was contacted by Crowley in September of 2012 to perform a

psychological evaluation of Applicant. Dr. Brown was provided only collateral

information upon which to perform his evaluation. Dr. Brown visited Applicant

on September 20, 2012, and submitted a report to Crowley on October 12,

2012. Dr. Brown was never asked to testify although he was available to do so.

HCER RR13: Applicant's Exhibit 2.

(gggg) Dr. Michael Lindsey, a clinical psychologist, submitted an affidavit, which

the Court finds credible, in which he explains that he performed a psychological

evaluation on Applicant and considered Applicant's criminal history records,

education records, medical records, jail records and affidavits from Applicant's

family and friends. Dr. Lindsey also met with Applicant over the course of two

days, February 12-13, 2015 at the Texas Department of Criminal Justice. Dr.

Lindsey offered his opinion that Applicant suffered from inadequate childhood

development which produced "strongly mitigating circumstances," in

Applicant's case including "overall deprivation of a nurturing childhood, his

parental abuse and neglect, witnessing violence and trauma, the lack of

adequate supervision and guidance. Inadequate stimulation for his brain for

learning. and multiple factors leading to substance abuse and misconduct, his

cognitive and psychological development is unquestionably compromised and

is unquestionably compromised and less that of an adult." Dr. Lindsey states

he was available to testify at Applicant's trial but was not contacted by

Applicant's trial counsel. HCEH RRl3: Applicant's Exhibit 5.

(hhhh) Jerome Godinich submitted an affidavit, which the Court finds credible, in

which he explains that he was appointed as second chair in this case but

withdrew in 2012 because the case was not ready to be tried. HCEH RR13:

Applicant's Exhibit 27. Specifically, he had a "lack of confidence" in

Crowley's "willingness to handle the case in the manner it needed to be."

HCEH RR13: Applicant's Exhibit 27.

(iiii) Amy Martin submitted an affidavit, which the Court finds credible, in which

she explains she was appointed as a mitigation specialist on July 19, 2010 but

13

App048

was told by Crowley that no mitigation packet was needed because he was

awaiting the State's confirmation that they would accept an offer of life without

parole. HCEH RR13: Applicant's Exhibit 28.

(jjjj) Martin informed Crowley he needed a juvenile development expert, a prison

classification expert, a Texas Youth Commission Expert, and a medical

professional. HCEH RR13: Applicant's Exhibit 28.

(kkkk) Martin also informed Crowley that he needed to interview Applicant's

family, friends and teachers. HCEH RR13: Applicant's Exhibit 28.

(1111) Martin ultimately withdrew from the case because in her opinion, it was not

ready to be tried. HCEH RRl3: Applicant's Exhibit 28.

(mmmm) Torad Davis, Cynthia Booker, Latoya Cooper, Sade Scroggins,

Jamontrell Seals, Kailyn Williams, and NormaRaye Williams, all submitted

affidavits, each of which, the Court finds credible. HCEH RRl3: Applicant's

Exhibits 9-18. The affidavits provide mitigating information which could have

been presented at the punishment phase of Applicant's trial. HCEH RR13:

Applicant's Exhibits 9-18.

The Court finds and concludes that in the present case, there was ample

mitigating evidence which could have, and should have, been presented at the

punishment phase of Applicant's trial. Wiggins v. Smith, 539 U.S. 510, 522

(2003).

(11111111)

( 0000) The

Court finds and concludes that relevant, available, and persuasive

mitigating evidence was not presented at Applicant's trial because his lead trial

counsel failed to conduct a thorough investigation into Applicant's background.

Wiggins v. Smith, 539 U.S. 510,522 (2003).

(pppp) The Court finds and concludes that lead trial counsel's decision not to

introduce mitigating evidence was unreasonable. Wiggins v. Smith, 539 U.S.

510, 523 (2003).

(qqqq) The Court finds and concludes that just as in Wiggins, Applicant's lead trial

counsel was ineffective in failing to investigate and present mitigating evidence

regarding the defendant's abusive and neglectful childhood. Wiggins v. Smith,

539 U.S. 510,517 (2003).

14

App049

(rrrr) The Court finds and concludes that Applicant's lead trial counsel was

ineffective in failing to investigate and present all other mitigating evidence,

including, but not limited to: mental health history, his incarceration at the

Texas Youth Commission, the scandal at the Texas Youth Commission,

educational history, the circumstances of Applicant's child development,

Applicant's family history, and the diagnosis of serious mental illness, which

was available at trial, as detailed above. See Wiggins v. Smith, 539 U.S. 510,

523 (2003).

(ssss) The Court finds and concludes that Applicant's lead trial counsel was

ineffective in failing to retain the necessary experts to investigate and present all

available mitigating evidence at the punishment phase of Applicant's trial. See

Wiggins v. Smith, 539 U.S. 510, 523 (2003).

(tttt) The Court finds and concludes that Applicant is entitled to Habeas Corpus

Relief with respect to his first claim. See Wiggins v. Smith, 539 U.S. 510, 523

(2003).

(10)

Applicant's second claim is as follows:

"ANDRUS'S DUE PROCESS RIGHTS WERE INFRINGED WHEN THE JURY

WAS INFORMED ANDRUS WAS WEARING PHYSICAL RESTRAINTS

DURING THE PUNISHMENT PHASE OF TRIAL."

(a) In Deck v. Missouri, the United States Supreme Court held that while

shackling of a defendant during trial is inherently prejudicial because it

infringes upon the presumption of innocence, due process is only implicated

when the jury can see the restraints. Deck v. Missouri, 544 U.S. 622, 628

(2005); Bell v. State, 415 S.W.3d 278, 281-82 (Tex. Crim. App. 2013). The

Deck Court was clear that it is not the mere shackling alone, but rather the

jury's perception of the shackles, that undermines a defendant's presumption

of innocence. Bell, 415 S.W.3d at 281-82. If it is determined beyond a

reasonable doubt that shackling the defendant did not contribute to the

conviction or punishment, relief is not justified. Id. at 284.

(b) In the present case, virtually all of the jurors and alternates filed affidavits

with respect to Applicant's second claim.

(c) All but one juror either did not remember when they realized Applicant was

constrained or remembered that it was during the punishment phase when

15

App050

they were apprized that Applicant was wearing restraints. See HCEH RRl 0:

State's Exhibits 3-12; RR13: Applicant's Exhibits 19, 24.

(d) Applicant concedes the bailiff did not inform the jury that Applicant was

restrained until after he had been found guilty and before the punishment

phase. Applicant's writ at 80.

(e) All of the jurors that submitted affidavits averred that the fact that Applicant

was shackled had no effect on their verdict. See HCEH RRl0: State's

Exhibits 3-12; RR13: Applicant's Exhibits 19, 24.

(f) As such, Applicant is not entitled to relief on his second claim for habeas

corpus relief. Deck, 544 U.S. at 628; Bell, 415 S.W.3d at 284.

(1 l)Applicant's third claim is as follows:

"TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE

POTENTIAL BATSON ERROR."

(a) To prove a claim of ineffective assistance of counsel, an Applicant must

show that his attorney's performance was deficient and that as a result of that

performance, the outcome of his trial would have been different. Strickland

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

(b) The Texas Code of Criminal Procedure prohibits the use of peremptory

challenges to exclude prospective jurors on the basis of race. TEX. CODE

CRIM. PRO. Art. 35.261. Additionally, striking a prospective juror on the

basis of race violates the equal protection guarantees of the United States

Constitution. Batson v. Kentucky, 476 U.S. 79 (1986).

(c) Crowley testified that he did not make a Batson6 challenge because he did

not feel a prima facie case for striking minority jurors had been made.

HCEH RR3: 187.

(d)Olvera testified, and included in her affidavit, her opinion that during the

jury selection process, she never got the impression the State was purposely

striking jurors based on race, so the defense did not lodge any Batson

challenges. HCEH RR4: 125.

6

Batson v. Kentucky, 476 U.S. 79 (1986).

16

App051

(e) Felcman testified that "not one" of the peremptory strikes against a minority

venire member was racially motivated. HCEH RR5: 49.

(f) Using his notes and the answers to Juror Questionnaires, Felcman then

offered race neutral reasons for the minority jurors he used peremptory

strikes on. HCEH RR5: 51-78.

(g)Based on this record, Applicant is unable to show his attorney's performance

was deficient or that but for counsel's allegedly deficient performance, the

See Strickland v.

outcome of his trial would have been different.

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

(12)Applicant's fourth claim is as follows:

"TRIAL COUNSEL WAS INEFFECTIVE FOR CONCEDING THE FIRST

SPECIAL ISSUE."

(a) To prove a claim of ineffective assistance of counsel, an Applicant must

show that his attorney's performance was deficient and that as a result of that

performance, the outcome of his trial would have been different. Strickland

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

(b) The complained-of argument is as follows:

Let's go the Question 1. It's that "future danger'" question. Remember,

we talked about it. Is there's a probability --do you find from the

evidence beyond a reasonable doubt that there's a probability that the

defendant would commit criminal acts of violence that would

constitute a continuing threat to society? You've heard all kinds of

evidence, based upon that, to help you - - aid you in answering this

question. You know, I told you all along, the guilt or innocence

argument ~I'm not going to try to snow the jury. You've heard

evidence, even from some of our own witnesses, that Mr. Andrus was

probably a violent kind of guy. Okay? That's kind of a double-edged

sword to put on evidence. Hopefully, you know, our case, you have to

take the good with the bad. You've heard all of this evidence,

basically what happened in the jail and TYC. There is probably a good

probability that you're going to answer this question yes.

17

App052

(c) At the hearing on Applicant's Petition for Writ of Habeas Corpus, Crowley

testified that his statement was not, in fact, a concession, but rather a

strategy in focusing on mitigation. HCEC RR3: 83.

(d) The Court finds and concludes that Crowley's statement was the product of

trial strategy to focus on mitigation and gain credibility with the jury. While

not the desired strategy of all, it is still, a plausible strategy. Therefore,

Applicant is unable to show his counsel's performance was deficient.

Further, Applicant is unable to show the outcome of the punishment phase of

his trial would have been different had Crowley not made the complained-of

statement. 7 See Strickland v. Washington, 466 U.S. 668 (1984).

(13)Applicant's fifth claim is as follows:

"ANDRUS'S DEATH SENTENCE WAS ARBITRARILY AND CAPRICIOUSLY

ASSIGNED

BASED

ON

THE

JURY'S

ANSWER

TO

THE

UNCONSTITUTIONALLY VAGUE FIRST SPECIAL ISSUE."

(a) The United States Supreme Court and the Texas Court of Criminal Appeals

have previously considered challenges to the constitutionality of Texas Code

of Criminal Procedure Article 37.071, Section 2(b )(1) and have denied those

challenges. See Jurek v. Texas, 428 U.S. 262 (1976; Rayford v. State, 125

S.W.3d 521, 534 (Tex. Crim. App. 2003); Robinson v. State, 888 S.W.2d

473, 481 (Tex. Crim. App. 1994).

(b) The United States Supreme Court and the Texas Court of Criminal Appeals

have ruled contrary to Applicant's position and thus, he is not entitled to

habeas corpus relief with respect to his fifth claim. See Jurek v. Texas, 428

U.S. 262 (1976; Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App.

2003); Robinson v. State, 888 S.W.2d 473,481 (Tex. Crim. App. 1994).

7

As discussed above, the Court does find and conclude that Applicant is entitled to relief, and

specifically, a new punishment trial, because his cow1sel was ineffective in failing to investigate

and present mitigating evidence at the punishment phase of trial. Therefore, the resolution of this

claim is rendered moot assuming the Court of Criminal Appeals accepts this Court's

recommendation.

18

App053

(14)Applicant's sixth claim is as follows:

"TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PROPERLY

OBJECT TO INADMISSIBLE VICTIM IMPACT EVIDENCE AT THE

GUILT/INNOCENCE PHASE OF TRIAL."

(c) To prove a claim of ineffective assistance of counsel, an Applicant must

show that his attorney's performance was deficient and that as a result of that

perfonnance, the outcome of his trial would have been different. Strickland

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

(d) Applicant signed a written confession, made several statements to law

enforcement explaining how he killed the victims in this case, and led law

enforcement to the gun he used to kill the victims. In addition, there was

videotape and eyewitness evidence which inculpated Applicant.

(e)Based on the overwhelming evidence of Applicant's guilt, he is unable to

show that any alleged deficient performance on the part of his trial counsel

affected the jury's verdict at the guilt or innocence phase of trial or that but

for counsel's allegedly deficient performance, the outcome of the guilt or

innocence phase of his trial would have been different. Accordingly,

Applicant is not entitled to relief with respect to his sixth claim for habeas

corpus relief. See Strickland v. Washington, 466 U.S. 668 (1984).

(15)Applicant's seventh claim is as follows:

"TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESERVE THE

RECORD FOR APPEAL."

(a) To prove a claim of ineffective assistance of counsel, an Applicant must

show that his attorney's performance was deficient and that as a result of that

performance, the outcome of his trial would have been different. Strickland

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

(b )Applicant's claim is essentially that a number of bench conferences and offthe-record discussions were not recorded by the Court Reporter and that as a

result, he was prejudiced. However, Applicant does not set forth what the

bench conferences or off-the-record discussions consisted of and does not

demonstrate how he was prejudiced by their omission from the Reporter's

19

App054

Record of his trial.

(t) Because Applicant is unable to show the importance of any bench

conferences or off-the-record discussions, or how they impacted his trial, he

is unable to show the outcome of his trial would have been different had

they been included in the record. As such, Applicant is not entitled to relief

on his seventh claim for habeas corpus relief. See Strickland v. Washington ,

466 U.S. 668 (1984).

RECOMMENDATION

This Court recommends that Applicant be granted habeas corpus relief with

respect to the first claim set forth in his writ application. Specifically, the Court

recommends that Applicant be granted a new punishment trial because his lead

trial counsel was ineffective in failing to investigate and present mitigating

evidence. This Court recommends that Applicant's remaining claims be denied.

The District Clerk shall immediately transmit to the Court of Criminal

Appeals these findings and conclusions as provided by law.

The Clerk shall send a co y of this order to Applicant and the State of Texas.

~~

Hon. ames H. Shoemake

Sitting by Assignment

240th Judicial District Court

Fort Bend County, Texas

20

App055

Appendix E

App056

WR-84,438-01

No. WR-84,438-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 9/10/2020 7:03 PM

Accepted 9/11/2020 10:08 AM

DEANA WILLIAMSON

CLERK

IN THE TEXAS COURT OF CRIMINAL APPEALS

EX PARTE TERENCE TREMAINE ANDRUS,

Applicant.

On Application for Writ of Habeas Corpus in

Cause 09-DCR-051034-HC1

In the 240th District Court, Fort Bend County

BRIEF OF APPLICANT TERENCE TREMAINE ANDRUS

THIS IS A CAPITAL CASE.

Gretchen S. Sween

SBOT No. 24041996

gsweenlaw@gmail.com

P.O. Box 5083

Austin, Texas 78763-5083

(214) 557.5779

(512) 548.2089 (fax)

Counsel for Applicant

Oral Argument Requested

i

App057

IDENTIFY OF PARTIES AND COUNSEL

Applicant

Terence Tremaine Andrus

Counsel for Applicant

Gretchen S. Sween (SBOT No. 24041996)

gsweenlaw@gmail.com

P.O. Box 5083

Austin, Texas 78763-5083

Respondent

State of Texas

Counsel for Respondent

District Attorney Brian Middleton

ADA Charann Thompson

ADA Jason Bennyhoff Counsel of Record

jason.bennyhoff@fortbendcountytx.gov

Fort Bend County District Attorney’s Office

301 Jackson Street

Richmond, TX 77469

ii

App058

TABLE OF CONTENTS

Identify of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. iii

Statement Regarding Oral Argument ..................................................................... vii

Note Regarding Citations ........................................................................................ vii

Issue Presented ....................................................................................................... viii

Statement of the Case............................................................................................. viii

I.

Trial………………………………………………………………………..viii

II.

Post-Conviction .............................................................................................xv

Summary of Argument ..............................................................................................1

Argument ...................................................................................................................1

I.

Adopting this Court’s Previous Concurring Opinion’s Reasoning or

Conclusion Would Be Error. ...........................................................................3

The Concurring Opinion Was Based on an Incomplete and Inaccurate

View of the Record. .........................................................................................4

1. The Concurring Opinion did not consider the mitigating evidence

adduced in the habeas proceeding………………………………………5

2. The Concurring Opinion did not consider the affirmative damage done

by trial counsel’s terrible mitigation presentation………………………9

3. The Concurring Opinion mistakenly interpreted evidence of trial

counsel’s deficient performance as an example of mitigating evidence

adduced in post-conviction……………………………………………12

iii

App059

4. The Concurring Opinion did not account for how the State’s case-inaggravation could and should have been rebutted, as demonstrated in the

habeas proceeding………………………………………………………14

The Concurring Opinion Relied on a Misapprehension of Wiggins v.

Smith, as the Supreme Court Has Now Clarified. .........................................19

II.

The Supreme Court, in Applying Wiggins to the Facts of this Case, Has

Clarified How to Undertake a Strickland Prejudice Analysis and Strongly

Implies What the Result Should Be...............................................................20

III.

The Supreme Court’s Other Mitigation Jurisprudence Provides Robust

Guidance for Undertaking the Strickland Prejudice Analysis for a Wiggins

Claim..............................................................................................................25

The Prejudice Analysis Requires Contemplating What a Reasonable

Juror Might Have Done in Light of the New Evidence. ...............................25

B.

The Supreme Court’s Core Cases about Ineffective Assistance in the

Punishment Phase of Death-Penalty Cases Provide Further Guidance.........27

IV.

The Habeas Judge’s Prejudice Finding and Legal Conclusions, Amply

Supported by the Habeas Record, Should Be Adopted. ................................32

Prayer .......................................................................................................................36

Certificate of Compliance ........................................................................................38

Certificate of Service ...............................................................................................38

Appendix 1: Andrus v. Texas, 140 S.Ct. 1875 (2020)

Appendix 2: Habeas Court's Findings of Fact and Conclusions of Law

Appendix 3: Master Index of the Evidentiary Hearing Reporter's Record

iv

App060

INDEX OF AUTHORITIES

Cases

Abdul-Kabir v. Quarterman,

550 U.S. 233 (2007) .......................................................................................... 26

Ex parte Andrus,

2019 Tex. Crim. App. Unpub. LEXIS 81 (Tex. Crim. App. Feb. 13, 2019)

..................................................................................................................... passim

Andrus v. Texas,

140 S.Ct. 1875 (2020) ................................................................................ passim

Buck v. Davis,

137 S.Ct. 759 (2017) ......................................................................................... 31

Cooper v. Secretary,

646 F.3d 1328 (11th Cir. 2011) ......................................................................... 36

Louis v. Blackburn,

630 F.2d 1105 (5th Cir. 1980) ........................................................................... 34

McFarland v. Davis,

812 F. App’x 249 (5th Cir. 2020) ........................................................................ 4

McFarland v. State,

928 S.W.2d 482 (Tex. Crim. App. 1996) ............................................................ 4

Penry v. Lynaugh,

492 U.S. 302 (1989) .......................................................................................... 26

Porter v. McCollum,

558 U.S. 30 (2009) ..............................................................................9, 26, 30, 31

Ex parte Rodney Reed,

271 S.W.3d 698 (Tex. Crim. App. 2008) .................................................... 32, 33

Rompilla v. Beard,

545 U.S. 374 (2005) .................................................................................... 21, 26

Sears v. Upton,

561 U.S. 945 (2010) .............................................................................. 26, 27, 30

Strickland v. Washington,

v

App061

466 U.S. 688 (1984) ...................................................................................... 2, 34

United States v. Raddatz,

447 U.S. 667 (1980) .......................................................................................... 34

Walbey v. Quarterman,

309 F. App’x 795 (5th Cir. 2009) ...................................................................... 31

Wiggins v. Smith,

539 U.S. 510 (2003) ................................................................................... passim

Williams v. Taylor,

529 U.S. 362 (2000) .............................................................................. 20, 28, 29

Statutes

28 U.S.C. § 2254 .................................................................................................... 25

Tex. Code Crim. Proc. Art. 37.071 ......................................................................... 27

vi

App062

STATEMENT REGARDING ORAL ARGUMENT

Applicant Terence Tremaine Andrus respectfully requests oral argument. The

issue presented on remand involves one of the most fundamental and often litigated

issues in death-penalty cases: the proper way to assess the prejudice element of an

ineffective-assistance-of-counsel claim based on the failure to investigate and

present readily available mitigating evidence in a death-penalty case. The directive

on remand is that this Court undertake what the Supreme Court has described as a

“weighty and record-intensive analysis.” See Appendix 1: Andrus v. Texas, 140 S.Ct.

1875, 1887 (2020). The Supreme Court has instructed that this analysis requires

considering the State’s case-in-aggravation at trial, how that case-in-aggravation was

shaped by trial counsel’s deficient performance, the mitigation evidence presented

at trial, and the mitigation adduced in the habeas proceeding. Id. at n.7. Because of

the importance of the issue, the size of the habeas record, and the need to compare it

to the trial record shaped by trial counsel’s deficient performance, Applicant submits

that oral argument will promote an accurate view of dispositive facts and thus aid

this Court’s decisional process.

NOTE REGARDING CITATIONS

Below, “EHRR” refers to the Evidentiary Hearing Reporter’s Record from the

habeas proceeding; “RR” refers to the Reporter’s Record from the trial; “AppX”

refers to an exhibit offered by Applicant that was admitted into evidence during the

vii

App063

habeas evidentiary hearing and can be found in Volumes 10-41 of the EHRR. In

citations, the volume number is listed first with the page number last, e.g.: 3EHRR38

refers to Volume 3 of the EHRR at page 38. Appendices 1-3 are attached.

ISSUE PRESENTED

The Supreme Court of the United States has already found that the “untapped

body of mitigating evidence” amassed during the habeas proceeding was “simply

vast”—standing in stark contrast to the virtual absence of such evidence put before

the jury during the punishment phase of Terence Andrus’s death-penalty trial. For

this and other failures, the Supreme Court has held that trial counsel performed

deficiently. The only remaining issue for this Court to decide is:

Had the jury been privy to that “vast” “untapped body of mitigating

evidence,” is there a reasonable probability that at least one juror would

have struck a different balance in weighing the evidence for and against

a death sentence?

STATEMENT OF THE CASE

I.

TRIAL

In 2008, when Terence Andrus was 20 years-old, he was charged with two

counts of capital murder during a “bungled … carjacking in a grocery-store parking

lot while under the influence of PCP-laced marijuana.” Andrus, 140 S.Ct. at 1878.

Soon after his arrest, before meeting with any lawyer, Terence confessed to the crime

and then proceeded to assist law enforcement in recovering the gun and other

evidence. In addition to his confessions, he expressed his remorse and desire to

viii

App064

convey his regrets to the victims’ families. 1 The case was tried in Fort Bend County

in 2012. Trial counsel admitted that, during the four years between his appointment

and his client’s death-penalty trial, he did almost nothing related to either guilt or

punishment. 2EHRR186-89, 212. Counsel did not meet with his client or even

inform him that a lawyer had been appointed for the first eight months Terence was

held in a neighboring county’s jail (near where counsel lived and worked); counsel

met with his client outside of trial only six times during the entire four years of his

appointment. Appendix 2 at (d)-(e).

After a year, a second-chair attorney was appointed. He started meeting with

Terence, but then quit the case before trial. In his motion to withdraw, the second

chair informed the court that Terence was willing to plead guilty in exchange for a

sentence of life-without-parole. However, that plea offer was never acted upon.

2EHRR200-05; Appendix 2 at (ww). When the second chair withdraw, so did the

mitigation specialist who had worked briefly on the case. Both attested that virtually

no work had been done to prepare Terence’s case for trial when they left; and the

mitigation specialist was never replaced. AppX27; AppX28.

1

As the habeas judge noted: “In addition to his statements and written confession, after

returning to Fort Bend County, Applicant helped the police locate his gun, a .380 automatic, as

well as a shovel Applicant used to conceal the gun.” Appendix 2 at n.2; See also State’s X1-8

admitted into evidence during a pre-trial hearing on September 5, 2012.

ix

App065

When trial began, counsel was virtually inert during the guilt-phase trial

itself—waiving opening statement, conceding his client’s guilt in closing argument,

and complimenting State’s counsel on proving the elements of the offense. 38RR38;

45RR15-18. He told the jury that the trial would “boil down to the punishment

phase,” emphasizing “that’s where we are going to be fighting.” 45RR18. But, as

the Supreme Court has now held, that fight never came. Andrus, 140 S.Ct. at 1878.

During the punishment phase, the prosecution presented three days of

aggravating evidence, focusing on: (1) Terence’s juvenile record, including his file

from the former Texas Youth Commission (TYC), and (2) his misconduct in jail

while awaiting trial. Most of the jail incidents that were presented at trial had

occurred during the first eight months of Terence’s incarceration, over three years

before trial; but the State also presented eight different witnesses to describe a single

incident that had occurred in Fort Bend County several months before trial—without

any objection from defense counsel to its cumulativeness. 47RR& 48RR.

Additionally, the State featured testimony from Leonard Cucolo, who was an

administrator with the TYC. Cucolo testified for the State that, according to TYC,

Terence had not been rehabilitated when he was in the agency’s custody as a

teenager following an arrest for participation in an aggravated robbery as a sixteenyear-old; therefore, TYC had transferred him to the adult prison system to complete

his sentence. 48RR70-77. Defense counsel conducted no meaningful crossx

App066

examination of this witness (or of any other punishment-phase witness). Thus, the

jury did not learn of the massive scandals that had exploded into public view in 2008

exposing TYC’s systemic failures and rampant mistreatment of youth while Terence

was in TYC custody; nor did jurors hear that, by the time of trial, these scandals had

resulted in the appointment of a special ombudsman and, ultimately, a complete

overhaul of Texas’s juvenile justice system. 2

Initially, defense counsel’s own punishment-phase presentation consisted of

brief, largely false testimony from two witnesses: Terence’s mother, Cynthia Andrus

(who had to be subpoenaed to appear), and Terence’s biological father, Michael

Davis (who barely knew his son and was brought to court by members of the District

Attorney’s office). 49RR44-83; 50RR4-20. Their combined testimony, largely

developed through cross-examination, suggested that, despite a largely rosy

upbringing by a hard-working single mother, Terence had inexplicably turned to

crime. 3EHRR98. The defense then rested. 50RR20. After the judge asked if defense

counsel might have additional witnesses, the court recessed for a few days to give

the defense more time. 50RR20-21.

When the trial resumed, defense counsel presented three more witnesses who

largely added only to the State’s case-in-aggravation because of defense counsel’s

2

The habeas proceeding established that defense counsel had been told about the heavily

publicized TYC scandals and had been given the name of the TYC ombudsman (Will Harrell), but

counsel had taken no action to investigate. 3EHRR119; 4EHRR30-33.

xi

App067

lack of preparation. The defense put on only one expert, Dr. John Roach, a

pharmacologist whom counsel had failed to prepare and who had not been provided

with Terence’s social history or been put in touch with any of his family members.

As the Supreme Court noted, on the stand, Dr. Roach focused only “on the general

effects of drug use on developing adolescent brains” because defense counsel

struggled to ask relevant questions. Andrus, 140 S.Ct. at 1879. Dr. Roach was then

mocked on cross-examination by the State for having nothing specific or positive to

say about Terence, and defense counsel “seemed to be at a loss to ask follow up

questions to address the prosecution’s damaging statements.” AppX6; see also

51RR6-29.

Defense counsel then put a jail counselor on the stand whom counsel had met

once briefly during the break in trial. 51RR30. This jail employee had started

meeting with Terence during the 62 days he had spent confined in a padded cell in

Fort Bend County. Appendix 2 at (h). Counsel never asked why his client had been

confined in a padded cell; therefore, the jury did not hear about that situation or about

what that may have said about Terence’s mental health. 3EHRR78, 99. Instead, the

jail counselor testified, unhelpfully and inaccurately, that Terence had “‘started

having remorse’ … around the time the trial began.” Andrus, S.Ct. at 1879. In fact,

Terence had conveyed his remorse multiple times long before meeting the jail

counselor, including in a videotaped confession law enforcement had made soon

xii

App068

after the crime. That genuine expression of remorse was never shared with the jury.

Instead, the only confession, which was admitted during the guilt phase, was a

written statement read into the record by a law-enforcement witness, which did not

convey the sincerity evident in the video and in other recorded statements not

admitted into evidence at trial. 42RR10. Defense counsel made no attempt to offer

into evidence any excerpts from the many hours of recorded communications

between Terence and law enforcement, which included multiple expressions of

remorse and his efforts to cooperate.

Considering the ineffective defense punishment-phase presentation, Terence

decided to testify to express his remorse and to provide more truthful facts about his

childhood. 51RR45-56. Although he testified that he had been aware of his mother

selling drugs out of the house by the time he was six years-old, that he and his

siblings were often home alone, and that he first started using drugs regularly when

he was about fifteen, “all told, counsel’s questioning about Andrus’ childhood

comprised four pages of the trial transcript.” Andrus, 140 S.Ct. at 1879. Terence’s

testimony essentially aided the State’s punishment case because he was placed in the

position of having to contradict his parents’ false testimony. Most of his time on the

stand involved a hostile cross-examination, during which the prosecution referred to

him as a “sociopath.” 51RR68.

xiii

App069

In its initial closing argument, counsel for the State relied heavily on the

contention that Terence had resisted TYC’s benevolent attempts to rehabilitate him,

stating, falsely, that Leonard Cucolo, a TYC bureaucrat who had never met Terence,

had somehow played a personal role in his case and, quite remarkably, “crafted a

tailormade program” that he had simply rejected:

Leonard Cucolo is another representative from the Texas Youth

Commission. He told you that the juvenile system is different from the

adult system in that the legislature has mandated something unique to

the juvenile system. First priority of TYC, the juvenile system, is

protection of the community. Second is rehabilitation of the offender.

Leonard met with the defendant, sat down and talk with him, what the

expectations are, how to be successful, basically how to rehabilitate

yourself, and then crafted a tailormade program for the defendant. He

rejected it all. His rehabilitation was a failure. They already tried that.

What mitigating evidence is there that could outweigh what

we’ve already spoken up here? I submit to you there is nothing.

52RR31; see also 52RR12 (State’s counsel again insisting that TYC had attempted

to rehabilitate Terence and been unsuccessful). In fact, there is no support in the

record for the suggestion that Cucolo ever met Terence before testifying for the State

at his trial. See 5EHRR236 (explaining that Cucolo was an administrator who

engaged in file reviews in Austin and then traveled to county courts to testify). The

State’s portrait of TYC at trial was, as later demonstrated in the habeas proceeding,

a spectacular lie as the Supreme Court would later recognize. See 5EHRR143-47,

200 (TYC ombudsman testifying in habeas proceeding that: the only

rehabilitation/treatment “program” at TYC when Terence was in its custody was the

xiv

App070

“resocialization program,” which was not, as the State claimed, “tailormade” for

anyone but was a one-size-fits-all program; the person who developed that program

“was fired shortly after the conservator was appointed by Governor Perry;” and the

program was found to be an utter failure and scrapped in 2007—soon after Terence’s

release); see also Andrus, 140 S.Ct. at 1884. Yet defense counsel made no objection

at trial to the false testimony and misleading argument because he had done no

investigation.

Instead of challenging any aspect of the State’s punishment case, in his brief

closing, Terence’s counsel conceded that the State had proven the future

dangerousness special issue and referred specifically to the State’s TYC testimony

that he himself had failed to rebut: “You’ve heard all this evidence because what

happened in the jail and TYC. There is probably a good probability that you’re going

to answer this question yes.” 52RR36.

In its final closing, the State again invoked Terence’s TYC experience as a

reason to sentence him to death, along with repeatedly calling him a “sociopath.”

52RR37, 50.

The jury imposed a death sentence, and this Court affirmed on appeal.

II.

POST-CONVICTION

An initial habeas application, under Texas Code of Criminal Procedure, article

11.071, was filed on Terence’s behalf, and the State answered. Because the judge

xv

App071

who had presided at trial had since retired, the administrative judge assigned the

Honorable James Shoemake (hereafter “habeas judge”) to preside over postconviction proceedings in the 240th Judicial District Court. The habeas judge

designated issues of fact, material to the habeas claims, that needed to be resolved

by testimony during an evidentiary hearing. An eight-day evidentiary hearing was

then held. 2-9EHRR.

In addition to extensive evidence of deficient performance, voluminous

mitigating evidence was adduced in the habeas proceeding.

For example, sworn statements from eleven lay witnesses were admitted into

evidence, all of which were found credible and to contain powerful mitigating

information that could have been presented during the punishment phase of

Terence’s trial. See Appendix 2 at (mmmm) (finding affidavits of Torad Davis,

Cynthia Booker, Latoya Cooper, Sade Scroggins, Jamontrell Seals, Kailyn

Williams, and NormaRaye Williams credible and mitigating); see also AppX9-18;

AppX139; AppX142. Some lay witnesses also provided compelling live testimony

during the evidentiary hearing (Sean Gilbow and Phyllis Garner), explaining the

brutal circumstances of life in the drug-infested neighborhoods in which Terence

had grown up and the severe neglect he had sustained at home; his despair at having

his one, short-term father figure shot dead in the streets when he was twelve; his

exceptional protective actions toward his siblings; his mother’s long struggle with

xvi

App072

addiction and the criminal lifestyle that left her children to fend for themselves in a

chaotic and violent environment; Terence’s dogged attempts to find employment

after his release from prison at eighteen. See 6EHRR12-118.

Instead of the one, ill-prepared trial expert, the habeas proceeding featured

testimony from six experts whose opinions can briefly be summarized as follows:

• Dr. Julie Alonso-Katzowitz, psychiatrist with expertise in psychotropic

medication, described TYC’s misuse of psychotropic medications and the

likely adverse consequences for Terence and how his medications were

frequently changed in a way that could itself have had numerous adverse

consequences relevant to understanding his behavior while at TYC;

• Terence Campbell, expert with extensive experience with Houston’s Third

Ward neighborhood, described the tremendous disadvantages black children

like Terence had come up in a neighborhood where they are exposed at a very

young age to “high levels of crime, HIV and AIDS, and drug availability,”

where the schools have been chronically low-performing, and where poverty

levels are high;

• Dr. Tyina Steptoe, historian, outlined the role of racial discrimination in the

development and decline of Houston’s inner-city wards dating back to before

the Civil War and up through the 1980s when the crack epidemic arrived there

a few years before Terence was born in Third Ward;

• Will Harrell, former ombudsman for the Texas Youth Commission (TYC),

who had been appointed by former Governor Rick Perry to assess the agency

after it was wracked with scandals, explained the systemic failures uncovered

through his investigation, the absence of any legitimate rehabilitation or

mental health program when Terence was there, and its abuses that had

adversely impacted Terence who had a comparatively insignificant

disciplinary record in light of the practices that then characterized TYC;

• Dr. Michael Lindsey, child psychologist who reviewed extensive social

history records and met with Terence for a two-day assessment, provided a

scholarly overview of the adverse and well-established effects of pronounced

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childhood trauma on development and offered support for his opinion that

Terence’s life history reflected overall deprivation in childhood, extensive

trauma, the lack of adequate supervision and guidance, inadequate brain

stimulation. and “unquestionably compromised” cognitive and psychological

development;

• Dr. Scott Hammel, trauma specialist, social historian, and former TYC

psychologist, testified about his investigation of specific instances of

childhood trauma that Terence had experienced and how these experiences

had adversely affected him and contextualized his adult behavior. Dr.

Hammel also noted that even TYC’s central administration recognized that

there were problems with the mental health treatment that Terence was

receiving while in TYC custody and issued a directive to do a better job of

assessing, diagnosing, and treating him—but that directive was not followed.

Dr. Hammel also reported that, while saddled with symptoms of posttraumatic

stress disorder and untreated mental illness dating back to early childhood,

Terence received the same mistreatment when in the county jails—random

and potent doses of psychotropic medications and long stints in solitary

confinement, which exacerbated his condition and likely explain his problems

in jail. Based on his records review, Dr. Hammel also reported that, since his

2012 conviction, Terence had had virtually no misconduct write-ups and none

for violent conduct while in TDCJ custody, which Dr. Hammel attributed to

being taken off “many of the medications that were inappropriate” and finally

being “in a structured safe environment …. such “that his neuro system

appears to have dampened down and was not on such high alert and the initial

overwhelming distress had diminished by that time as well.”

See AppX1-5; 4EHRR200-46; 5EHRR103-247; 7EHRR5-185.

The habeas judge made no adverse credibility determinations as to any of

these witnesses. See Appendix 2.

The habeas proceeding also featured voluminous documentary evidence

admitted in support of Terence Andrus’s Wiggins claim. For example, to support

testimony about the traumatic environment in which he and his siblings had been

raised, records were admitted documenting the criminal history of the five different

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fathers of Cynthia Andrus’s five children and of some of the other adult males she

had brought into their lives. See, e.g., AppX122A at 3989-4002; AppX122B at 57945890; AppX122C at 2808-23, 2983-3049 (Damon Sias’s numerous arrests for drugs

and assaults, and convictions for family violence, injury to a child, and indecency

with a child); DX122B at 5856-59 (Damon Sias and Cynthia Andrus’s arrests for

family violence); AppX122A at 4008; AppX122B at 5892-5917, 5931-34;

AppX122C at 3602-3964 (Danyel Sims’ arrests for sexual assault, family violence,

and various convictions for drug-related and violent offenses); AppX122A at 4139;

AppX122B at 6138-45 (Norman Ray Williams’ convictions for cocaine possession

and multiple arrests for family violence); AppX122C at 3680-3802 (Orentherus Lee

Norman’s multiple convictions for drug-related offenses); AppX122A at 4153-58;

AppX122B at 6174-98 (Roderick Davis’s several drug-related arrests); AppX122C

at 3874-3939 (Michael Davis’s multiple drug-related convictions); AppX122C at

3807-3978 (Senecca Booker’s multiple drug-related convictions). The habeas

proceeding also established that, during Terence’s childhood, most of these men

either died violently or were only around briefly due to incarceration. 6EHRR20914.

Further, during two days of testimony, Dr. Scott Hammel, walked through the

specifics of multiple instances of clinically significant traumatic events in Terence’s

life (including untreated mental illness, murdered loved ones, sexual and physical

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abuse, addicted and incarcerated caregivers), illustrating those events with a family

genogram and detailed social history timeline. AppX129; AppX140. Dr. Hammel

explained how the social history was supported by a wide range of records that he

had reviewed and interviews he had personally conducted with multiple sources.

AppX122A; AppX140; 6EHRR118-227; 7EHRR5-156.

The evidence developed for the first time in the habeas proceeding, which the

habeas judge found credible, supported, inter alia, these reasons for considering a

sentence less than death:

• Terence was part of the third generation of the Andrus family to live in Third

Ward and to attend the under-resourced schools Frederick Douglass

Elementary, Ryan Middle School, and Jack Yates High School that were still

almost exclusively black when Terence attended them over a hundred years

after Jim Crow had come to Houston. Third Ward in the 1980s and 90s was

shaped by a legacy of racial segregation and urban blight; its historical

African-American community was one of the first places in the nation hit by

the arrival of cheap crack cocaine and illegal codeine transmogrified into a

street drug known as “lean,” “sizzurp,” and “drank”; the epidemics associated

with these drugs had already ravished Third Ward when Terence was born

there in the “Jefferson Davis Hospital,” an historically segregated facility for

black patients. By that time, most who could afford to, including most

legitimate businesses, had fled to the suburbs leaving behind a zone of

unbridled vice. AppX3; AppX13; AppX118; AppX94; AppX95; AppX97;

AppX98; AppX100-AppX107; AppX122A; AppX129; 3EHRR216-238;

5EHRR65-73.

• Terence’s unwed, teenage mother’s solution to providing for her children was

drug-dealing and prostitution—among the only options for earning money

then available in Houston’s Third Ward; all of the five different men who

sired the five Andrus children had extensive criminal histories and brought

rampant violence into the home including the father of Terence’s closest sister

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who raped her when she was a young child, causing her to be removed from

the home. AppX3; AppX8; AppX9; AppX18; AppX122A-AppX122C;

5EHRR37-40, 81-86, 197-98.

• Terence, as a very young child, took on the parent role towards his siblings,

including his older brother with special needs. While Terence struggled to

provide for his siblings, he was too young to know what he was doing, a

cir

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