Amicus Curiae Brief — Terence Tramaine Andrus, Petitioner v. Texas

No. 21-6001

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------TERENCE TRAMAINE ANDRUS,

Petitioner,

v.

TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Court Of Criminal Appeals Of Texas

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE

EIGHT MILLION STORIES AND

LONE STAR JUSTICE ALLIANCE

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------NICOLE S. LEFAVE

nlefave@littler.com

Counsel of Record

KELLI FUQUA

kfuqua@littler.com

ERIC VINSON

evinson@littler.com

LITTLER MENDELSON, P.C.

100 Congress Avenue

Suite 1400

Austin, Texas 78701

(512) 982-7250

Counsel for Amici Curiae

Eight Million Stories and

Lone Star Justice Alliance

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ......................................

i

TABLE OF AUTHORITIES .................................

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF THE ARGUMENT .....................

3

ARGUMENT ........................................................

5

I.

THE SCHOOL-TO-PRISON PIPELINE ...

6

A. Childhood Poverty Is a Predictor of

Entering the Pipeline ..........................

8

B. Students with Disabilities Are Disciplined Disproportionately ................... 10

C. Male Students Experience a Disproportionate Amount of Discipline ......... 11

D. Students of Color Experience a Disproportionate Amount of Discipline .... 12

E. Success Is Possible with Support ........ 13

II.

THE EVIDENTIARY HEARING RECORD IS REPLETE WITH COMPELLING

MITIGATION EVIDENCE RELATED TO

MR. ANDRUS’ UPBRINGING THAT THE

CCA WHOLLY OVERLOOKED ................ 14

A. Testimony from the Writ Hearing Provides Context the CCA Did Not Consider

Concerning Mr. Andrus’ Impoverished Childhood ................................... 15

B. Testimony from the Evidentiary Hearing

Contextualizes Mr. Andrus’ Experience

in the Texas Youth Commission .......... 20

ii

TABLE OF CONTENTS—Continued

Page

C. Testimony from the Evidentiary Hearing Demonstrates Mr. Andrus Was Capable of Redemption ............................ 22

III.

PREJUDICE IS APPARENT FROM THE

RECORD BEFORE THIS COURT ............ 22

CONCLUSION..................................................... 26

iii

TABLE OF AUTHORITIES

Page

CASES

Andrus v. Texas, 140 S. Ct. 1875 (2020) ... 4, 5, 6, 15, 25

Ex Parte Andrus, 622 S.W.3d 892 (Tex. Crim.

App. 2021) ..................................................................4

Strickland v. Washington, 466 U.S. 668 (1984) ........ 4, 5

Wiggins v. Smith, 539 U.S. 510 (2003) ................... 6, 25

STATUTES

TEX. CODE CRIM. PROC., Art. 37.071, § 2(e)(1) ..............6

OTHER AUTHORITIES

Brian J. Fahey, Note, A Legal-Conceptual Framework for the School-to-Prison Pipeline: Fewer

Opportunities for Rehabilitation for Public

School Students, 94 Neb. L. Rev. 764 (2016) ............7

Jason P. Nance, Dismantling the School-toPrison Pipeline: Tools for Change, 48 Ariz. St.

L.J. 313 (2016) ................................................. 7, 9, 13

Laura R. McNeal, Managing Our Blind Spot:

The Role of Bias in the School-to-Prison Pipeline, 48 Ariz. St. L.J. 285 (2016) ..............................12

Leah Aileen Hill, Disrupting the Trajectory: Representing Disabled African American Boys in

a System Designed to Send Them to Prison, 45

Fordham Urb. L.J. 201 (2017) ............. 7, 9, 10, 11, 12

iv

TABLE OF AUTHORITIES—Continued

Page

Logan J. Gowdey, Note, Disabling Discipline: Locating A Right to Representation of Students

with Disabilities in the ADA, 115 Colum. L.

Rev. 2265 (2015) ............................................... 8, 10

Melina Angelos Healey, Montana’s Rural Version of the School-to-Prison Pipeline: School

Discipline and Tragedy on American Indian

Reservations, 75 Mont. L. Rev. 15 (2014) .............. 6, 8

Pedro Noguera, A Broader and Bolder Approach

Uses Education to Break the Cycle of Poverty,

93 Phi Delta Kappan 8 (2011) ................................10

Tyina Steptoe, Houston Bound: Culture and Color

in a Jim Crow City (2015) ......................................15

U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS,

2013-2014 CIVIL RIGHTS DATA COLLECTION: A

FIRST LOOK (2016), https://www.ed.gov/about/

offices/list/ocr/docs/2013-14-first-look.pdf .... 10, 12, 13

Yael Cannon et al., A Solution Hiding in Plain

Sight: Special Education and Better Outcomes

for Students with Social, Emotional, and Behavioral Challenges, 41 Fordham Urb. L.J.

403 (2013) ................................................................11

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INTEREST OF AMICI CURIAE1

Fueled by zero-tolerance policies and in-school policing, the so-called “school-to-prison pipeline” sweeps

a disproportionate number of young men from low-income families from their schools and communities directly into the criminal justice system. Because amici

curiae filing this brief endeavor to reduce or eliminate

this school-to-prison pipeline, they have a compelling

interest to ensure that every juror in a capital case receives a complete picture of the individual history of

the defendant before them to appropriately consider

whether that history mitigates punishment. The amici

curiae believe that allowing jurors to hear and weigh

the effects of an individual’s experience in the schoolto-prison pipeline necessarily reduces the reach and effect of this vicious cycle.

Petitioner Terence Tramaine Andrus (“Mr. Andrus”) was convicted of committing the crime for which

he was sentenced to death, but he did not commit his

crime in a vacuum. Instead, Mr. Andrus was molded by

the tangible effects of systemic injustices stretching

back hundreds of years, culminating in a frighteningly efficient school-to-prison pipeline that vilifies

The parties received timely notice and have consented to

the filing of this brief. This brief was authored in whole by the

undersigned counsel. No fee has been paid or will be paid for preparing this brief, and no person or entity other than the amici and

their counsel made any monetary contribution intended to fund

the preparation or submission of this brief. Supreme Court Rule

37(6).

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and marginalizes children from all walks of life, but

disproportionately young men living in poverty.

Eight Million Stories, Inc. (“Eight Million Stories”)

is a Houston, Texas-based non-profit organization

founded in 2017 dedicated to transforming the lives of

vulnerable youth, as Mr. Andrus once was, through education, skills training, employment, and authentic relationships. Eight Million Stories exists to break this

lifelong cycle of poverty and incarceration by providing

support and opportunities to disconnected youth who

have been pushed out of the school system. The organization seeks to bridge the achievement gap by

providing individualized educational programming

that includes social and emotional learning, jobs skills

training, career exploration, and employment opportunities. Eight Million Stories believes that providing

young people expelled from our school systems the

opportunity to complete their education and find sustainable employment drastically reduces rates of recidivism. Eight Millions Stories helps students learn from

their past mistakes and rewrite their own stories. Indeed, if an organization like Eight Million Stories

supported Mr. Andrus during his childhood, he likely

would not be before this Court.

The Lone Star Justice Alliance (“LSJA”) is a nonprofit legal organization dedicated to improving the

lives of youth and emerging adults in the justice system. Through research, alternatives-to-incarceration

pilot programs, litigation, advocacy, and community

engagement, LSJA seeks to replace the punitive approach to juvenile behavior with one guided by public

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health principles. LSJA envisions a justice system

that uses developmentally appropriate responses to

behavior and treats youth and emerging adults with

equity and dignity to promote resilience, conserve

costs, and increase public safety.

The amici’s experience with, and commitment to

resolving, these issues will aid the Court as it considers the questions presented in this case: Whether the

Texas Court of Criminal Appeals’ disregard for this

Court’s express guidance to conduct a prejudice analysis, which would have included weighing the mitigating circumstances put forth in the evidentiary hearing

before the state trial court, creates widespread confusion regarding the proper standard to be applied in

assessing whether a death-penalty defendant is prejudiced when he receives constitutionally ineffective assistance of counsel.

---------------------------------♦---------------------------------

SUMMARY OF THE ARGUMENT

The amici curiae defer to the Petitioner’s submission for a comprehensive recitation of the facts.

Briefly, as relevant to the amici curiae’s interest, Mr.

Andrus is once again before this Court on a writ of habeas corpus. After an extensive, eight-day evidentiary

hearing that unleashed a “tidal wave” of mitigation evidence—a record encompassing 41 full volumes—that

was not presented to the sentencing jury, the trial court

recommended to the Texas Court of Criminal Appeals

(“CCA”) that relief be granted and Mr. Andrus receive

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a new sentencing trial. Andrus v. Texas, 140 S. Ct.

1875, 1878–79 (2020) (per curiam).

The CCA disagreed in an unpublished, per curiam opinion. Id. at 1878. Mr. Andrus appealed to this

Court, which unequivocally held that Mr. Andrus’ trial

counsel’s performance fell so far below the objective

standard of reasonableness that it was deficient

within the meaning of Strickland v. Washington, 466

U.S. 668 (1984). Andrus, 140 S. Ct. at 1881–86. This

Court remanded the case to the CCA with instructions

to determine whether, under the Strickland standard,

counsel’s deficient performance prejudiced Mr. Andrus.

Id. at 1887.

In a curious act of defiance, the CCA ignored this

Court’s instructions. Rather than engage in a robust

and genuine Strickland analysis, the CCA focused once

again on the record from the underlying trial to the exclusion of the habeas record, thereby guaranteeing the

same erroneous conclusion that Mr. Andrus was not

prejudiced by his counsel’s failure to locate or present

any of the facts that came to light in the eight-day habeas hearing. Ex Parte Andrus, 622 S.W.3d 892 (Tex.

Crim. App. 2021).

The “tidal wave” of mitigation evidence admitted

during the habeas proceeding includes substantial details of Mr. Andrus’ upbringing, which—as with many

young men in poverty—swept him into the criminal

justice system a very young age. The amici curiae ask

this Court to view Mr. Andrus’ criminal actions as an

adult against the backdrop of his childhood. As a young

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man, he suffered physical trauma, untreated mental

illness, and severe poverty in the then-declining Third

Ward in Houston, Texas. His own mother first exposed

him to illicit drugs at just six years old. And his forced

experience with the rightfully besmirched Texas Youth

Commission steered him toward recidivism rather

than toward becoming a contributing member of his

community.

This background set a young Mr. Andrus into a

cycle of incarceration, which, unfortunately, is not

unique, especially for children of similar background.

Children who grow up in circumstances similar to

those confronted by Mr. Andrus frequently return to

the criminal justice system, an outcome the amici curiae exist to prevent. Had this evidence been presented

to the sentencing jury, at least one juror unquestionably would have voted against condemning Mr. Andrus

to death.

---------------------------------♦---------------------------------

ARGUMENT

This Court already decided that Mr. Andrus’ courtappointed attorney was constitutionally defective. The

remaining question is therefore simple: Did the CCA

correctly engage in a prejudice analysis as required by

Strickland? In other words, did the lower court consider the totality of the available mitigation evidence—

both from trial and the habeas proceeding—and reweigh it against the evidence in aggravation? See Andrus, 140 S.Ct at 1886 (setting forth the applicable

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standard the CCA was to apply). The obvious answer

is no. As explained below, the CCA’s omissions are glaringly apparent, and many of those omissions concern

Mr. Andrus’ entanglement in the school-to-prison

pipeline. Properly considered, there is no question the

evidence the CCA ignored would likely have persuaded

at least one juror to spare Mr. Andrus’ life. Id. (citing

Wiggins v. Smith, 539 U.S. 510, 537–38 (2003); TEX.

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

I.

THE SCHOOL-TO-PRISON PIPELINE.

Mr. Andrus is but one of countless children across

the nation swept up in the school-to-prison pipeline.

Generally, the term “school-to-prison pipeline” refers to

a variety of policies and practices nominally designed

to serve our nation’s youth that, in reality, displace the

most at-risk children from their classrooms and into

the juvenile justice system. Melina Angelos Healey,

Montana’s Rural Version of the School-to-Prison Pipeline: School Discipline and Tragedy on American Indian Reservations, 75 Mont. L. Rev. 15, 18 (2014).

The devastating consequences associated with incarcerating a juvenile to both the individual and society as a whole are myriad. Empirical research shows

that incarceration produces long-term, detrimental effects for juveniles, including reinforcement of violent

attitudes and behaviors; more limited educational,

employment, military, and housing opportunities;

an increased likelihood of not graduating from high

school; mental health concerns; and increased future

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involvement in the criminal justice system. Jason P.

Nance, Dismantling the School-to-Prison Pipeline:

Tools for Change, 48 Ariz. St. L.J. 313, 319–20 (2016).

A child who enters the school-to-prison pipeline

is far more likely to commit further crimes, as prior

incarceration is by far the strongest predictor of recidivism over other factors such as parent abuse or negligence; having peers present at the time of the offense;

carrying a weapon; gang membership; gender; race;

poor relationships with parents; and residing in a

single-parent household. Id. at 320. In other words,

rather than deterring criminal behavior, juvenile justice processing increases delinquency and future involvement in the justice system, presumably the polar

opposite of its intended effect. Id.

Not all students are equally affected by the schoolto-prison pipeline. A student’s socioeconomic status,

gender, disability status, and race are each predictive

of whether that student will enter the pipeline. Leah

Aileen Hill, Disrupting the Trajectory: Representing

Disabled African American Boys in a System Designed

to Send Them to Prison, 45 Fordham Urb. L.J. 201,

208–09 (2017). Students living in poverty are more

likely to enter the pipeline, as are disabled students,

male students, and students of color. Id. at 209. “Individually, each of these markers increases the chances

that a student will be suspended or expelled from

school and funneled into the criminal justice system.”

Id.; see also Brian J. Fahey, Note, A Legal-Conceptual

Framework for the School-to-Prison Pipeline: Fewer

Opportunities for Rehabilitation for Public School

8

Students, 94 Neb. L. Rev. 764, 794 (2016) (noting the

disproportionate effect of exclusionary school discipline policies on minority and learning-disabled students); Logan J. Gowdey, Note, Disabling Discipline:

Locating A Right to Representation of Students with

Disabilities in the ADA, 115 Colum. L. Rev. 2265, 2269,

2275–76 (2015) (summarizing data concerning the

disproportionate effect of school discipline on poor,

minority, and disabled students); Healey, supra, at 19

(“Minority children, as well as children with learning

and emotional disabilities, are removed from their

classrooms, suspended, and expelled at rates far higher

than white and non-disabled children.”).

Though harrowing, it is perhaps predictable, then,

that as a child, Mr. Andrus—a young man of color, living in poverty, with untreated disabilities—was swept

up in the school-to-prison pipeline. But the habeas record also shows that this was not predetermined or unavoidable; when Mr. Andrus had support (such as that

provided by the amici to others on a similar path), he

became a successful, productive member of society. Yet,

none of this evidence of Mr. Andrus’ background or the

instances of success he created with support was considered by the CCA in its most recent opinion or put

before the sentencing jury.

A. Childhood Poverty Is a Predictor of Entering the Pipeline.

The level of poverty children confront is closely

tied to their health, housing opportunities, level of

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nutrition, and early learning opportunities, all of which

affect their cognitive development. Nance, supra, at 334.

Poverty is associated with a range of conditions that

increase the likelihood a child will enter the school-toprison pipeline:

For instance, students born into poverty do

not have access to resources that can support

their academic success. They often lack access

to quality healthcare, which is a necessary resource for healthy development. As a result,

they are more likely to suffer from health conditions that affect their school readiness. The

lack of access to quality healthcare is compounded by the fact that children who endure

poverty are more likely to live in areas filled

with environmental toxins that are detrimental to their health and well-being. Housing conditions in impoverished neighborhoods

are often poor and inadequate. Some children

do not have homes and are forced to live in

homeless shelters, where the lack of permanent housing undermines their sense of security. Children who do not have adequate

housing often move more frequently and do

not enjoy simple comforts many of us take for

granted, such as a quiet study space. Crime

and violence are also associated with areas of

concentrated poverty. Children growing up

under these conditions can develop a “toxic

stress response.” This, of course, adds to the

deluge of problems children in poverty face—

all of which accompany them to school.

Hill, supra, at 209–10.

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It goes without saying that many children living

in poverty succeed despite the odds. Id. at 212. The environmental obstacles those children face, however,

present an uphill battle marked by intra-personal violence, increased psychological stress, negative social

capital such as lack of access to resources and social

connections, and the reciprocal cycle of mistrust of the

institutions meant to serve them. Id. at 211–12; see

also Pedro Noguera, A Broader and Bolder Approach

Uses Education to Break the Cycle of Poverty, 93 Phi

Delta Kappan 8, 9–11 (2011). The vast majority of

schools are not prepared or designed to address the

range of challenges facing children who live in poverty.

Hill, supra, at 212–13; Noguera, supra, at 9–11. Poverty therefore remains an all-encompassing factor that

is reliably predictive of whether a child will enter the

school-to-prison pipeline. Hill, supra, at 213.

B. Students with Disabilities Are Disciplined Disproportionately.

Children with disabilities are also overrepresented in the school-to-prison pipeline. Students with

disabilities are more than twice as likely as their nondisabled peers to receive one or more out-of-school suspensions. Id. at 214; Gowdey, supra, at 2276; see also

U.S. DEP’T OF EDUC., OFFICE FOR CIVIL RIGHTS, 20132014 CIVIL RIGHTS DATA COLLECTION: A FIRST LOOK

(2016), at 4 [hereinafter “CRDC”], https://www.ed.gov/

about/offices/list/ocr/docs/2013-14-first-look.pdf. Students with emotional disturbance are suspended or

expelled at significant rates compared to their peers,

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even though the nature of their disabilities makes it

difficult for them to manage their behavior. Hill, supra,

at 214; see also Yael Cannon et al., A Solution Hiding

in Plain Sight: Special Education and Better Outcomes

for Students with Social, Emotional, and Behavioral

Challenges, 41 Fordham Urb. L.J. 403, 416 (2013).

Students with emotional and learning disabilities

are arrested at higher rates than their nondisabled

peers. Hill, supra, at 215. Although they represent only

12% of the student population, they represent 25% of

the students referred to law enforcement or subjected

to arrest. Id. It is estimated that anywhere between 30

and 70 percent of young people in juvenile correctional

facilities have disabilities. Id. In one study that examined youth across multiple juvenile justice settings,

70.4% were diagnosed with at least one mental health

disorder, and 79.1% of those youth also met the criteria

for at least one additional mental health diagnosis.

Cannon, supra, at 422. As with poverty, the disability

status of a child is a reliable indicator of whether a

child will have involvement in the school-to-prison

pipeline. Hill, supra, at 215.

C. Male Students Experience a Disproportionate Amount of Discipline.

Similarly, boys are generally subjected to greater

discipline, including suspension and expulsion, than

girls. Hill, supra, at 215. National data show that while

boys and girls each make up about 50% of the student

population, boys constitute nearly 75% of students

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suspended multiple times and expelled. Id. at 215–16.

While boys represent 54% of preschool enrollment,

they represent 78% of preschool children receiving one

or more out-of-school suspensions. CRDC, supra, at 3.

Gender bias appears to play a role in the targeting of

boys, as evidence shows that boys are often disciplined

more harshly than girls because of stereotypes about

boys and aggression. Hill, supra, at 216; see also Laura

R. McNeal, Managing Our Blind Spot: The Role of Bias

in the School-to-Prison Pipeline, 48 Ariz. St. L.J. 285,

289 (2016) (“[S]tudies conducted on school discipline

reveal that boys are more likely to receive harsher disciplinary sanctions than girls because they are viewed

as having a higher propensity for aggressive behavior.”). Thus, the mere biological fact of being male predisposes a child to involvement in the school-to-prison

pipeline.

D. Students of Color Experience a Disproportionate Amount of Discipline.

United States Department of Education data reveals that children of color are disciplined more often,

suspended more often, expelled more often, referred to

the police more often, and arrested more often than

their white counterparts. See CRDC, supra, at 3–4.

Black students experience the highest rates of excessive discipline. Id. Black students are more likely to be

suspended whether they are in preschools or K-12

schools. Id. at 3. Black students are also more likely to

be expelled from school and more likely to be referred

to law enforcement by school officials. Id. at 4. Native

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American, Latino, Native Hawaiian and Pacific Islander,

and multiracial boys are also disproportionately suspended from school. Id. at 3. Evidence suggests that

some school administrators and teachers believe that

some students, particularly Black male students,

simply cannot be taught, are “unsalvageable,” and are

prison-bound. Nance, supra, at 327. Children of color,

experiencing a disproportionate amount of discipline,

are accordingly more likely to end up in the school-toprison pipeline.

E. Success Is Possible with Support.

The above-cited statistics are borne out in the student population Eight Million Stories serves. Of the

150 students served to date, 100% qualify for free or

reduced lunch, 93% are male, and 55% are Black. The

average educational proficiency of these students is

7th grade. But Eight Million Stories believes that a

child’s potential is not predetermined by race, class,

gender, or disability status. Success is possible for any

child with the right support. The program’s success

demonstrates the truth of this philosophy: Of the 150

students served thus far, 60% gained employment and

40% gained their high school equivalency diploma,

while only 3% have re-offended. Recidivism is not a

predetermined outcome.

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II.

THE EVIDENTIARY HEARING RECORD

IS REPLETE WITH COMPELLING MITIGATION EVIDENCE RELATED TO MR.

ANDRUS’ UPBRINGING THAT THE CCA

WHOLLY OVERLOOKED.

Certainly, Mr. Andrus was not destined to end up

committing a capital offense. Nevertheless, a jury must

understand the circumstances of a capital defendant’s

background in order for the question of mitigation to

have a meaningful effect in the criminal justice system. The ramifications of the school-to-prison pipeline

on Mr. Andrus were clearly brought to bear through

the testimony and evidence adduced at the habeas

evidentiary hearing. The habeas record also demonstrates that, like the student population Eight Million

Stories serves, success was possible for Mr. Andrus.

The few times Mr. Andrus had support in his life, he

was successful. AppEHX12, 15.2 Yet the CCA altogether failed to acknowledge both the mitigating evidence of Mr. Andrus’ upbringing and the brief periods

during which he avoided the pipeline.

Powerful and persuasive mitigation evidence

abounds from the eight-day evidentiary hearing before

the trial court. Particularly with respect to Mr. Andrus’

upbringing, the testimony elicited during the evidentiary hearing offers important historical context that

paints a vivid and brutal picture of the circumstances

under which Mr. Andrus grew up. Witnesses testified

“AppEHX” refers to an exhibit offered by Petitioner that

was admitted into evidence during the trial court evidentiary

hearing.

2

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that Mr. Andrus’ childhood environment severely impaired his development during adolescence and gave

him lasting deficits as to his ability to cope, to build

relationships, and to react appropriately to the world

around him. If the original sentencing jury had heard

this testimony, a minimum of at least one juror would

have voted against sentencing Mr. Andrus to death.

A. Testimony from the Writ Hearing Provides Context the CCA Did Not Consider

Concerning Mr. Andrus’ Impoverished

Childhood.

The record reflects that Mr. Andrus was born and

raised in Houston’s Third Ward, “a neighborhood . . .

known for its frequent shootings, gang fights, and drug

overdoses.” Andrus, 140 S. Ct. at 1879. At the evidentiary hearing in the trial court, Mr. Andrus presented

Dr. Tyina Steptoe as an expert on the history of Third

Ward. 4EHRR200.3 Dr. Steptoe detailed the rich history and deterioration of this once-vibrant neighborhood.4 4EHRR203–32. Dr. Steptoe’s testimony (or

“EHRR” refers to the Evidentiary Hearing Reporter’s Record from the evidentiary hearing. The volume number is listed

first and the page number is listed last. For example, here

4EHRR200 refers to volume 4, page 200 of the Evidentiary Hearing Reporter’s Record.

4

Born and raised in Houston, Dr. Steptoe is a professor of

history at the University of Arizona. 4EHRR196, 198. She received her Ph.D. from the University of Wisconsin in 2008. Id. The

University of California Press published her book Houston

Bound: Culture and Color in a Jim Crow City in 2015, a history

of Houston from World War I through the Civil Rights Movement.

4EHRR197–98. The book explains how different groups of

3

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similar testimony from a qualified expert) likely would

have facilitated a deeper and more resonant understanding among the jury of the neighborhood and circumstances in which Mr. Andrus was raised.

As developed during the habeas proceeding, Third

Ward is the same neighborhood where Mr. Andrus’

mother, his biological father, and the male authority

figures in his life grew up. AppEHX8, 9. The testimony

explained that this neighborhood was an epicenter of

the crack epidemic in the 1980s and 1990s, Mr. Andrus’

formative years. 4EHRR225–29. Drug use, distribution, and other vices were a way of life during Mr.

Andrus’ childhood in this community, which was also

shaped by larger social forces of economic neglect and

racial discrimination spanning more than a century.

4EHRR210–29; AppEHX8–18.

As further developed in the habeas hearing, before

the Civil War, counties like Fort Bend, Brazoria, and

Matagorda that surround Houston were known as the

“Texas Sugar Bowl” because of the rich, fertile land

surrounding the area, which was very good for growing

crops like sugar cane and cotton. 4EHRR204. The region therefore experienced a rapid expansion based on

a plantation economy. Id. When Houston was formed

in 1836 following the Battle of San Jacinto, six geopolitical entities known as “wards” were created in the

area surrounding downtown. Id. Each ward had its

own political representation. 4EHRR204–05. Because

migrants who came to Houston affected notions of race and culture within the city. Id.

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of the size and the structure of the wards, each ward

felt like its own small town with its own business and

entertainment districts. Id. The wards ceased to exist

as official political entities around the turn of the

Twentieth Century, but they continued to exist as discernible neighborhoods around Houston for decades

thereafter, and are still recognizable ways to refer to

different neighborhoods. 4EHRR205–06. As developed

in the writ hearing testimony, the Third Ward’s history

as a Black community goes back to the Reconstruction

Era. 4EHRR210. The Third Ward is the site of the first

public property purchased by African Americans in

Houston: Emancipation Park. Id.

During World War I, Houston’s economy grew

rapidly because the expanded ship channel permitted

ocean-going vessels to enter the Port of Houston.

4EHRR207. A major rise in the exportation of cotton

and oil meant the availability of more jobs, attracting

diverse people to the city. Id. Black people moving into

the area mostly settled in the Third, Fourth, and Fifth

Wards, as these were historically Black neighborhoods. 4EHRR208. Before the push for integration began after World War II, the Third Ward had its own

thriving businesses and institutions—more vibrant

than other southern cities, like New Orleans, Memphis, or Atlanta. 4EHRR219. But with the construction of interstate highways in the late 1950s—

particularly I-45 that cut through Third Ward—Third

Ward started to decline. 4EHRR220–21. The interstate

cut Third Ward off from other parts of the city and

made mobility without a car very difficult. 4EHRR220.

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This development led businesses to close down.

4EHRR220–21. Those who could afford to do so began

to move away from Third Ward. 4EHRR230.

In the post-War era, economic opportunities disappeared as people abandoned the neighborhoods—sadly,

Houston’s Wards became centers of vice, particularly

drugs5 and prostitution. 4EHRR223–24.

The writ hearing testimony further set forth how

Houston was one of the first cities devastated by crack

cocaine. 4EHRR225. By 1984, it was a serious concern

in terms of addiction and the rising crime rate that the

drug epidemic spawned. Id. The inexpensive nature of

crack allowed it to take root in working class communities. 4EHRR226. A crack rock could be purchased for

as little as $5, but the resulting high only lasted for

about 15 minutes, meaning crack induced a nearly irresistible urge for more, fueling a destructive addiction

cycle. Id. When people ran out of money to buy crack,

they often turned to robbery and shoplifting to get the

funds to purchase more. 4EHRR227.

During this time, there was also a rise in codeine

abuse in Houston. Id. Codeine is a prescription drug

that people tended to mix with liquids such as beer or

soda. 4EHRR228. The concoction was colloquially referred to as “lean,” “sizzurp,” or “drank.” Id. This epidemic continued into the 1990s in Houston while Mr.

Andrus was growing up there. Id. Sadly, several

Before the 1980s, the primary drug of choice was heroin;

the neighborhood then became an epicenter for the crack cocaine

epidemic. Id.

5

19

witnesses specifically recalled Mr. Andrus’ mother frequently partaking in “drank,” often in front of her children. AppEHX5, 9, 11, 12, 13, 14.

By the 1990s, consistent with its status as a center

of drug use and distribution, the Third Ward had developed an underground economy centered almost

entirely around forms of vice. 4EHRR228–29. Kids, including Mr. Andrus, grew up surrounded by illegal conduct—people selling and doing drugs, engaging in

prostitution, robbing, and killing. AppEHX9, 10, 11, 13.

The rising crime rate caused further depopulation

of Third Ward. 4EHRR229–30. As a result, Third Ward

transitioned from a community with socioeconomic diversity to one exclusively populated by those who could

not afford to leave. 4EHRR230. This process affected

the tax base and, by extension, school funding. Id. As

the neighborhood became poorer and less desirable,

businesses shuttered. Id. Individuals left behind who

did not own a car had difficulty finding employment,

and often had to leave the neighborhood to find a job.

4EHRR231. In a city the size of Houston, public transportation was an option, but it was very difficult.

4EHRR231–32.

In sum, the writ hearing testimony clearly explains that throughout Mr. Andrus’ childhood, the

Third Ward was deeply afflicted by poverty and vice,

and this Court concluded that the CCA should reconsider its opinion in light of this evidence. The CCA’s

opinion mentions none of this background.

20

B. Testimony from the Evidentiary Hearing Contextualizes Mr. Andrus’ Experience in the Texas Youth Commission.

Dr. Scott Hammell6 explained that Mr. Andrus suffered physiological changes to his brain as a result of

trauma in his childhood, including his early exposure

to violence, death, severe emotional neglect, substance

abuse, domestic violence, and distrust. 6EHRR168–69.

This trauma, according to Dr. Hammell, stunted Mr.

Andrus’ emotional development. 6EHRR181. Other evidence in the record reiterates this point. AppEHX5.

Dr. Hammell also detailed Mr. Andrus’ 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 his

family. 6EHRR169–215. Dr. Hammell’s evaluation revealed that Mr. Andrus’ history of trauma is consistent

with post-traumatic stress disorder (“PTSD”) symptoms, if not the full disorder, and that Mr. Andrus suffers from mood disorder. 7EHRR52.

Similarly, featured testimony regarding Third

Ward’s history contextualizes the school-to-prison pipeline Mr. Andrus entered when he was sent to the Texas

Youth Commission (“TYC”). Will Harrell7 detailed Mr.

Dr. Hammell is a clinical psychologist who was formerly

employed at the Texas Youth Commission. 6EHRR119. Dr. Hammell interviewed Mr. Andrus on three occasions, spoke to his family members, and reviewed relevant records in preparation for his

testimony at the evidentiary hearing. 6EHRR130.

7

Will Harrell was appointed by former Governor Rick Perry

to serve as the first Chief Independent Ombudsman over the

6

21

Andrus’ incarceration at the TYC, including the dangerousness of the facility Mr. Andrus was placed in,

the lack of appropriate mental health care, the fact

that he was unduly placed in isolation for weeks at a

time, the lack of proper mental health diagnosis due to

undertrained staff, and the fact that his prescribed

medication was neither appropriate nor adequately

distributed. 5EHRR161–63, 168, 179–81.

Mr. Harrell reviewed Mr. Andrus’ TYC records and

determined that Mr. Andrus was unfairly held accountable for failing to succeed in a behavioral program that was later discredited and that Mr. Andrus

was sent to the Texas Department of Criminal Justice

(“TDCJ”) as an “adult” offender when he should not

have been. 5EHRR121–22. Harrell testified that Mr.

Andrus’ time at the TYC damaged and traumatized

him while providing him no meaningful assistance.

5EHRR246. Critically, despite this Court’s instructions

to reconsider its opinion in light of this powerful evidence, the CCA opinion instead makes no mention of

Dr. Scott, Mr. Harrell, or their testimony.

Texas Youth Commission. 5EHRR111–12. In the evidentiary

hearing, Mr. Harrell detailed the scandal that resulted in the

legislative reformation of the Texas Youth Commission and

noted that Mr. Andrus was incarcerated prior to this legislative

reform. 5ERHH140–60. The CCA majority opinion does not

acknowledge the TYC’s salacious past.

22

C. Testimony from the Evidentiary Hearing Demonstrates Mr. Andrus Was Capable of Redemption.

The testimony from the evidentiary hearing also

demonstrates that Mr. Andrus, when adequately supported, was capable of being a productive, successful

member of society, but was ensnared in a cycle of poverty and incarceration. For example, family friends

Sean Gilbow and Phyllis Garner testified that they

took in Mr. Andrus after his release from incarceration

with the TYC and the TDCJ. 6EHRR48, 95. They testified that Mr. Andrus abided by the rules of the house

and did his assigned chores. 6EHRR49, 95–96. He was

focused on finding steady employment and got a job

working with Mr. Gilbow on an oil rig. 6EHRR97. Mr.

Gilbow was subsequently arrested and sent back to

prison, leaving Mr. Andrus without transportation to

the job. Id. Ms. Garner attempted to get Mr. Andrus a

job with the company where she had long been employed, but his criminal history proved to be a barrier.

6EHRR98. Repeatedly, Mr. Andrus was unable to secure a legitimate job because of the adult record created by TYC’s decision to transfer him to TDCJ to serve

out the end of his sentence. Id. The CCA did not

acknowledge that Mr. Andrus showed himself to be capable of success when offered support.

III. PREJUDICE IS APPARENT FROM THE

RECORD BEFORE THIS COURT.

It bears repeating that none of the foregoing evidence was put before the sentencing jury and none of

23

the foregoing evidence was mentioned in the CCA’s

majority opinion. The jury learned nothing about Mr.

Andrus’ upbringing or early life whatsoever. They

heard only the deeply misleading testimony of Mr.

Andrus’ mother, who falsely created an impression of

a hard-working single mother, and Mr. Andrus’ father, who was barely present in Mr. Andrus’ life due

to his own extended stints in prison. As this Court

summarized the evidence adduced at the evidentiary

hearing:

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, 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 them, and was high

more often than not. In her frequently disoriented state, she would leave her children to

24

fend for themselves. Many times, there was

not enough food to eat.

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.”

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.” Andrus, by their account, was “very caring and

very loving,” “liked to make people laugh,” and

“never liked to see people cry.” While attempting to care for his siblings, Andrus struggled

with mental-health issues: When he was only

10 or 11, he was diagnosed with 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. While in TYC

custody, Andrus was prescribed high doses of

25

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.

Andrus, 140 S. Ct. at 1879–80. This Court concluded

that Mr. Andrus’ childhood and upbringing, and the

neighborhood that served as its backdrop, were critical

pieces of mitigating evidence. The CCA’s decision to ignore this evidence in its opinion was clear error requiring intervention by this Court.

The Supreme Court instructed the CCA to weigh

the totality of the available mitigation evidence adduced at trial and at the habeas proceeding against

the aggravating evidence. Id. at 1886. “[P]rejudice

exists if there is a reasonable probability that, but for

his counsel’s ineffectiveness, the jury would have made

a different judgment about whether Andrus deserved

the death penalty as opposed to a lesser sentence.” Id.

at 1885–86 (citations omitted). Because Mr. Andrus’

death sentence required a unanimous jury recommendation, “prejudice here requires only ‘a reasonable

probability that at least one juror would have struck a

different balance’ regarding Andrus’ ‘moral culpability.’ ” Id. at 1886 (quoting Wiggins, 539 U.S. 537–38)

(emphasis added).

26

Mr. Andrus was not predestined to commit the

crime for which he was sentenced to death. At least one

juror presented with the mitigating evidence adduced

at the habeas proceeding could have seen that the odds

were stacked against him. At least one juror certainly

would have seen the mitigating circumstances warranted mercy and voted accordingly.

---------------------------------♦---------------------------------

CONCLUSION

The CCA’s treatment of this case begs several

questions:

•

If Mr. Andrus’ case for mitigation does not rise

to a level at which at least one juror would be

expected to vote against the death penalty,

can any case do so?

•

Is it possible to meaningfully consider the

mitigation evidence in this case and come to

any conclusion other than the conclusion

dictated by this Court’s precedent, including

in Andrus I—that at least one (if not all) jurors presented with this mitigation evidence

would have spared his life?

•

May a state’s highest court simply ignore a

mandate from this Court if it disagrees with

the Court’s view regarding minimum standards of proof in capital cases?

Because Amici respectfully submit that each of

these questions must be answered “No,” they ask this

27

Court to grant the relief requested by Mr. Andrus’ able

counsel.

Date: Nov. 17, 2021

Respectfully submitted,

NICOLE S. LEFAVE

Texas State Bar No. 24085432

nlefave@littler.com

Counsel of Record

KELLI FUQUA

Texas State Bar No. 24097713

kfuqua@littler.com

ERIC VINSON

Texas State Bar No. 24003115

evinson@littler.com

LITTLER MENDELSON, P.C.

100 Congress Avenue

Suite 1400

Austin, Texas 78701

(512) 982-7250

(512) 982-7248 (fax)

Counsel for Amici Curiae

Eight Million Stories and

Lone Star Justice Alliance