Petition for Writ of Certiorari — Narjes Modarresi, Petitioner v. Texas
Supreme Court briefNov 18, 2024
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No. 24In the
Supreme Court of the United States
NARJES MODARRESI,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Texas Court of Criminal A ppeals
PETITION FOR A WRIT OF CERTIORARI
Randolph L. Schaffer, Jr.
Counsel of Record
1021 Main, Suite 1440
Houston, TX 77002
(713) 951-9555
noguilt@schafferfirm.com
Counsel for Petitioner
120090
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
The trial court admitted without objection a confession
obtained after police officers ignored petitioner’s request
to terminate the interview and a second confession taken
after she led the police to the location where she buried
her baby. Petitioner, who suffered from severe mental
illness, was convicted of capital murder and sentenced to
life without parole. In a state habeas corpus proceeding,
she alleged that her trial counsel was ineffective by failing
to move to suppress her confessions and the discovery
of the baby’s body. The trial court recommended relief
after concluding that this evidence should have been
excluded because (1) petitioner was not advised of her
Miranda rights after an officer told her that she could
not leave until they found the baby, (2) officers ignored her
request to terminate the interview, (3) the first confession
was involuntary because it was induced by an officer’s
promise to help her receive psychiatric treatment if she
took them to the baby, and (4) the discovery of the baby
and the second confession, given after petitioner waived
her Miranda rights, were tainted by the involuntary first
confession. The Texas Court of Criminal Appeals (TCCA)
denied relief, stating only that petitioner “has not met her
burden to obtain relief under Strickland v. Washington,
466 U.S. 668 (1984).” The questions presented are:
I. Whether the Court should summarily
reverse the TCCA’s judgment because
its rejection of petitioner’s ineffective
assistance of trial counsel claim contravened
this Court’s Fifth and Sixth Amendment
precedent.
ii
II. Whether, at the very least, the Court
should vacate the judgment and remand to
the TCCA to provide specific reasons for
rejecting the trial court’s findings of fact
and conclusions of law that recommended
relief.
iii
RELATED CASES
State v. Modarresi, No. 1260243, 339th District Court
of Harris County, Texas. Judgment entered May 22, 2014.
Modarresi v. State, No. 14-14-00427-CR, Fourteenth
Court of Appeals of Texas. Judgment entered April 19,
2016.
Ex parte Modarresi, No. 1260243-A, 339th District
Court of Harris County, Texas. Judgment entered July
13, 2023.
Ex parte Modarresi, No. WR-94,504-01, Texas Court
of Criminal Appeals. Judgment entered September 25,
2024.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
PETITION FOR A WRIT OF CERTIORARI . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISION . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 1
A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. Factual Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.
The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.
The State Habeas Corpus Proceeding . . . . . 7
REASONS FOR GRANTING CERTIORARI . . . . . . . 9
v
Table of Contents
Page
I.
THE TEXAS COURT OF CRIMINAL
A PPEA LS’ REJ ECTION OF
PET I T ION ER’ S I N EFFEC T V E
ASSISTANCE OF TRIAL COUNSEL
C L A I M C O N T R AV E N E D T H I S
COU RT ’ S FI F T H A N D SI X T H
AMENDMENT PRECEDENT . . . . . . . . . . . . 10
A. The Standard Of Review . . . . . . . . . . . . . . . 10
B. Deficient Performance . . . . . . . . . . . . . . . . . 12
1.
Petitioner’s statements during
the first interrogation, made after
she was told she could not leave,
and her agreement to take and
her act of leading the officers to
M.G., were inadmissible under
Miranda v. Arizona . . . . . . . . . . . . . . . 12
2. Petitioner’s statements during
the first interrogation and her
agreement to take and her act
of leading the officers to M.G.
were inadmissible because the
officers continued to question
her after she said that she had
“nothing more to say” . . . . . . . . . . . . . 14
vi
Table of Contents
Page
3. Petitioner’s statements during
the first interrogation and her
agreement to take and her act of
leading the officers to M.G. were
involuntary because they were
induced by an officer’s promises
to help her receive psychiatric
treatment if she confessed and
took him to M.G. . . . . . . . . . . . . . . . . . . 15
4. T he d i s c ove r y of M .G. w a s
i nadm issible because it was
tainted by the unconstitutional
i nt er rogat ion that rendered
p et it ione r ’s st at e ment s
involuntary . . . . . . . . . . . . . . . . . . . . . . 21
5.
Petitioner’s confession during
the second inter rogation
was inadmissible because
it w a s t a i nt e d by t he f i r st
unconstitutional interrogation . . . . . . 23
C. Strickland Prejudice . . . . . . . . . . . . . . . . . . 25
II. A LT ER NAT I V ELY, T H E C OU RT
SHOULD VACATE THE JUDGMENT
AND REMAND FOR THE TCCA TO
PROVIDE SPECIFIC REASONS FOR
REJECTING THE INEFFECTI V E
ASSISTANCE OF TRIAL COUNSEL
CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
vii
TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE COURT OF
CRIMINAL APPEALS OF TEXAS, FILED
SEPTEMBER 25, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — APPLICANT’S REVISED
PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW, 339TH DISTRICT
COURT OF HARRIS COUNTY, TEXAS,
FILED JULY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 3a
viii
TABLE OF CITED AUTHORITIES
Page
CASES:
Andrus v. Texas,
590 U.S. 806 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Berkemer v. McCarty,
468 U.S. 420 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Blackburn v. Alabama,
361 U.S. 199 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Cole v. State,
923 P.2d 820 (Alaska Ct. App. 1996) . . . . . . . . . . . . . 20
Colorado v. Connelly,
479 U.S. 157 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Ex parte Andrus,
No. WR-84,438-01, 2019 WL 622783
(Tex. Crim. App. Feb. 13, 2019) . . . . . . . . . . . . . . . . . 28
Hinton v. Alabama,
571 U.S. 263 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Kaupp v. Texas,
538 U.S. 626 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Lynumn v. Illinois,
372 U.S. 528 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ix
Cited Authorities
Page
Michigan v. Mosley,
423 U.S. 96 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Miranda v. Arizona,
384 U.S. 436 (1996) . . . . . . 4, 5, 8, 12, 13, 14, 22, 23, 24
Oregon v. Elstad,
470 U.S. 298 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Payne v. Arkansas,
356 U.S. 560 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Pennsylvania v. Muniz,
496 U.S. 582 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Pitts v. State,
614 S.W.2d 142 (Tex. Crim. App. 1981) . . . . . . . . . . . 22
Porter v. McCollum,
558 U.S. 30 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Pyles v. State,
947 S.W.2d 754 (Ark. 1997) . . . . . . . . . . . . . . . . . . . . 20
Schmerber v. California,
384 U.S. 757 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sears v. Upton,
561 U.S. 945 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
x
Cited Authorities
Page
State v. Howard,
825 N.W.2d 32 (Iowa 2012) . . . . . . . . . . . . . . . . . . . . . 20
State v. L.H.,
215 A.3d 516 (N.J. 2019) . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Pollard,
888 P.2d 1054 (Or. App. 1995) . . . . . . . . . . . . . . . . . . 20
Strickland v. Washington,
466 U.S. 668 (1984) . . . . . . . . . . . . . 9, 10, 11, 25, 27, 28
Stutson v. United States,
516 U.S. 193 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Turner v. United States,
582 U.S. 313 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Bayer,
331 U.S. 532 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. McCarthy,
382 Fed. App’x 789 (10th Cir. 2010) . . . . . . . . . . . . . . 15
United States v. Patane,
542 U.S. 630 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 13, 22
United States v. Taylor,
745 F.3d 15 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . 24
xi
Cited Authorities
Page
Wearry v. Cain,
577 U.S. 385 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Wong Sun v. United States,
371 U.S. 471 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Wood v. Georgia,
450 U.S. 261 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 19
U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . 19
FEDERAL STATUTES:
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Narjes Modarresi, respectfully petitions
for a writ of certiorari to review the judgment of the
TCCA.
OPINIONS BELOW
The TCCA’s unpublished order denying habeas corpus
relief (App. 1a-2a) is available at 2024 WL 4284695. The
state district court’s findings of fact and conclusions of
law (App. 3a-39a) are unreported.
JURISDICTION
The TCCA denied relief on September 25, 2024. This
Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION
T he Si x th A mendment to the Unit ed Stat es
Constitution provides, in pertinent part, “In all criminal
prosecutions, the accused shall enjoy the right to …
have the Assistance of Counsel for his defense.”
STATEMENT OF THE CASE
A. Procedural History
Petitioner pled not guilty to capital murder in the
339th District Court of Harris County, Texas. On May
22, 2014, the jury convicted her, and the court assessed
punishment at life in prison without parole.
2
On direct appeal, the Texas Court of Appeals affirmed
petitioner’s conviction in a published opinion issued on
April 19, 2016. Petitioner did not seek discretionary
review in the Texas Court of Criminal Appeals (TCCA).
Modarresi v. State, 488 S.W.3d 455 (Tex. App.-Houston
[14th Dist.] 2016, no pet.).
Petitioner filed a state habeas corpus application
on July 19, 2022. The trial court, after conducting an
evidentiary hearing, recommended that relief be granted
on July 13, 2023. The TCCA denied relief on September
25, 2024. Ex parte Modarresi, No. WR-94,504-01 (Tex.
Crim. App. Sept. 25, 2024).
B. Factual Statement
1.
The Trial
The indictment alleged that, on or about April 21,
2010, petitioner intentionally and knowingly caused the
death of M.G., a child under six years of age, by placing
him face down in the mud (C.R. 23).1
Petitioner and her husband, Amir Golabbakhsh
(hereafter, “Amir”), lived in Houston with their two sons,
A.G. (age three) and M.G. (age three months), and Amir’s
parents (5 R.R. 59, 65, 96). On the afternoon of April 21,
2010, petitioner told her mother-in-law that she was taking
1. “C.R.” (Clerk’s Record) refers to the court filings.
“R.R.” (Reporter’s Record) refers to the testimony at trial.
“H.R.R.” (Habeas Reporter’s Record) refers to the testimony at
the habeas proceeding. “AX” refers to petitioner’s exhibits in the
habeas proceeding.
3
M.G. to visit a friend and left on foot with M.G. in a stroller
(7 R.R. 114-16, 118).
Jessica Shaver was sitting on the porch of her home
near Buffalo Bayou when she saw petitioner pushing a
stroller with a baby carrier down the street (4 R.R. 43, 45).
Petitioner slammed the stroller into the curb, detaching
the carrier, and ran away (4 R.R. 46). Shaver thought
that petitioner had abandoned a baby (4 R.R. 47). Shaver
unrolled a blanket that fell out of the stroller but found
only a pillow (4 R.R. 53). Shaver drove around the area
looking for petitioner but could not find her and returned
home (4 R.R. 55).
Petitioner went to the home of a friend, appeared to
be very upset, and said that someone took her baby (4
R.R. 92-94). The friend called 911 (4 R.R. 94-96). When
Officer Gonzales arrived, petitioner told him that she was
walking by a park when a black man pushed her down,
took her baby, and left in a car driven by another black
man (4 R.R. 70-71).
Officer Gonzales drove petitioner to the location of the
alleged kidnapping (4 R.R. 70-71). After Shaver told him
what she had seen, and he observed that petitioner had
mud on her jacket but the ground was dry, he questioned
whether there had been a kidnapping (4 R.R. 72-73, 75).
Sergeant Jeremiah Rubio arrived, spoke to petitioner,
and became suspicious when she kept asking whether he
believed her (4 R.R. 158, 160, 163-64, 170). He asked if
she could show him where the baby was (4 R.R. 166). She
walked about 20 feet towards the bayou, stopped, and said,
“I told you that the black guys took it” (4 R.R. 166-67). He
4
transported her to the police station to give a statement
(4 R.R. 167).
Detective Phil Waters and Officer Tony Jafari (who
speaks Farsi, petitioner’s native language), conducted a
videorecorded interrogation of petitioner at the police
station that started at 9:50 p.m. (5 R.R. 182, 184, 188-89,
194). 2 Waters testified that petitioner was not in custody
and was not advised of her Miranda3 rights (4 R.R. 187-88,
193). The officers’ admitted goal was to get her to trust
them enough to take them to M.G., and they continuously
brought up the subject of her mental health because they
knew that she wanted professional help (5 R.R. 192; 7 R.R.
8, 10). They confronted her with inconsistencies in her
story and urged her to reveal M.G.’s location for several
hours, but she insisted that he had been kidnapped (SX
44, 77). Finally, after midnight, she asked if they would
let her stay with them if she revealed where M.G. was
(C.R. 846). Waters responded, “I will take care of you. I
will find you a place …. I will get you [psychiatric] help
tonight” (C.R. 847).
Detective Waters drove petitioner to the scene of the
alleged kidnapping at 1:30 a.m. (7 R.R. 7). They walked
past a barricade marking a dead-end street and a chain
marking private property and down an embankment to
a remote area near the bayou (4 R.R. 185-88). M.G. was
buried face down in muddy water, covered in mud, leaves,
2. The videorecording and a certified transcript were
admitted without objection (5 R.R. 189-92; SX 44, 77).
3. Miranda v. Arizona, 384 U.S. 436 (1996).
5
and debris (4 R.R. 192, 199-200, 205).4 Sergeant Roger
Chappell concluded that M.G. had been alive and had
struggled because he had mud and debris in his clenched
fists (4 R.R. 209). 5
Later that day, after petitioner had been charged,
Detective Waters and Officer Jafari conducted a second
videorecorded interrogation in which she was advised of
her Miranda rights for the first time (5 R.R. 193; 7 R.R.
18; SX 45). She admitted placing M.G. face down in the
mud and covering him with mud (7 R.R. 19). She did not
say that she intended to kill him (7 R.R. 26).
Amir testified that petitioner suffered from postpartum depression and was diagnosed with Bipolar
Disorder after their first son was born in 2007 (5 R.R.
65, 80). She was treated at the Harris County Mental
Health and Mental Rehabilitation Authority (MHMRA)
and placed on anti-psychotic medication (5 R.R. 81-82). She
became pregnant again in 2009, was scared, and wanted to
have an abortion but did not do so (5 R.R. 87-89). She had
a nervous breakdown on an airplane and was hospitalized
in Qatar for several days during her pregnancy (5 R.R.
92-95). Amir’s mother took care of M.G. after he was
born in January 2010 because petitioner was depressed,
4. Detective Waters testified that there was only a very
small chance that M.G. would have been found without petitioner’s
help, as the officers had been unable to find him with the use of dogs
(7 R.R. 7).
5. The pathologist who performed the autopsy determined
that M.G. drowned in muddy water, consistent with being placed
face down while he was alive (5 R.R. 26, 36).
6
unmotivated, and slept most of the time (5 R.R. 96-99).
Petitioner sounded fine when Amir spoke to her on the
afternoon of April 21, 2010 (5 R.R. 114, 116). When Amir
visited her in jail after her arrest, she said that she did
what she did because the baby was a burden to his mother
(5 R.R. 121).
Three psychiatrists testified for the defense that,
at the time of the offense, petitioner was bipolar with
psychotic features and had severe post-partum depression
but was not insane (8 R.R. 16, 88-91, 132, 165; 9 R.R. 78,
88-89, 147).
Dr. Mark Moeller, a psychiatrist hired by the district
attorney’s office to evaluate petitioner, testified in rebuttal
for the State that, at the time of the offense, she was very
depressed but was not psychotic or insane (9 R.R. 190-91,
193-94, 202-03).
The court instructed the jury on both capital murder
(which requires a specific intent to kill) and felony murder
(committing an act clearly dangerous to human life that
caused M.G.’s death during the commission of the felony
of injury to a child, which does not require a specific intent
to kill) (C.R. 1645-46).
Petitioner’s trial counsel, George Parnham, argued
that petitioner should be convicted of felony murder
because her mental illness negated the specific intent to
kill, which is an element of capital murder (10 R.R. 11,
13-14, 25, 32-33).
The prosecutor argued that petitioner should be
convicted of capital murder because her intent to kill M.G.
7
was proven by “her own words” and by her piling mud on
him and that her mental illness did not negate that intent
(10 R.R. 34-36, 39, 50-51).
2.
The State Habeas Corpus Proceeding
Petitioner filed a state habeas corpus petition in the
trial court alleging that she was denied the effective
assistance of counsel because Parnham failed to move to
suppress her statements to the police officers, her act of
leading them to M.G., and the discovery of the body.
Parnham testified at the evidentiary hearing that he
may have relied on his staff to watch the videorecorded
interrogations of petitioner instead of watching them
himself (1 H.R.R. 31-33, 44). He also stated in an affidavit
and testified that he made a strategic decision not to
file a motion to suppress or object to the admission of
petitioner’s statements, her agreement to take and act
of leading the officers to M.G., and the discovery of M.G.
because this evidence supported petitioner’s insanity
defense (1 H.R.R. 31-33, 44).
Parnham’s testimony at the habeas hearing was
thoroughly shown to be false. First, he explicitly informed
the jury panel during the voir dire examination that
he would not present an insanity defense (3 R.R. 164).
Second, he did not present any testimony at trial that
petitioner was insane at the time of the offense; instead,
he called three psychiatrists who testified that she was
not insane (8 R.R. 16, 88-91, 132, 165; 9 R.R. 78, 88-89,
147). Finally, he did not request a jury instruction on
the insanity defense, and the trial court’s charge did not
contain such an instruction (C.R. 1643-50). Accordingly,
8
the habeas trial court found that Parnham did not have
a sound strategic reason not to file a motion to suppress
the evidence (App. 13a).
The habeas trial court found that Parnham performed
deficiently by failing to move to suppress petitioner’s
statements during the first interrogation and her
agreement to take and act of leading the officers to
M.G. because (1) the officers failed to advise her of her
Miranda rights after she was in custody (App. 14a-22a);
(2) the officers improperly continued to question her after
she said that she had “nothing more to say” (thus clearly
invoking her Fifth Amendment right to remain silent)
(App.22a-25a); and (3) her statements were involuntary,
as they were induced by an officer’s promises to help her
receive psychiatric treatment if she confessed and took
him to M.G. (App. 25a-33a). The habeas trial court also
found that Parnham performed deficiently by failing to
move to suppress evidence regarding the discovery of
M.G. because it was tainted by petitioner’s involuntary
confession and involuntary testimonial act of leading the
officers to his body (App. 33a-34a). Finally, the habeas trial
court found that Parnham performed deficiently by failing
to move to suppress petitioner’s confession during the
second interrogation on the ground that it was tainted by
the initial unconstitutional interrogation (App. 35a-36a).
The state habeas trial court concluded that, but for
Parnham’s deficient performance, there is a reasonable
probability that the outcome of the trial would have
been different. In particular, the habeas court found
that, if the trial court had excluded both videorecorded
statements and petitioner’s agreement to take and
act of leading the officers to M.G., the State probably
9
would have offered a more favorable plea bargain (App.
36a-37a). Alternatively, the court concluded that, if the
trial court had excluded the statements but admitted
testimony regarding the discovery of M.G., petitioner
probably would have been convicted of felony murder
(which carries a punishment range of five to 99 years
or life, with the possibility of parole) instead of capital
murder (which carries an automatic sentence of life
without parole) (App. 37a). As a result, the court
concluded that Parnham’s failure to file a motion to
suppress undermined its confidence in petitioner’s
capital murder conviction (App. 37a).
In a brief order, the TCCA denied habeas corpus
relief, stating only, “[Petitioner] has not met her burden
to obtain relief under Strickland v. Washington, 466
U.S. 668 (1984). Based on this Court’s independent
review of the entire record, relief is denied” (App. 1a2a).
REASONS FOR GRANTING CERTIORARI
Petitioner was convicted of capital murder based
on: (1) her statements during the first videorecorded
interrogation in which she agreed to take the officers
to M.G., (2) the testimony that she led them to M.G.,
and (3) her confession during the second videorecorded
interrogation that she placed M.G. face down in the
mud and covered him with mud. Parnham inexplicably
failed to file a motion to suppress her statements and
her act of leading the officers to M.G. despite the blatant
constitutional and statutory violations that occurred
during the initial interrogation.
10
Parnham testified at the habeas evidentiary hearing
that he made a strategic decision not to file a pretrial
motion to suppress or object to the admission of the
evidence at trial because the videorecorded interrogations
supported petitioner’s insanity defense. However, the
habeas trial court wholly rejected his false testimony, as
he did not present an insanity defense at trial. The court
found that Parnham did not have a sound strategic reason
not to file a motion to suppress, that the motion would
have been granted, and that petitioner demonstrated
the requisite prejudice under Strickland v. Washington,
466 U.S. 668 (1984). The TCCA summarily denied relief
without any meaningful explanation of why it rejected the
trial court’s findings of fact and conclusions of law. The
TCCA’s refusal to honor this Court’s controlling Fifth and
Sixth Amendment precedent merits a grant of certiorari
and a summary reversal.
I.
THE TEXAS COURT OF CRIMINAL APPEALS’
REJECTION OF PETITIONER’S INEFFECTVE
ASSISTANCE OF TRIAL COUNSEL CLAIM
CONTRAVENED THIS COURT’S FIFTH AND
SIXTH AMENDMENT PRECEDENT.
A.
The Standard Of Review
Petitioner had a right to the effective assistance of
counsel at trial. Strickland, supra. In Strickland, this
Court addressed the federal constitutional standard
to determine whether counsel rendered reasonably
effective assistance. The defendant first must show that
counsel’s performance was deficient under prevailing
professional norms. Id. at 687-88. The defendant
also must show that counsel’s deficient performance
11
prejudiced the defense by depriving him of a fair trial
with a reliable result. Id. at 687.
The defendant must identify specific acts or
omissions of counsel that were not the result of reasonable
professional judgment. Strickland, 466 U.S. at 690.
The reviewing court must then determine whether
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694. A reasonable probability is less
than a preponderance of the evidence. Id. (“The result
of a proceeding can be rendered unreliable and hence
the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to
have determined the outcome.”).
Petitioner need not show a reasonable probability that,
but for counsel’s errors, she would have been acquitted. A
reasonable probability of any different result—including
a deadlocked jury or conviction of a lesser offense—is
sufficient. Cf. Turner v. United States, 582 U.S. 313,
331 (2017) (Kagan, J., dissenting) (stating that both the
majority and the dissent “agree on the legal standard by
which to assess the materiality of undisclosed evidence
for purposes of applying the constitutional rule: Courts
are to ask whether there is a ‘reasonable probability’ that
disclosure of the evidence would have led to a different
outcome—i.e., an acquittal or hung jury rather than a
conviction”).
12
B. Deficient Performance
1.
Petitioner’s statements during the first
interrogation, made after she was told
she could not leave, and her agreement to
take and her act of leading the officers to
M.G., were inadmissible under Miranda v.
Arizona.
Detective Waters testified that petitioner was not in
custody during the first interrogation and, for that reason,
was not advised of her Miranda rights (5 R.R. 187-88, 193).
However, the videorecording and transcript reflect that
she was in custody before she agreed to take the officers
to M.G. (SX 44, 77).
Detective Waters told petitioner at the start of the
interrogation that she was not under arrest and was not in
custody, as she was “down here voluntarily” to help them
find M.G. (C.R. 707-08; AX 2). Over two hours later, she
said that she was tired and “want to go to my mom and
dad.” Officer Jafari responded, “You cannot go to your
mom and dad now. Unless I find your child, you can’t
go anywhere. Tell me where he is” (C.R. 822-23; AX 3)
(emphasis added). At this point, petitioner clearly was in
custody as defined in Miranda because her liberty had
been significantly restrained. See Berkemer v. McCarty,
468 U.S. 420, 435 (1984). However, the officers did not
advise her of her Miranda rights at that juncture and
continued to interrogate her until she agreed to take them
to M.G. (C.R. 823-49).
Parnham did not move to suppress petitioner’s
statements and her agreement to take and her testimonial
13
act of leading the officers to M.G. on the ground that the
officers failed to advise her of her Miranda rights once she
was in custody. Parnham testified at the habeas hearing
that this would have been a valid objection (1 H.R.R. 42,
54-57).
A statement made by the accused in response to a
custodial interrogation is inadmissible unless she was
warned of her privilege against self-incrimination and
right to counsel and voluntarily waived those rights.
Miranda, 384 U.S. at 444. Custodial interrogation means
“questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” Id.
The habeas trial court correctly found that the officers
engaged in custodial interrogation of petitioner and
concluded that her oral admissions and her agreement to
take and her act of leading them to M.G. were tainted by
the Miranda violation (App. 16a). Petitioner’s act of taking
the officers to M.G., although nonverbal, was testimonial
because it communicated her thoughts––just as if she had
verbally told them where to find him. See Pennsylvania v.
Muniz, 496 U.S. 582, 595 n.9 (1990) (“[N]onverbal conduct
contains a testimonial component whenever the conduct
reflects the actor’s communication of his thoughts to
another.”); Schmerber v. California, 384 U.S. 757, 761 n.5
(1966) (“A nod or head-shake is as much a ‘testimonial’ or
‘communicative’ act in this sense as are spoken words.”).
Although physical evidence is not subject to suppression
because of a Miranda violation, petitioner’s testimonial act
of leading the officers to M.G. is subject to suppression. See
United States v. Patane, 542 U.S. 630, 642 (2004) Thus,
the court correctly concluded that Parnham performed
14
deficiently by failing to move to suppress the evidence on
this ground (App. 20a).
2.
Petitioner’s statements during the first
interrogation and her agreement to take
and her act of leading the officers to M.G.
were inadmissible because the officers
continued to question her after she said
that she had “nothing more to say.”
Petitioner t old the of f icers du r i ng the f i rst
interrogation, “I have nothing more to say. If I knew
where my baby is, I would not be sitting here” (C.R. 747;
AX 4). They continued to interrogate her (C.R. 747-50;
AX 4). She then said, “I have nothing more to say. I have
repeated several times” (C.R. 751; AX 4). Nevertheless,
the interrogation continued without any break (C.R. 751818). She repeatedly complained that she was tired (C.R.
819, 821, 822, 835, 836, 840; AX 5). Officer Jafari said, “You
know where he is. I know you are tired. If you want this
to finish, just tell me where he is. . . . Do you want this to
end? Do you want this to end? Be brave and tell me where
he is” (C.R. 822; AX 5).
Parnham did not move to suppress petitioner’s
statements and her agreement to take and her act of
leading the officers to M.G. on the ground that the officers
continued to interrogate her after she said that she had
nothing more to say. Parnham testified at the habeas
hearing that this would have been a valid objection (1
H.R.R. 42, 58-63).
When a suspect states during a custodial interrogation
that she wants to remain silent, the interrogation must
cease. Miranda, 384 U.S. at 473-74. A confession is
15
inadmissible when the officer continues the interrogation
after the defendant said that she does not want to talk.
Michigan v. Mosley, 423 U.S. 96, 102-03 (1975).
The habeas trial court found that, shortly after the
interrogation began, petitioner told the officers more
than once that she had “nothing more to say”; despite
her unambiguous assertion of her right to remain silent,
they continued to interrogate her until she agreed to
take them to M.G (App. 24a). The court concluded that
her statements and her agreement to take and her act of
leading the officers to M.G. were inadmissible because
they did not scrupulously honor her right to remain
silent under Mosley, 423 U.S. at 102-03 (App. 24a).6 Thus,
the court correctly concluded that Parnham performed
deficiently by failing to move to suppress the evidence on
this ground (App. 24a).
3.
Petitioner’s statements during the first
interrogation and her agreement to take
and her act of leading the officers to
M.G. were involuntary because they were
induced by an officer’s promises to help
her receive psychiatric treatment if she
confessed and took him to M.G.
Detective Waters testified that the officers’ goal was to
get petitioner to trust them enough to take them to M.G.,
and they continuously brought up the subject of her mental
6. See, e.g., United States v. McCarthy, 382 Fed. App’x
789, 792 (10th Cir. 2010) (concluding that defendant unambiguously
invoked his right to remain silent when he said, “I don’t want
nothing to say to anyone,” responded “no” when officers asked if he
had “anything to say to anybody,” and then asked about his rights).
16
health because they knew that she wanted professional help
(5 R.R. 192; 7 R.R. 8, 10). They relentlessly interrogated
her for almost four hours before she agreed to take them
to M.G. The videorecording (and transcript of it) reflect
a carefully-orchestrated psychological manipulation
designed to convince her that she was not criminally
responsible for her conduct because she is mentally ill; that
she needs psychiatric treatment instead of incarceration;
and that, if she takes them to M.G., they will help her
receive psychiatric treatment instead of taking her to jail
but, if she refuses, and they find M.G. without her help,
this will become a criminal investigation, they cannot help
her, and she will go to prison. The following exchanges
took place during the interrogation (AX 6):7
• “You’ve got a sickness and because of that
something has happened” (C.R. 780).
• “Many people have the sickness that you
have. They do certain things under pressure,
because of their disease. All psychiatrists
and physicians have said that” (C.R. 781).
• “You have a sickness, you’ve been trying to
get it treated, …. and it just doesn’t seem
like anybody cares … “ (C.R. 784).
• “… [T]he only way that you’re going to be
able to help yourself with your sickness and
allow others to help you, is to tell us the
truth where [M.G.] is” (C.R. 785).
7. The statements in bold-type were made by petitioner;
the others by an officer.
17
• “I will tell you personally, I will do whatever
I can do to help you afterwards” (C.R. 796).
• “I will give you my word that we will do
whatever we need to do to help you, after”
(C.R. 799).
• “You have got to trust us. We’re not going
to let anything happen to you. We’re going
to do everything we can do to get you more
treatment, to help you … get through this
… “ (C.R. 807).
• “What will happen if you find him?
You’ll put the blame on me?” [An officer
responded:] “Why would we put the blame
on you? You were sick, ma’am” (C.R. 809).
• “Our purpose is not to blame you for
anything. We have nothing to gain by doing
that, do you understand? ... Our purpose is
to find [M.G.]” (C.R. 810).
• “Our purpose right now isn’t to put you in
jail, if that’s what you’re fearful of” (C.R.
812).
• “I want you to look me in the eye because I
want you to understand that you can trust
me ….” [Petitioner responded:] “Yes, I know,
I can trust you.” [An officer responded:] “If
you will just tell us where [M.G.] is, then I’m
going to do everything I can do to help you”
(C.R. 812-13).
18
• “You’ve made a mistake. A bad thing has
happened. You have an illness; you have a
sickness that needs to be addressed and you
need to be helped with” (C.R. 815).
• “You’re going to have to leave the protection
of you up to us. We’re here to help you. We’re
not here to try to trick you into anything.
I’m not even here to put you in jail; I could
care less about that” (C.R. 829).
• “If he is alive, we can get your husband to
divorce you and send you to Iran” (C.R.
841). [Petitioner responded:] “When will
you make him divorce me?” [An officer
responded:] “First, we need to find the
baby” (C.R. 844).
• “We won’t be able to help you unless you tell
us” (C.R. 843).
• “If we find [M.G.] and you don’t take us to
him, you are going to have more problems
than you ever dreamed of because then it
will become strictly a criminal investigation,
it will become a legal issue, and the fact
that you have an illness or a sickness won’t
matter if we find [M.G.] and you don’t help us.
It will not go well.” [Petitioner responded:]
“You mean they will take me to prison?”
[An officer responded:] “If you don’t tell us,
if you don’t help us, yes ma’am” (C.R. 845).
• “Will you let me stay with you guys if I tell
you where he is?” [An officer responded:] “I
19
will help you as much as I can.” [Petitioner
responded:] “Let me stay with you.” [The
officer responded:] “I promise … I will call
your brother to come” (C.R. 846).
• “I will take care of you. I will find you a place
…. I will get you [psychiatric] help tonight”
(C.R. 847).
Petitioner agreed to take the officers to M.G. only after
they made these hollow promises and improper threats
(C.R. 849).
A confession is involuntary and inadmissible under the
Fifth and Fourteenth Amendments when it is induced by
an officer’s promise of leniency if the suspect confesses
or by an officer’s threats if the suspect does not confess,
when such promise or threat operates to overbear the
will of the suspect. See, e.g., Lynumn v. Illinois, 372 U.S.
528, 534 (1963) (confession to drug offenses involuntary
because officer told defendant that state financial aid
would be cut off and her children would be taken from her
if she did not “cooperate”); Payne v. Arkansas, 356 U.S.
560, 567 (1958) (confession to murder involuntary because
officer promised to protect defendant from angry mob
outside jail if he confessed). A confession is involuntary
and inadmissible when an officer intentionally exploits a
suspect’s serious mental illness to obtain it (as the officers
did in petitioner’s case.) See Colorado v. Connelly, 479 U.S.
157, 164-65 (1986) (discussing Blackburn v. Alabama, 361
U.S. 199 (1960)).
Parnham did not move to suppress petitioner’s
statements and her agreement to take and her act of
leading the officers to M.G. on the ground that they were
20
involuntary. Parnham testified at the habeas hearing that
this would have been a valid objection (1 H.R.R. 42-43,
63-76).
The habeas trial court concluded that petitioner’s
statements and her agreement to take the officers to M.G.
were involuntary for the following reasons (App. 30a-31a):
• The officers promised to help her only if
she confessed and took them to M.G. See
Pyles v. State, 947 S.W.2d 754, 755-57 (Ark.
1997) (confession to murder involuntary
because officer told defendant he would “do
everything in the world” he could do for
defendant if defendant confessed);
• The officers repeatedly promised that
they would help her receive psychiatric
treatment instead of incarceration if she
confessed and took them to M.G. See Cole
v. State, 923 P.2d 820, 831-32 (Alaska Ct.
App. 1996) (confession to sexual abuse
involuntary because officer told defendant
he had to confess to receive help for his
problem); State v. Howard, 825 N.W.2d
32, 41 (Iowa 2012) (confession to sexual
abuse involuntary because officer misled
defendant that he would receive treatment
for sex addiction instead of incarceration if
he confessed); State v. L.H., 215 A.3d 516,
534-35 (N.J. 2019) (confession to sexual
assault involuntary because officer led
defendant to believe that he would receive
counseling instead of incarceration if he
confessed).
21
• Detective Waters told her that, if the police
found M.G. without her help, it will become
“strictly a criminal investigation,” that her
mental illness will not matter, and “[i]t will
not go well.” See State v. Pollard, 888 P.2d
1054, 1059-61 (Or. App. 1995) (confession
to murder involuntary because officer told
defendant that he would receive treatment
if he confessed; but, if he did not, the case
would go to the Grand Jury and, if “the
Grand Jury thinks that you’ve done this, it
makes it real rough.”).
The court also concluded that the officers’ coercive
interrogation tactics overbore petitioner’s will and
rendered involuntary both her statements and her
agreement to take them to M.G (App. 31a). Thus, the court
correctly concluded that Parnham performed deficiently
by failing to move to suppress the evidence on this ground
(App. 32a).
4.
The discovery of M.G. was inadmissible
because it was tainted by the
unconstitutional interrogation that
r e n d e r e d p e t i t i o n e r ’s s t a t e m e n t s
involuntary.
Detective Waters testified that the police transported
petitioner to the scene of the alleged kidnapping at 1:30
a.m. (7 R.R. 7). She led them to M.G.’s body at 1:55 a.m.
(7 R.R. 12-14).
Parnham did not move to suppress evidence regarding
the discovery of M.G. on the ground that it was tainted
by the unconstitutional interrogation that rendered
22
petitioner’s statements involuntary. Parnham testified
at the habeas hearing that this would have been a valid
objection (1 H.R.R. 43, 76-78).
When evidence is discovered as a result of police
misconduct, its admissibility depends on “whether,
granting establishment of the primary illegality, the
evidence … has been [obtained] by exploitation of that
illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.” Wong Sun v. United
States, 371 U.S. 471, 488 (1963). Physical evidence
discovered as a result of a confession obtained in violation
of Miranda is admissible. See United States v. Patane,
542 U.S. 630, 642 (2004). Conversely, physical evidence
discovered as a result of an involuntary confession is
inadmissible. Id. at 640 (“Those subjected to coercive
police interrogations have an automatic protection from
the use of their involuntary statements (or evidence
derived from their statements) in any subsequent criminal
trial.”) (citation and internal quotation marks omitted;
emphasis added); see also Pitts v. State, 614 S.W.2d 142,
142-43 (Tex. Crim. App. 1981) (stolen property recovered
as result of defendant’s involuntary confession to burglary,
made after officer promised he would not file charges, was
inadmissible as the “fruits of the poisonous tree”).
Petitioner led the officers to M.G. about 25 minutes
after the unconstitutional interrogation ended. Detective
Waters testified that there was only a very small chance
that M.G. would have been found without petitioner’s
help, as the officers had been unable to find him with
the use of dogs (7 R.R. 7). The habeas trial court found,
based on photos of this remote, isolated location near
a bayou, that it is unlikely that M.G. would have been
discovered without petitioner’s help based on the manner
23
in which he was buried (12 R.R. SX 73, 74; AX 7). The
court concluded that, because the officers’ coercive
interrogation resulted in petitioner making involuntary
statements and involuntarily agreeing to take them to
M.G., evidence regarding the discovery of M.G. should
have been excluded (App. 34a). Thus, the court correctly
concluded that Parnham performed deficiently by failing
to move to suppress the evidence on this ground (App. 34a).
5.
Petitioner’s confession during the second
interrogation was inadmissible because it
was tainted by the first unconstitutional
interrogation.
Detective Waters testified that petitioner led the
officers to M.G. at 1:55 a.m. (7 R.R. 12-14). Petitioner was
taken to the Neurological Processing Unit at the jail for
evaluation (7 R.R. 16). 8 Later that day, after she had been
charged, Detective Waters and Officer Jafari conducted
a second videorecorded interrogation in which she was
advised of her Miranda rights for the first time (5 R.R.
193; 7 R.R. 18; SX 45). She then admitted placing M.G. face
down in the mud and covering him with mud (7 R.R. 19).
Parnham did not move to suppress petitioner’s
confession during the second interrogation on the
ground that it was tainted by the first unconstitutional
interrogation. Parnham testified at the habeas hearing
that this would have been a valid objection (1 H.R.R. 7780).
8. Detective Waters testified that, by arranging for
petitioner to have a psychiatric evaluation, he made good on
“some of the promises [he] made” during the first interrogation
(7 R.R. 16).
24
When an officer obtains an involuntary confession
from a suspect through deliberately coercive or improper
tactics, a subsequent confession obtained soon thereafter
is tainted and inadmissible, even if the officer advised
her of her Miranda rights before he obtained the second
confession. Oregon v. Elstad, 470 U.S. 298, 314 (1985)
(“We must conclude that, absent deliberately coercive
or improper tactics in obtaining the initial statement,
the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of compulsion
[to a subsequent confession given after Miranda
warnings].”); see also United States v. Taylor, 745 F.3d
15, 25 (2d Cir. 2014) (“[T]he use of coercive and improper
tactics in obtaining an initial confession may warrant a
presumption of compulsion as to a second one, even if the
latter was obtained after properly administered Miranda
warnings …. That is so because, ‘after an accused has
once let the cat out of the bag by confessing, no matter
what the inducement, he is never thereafter free of the
psychological and practical disadvantages of having
confessed.’”) (quoting United States v. Bayer, 331 U.S.
532, 540 (1947)).
Petitioner’s statements during the first interrogation
were unwarned and involuntary. The habeas trial
court concluded that her confession during the second
interrogation– –which occurred soon after the first
unconstitutional interrogation and the discovery of M.G.’s
body––was tainted thereby and, thus, was inadmissible
(App. 36a). Her confession also was inadmissible because
it was tainted by the officers’ failure to scrupulously
honor her right to remain silent after she repeatedly
said that she had “nothing more to say” during the first
interrogation. Thus, the court correctly concluded that
Parnham performed deficiently by failing to move to
suppress the evidence on this ground (App. 36a).
25
C.
Strickland Prejudice
The habeas trial court concluded that, if Parnham
had filed a motion to suppress, the trial court would have
suppressed both videorecorded statements, petitioner’s
act of leading the officers to M.G., and the discovery of the
body; and that the exclusion of this evidence would have
undermined the capital murder case and probably resulted
in a more favorable plea bargain offer. See Strickland,
466 U.S. at 695 (holding that a court assessing prejudice
must assume that the trial court would have followed the
law if trial counsel had not performed deficiently) (App.
36a). Additionally, the prosecutor emphasized during her
closing argument that petitioner should be convicted of
capital murder because her intent to kill was proven by
“her own words” and by her piling mud on M.G. (10 R.R.
34-36, 50-51). This admission was made in the second
confession (App. 37a).
The state habeas trial court alternatively concluded
that, if the trial court had suppressed the statements
but admitted testimony regarding the discovery of M.G.,
petitioner probably would have been convicted of felony
murder (which carries a punishment range of five to 99
years or life) instead of capital murder (which carries an
automatic sentence of life without parole) (App. 37a). She
could have raised on appeal that the evidence was legally
insufficient to prove the specific intent to kill element of
capital murder and that the trial court erred in admitting
testimony regarding the discovery of M.G. (App. 37a).
Thus, the court correctly concluded that Parnham’s failure
to file a motion to suppress undermined confidence in
petitioner’s capital murder conviction (App. 37a).
26
Petitioner’s case raises constitutional evidentiary
issues worthy of a law school criminal procedure final
examination. Parnham did not discern any of these issues
at trial and, when he testified at the habeas hearing,
sought to justify his failure to file a motion to suppress
by testifying falsely that he wanted the jury to use this
evidence to support an insanity defense (that he did not
raise). The habeas trial court concluded that reasonably
competent counsel would have moved to suppress
the evidence and, if Parnham had done so, there is a
reasonable probability that the outcome of the proceeding
would have been different.
The TCCA rejected the state habeas trial court’s
findings of fact, conclusions of law, and recommendation
to grant relief despite the fact that the record and this
Court’s precedent fully support those findings and
conclusions. This Court should grant certiorari and
summarily reverse the TCCA’s judgment.
Although petitioner’s case is worthy of the Court’s
plenary review, at the very least it warrants a summary
reversal. See e.g., Porter v. McCollum, 558 U.S. 30, 44
(2009) (per curiam) (summary reversal because lower
court erred in rejecting petitioner’s ineffective assistance
of counsel claim); Hinton v. Alabama, 571 U.S. 263, 273
(2014) (per curiam) (same). This Court “has not shied away
from summarily deciding fact-intensive cases where, as
here, lower courts have egregiously misapplied settled
law.” Wearry v. Cain, 577 U.S. 385, 397 (2016) (per curiam)
(summary reversal where state habeas court erroneously
denied relief on Fourth Amendment suppression of
evidence claim); Kaupp v. Texas, 538 U.S. 626, 633
(2003) (per curiam) (same).
27
II. A LTERNATIVELY, THE COURT SHOULD
VACATE THE JUDGMENT AND REMAND FOR
THE TCCA TO PROVIDE SPECIFIC REASONS
FOR REJ ECTI NG T H E I N EFFECTI V E
ASSISTANCE OF TRIAL COUNSEL CLAIM.
The state habeas trial court made 121 findings of fact
and conclusions of law in 32 pages thoroughly explaining
why the evidence was inadmissible and Parnham was
ineffective in failing to file a motion to suppress. In
response, the TCCA simply stated, “We disagree.
[Petitioner] has not met her burden to obtain relief under
Strickland v. Washington, 466 U.S 668 (1984). Based on
this court’s independent review of the entire record, relief
is denied.” (App. 1a-2a).
This Court has instructed lower courts to conduct
a “probing and fact-specific” analysis of an ineffective
assistance of counsel claim. Sears v. Upton, 561 U.S. 945,
955 (2010) (per curiam); see also Andrus v. Texas, 590
U.S. 806, 824 (2020) (per curiam) (requiring a “weighty
and record-intensive record analysis”). The TCCA did
not conduct any such analysis of either Strickland prong.
In view of the TCCA’s clearly inadequate review,
in the interests of justice, 9 this Court should grant
9. 28 U.S.C § 2106 (“The Supreme Court … may affirm,
modify, vacate, set aside or reverse any judgment, decree, or order
of a court lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment, decree,
or order, or require such further proceedings to be had as may be
just under the circumstances.”). See also Stutson v. United States,
516 U.S. 193, 196-97 (1996) (per curiam) (citing Wood v. Georgia,
450 U.S. 261, 265 n.5 (1981)).
28
certiorari, vacate the TCCA’s judgment, and remand
(“GVR”) for a proper analysis.
Petitioner’s case is yet another example of the
TCCA’s failure to show its work. This Court addressed
the TCCA’s inadequate review of the prejudice
prong of an ineffective assistance of counsel claim in
Andrus v. Texas, supra. The state habeas trial court
had recommended a new trial on punishment because
trial counsel was ineffective. The TCCA denied relief,
curtly stating that Andrus “fails to meet his burden
under Strickland v. Washington, 466 U.S. 668 (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.”
Ex parte Andrus, No. WR-84,438-01, 2019 WL 622783,
at *2 (Tex. Crim. App. Feb. 13, 2019). This Court
granted certiorari, concluded that counsel performed
deficiently, vacated the judgment, and remanded to
the TCCA to conduct a proper prejudice analysis. The
Court faulted the TCCA for failing to analyze prejudice
in any meaningful respect. Andrus, 590 U.S. at 824.
“Given the uncertainty as to whether the Texas Court
of Criminal Appeals adequately conducted the weighty
and record-intensive analysis in the first instance, we
remand for the Court of Criminal Appeals to address
Strickland prejudice in light of the correct legal
principles articulated above.” Id. at 1887.
Similarly, at the very least, the Court should vacate
the judgment and remand to the TCCA to conduct a
probing and fact-specific analysis regarding whether
29
Parnham performed deficiently and, if so, whether
there was prejudice to the defense. A remand would
thereby enhance this Court’s review of petitioner’s substantial
ineffective assistance of counsel claim.
CONCLUSION
The Court should grant the petition for a writ of
certiorari and reverse the judgment of the TCCA or,
alternatively, remand to the TCCA for a meaningful
analysis of the ineffective assistance of trial counsel claim.
Respectfully submitted,
Randolph L. Schaffer, Jr.
Counsel of Record
1021 Main, Suite 1440
Houston, TX 77002
(713) 951-9555
noguilt@schafferfirm.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE COURT OF
CRIMINAL APPEALS OF TEXAS, FILED
SEPTEMBER 25, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — APPLICANT’S REVISED
PROPOSED FINDINGS OF FACT AND
CONCLUSIONS OF LAW, 339TH DISTRICT
COURT OF HARRIS COUNTY, TEXAS,
FILED JULY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . 3a
1a
APPENDIX A —Appendix
ORDER AOF THE COURT
OF CRIMINAL APPEALS OF TEXAS,
FILED SEPTEMBER 25, 2024
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,504-01
EX PARTE NARJES MODARRESI, Applicant
ON APPLICATION FOR A WRIT OF
HABEAS CORPUS
CAUSE NO. 1260243-A IN THE 339TH
DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
Applicant was convicted of capital murder and
sentenced to life imprisonment. The Fourteenth Court
of Appeals affirmed her conviction. Modarresi v. State,
488 S.W.3d 455 (Tex. App.—Houston [14th Dist.] 2016).
Applicant filed this application for a writ of habeas corpus
in the county of conviction, and the district clerk forwarded
it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that trial counsel was ineffective
by failing to file a motion to suppress. Based on the
record, the trial court has determined that trial counsel’s
performance was deficient and that Applicant was
prejudiced.
2a
Appendix A
We disagree. Applicant has not met her burden to
obtain relief under Strickland v. Washington, 466 U.S.
668 (1984). Based on this Court’s independent review of
the entire record, relief is denied.
Copies of this order shall be sent to the Texas
Department of Criminal Justice-Correctional Institutions
Division and the Board of Pardons and Paroles.
Filed: September 25, 2024
3a
Appendix
B
APPENDIX B —
APPLICANT’S
REVISED
PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW, 339TH DISTRICT COURT OF HARRIS
COUNTY, TEXAS, FILED JULY 13, 2023
IN THE 339TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
CAUSE NO 1260243-A
EX PARTE NARJES MODARRESI
APPLICANT’S REVISED PROPOSED FINDINGS
OF FACT AND CONCLUSIONS OF LAW
The court, having considered the application for a writ
of habeas corpus, the brief, the exhibits, and the official
court records and testimony from the trial and the habeas
corpus proceeding, enters the following findings of fact
and conclusions of law:
I.
THE TRIAL
A.
The Indictment
1. The indictment alleged that, on or about April 21,
2010, applicant intentionally and knowingly caused the
death of M.G., a child under six years of age, by placing
him face down in the mud (C.R. 23).
4a
Appendix B
B.
The State’s Case
2. Applicant and her husband, Amir Golabbakhsh
(hereafter, “Amir”), lived in Houston with their two sons,
A.G. (age three) and M.G. (age three months), and Amir’s
parents (5 R.R. 59, 65, 96).
3. On the afternoon of April 21, 2010, applicant
told her mother-in-law that she was taking M.G. to visit
a friend and left on foot with M.G. in a stroller (7 R.R.
114-16, 118).
4. Jessica Shaver was sitting on the porch of her
home near Buffalo Bayou when she saw applicant pushing
a stroller with a baby carrier down the street (4 R.R.
43, 45). Applicant slammed the stroller into the curb,
detaching the carrier, and ran away (4 R.R. 46).
5. Shaver thought that applicant had abandoned a
baby (4 R.R. 47).
6. Shaver unrolled a blanket that fell out of the
stroller but found only a pillow (4 R.R. 53).
7. Shaver drove around the area looking for applicant
but could not find her and returned home (4 R.R. 55).
8. Applicant went to the home of a friend, appeared
to be very upset, and said that someone took her baby (4
R.R. 92-94).
9.
Applicant’s friend called 91 1 (4 R.R. 94-96).
5a
Appendix B
10. When Officer Gonzales arrived, applicant told
him that she was walking by a park when a black man
pushed her down, took her baby, and left in a car driven
by another black man (4 R.R. 70-71).
11. Officer Gonzales drove applicant to the location
of the alleged kidnapping (4 R.R. 70-71).
12. Shaver told Officer Gonzales what she saw. He
observed that applicant had mud on her jacket but the
ground was dry and questioned whether there had been
a kidnapping (4 R.R. 72-73, 75).
13. Sergeant Jeremiah Rubio arrived, spoke to
applicant, and became suspicious when she kept asking
whether he believed her (4 R.R. 158, 160, 163-64, 170).
He asked if she could show him where the baby was (4
R.R. 166). She walked about 20 feet towards the bayou,
stopped, and said, “I told you that the black guys took it”
(4 R.R. 166-67).
14. Sergeant Rubio transported her to the police
station to give a statement (4 R.R. 167).
15. Detective Phil Waters and Officer Tony Jafari
(who speaks Farsi, applicant’s native language), conducted
a video recorded interrogation of applicant at the police
station that started at 9:50 p.m. (5 R.R. 182, 184, 188-89,
194).
16. The video recording and a certified transcript
were admitted without objection (5 R.R. 189-92; SX 44,
77).
6a
Appendix B
17. Detective Waters testified that applicant was not
in custody and was not advised of her Miranda rights (4
R.R. 187-88, 193).
18. Detective Waters testified that the officers’ goal
was to get applicant to trust them enough to take them to
M.G., and they continuously brought up the subject of her
mental health because they knew that she wanted help to
deal with her mental problems (5 R.R. 192; 7 R.R. 8, 10).
They confronted her with inconsistencies in her story
and urged her to reveal M.G.’s location for several hours,
but she insisted that he had been kidnapped (SX 44, 77).
Finally, after midnight, she asked if they would let her
stay with them if she revealed where he was (C.R. 846).
Waters responded, “I will take care of you. I will find you a
place ... I will get you (psychiatric) help tonight” (C.R. 847).
19. Applicant agreed to take the officers to M.G.
(C.R. 849).
20. Detective Waters drove applicant to the scene of
the alleged kidnapping at 1:30 a.m. (7 R.R. 7).
21. Detective Waters, other officers, and applicant
walked past a barricade marking a dead-end street, a chain
marking private property, and down an embankment to a
remote area near the bayou (4 R.R. 185-88).
22. M.G. was buried face down in muddy water and
was covered with mud, leaves, and debris (4 R.R. 192,
199-200, 205).
7a
Appendix B
23. Detective Waters testified that there was only
a very small chance that M.G. would have been found
without applicant’ s help, as the officers had been unable
to find him with the use of dogs (7 R.R. 7).
24. Sergeant Roger Chappell testified that he
concluded that M.G. was alive when placed in the mud and
had struggled before dying, as M.G. had mud and debris
in his clenched fists (4 R.R. 209).
25. The pathologist testified that M.G. drowned in
muddy water, consistent with being placed face down while
he was still alive (5 R.R. 26, 36).
26. Later that day, after applicant had been charged,
Detective Waters and Officer Jafari conducted a second
video recorded interrogation in which she was advised of
her Miranda rights for the first time (5 R.R. 193; 7 R.R.
18; SX 45).
27. Applicant admitted placing M.G. face down in
the mud and covering him with mud (7 R.R. 19).
28. Amir testified that applicant suffered from
post-partum depression and was diagnosed with Bipolar
Disorder after their first son was born in 2007 (5 R.R.
65, 80). She was treated at the Mental Health Mental
Retardation Association (MHMRA) and placed on antipsychotic medication (5 R.R. 81-82). She became pregnant
in 2009, was scared, and wanted to have an abortion, but
did not do so (5 R.R. 87-89). She had a nervous breakdown
on an airplane and was hospitalized in Qatar for several
8a
Appendix B
days during her pregnancy (5 R.R. 92-95). Amir’s mother
took care of M.G. after he was born in January of 2010
because applicant was depressed, unmotivated, and slept
most of the time (5 R.R. 96-99).
29. Amir testified that applicant sounded fine when
he spoke to her on the afternoon of April 21, 2010 (5 R.R.
114, 116).
30. Amir testified that, when he visited applicant in
jail, she said that she did what she did because the baby
was a burden to Amir’s mother (5 R.R. 121).
C.
The Defense’s Case
31. Three psychiatrists, Dr. Debra Osterman and
Dr. Vasantha Janarthanan (who treated applicant at
MHMRA) and Dr. David Self, testified that, at the time of
the offense, applicant was bipolar with psychotic features
and had severe post-partum depression, but was not
insane (8 R.R. 16, 88-91, 132, 165; 9 R.R. 78, 88-89, 147).
D.
The State’s Case-In-Rebuttal
32. Dr. Mark Moeller, a psychiatrist hired by the
district attorney’s office to evaluate applicant, testified
that, at the time of the offense, she was very depressed,
but was neither psychotic nor insane (9 R.R. 190-91, 19394, 202-03).
9a
Appendix B
E.
The Court’s Charge
33. The court instructed the jury on capital murder
and felony murder (committing an act clearly dangerous to
human life that caused M.G.’s death during the commission
of the felony of injury to a child) (C.R. 1645-46).
F.
The Arguments
34. Defense counsel, George Parnham, argued that
applicant should be convicted of felony murder because her
mental illness negated the specific intent to kill, which is
an element of capital murder (10 R.R. 11, 13-14, 25, 32-33).
35. The prosecutor argued that applicant should
be convicted of capital murder because her intent to kill
M.G. was proven by “her own words” and by her piling
mud on him; and, that her mental illness did not negate
that intent (10 R.R. 34-36, 39, 50-51).
II.
INEFFECTIVE ASSISTANCE OF COUNSEL
A.
The Standard Of Review
36. A habeas applicant has the burden to prove
that, but for counsel’s deficient performance, there is a
reasonable probability that the outcome of the trial would
have been different. See Strickland v. Washington, 466
U.S. 668, 687-90 (1984). A “reasonable probability” is
10a
Appendix B
“a probability sufficient to undermine confidence in the
outcome”; it requires showing by less than a preponderance
of the evidence that the result of the proceeding would
have been different. Id. at 694.
B.
Deficient Performance
37. Applicant was convicted of capital murder based
on: (1) her statements during the first video recorded
interrogation in which she agreed to take the officers to
M.G., (2) an officer’s testimony that she led them to M.G.,
and (3) her confession during the second video recorded
interrogation that she placed M.G. face down in the mud
and covered him with mud.
38. George Parnham, lead counsel for applicant at
trial, has been licensed to practice law for 52 years (1
H.R.R. 6).
39. Parnham testified at the habeas hearing that he
does not read the decisions in criminal cases issued by
the United States Supreme Court, Fifth Circuit, Court of
Criminal Appeals, and Texas Courts of Appeals; instead,
he relies on his secretary or law clerk to point out any new
cases that might be important (1 H.R.R. 6-7).
40. Parnham did not file a motion to suppress
applicant’s statements, her agreement to take (and act of
leading) the officers to M.G., and the discovery of the body.
41. Reasonably competent counsel has a duty to
recognize and research possible suppression issues;
11a
Appendix B
file a motion to suppress when warranted; request a
hearing in an effort to exclude the evidence at trial; and,
if unsuccessful, preserve error for appeal. Competent
counsel would have (1) recognized the issues concerning
the admissibility of applicant’s statements, her agreement
to take (and act of leading) the officers to M.G., and the
discovery of the body; (2) conducted legal research; (3)
filed a motion to suppress the evidence; and (4) obtained
a hearing.
42. Parnham performed deficiently by failing to
file a motion to suppress and object to the admission of
unconstitutionally obtained evidence. See Kimmelman v.
Morrison, 477 U.S. 365, 385-87 (1986) (counsel performed
deficiently by failing to move to suppress fruits of illegal
search); Williamson v. State, 771 S.W.2d 601, 606-07
(Tex. App.—Dallas 1989, pet. ref’d) (counsel performed
deficiently by failing to move to suppress defendant’s oral
confession); Boyington v. State, 738 S.W.2d 704, 707-08
(Tex. App.—Houston [1st Dist.] 1985 no pet.) (counsel
performed deficiently by failing to move to suppress
defendant s written confession).
43. As a result of Parnham’ s deficient performance,
there was a “complete abandonment of [applicant’s]
well-established constitutional and statutory rights to a
reliable determination regarding the admissibility of the
[evidence].” Mitchell v. State, 762 S.W.2d 916, 924-25 n. 18
(Tex. App.—San Antonio 1988, pet. ref’d).
44. Applicant’s habeas counsel sent an email to
Parnham during the habeas investigation asking why he
12a
Appendix B
did not file a motion to suppress the evidence. Parnham
ultimately responded, “Because of asserting the insanity
defense in this case, not filing a Motion to Suppress was
a part of our sound trial strategy” (AX 11).
45. Parnham testified at the habeas hearing that he
conferred with Wendell Odom, his office mate, about how
to respond to the question (1 H.R.R. 28-30).
46. Parnham reiterated in his testimony at the
habeas hearing that he made a strategic decision not to file
a motion to suppress or object to applicant’s statements,
her agreement to take (and act of leading) the officers
to M.G., and the discovery of the body because her
statements supported an insanity defense. However, he
acknowledged that he may have relied on his staff to watch
the videotaped interrogations instead of watching them
himself (1 H.R.R. 31-33, 44).
47. Parnham informed the jury panel during the voir
dire examination that the defense would not present an
insanity defense (3 R.R. 164; AX 12).
48. Parnham did not present any testimony at
trial that applicant was insane at the time of the offense.
Instead, Parnham presented three experts that testified
the applicant was not insane at the time of the offense. (8
R.R. 16, 88-91, 132, 165; 9 R.R 78, 88-89, 147).
49. The court’ s charge did not contain an instruction
on the insanity defense (C.R. 1643-50).
13a
Appendix B
50. Although, Parnham stated in the email to habeas
counsel and his testimony at the habeas hearing that
he did not file a motion to suppress because applicant’ s
statements “because of asserting this case” that contention
is not supported by the record. In this case the insanity
defense was not argued, and the defense put on their own
experts to negate that defense during the trial. (8 R.R.
16, 88-91, 132, 165; 9 R.R. 78, 88-89, 147).
51. Parnham did not have a sound strategic reason
not to file a motion to suppress or object to applicant’s
statements, her agreement to take (and act of leading) the
officers to M.G., and the discovery of the body.
52. The United States Supreme Court has recognized
that a “confession is like no other evidence.” Arizona v.
Fulminante, 499 U.S. 279, 296 (1991). “The defendant’s
own confession is probably the most probative and
damaging evidence that can be used against him. . . . [T]he
admissions of a defendant come from the actor himself,
the most knowledgeable and unimpeachable source of
information about his past conduct. Certainly, confessions
have profound impact on the jury, so much that we may
justifiably doubt its ability to put them out of mind even
if told to do so.” Id.
53. The State has not been prejudiced by any delay
in filing the habeas application, as Parnham testified at
the habeas hearing that there were valid legal grounds to
file a motion to suppress and offered no sound strategic
reason for his failure to do so. Furthermore, the State
14a
Appendix B
will not be materially prejudiced if there is a retrial, as
the outcome will depend on the admissibility of applicant’s
statements, her agreement to take (and act of leading) the
officers to M.G., and the discovery of the body.
I.
MIRANDA
Counsel failed to move to suppress
applicant’s statements during the first
interrogation and her agreement to take
(and act of leading) officers to M.G. on the
ground that they failed to advise her of her
Miranda rights once she was in custody.
54. Detective Waters testified that applicant was
not in custody during the first interrogation and, for that
reason, was not advised of her Miranda rights (5 R.R.
187-88, 193).
55. The video recording and transcript reflect
that Detective Waters told applicant at the start of the
interrogation that she was not under arrest and was not
in custody, as she was “down here voluntarily” to help
them find M.G. (C.R. 707-08, AX 2).
56. Shortly after initiating the interview Detective
Waters advised the applicant he believes she is not being
truthful “... I think that something — you did something
to put that baby in a place where you felt the he would be
better off than living there with you and you not being
able to provide for him.” (C.R. 530; AX 3).
15a
Appendix B
Upon hearing the assertion, the applicant denied the
allegation, and repeatedly continued to deny knowing
where the child was for over two hours. During the course
of the first two hours of the interrogation the applicant
cried, begged the officers to believe she was telling the
truth, asked to call her brother, told the officers she was
tired, questioned if her husband had arrived, and told the
officers she had nothing more to say. (C.R. 649, 994,1089,
1121, 1147, 1235 ; AX 3) Nevertheless, the interrogation
continued without a break.
Over two hours after the interrogation began,
applicant said that she was tired and “want to go to my
mom and dad.” Officer Jafari responded. You cannot go to
your mom and dad now. Unless I find your child, you can’t
go anywhere. Tell me where he is” (C.R. 822-23; AX 3).
57. At this point, applicant clearly was in “custody”
within the meaning of Miranda because her liberty had
been significantly restrained. See Berkemer v. McCarthy,
468 U.S. 420, 435 (1984). However, the officers did not
advise her of her Miranda rights at this juncture and
continued to interrogate despite her until she agreed to
take them to M.G. (C.R. 823-49).
58. Parnham did not move to suppress applicant’s
statements and her agreement to take (and act of leading)
the officers to M.G. on the ground that they failed to advise
her of her Miranda rights once she was in custody.
59. Parnham testified at the habeas hearing that this
would have been a valid objection (1 H.R.R. 42, 54-57).
16a
Appendix B
60. A statement made by the accused in response
to a custodial interrogation is inadmissible unless she
was warned of her privilege against self-incrimination
and right to counsel and voluntarily waived those rights.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial
interrogation means “questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in
any significant way.” Id.
61. The officers engaged in custodial interrogation
of applicant. Therefore, her oral admissions and her
agreement to take (and act of leading) the officers to M.G.
were tainted by the Miranda violation. See Pennsylvania
v. Muniz, 496 U.S. 582, 616 n.9 (1990) (“[N]onverbal
conduct contains a testimonial component whenever the
conduct reflects the actor’s communication of his thoughts
to another.”); Schmerber v. California, 384 U.S. 757, 761
n.5 (1966) (“A nod or head-shake is as much a ‘testimonial’
or ‘communicative’ act in this sense as are spoken words.”).
62 . Applicant’s act of tak ing the off icer to
M.G., although nonverbal, was testimonial because it
communicated her thoughts—just as if she had verbally
told them where to find him. Although physical evidence is
not subject to suppression because of a Miranda violation,
applicant’s testimonial act of leading the officers to M.G.
is subject to suppression.
II.
Tex. Crim. Proc. Code art. 38.22 §§ 2(a) & 3(a)
63. Applicant’s statements also were inadmissible
under Texas law. An oral statement of an accused made
17a
Appendix B
as a result of a custodial interrogation is not admissible at
the trial of a criminal case in Texas unless an electronic
recording was made and, prior to the statement but
during the recording, the accused was warned (1) that
she has the right to remain silent, (2) that any statement
she makes may be used against her in court, (3) that she
has the right to a lawyer to advise her prior to and during
any questioning (including an appointed lawyer if she
cannot afford to hire one), and (4) that she has the right
to terminate the interview at any time. Tex.
6 4. Applicant was not in custody when the
interrogation began and Miranda warnings were not
given. Shortly after the inception of the interview, the
officers became accusatory and the defendant continued
denying any involvement in the disappearance. After
repeating her story several times and denying the
allegation to the officers the applicant advised the Officers
“she had nothing more to say”. (C.R. 747; AX 4). Instead
of terminating the interview and honoring applicant’s
invocation of her right to remain silent, the Officers
continued with the interrogation.
Later in the interview applicant advised the officers she
was tired and wanted to go to her mom and dad, and
Officer Jafari responded that she could not go anywhere
until the police found M.G. Once again instead honoring
her invocation of her right to terminate the interview the
Officers continued with the interrogation. This case is
most analogous to State v. Consaul, 960 S.W.2d 680, 68687 (Tex. App.–El Paso 1997), pet. dism’d as improvidently
granted, 982 S.W.2d 899 (Tex. Crim. App. 1998)
18a
Appendix B
In Consaul:
• On January 21, 1996, the defendant reported
her 18-month-old child missing;
• On January 22, 1996, an officer asked if she
would go to the police station to discuss the
matter;
• Two officers interviewed the defendant at
the station;
• The defendant was read her Miranda
warnings at the outset of the interview and
waived her rights;
• The officers became accusatory and the
defendant continued denying involvement
in the disappearance;
• The defendant twice asked if she was a
lawyer, and then finally said she wanted a
lawyer;
• After the defendant invoked her right
to counsel, the officers terminated the
interview,
• In the following days, the FBI became
involved and interviewed the defendant
without knowing that she had invoked her
right to counsel;
19a
Appendix B
• A nother detective reached out to the
defendant about taking a polygraph test
and she agreed;
• On January 24, 1996, the defendant was
taken back to the police station to take a
polygraph test;
• The same officers who had interviewed the
defendant met with her after the polygraph
test, which indicated deception;
• The officers asked if she wanted to talk
about it and she agreed;
• The defendant was once again advised of
her Miranda rights;
• During the course of the second interview,
the defendant stated that she discovered her
child had fallen from her crib and suffocated
on a plastic bag and there were no signs of
life, so she took the child to the desert and
left her there;
• The trial court found that January 22, 1996
interview was a custodial interrogation and
that the defendant had invoked her Fifth
Amendment right to an attorney;
• The Court of Appeals of El Paso affirmed
the trial court’s order that all statements
20a
Appendix B
made by the defendant after invoking her
right to counsel on January 22, 1996, be
suppressed.
In this case despite the fact that the Officers failed to
give her Miranda warning, the applicant invoked her
right to remain silent, and her right to terminate the
interrogation.
65. Because applicant was in custody before she
agreed to take the officers to M.G., but was not advised
of her Miranda rights, all statements she made after she
was in custody, and her agreement to take (and act of
leading) the officers to M.G. were inadmissible under the
law in effect at the time of trial.
66. Parnham performed deficiently within the
meaning of Strickland by failing to move to suppress the
evidence on this ground.
67. Seven years after applicant’s trial, the Court of
Criminal Appeals held that the “public safety exception”
established in New York v. Quarles, 467 U.S. 649, 655
(1984), Does not require the police to give Miranda
warnings to a suspect who is in custody before asking the
location of a kidnapped child. State v. Mata, 624 S.W.3d
824, 828-29 (Tex. Crim. App. 2021).
Kidnapping is defined by Texas Penal Code 20.03 as:
Sec. 20.03. KIDNA PPING. (a) A
person commits an offense if he intentionally
or knowingly abducts another person.
21a
Appendix B
( b) It is an a ff i r mative defense to
prosecution under this section that:
(1) the abduction was not coupled
with intent to use or to threaten to use deadly
force;
(2) the actor was a relative of the
person abducted; and
(3) the actor’s sole intent was to
assume lawful control of the victim.
(c) An offense under this section is a felony
of the third degree.
In this case the applicant is the mother of the complaint.
Officers did not believe the child had been abducted, or
they were dealing with a kidnapping. “... I think that
something – you did something to put that baby in a place
where you felt the he would be better off than living there
with you and you not being able to provide for him.” (C.R.
530; AX 3).
Furthermore, there are distinct differences in this
case and Quarles and Mata. In both of the abovementioned
cases, the officers had more than just a mere suspicion the
people detained had committed an offense. In Quarles,
the victim of the offense made an immediate outcry,
described Mr. Quarles, and was able to immediately direct
the officers to the store he just ran inside with the gun.
Furthermore, when the officers found Mr. Quarles, he
had an empty holster on in an occupied grocery store. In
22a
Appendix B
Mata the defendant was detained on the phone with the
complaints mother attempting to secure a $300 ransom
for the child.
In both of those instances the police had the requisite
level of suspicion to arrest, and did arrest the defendants
for the alleged offenses. In this case, the officers at best
had a suspicion the applicant was being less than truthful,
and secreted her own child.
My review of Mata and Quarles does not seem to
suggest that the Court has authorized Officers to take
a person into custody and interrogate them on nothing
more than on a mere suspicion, and not only fail to give
the Miranda warnings, but deny them the right to
exercise the rights afforded when they attempt to do so.
Accordingly, this court will not exceed the limitations
that the Supreme Court, and the Texas Court of Criminal
Appeals have established when outlining this exception
to Miranda.
69. The United States Supreme Court has not yet
decided whether to extend Quarles to attempts by the
police to located a kidnapped child.
23a
Appendix B
III.
RIGHT TO REMAIN SILENT
Counsel failed to move to suppress
applicant’s statements made during the
first interrogation and her agreement to
take (and act of leading) the officers to
M.G. on the ground that they continued
to question her after she said that she had
“nothing more to say.”
71. Applicant told the officers during the first
interrogation, “I have nothing more to say. If I knew where
my baby is, I would not be sitting here” (C.R. 747; AX 4).
72. The officers continued to interrogate applicant
after she invoked her right to remain silent (C.R. 747-50;
AX 4).
73. Applicant again said, “I have nothing more to
say. I have repeated several times” (C.R. 751; AX 4).
74. The interrogation continued without any break
(C.R. 751-818).
75. Applicant repeatedly complained that she was
tired (C.R. 819, 821, 822, 835, 836, 840; AX 5).
76. Officer Jafari said, “You know where he is. I
know you are tired. If you want this to finish, just tell me
where he is. ... Do you want this to end? Do you want this
to end? Be brave and tell me where he is” (C.R. 822; AX 5).
24a
Appendix B
77. Parnham did not move to suppress applicant’s
statements and her agreement to take (and act of leading)
the officers to M.G. on the ground that the officers
continued to interrogate her after she said that she had
nothing more to say.
78. Parnham testified at the habeas hearing that this
would have been a valid objection (1 H.R.R. 42, 58-63).
79. When a suspect states during a custodial
interrogation that she wants to remain silent, the
interrogation must cease. Miranda, 384 U.S. at 473-74.
A confession is inadmissible when the officer continues
the interrogation after the defendant said that she does
not want to talk. Michigan v. Mosley, 423 U.S. 96, 102-03
(1975); Ramos v. State, 245 S.W.3d 410, 418-19 (Tex. Crim.
App. 2008) (written confession inadmissible); Simpson
v. State, 227 S.W.3d 855, 858 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (videotaped confession inadmissible).
80. Shortly after the interrogation began, applicant
repeatedly told the officers that she had “nothing more
to say.” Despite her unambiguous assertion of her right
to remain silent, they continued to interrogate her until
she agreed to take them to M.G. Her statements and her
agreement to take (and act of leading) the officers to M.G.
were inadmissible under the law in effect at the time of
trial because the officers did not scrupulously honor her
right to remain silent. Mosley, 423 U.S. at 102-03.
81. Parnham performed deficiently within the
meaning of Strickland by failing to move to suppress the
evidence on this ground.
25a
Appendix B
82. Neither Quarles nor Mata decided whether a
confession and the act of leading the police to a missing
child must be suppressed if the defendant exercised her
right to remain silent, and the police failed to scrupulously
honor that right and continued to interrogate her until
they obtained a confession.
83.
IV.
The analyzes prong 2 of Strickland below.
Involuntary Confession
Counsel failed to move to suppress
applicant’s statements during the first
interrogation and her agreement to take
(and act of leading) officers to M.G. on
the ground that they were induced by
the officers’ promises to help her receive
psychiatric treatment if she confessed and
took them to M.G.
84. Detective Waters testified that the officers’ goal
was to get applicant to trust them enough to take them to
M.G., and they continuously brought up the subject of her
mental health because they knew that she wanted help for
her mental problems (5 R.R. 192; 7 R.R. 8, 10).
85. The officers relentlessly interrogated applicant
for over three hours until she agreed to take them to M.G.
(SX 44, 77).
86. The videotape and transcript reflect a carefullyorchestrated psychological manipulation designed to
26a
Appendix B
convince applicant that she was not criminally responsible
for her conduct because she is mentally ill; that she needs
psychiatric treatment instead of incarceration; and that,
if she took them to M.G., they would help her receive
psychiatric treatment instead of taking her to jail but, if
she refused, and they found M.G. without her help, it would
become a criminal investigation, they could not help her,
and she would go to prison.
87. The following exchanges took place during the
interrogation (AX 6):
• “You’ve got a sickness and because of that
something has happened” (C.R. 780).
• “Many people have the sickness that you
have. They do certain things under pressure,
because of their disease. All psychiatrists
and physicians have said that” (C.R. 781).
• “You have a sickness, you’ve been trying to
get it treated, ... and it just doesn’t seem like
anybody cares...” (C.R. 784).
• “...the only way that you’re going to be able
to help yourself with your sickness and allow
others to help you, is to tell us the truth
where [M.G.] is” (C.R. 785).
• “I will tell you personally, I will do whatever
I can do to help you afterwards” (C.R. 796).
27a
Appendix B
• “I will give you my word that we will do
whatever we need to do to help you, after”
(C.R. 799).
• “You have got to trust us. We’re not going
to let anything happen to you. We’re going
to do everything we can do to get you more
treatment, to help you ... get through this...”
(C.R. 807).
• “What will happen if you find him? You’ll
put the blame on me?” (C.R. 809). “Why
would we put the blame on you? You were
sick, ma’am.”
• “Our purpose is not to blame you for
anything. We have nothing to gain by doing
that, do you understand? ... Our purpose is
to find [M.G.]” (C.R. 810).
• “Our purpose right now isn’t to put you in
jail, if that’s what you’re fearful of’ (C.R.
812).
• “I want you to look me in the eye because I
want you to understand that you can trust
me ...” (C.R. 812). “Yes, I know, I can trust
you.” “If you will just tell us where [M.G.]
is, then I’m going to do everything I can do
to help you” (C.R. 813).
28a
Appendix B
• “You’ve made a mistake. A bad thing has
happened. You have an illness; you have a
sickness that needs to be addressed and you
need to be helped with” (C.R. 815).
• “You’re going to have to leave the protection
of you up to us. We’re here to help you. We’re
not here to try to trick you into anything.
I’m not even here to put you in jail; I could
care less about that” (C.R. 829).
• “If he is alive, we can get your husband to
divorce you and send you to Iran” (C.R. 841).
“When will you make him divorce me?”
(C.R. 844). ‘First, we need to find the baby.”
• “We won’t be able to help you unless you tell
us” (C.R. 843).
• “If we find [M.G.] and you don’t take us to
him, you are going to have more problems
than you ever dreamed of because then it
will become strictly a criminal investigation,
it will become a legal issue, and the fact
that you have an illness or a sickness won’t
matter if we find [M.G.] and you don’t help
us. It will not go well.” “You mean they will
take me to prison?” “If you don’t tell us, if
you don’t help us, yes ma’am.” (C.R. 845).
• “Will you let me stay with you guys if I
tell you where he is?” (C.R. 846). “I will help
29a
Appendix B
you as much as I can.” “Let me stay with
you.” “I promise ... I will call your brother
to come.”
• “I will take care of you. I will find you a place
.... I will get you (psychiatric) help tonight”
(C.R. 847).
88. Applicant agreed to take the officers to M.G.
only after they made the specific promises and threats
set forth above (C.R. 849). Their promises and threats
contained a sufficient “if-then” relationship that “implicitly
or explicitly suggest[ed] a ‘deal, bargain, agreement,
exchange, or contingency.’” Chambers v. State, 866 S.W.2d
9, 20 (Tex. Crim. App. 1993).
89. A confession is involuntary and inadmissible
when it was induced by an officer’s promise of leniency
if the suspect confesses, or by an officer’s threats if the
suspect does not confess, when such promise or threat
operates to overbear the will of the suspect. Lynumn
v. Illinois, 372 U.S. 528, 534 (1963) (confession to drug
offenses involuntary because officer told defendant that
state financial aid would be cut off and her children would
be taken from her if she did not “cooperate”); Payne
v. Arkansas, 356 U.S. 560, 561 (1958) (confession to
murder involuntary because officer promised to protect
defendant from angry mob outside jail if he confessed);
Hardesty v. State, 667 S.W.2d 130, 134 (Tex. Crim. App.
1984) (confession to multiple offenses involuntary because
detective promised that he would file only one charge if
defendant confessed).
30a
Appendix B
90. Parnham did not move to suppress applicant’s
statements and her agreement to take (and act of
leading) the officers to M.G. on the ground that they were
involuntary because they were induced by promises and
threats.
91. Parnham testified at the habeas hearing that this
would have been a valid objection (1 H.R.R. 42-43, 63-76).
92. Applicant’s statements and her agreement
to take (and act of leading) the officers to M.G. were
involuntary for the following reasons:
• The officers promised to help applicant only
if she confessed and took them to M.G. See
Pyles v. State, 947 S.W.2d 754, 755-57 (Ark.
1997) (confession to murder involuntary
because officer told defendant he would “do
everything in the world” he could do for
defendant if defendant confessed);
• The officers repeatedly promised that they
would help applicant receive psychiatric
treatment instead of incarceration and
make her husband divorce her if she
confessed and took them to M.G. See Cole
v. State, 923 P.2d 820, 831-32 (Alaska Ct.
App. 1996) (confession to sexual abuse
involuntary because officer told defendant
he had to confess to receive help for his
problem); State v. Howard, 825 N.W.2d
32, 41 (Iowa 2012) (confession to sexual
31a
Appendix B
abuse involuntary because officer misled
defendant that he would receive treatment
for sex addiction instead of incarceration if
he confessed); State v. L.H., 215 A.3d 516,
534-35 (N.J. 2019) (confession to sexual
assault involuntary because officer led
defendant to believe that he would receive
counseling instead of incarceration if he
confessed).
• Detective Waters told applicant that, if the
police found M.G. without her help, it will
become “strictly a criminal investigation,”
that her mental illness will not matter, and
“[i]t will not go well.” See State v. Pollard,
888 P.2d 1054, 1059-61 (Or. App. 1995)
(confession to murder involuntary because
officer told defendant that he would receive
treatment if he confessed; but, if he did not,
the case would go to the Grand Jury and,
if “the Grand Jury thinks that you’ve done
this, it makes it real rough.”).
93. The officers’ coercive interrogation tactics
ultimately overbore applicant’s will and rendered
involuntary both her statements and her agreement to
take (and act of leading) the officers to M.G. In addition,
the discovery of the body was inadmissible as the “tainted
fruit’’ of the involuntary confession. See United States
v. Chavez, 985 F.3d 1234, 1246 (10th Cir. 2021) (physical
evidence discovered as result of involuntary confession
must be suppressed).
32a
Appendix B
94. Parnham performed deficiently within the
meaning of Strickland by failing to move to suppress the
evidence on this ground.
95. Quarles did not apply the “public safety
exception” to an involuntary confession as opposed to a
mere Miranda violation. See New York v. Quarles, 467
U.S. 649, 654-55 (1984) (“In this case we have before
us no claim that respondent’s statements were actually
compelled by police conduct which overcame his will
to resist. . . . Thus the only issue before us is whether
Officer Kraft was justified in failing to make available to
respondent the procedural safeguards associated with
the privilege against compulsory self-incrimination since
Miranda.).
96. The Supreme Court remanded Quarles to the
New York Court of Appeals with the observation that
Quarles was free on remand to argue that his statement
was coerced under traditional due process standards. Id.
at 655.
97. On remand, the New York Court of Appeals
remanded the case to the trial court with instructions to
address the voluntariness issue. People v. Quarles, 473
N.E.2d 30 (N.Y. 1984).
98. The constitutional protections against involuntary
confessions—including the fruits of such confessions—
are not limited to situations when an officer extracts a
false confession. “It is now axiomatic that the defendant
is deprived of due process of law if his conviction is
founded, in whole or in part, on an involuntary confession,
33a
Appendix B
regardless of its truth or falsity.” Rogers v. Richmond,
365 U.S. 534, 544 (1961); Jackson v. Denno, 378 U.S. 368,
376 (1964); Martinez v. State, 127 S.W.3d 792, 794-95 (Tex.
Crim. App. 2004) (holding that “the truth or falsity of a
confession is irrelevant to a voluntariness determination
not only under federal constitutional law but also under
state law.”).
Counsel failed to move to suppress
evidence regarding the discover y of
M.G. on the ground that it was tainted
by the unconstitutional interrogation
that rendered applicant’s statements
involuntary.
99. Detective Waters testified that applicant was
transported to the scene of the alleged kidnapping in order
to take the police to M.G. at 1:30 a.m. (7 R.R. 7).
100. Applicant led the officers to M.G. at 1:55 a.m.
(7 R.R. 12-14).
101. When evidence is discovered as a result of
police misconduct, its admissibility depends on “whether,
granting establishment of the primary illegality, the
evidence ... has been [obtained] by exploitation of that
illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.” Wong Sun v. United
States, 371 U.S. 471, 488 (1963).
102. Physical evidence obtained by the police as a
result of an involuntary confession, that is not otherwise
discoverable, must be suppressed. See Pitts v. State, 614
34a
Appendix B
S.W.2d 142, 142-43 (Tex. Crim. App. 1981) (stolen property
recovered as result of defendant’s confession to burglary,
made after officer promised he would not file charges, was
inadmissible as “fruits of the poisonous tree”).
103. Parnham did not move to suppress evidence
regarding the discovery of M.G. on the ground that it
was tainted by the unconstitutional interrogation that
rendered applicant’s initial statements involuntary.
104. Parnham testified at the habeas hearing that
this would have been a valid objection (1 H.R.R. 43, 76-78).
105. Applicant led the officers to M.G. about 25
minutes after the unconstitutional interrogation ended.
Detective Waters testified that there was only a very
small chance that M.G. would have been found without
applicant’s help, as the officers had been unable to find
him with the use of dogs (7 R.R. 7). The photos of this
remote, isolated location near a bayou demonstrate that it
is unlikely that M.G. would have been discovered without
applicant’s help based on the manner in which he was
buried (12 R.R. SX 73, 74; AX 7).
106. Because the officers conducted a coercive
interrogation that ultimately resulted in applicant making
involuntary statements and involuntarily agreeing to take
them to M.G., evidence regarding the discovery of M.G.
should have been excluded had Parnham filed a motion
to suppress.
107. Parnham performed deficiently within the
meaning of Strickland by failing to move to suppress the
evidence on this ground.
35a
Appendix B
Counsel failed to move to suppress
applicant’s confession during the second
interrogation on the ground that it was
tainted by the initial unconstitutional
interrogation.
108. Detective Waters testified that applicant led the
officers to M.G. at 1:55 a.m. (7 R.R. 12-14).
109. Applicant was taken to the Neurological
Processing Unit at the jail for evaluation (7 R.R. 16).
110. Detective Waters testified that, by arranging
for applicant to have a psychiatric evaluation, he made
good on “some of the promises [he] made” during the
initial interrogation (7 R.R. 16).
111. Later that day, after applicant had been
charged, Detective Waters and Officer Jafari conducted
a second videorecorded interrogation in which she was
advised of her Miranda rights for the first time (5 R.R.
193; 7 R.R. 18; SX 45).
112. Applicant admitted placing M.G. face down in
the mud and covering him with mud (7 R.R. 19).
113. Parnham did not move to suppress applicant’s
confession during the second interrogation on the
ground that it was tainted by the first unconstitutional
interrogation.
114. Parnham testified at the habeas hearing that
this would have been a valid objection (1 H.R.R. 77-80).
36a
Appendix B
115. W hen an officer obtains an involuntary
confession from a suspect, a subsequent confession
obtained soon thereafter is tainted and inadmissible, even
if the officer advised her of her rights before he obtained
the second confession. Oregon v. Elstad, 470 U.S. 298,
310 (1985); Clewis v. Texas, 386 U.S. 707, 710-12 (1967);
Pitts v. State, 614 S.W.2d 142, 142-43 (Tex. Crim. App.
1981) (where defendant’s first confession to burglary
was involuntary as a result of officer’s promise not to file
charges if he confessed, his second confession, obtained
after he was confronted with the recovered property, also
was inadmissible as tainted fruit of first confession).
116. Applicant’s initial statements were involuntary.
Her confession during the second interrogation—which
occurred soon after the first unconstitutional interrogation
and the discovery of M.G.—was tainted and, thus, was
inadmissible.
117.
Pa r nham per for med def iciently under
Strickland by failing to move to suppress the evidence
on this ground.
C.
Prejudice
118. Had Parnham filed a motion to suppress
evidence, the trial court would have been required to
suppress both video recorded statements and applicant’s
agreement to take and act of leading the officers to M.G.
The exclusion of this evidence would have undermined
the capital murder case and probably resulted in a more
favorable plea bargain offer. See Strickland, 466 U.S. at
37a
Appendix B
695 (holding that a court assessing prejudice must assume
that the trial court would have followed the law had trial
counsel not performed deficiently).
119. The prosecutor emphasized during her closing
argument that applicant should be convicted of capital
murder because her intent to kill was proven by “her own
words” and by her piling mud on M.G. (10 R.R. 34-36, 5051). This information came from the second confession.
120. Alternatively, had the trial court suppressed
the statements but admitted testimony regarding the
discovery of M.G., applicant probably would have been
convicted of felony murder (which carries a punishment
range of five to 99 years or life) instead of capital murder
(which carries an automatic sentence of life without
parole). Thereafter, she could have raised on appeal that
the evidence was legally insufficient to prove the specific
intent to kill element of capital murder and that the trial
court erred in admitted testimony regarding the discovery
of M.G.
121. Parnham’s failure to file a motion to suppress
undermines confidence in applicant’s capital murder
conviction.
38a
Appendix B
IN THE 339TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
CAUSE NO. 1260243-A
EX PARTE
NARJES MODARRESI
RECOMMENDATION AND ORDER
The court recommends a new trial.
The District Clerk is ordered to prepare a transcript
of all papers in this cause and send it to the Court of
Criminal Appeals as provided by article 11.07 of the
Code of Criminal Procedure. The transcript shall include
certified copies of the following documents:
a. the indictment and judgment;
b. the application for a writ of habeas corpus;
c. the brief;
d. the exhibits;
e. the motions;
f. the State’s answer;
g. all other documents filed by the applicant;
39a
Appendix B
h. the appellate record in cause number
1260243;
i. the Reporter’s Record from the evidentiary
hearing;
j. the applicant’s proposed findings of fact and
conclusions of law,
k. the State’s proposed findings of fact and
conclusions of law;
l. the Court’s findings of fact and conclusions
of law; and
m. any objections filed by either party to the
Court’s findings of fact and conclusions of
law.
The District Clerk shall send a copy of this order to
applicant, his counsel, and counsel for the State.
SIGNED and ENTERED on 7-13-23
/s/ Te’iva Bell
Te’iva Bell
Judge Presiding
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.