            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. WR-75,804-02



                 EX PARTE HANNAH RUTH OVERTON, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE N0. 06-CR-3624-F IN THE 214TH DISTRICT COURT
                          FROM NUECES COUNTY



       C OCHRAN, J., filed a concurring opinion in which J OHNSON and A LCALA, JJ.,
joined.


                              CONCURRING O P I N I O N

       I join the majority opinion. I write separately to explain how the proceedings in this

case were problematic from the beginning.

       We know that four-year-old A.B. died of salt poisoning. But the question at the

capital murder trial was whether (1) applicant forced A.B. to eat that salt and/or delayed

taking him to a hospital until she knew that it was too late to save his life, or (2) unbeknownst
                                                             Overton Concurring Opinion         Page 2

to applicant, A.B. had an eating disorder that made him binge on salt, and he became so ill

that no medical care could save him. The jury found that applicant did not feed A.B. salt, but

that she knowingly caused his death by failing to take him to the hospital in time to save his

life.1 Because the jurors were not instructed on lesser-included offenses, they convicted

applicant of capital murder and sentenced her to life in prison without the possibility of

parole. In this writ proceeding, applicant makes numerous constitutional claims, including

“actual innocence,” Brady, and ineffective assistance of counsel. As the majority concludes,

she is entitled to relief and a new trial.




       1
          The application paragraph of the jury charge read as follows:
        Now if you find from the evidence beyond a reasonable doubt that HANNAH RUTH
        OVERTON, defendant, on or about the 2nd day of October, 2006, in Nueces County,
        Texas, did then and there intentionally or knowingly cause the death of an individual
        younger than six years of age, namely [A.B.], by causing [A.B.] to ingest a substance
        containing acute toxic levels of sodium, and/or intentionally or knowingly cause the
        death of [A.B.] by omission, failing to provide or to seek medical care or treatment
        for [A.B.] and the defendant had a statutory or legal duty to act or the defendant had
        assumed care, custody or control of [A.B.]; then you will find the defendant,
        HANNAH RUTH OVERTON, guilty of Capital Murder as charged in the
        indictment.
After returning its verdict, the jury was officially polled as to which theory it had based its verdict.
Every juror said that he had found that applicant intentionally or knowingly failed to provide or seek
medical care for A.B.
        One might question whether capital murder under Section 19.03(a)(8) includes a “murder”
under 19.02(b)(1) caused by the defendant’s omission. See Section 6.01(c). The present indictment
and jury charge appears to be a pastiche of the elements of injury to a child under Section 22.04(a),
which does include criminal liability for omissions as well as affirmative acts, and capital murder.
Although applicant complained about this aspect of the jury charge in the trial court, she did not raise
this particular issue on appeal. Overton v. State, No. 13-07-00735-CR, 2009 WL 3489844, at *30
n.90 (Tex. App.–Corpus Christi Oct. 29, 2009, pet. ref’d) (not designated for publication). That
issue is not presently before us.
                                                               Overton Concurring Opinion         Page 3

A.     Brady Issues

       The majority does not address applicant’s Brady2 claims because it grants relief based

on one of her ineffective assistance of counsel claims. It is helpful, however, to place that

ineffective-assistance claim within the broader context of applicant’s claims concerning the

fundamental unfairness of her trial. Without that broader context, it might appear that the

failure to call Dr. Moritz as an expert concerning salt poisoning did not necessarily infect the

entire trial and lead to a reasonable probability that the result of this trial would have been

different but for trial counsels’ deficient performance in that regard.3

       First, applicant raises Brady claims concerning discovery disputes with the lead

prosecutor. One Brady issue concerns the alleged withholding of records showing the low

sodium content of A.B.’s vomit when he was brought to the Urgent Care Center. The second

Brady issue concerns the purported failure to disclose Dr. Cortes’s medical records and

knowledge that A.B. suffered from undiagnosed cognitive deficiencies that caused him to

have temper tantrums, throw feces, and eat inappropriate items, such as salt.

1.     The Vomit Exhibit and Mislabeled Experiment.

       At the habeas hearing, the lead prosecutor conceded that, during this 2007 trial, she

was an alcoholic4 who was also taking prescription diet pills that affected her memory. She



       2
           Brady v. Maryland, 373 U.S. 83 (1963).
       3
           Strickland v. Washington, 466 U.S. 668, 688 (1984).
       4
           She testified that she is now in recovery and that her “sobriety date is January 20th of 2011.”
                                                        Overton Concurring Opinion       Page 4

was later fired by the District Attorney (who had been the second-chair prosecutor during this

trial) for unrelated ethical violations. During the habeas hearing, the prosecutor repeated

seventy-two times that she did not recall or did not know the answers to questions concerning

the investigation or trial of applicant. She could not remember documents that she had

written during the trial and did not recognize her handwriting; she did not remember writing

the e-mails that came from her e-mail address, nor receiving other e-mails at that address; she

could not remember if she saw any vomit when she previewed the evidence with one of

applicant’s counsel before trial, and she did not remember asking the police to have it tested.

       The second-chair prosecutor (later appointed as the District Attorney by the Governor)

testified that the lead prosecutor told her that “she would do anything it would take to get an

advantage over the Defense,” including sending a “spy” to applicant’s church group to learn

the defense strategy. The second-chair prosecutor testified that the lead prosecutor was not

ethical and was “not truthful.” She said that the lead prosecutor told her that no vomit

samples had been saved as evidence. She said that she was “concerned with the fact that

[the lead prosecutor] was violating the Court’s orders.”

       When confronted with various court documents and exhibits that purportedly

contained her signature and initials and referred to A.B.’s vomit that was recovered at the

Urgent Care Center, the lead prosecutor could not “remember,” “recall,” or “identify”

anything, even though she had explicitly requested that this vomit be tested. When shown

a picture of the Bemis cannister containing the vomit, the prosecutor said, “No. I do not
                                                            Overton Concurring Opinion         Page 5

remember specifically seeing it. That doesn’t mean I didn’t see it. I just don’t remember.”

When asked about the experiment that the medical examiner conducted with this vomit at her

request, the lead prosecutor could only “vaguely” recall it, but nothing refreshed her

recollection of what the results of that experiment were.

       This cannister containing the vomit was, according to applicant, crucial to her defense

in showing that A.B. had himself binged on salt earlier in the day because that vomit

contained just exactly what applicant said it would–a little Zatarain’s creole seasoning and

a little chili. The fatal salt ingestion had, according to the defense, occurred earlier when

applicant was resting and A.B. got into the kitchen cupboard and helped himself.

       Applicant’s Brady claim was that the prosecution never told her about this specific

vomit exhibit, where it had been recovered, or that the prosecutor had had its contents tested.5


       5
           The prosecution had turned over some information about the vomit to the defense, but it
was labeled as “gastric contents” collected “from Hospital” which implied that the material was
collected from inside A.B.’s stomach at the Spohn Hospital. The defense knew that vomit had been
suctioned from A.B.’s mouth when he first arrived at the Urgent Care Center, but they were
repeatedly told that no such vomit had been preserved. Furthermore, when Dr. Fernandez conducted
an experiment with both the vomit and a solution of Zatarain’s and water, the labels for each item
were reversed so it looked like specimen D– the “Hospital gastric contents”–was really Specimen
E–the Zatarain’s and water slurry. Dr. Fernandez’s report shows that the “Hospital gastric contents”
(the vomit recovered from A.B.’s mouth at the Urgent Care Center) had a low sodium content of 48
while the Zatarain’s mixture had a high sodium content of 250 (about the same sodium level that was
in A.B.’s blood system at the Spohn Hospital). The State did not inform the defense of this
mislabeling error or of the actual source of the “gastric contents.”
         Dr. Melinek, the defense expert at trial, testified at the writ hearing. She said that, before
trial, she had asked one of the defense attorneys why the hospital gastric exhibit had such a low level
of sodium if A.B. had consumed a great deal of salt. The attorney told her that “[i]t probably came
from the hospital and it may have happened after gastric lavage, which is washing out of the
stomach.” The defense was misleading its own expert witness based upon those attorneys having
been misled by the mislabeled experiment and the mistitled vomit exhibit. Dr. Melinek, based on
the inaccurate information, therefore discounted the importance of the exhibit in forming her opinion
                                                             Overton Concurring Opinion         Page 6

The discovery material showed that the results of the medical examiner’s experiment on the

vomit were not mailed to the defense, but the lead prosecutor could not recall anything about

that, even though her handwritten notes were on the test results.

       The significance of the vomit sample is that it had a low sodium level of 48

milliequivalents while A.B.’s blood sodium level, first measured at the Spohn Hospital about

an hour later, was at a lethal level of 242.6 The defense theory is that this vomit proves that

the little bit of chili and Zatarain’s that applicant fed A.B. right before he started to fall ill

had nothing to do with his death.7 A.B., on the verge of death, would have vomited up

anything that he had eaten after the earlier fatal salt ingestion. It was the discrepancy




at trial. She now believes that this exhibit was “crucial” and would have changed her trial testimony.
       6
          Dr. Michael Moritz, as the majority notes, is a leading expert on hypernatremia or salt
poisoning. He testified during the writ hearing that a person experiences “severe hypernatremia” at
the level of 170 milliequivalents and above. I refer to Dr. Moritz’s writ hearing testimony not to
prove certain facts or issues but to show how critical his testimony was to the defensive theory.
       7
          The State’s expert testified that it would require 23 teaspoons of Zatarain’s creole seasoning
to raise A.B.’s blood sodium level to 245 milliequivalents. According to the Zatarain’s company,
a serving size is 1/4 teaspoon, so A.B. would have had to ingest close to 100 servings of Zatarain’s.
http://www.mccormick.com/Zatarains/Products/Spices-and-Seasonings/Spices-and-Extracts/Creo
le-Seasoning.
        However, as Dr. Moritz explained at the writ hearing, some children have a rare condition
that shuts off the mechanism that makes one who eats a salty food become very thirsty. He said,
        There is a variety of neurological conditions or structural abnormalities of the brain,
        in particular related to the hypothalamus, different brain tumors or whatnot, where
        the children do not sense thirst normally or these mechanisms that keep the sodium,
        in a normal range don’t kick in or shut off unless they’re well outside of that normal
        range.
It was, therefore, possible that A.B. had a condition that made his baseline sodium level unusually
high, and it would not take so much salt to get to 245. However, the medical examiner did not
preserve any part of A.B.’s hypothalamus, so it is now impossible to test that theory.
                                                          Overton Concurring Opinion        Page 7

between the small amount of salt in A.B.’s vomit (recently ingested) and the fatal amount of

salt in A.B.’s blood (ingested earlier in the day or over several days or weeks and absorbed

from the stomach and intestines into the blood stream) that was significant.

       Applicant had testified at trial that she (six months pregnant and recovering from

whiplash injuries), her two-year-old son, and A.B. rested together in bed that morning and

watched cartoons. She fell asleep and, when she woke up, A.B. was no longer in the room.

She found him standing on a stool in the kitchen pantry, having knocked something down

from the shelf.8 It was a couple of hours after this pantry incident that A.B. began throwing

a tantrum, defecated and smeared feces everywhere, was thirsty, and wanted more salt.9

2.     A.B.’s Pre-Existing Developmental Problems.

       At the motion for new trial hearing, based on a Brady claim concerning whether the

State failed to disclose exculpatory evidence, Dr. Cortes, A.B.’s regular pediatrician, testified

that he had told the prosecutors that he did not think that applicant intended to kill A.B. But

the lead prosecutor testified and denied that he had told her this. Dr. Cortes explained,

       8
         Photographs of the pantry show a Morton salt container on a shelf near the stool A.B. was
standing on, as well as candy that had been moved around.
       9
         At the writ hearing, Dr. Moritz stated that this was “a perfect storm.” He meant that A.B.
       [w]ould have voluntarily ingested a solution that had . . . a lethal dose of sodium, that
       it would have been palatable to the point for him that he could have ingested it
       without vomiting, that it was at a concentration not so high that it would induce a
       severe gag reflex, that it was a liquid that could be rapidly absorbed, that his behavior
       prior to that was unusual enough that a well-intentioned caretaker wouldn’t
       necessarily immediately notice what happened, and there were periods where he was
       unobserved because Hannah is watching other children, she’s pregnant, she has an
       injury, she’s taking oxycodone, there’s other people coming to the door.
                                                             Overton Concurring Opinion         Page 8

       I’ve been very consistent in that from the very beginning that I didn’t think it
       was [applicant’s] intent to kill him or harm him, that I think that this was a
       case of her trying to discipline a frustrating child to parent and that the
       discipline went wrong.

The lead prosecutor said that Dr. Cortes never said any such thing. “In fact, he kept

mentioning situations in the ER room, how parents even come when a child has a fever, that

there was no excuse for her doing this.” A member of the prosecution team, Adolfo Aguilo,

and the lead prosecutor both testified that they felt like Dr. Cortes was a “member of the

prosecution team,” not simply a neutral medical witness.

       On direct appeal, the court of appeals rejected this Brady claim because “there is

conflicting evidence regarding whether the State knew of the alleged exculpatory

evidence[.]”10 And the evidence was conflicting on that particular issue. Just as the evidence


       10
           Overton v. State, No. 13-07-00735-CR, 2009 WL 3489844, at *32 (Tex. App.–Corpus
Christi Oct. 29, 2009, pet. ref’d) (not designated for publication). The court also concluded that,
even if the prosecutor failed to turn over exculpatory evidence, it would not have made any
difference to the outcome because “Dr. Cortes did not testify at the motion for new trial hearing that
he believed that Overton did not commit the offense knowingly.” Id. at 33. It explained that the
State asked, “Doctor, it’s not your testimony that Ms. Overton wouldn’t have understood the
seriousness of her child’s condition at the time, is it, at the time he was suffering from salt
intoxication?” Dr. Cortes replied, “Well, you have to remember that when something like this
occurs, you go from being in a normal state to gradually going into a coma. So, I would imagine that
at some point she should have known that he was having difficulties and that she should call 911.”
Id. The court held that this testimony sufficed to show that applicant knowingly caused A.B.’s death
by omission, but evidence that, at some point, applicant should have called 911 because A.B. was
having “difficulties” and eventually slipped into a coma, does not prove that she knew, before
starting for the Urgent Care Center, that he would die if she did not call 911.
        The court of appeals’s discussion of this point is illuminating because it shows the critical
importance of Dr. Moritz’s testimony to the defensive theory. According to Dr. Moritz, an LVN
such as applicant would not have received any training on hypernatremia, its causes, effects, or
symptoms when she was certified more than ten years earlier. Dr. Moritz stated that hypernatremia
cases are “notoriously difficult diagnoses” for doctors, and it would not be fair to expect a lay person
to diagnose it. In fact, from what Dr. Moritz had read about this case, “every step along the way
                                                             Overton Concurring Opinion          Page 9

was conflicting on the issue of whether the lead prosecutor failed to disclose the vomit

evidence obtained from the Urgent Care Center. The lead prosecutor’s testimony conflicted

with that of several different witnesses.

        Part of applicant’s current Brady claim centers on a different aspect of Dr. Cortes’s

potential testimony: it is that the State intentionally hid Dr. Cortes’s medical records that

showed that A.B. had been diagnosed with developmental problems. The second-chair

prosecutor testified at the writ hearing that Dr. Cortes had been moved from room to room

during the trial and was becoming frustrated about when he was going to testify. When the

second-chair told the lead prosecutor that Dr. Cortes wanted to know when he was going to

testify, the lead prosecutor told her that “she did not want to call him . . . [b]ecause she was

concerned that he would testify that [A.B.] had behavioral problems.”

        Dr. Cortes explained at the writ hearing that he had showed the prosecutor his medical

records “and the fact that I was concerned about some of his speech and cognitive function

and referred him for hearing tests and for an evaluation with a child neurologist.” 11


[applicant] provided reasonable care.” He also stated that calling 911, waiting for the ambulance
to come, taking the 15 minute drive to the hospital, taking the time to do the necessary sodium value
testing (two tests because the first sodium test would register above the reference range and a “stat”
dilution test would have to be performed, but typically the turn-around for such a “stat” test is within
one hour),would have taken more than a hour, but it was “exceedingly unlikely” that a child with 245
milliequivalents in the blood could survive for more than an hour. Dr. Moritz concluded that there
was “no delay” by applicant “that caused any harm” to A.B. He would have died no matter how
quickly she reacted to his lethargic state.
        11
           Three days after the trial, Dr. Cortes called the lead defense attorney because he felt he had
been “tricked” by the State. “I felt like the Prosecution had its own theory about what happened.”
Dr. Cortes knew that Dr. Rotta’s testimony “championed” the State’s theory while he, Dr. Cortes,
felt that A.B. had “other kinds of neurological problems.” Dr. Cortes “wanted the whole truth to
                                                           Overton Concurring Opinion         Page 10

According to the defense, this medical history was crucial because the State had insisted

throughout the trial that A.B. was a perfectly normal four-year-old who had no prior medical

problems.12

       Based on symptoms that Sharon Hamil, A.B.’s foster mother relayed to Dr. Cortes,

A.B. was referred to a neurologist, Dr. Gary Bobele, at the Driscoll Children’s Hospital. Ms.

Hamil, A.B.’s foster mother, reported to Dr. Bobele that A.B. “[h]ad exhibited echolalia

during the time that she had him. This is a condition in which the child repeats the last word

or two of an instruction that’s given to him.” That symptom is important because it “is seen

with children who have other kinds of neurological problems, like mental retardation or

autism spectrum disorder.” Dr. Cortes explained that children who are intellectually delayed

first experience difficulties in speech and communication, but they also have “a shorter fuse

and get angrier more quickly. They throw temper tantrums. . . . They can also exhibit bizarre

behaviors like smearing feces on things, the wall, or eating things that are inappropriate.”


have been presented to the jury.” After the trial Dr. Cortes discovered that the prosecutor had told
the judge during the trial that she was not going to call him, so when she attempted to call Dr. Cortes
in rebuttal, the judge would not allow it.
       12
           At trial, A.B.’s foster mother, Sharon Hamil, testified that A.B. had no behaviorial or
developmental problems and that he was a “normal” four-year-old. Dr. Cortes’s medical records
show, however, that Ms. Hamil brought A.B. to him because “he didn’t talk or act like other children
his own age and that he was a very late talker. And when he did talk, sometimes she couldn’t
understand him.” A.B.’s school records also showed that Ms. Hamil expressed concerns to his
teachers at special education meetings about his abnormal behavior. Indeed, as early as November
2004, two years before A.B.’s death, Ms. Hamil was aware that he suffered from a “solid”
developmental delay of eight months in both language and cognitive skills.
        A.B. already had eating issues when he was under Ms. Hamil’s care. She stated that “[A.B.]
liked to eat every day, all day, any time.” He once ate five large slices of pizza; he ate chicken and
dumpling soup until he threw up. He ate and ate and ate.
                                                            Overton Concurring Opinion          Page 11

Those were the same behaviors that applicant and her husband had seen in A.B. and which

support applicant’s trial theory that A.B. died from self-induced salt poisoning.13 But she,

unlike Sharon Hamil, had never been told of A.B.’s malady. Sharon Hamil testified that A.B.

had no medical problems, but his medical records, which the prosecutor had in her

possession, showed that he had been assessed for a neurological disability.

        Since the trial, Dr. Cortes had reviewed applicant’s trial testimony and modified his

opinion even more.

        Up until now everybody has been of the opinion that [A.B.] was given a large
        dose of sodium. And to be honest with you, as I’ve reviewed his behaviors
        and also the fact that he had Zatarain’s the night before, he had stew with
        Zatarain’s again on the morning of his death, and then he had a cup of those
        spices when he insisted on eating more, I believe that this child’s sodium
        intoxication was either subacute or chronic.14

Dr. Cortes now believes that A.B. could have picked up a salt shaker and eaten its contents

because he was a chronic salt consumer. Based on the evidence at trial, Dr. Cortes now

thinks it’s possible that A.B. had an undiagnosed intellectual disability, and that his eating

disorder and temper tantrums could be traced to that problem, a medical disability of which

        13
          During the writ hearing, Dr. Moritz read from one of his recent articles on hypernatremia
that many severe hypernatremia cases have resulted from voluntary sodium ingestion, but they “may
have been misclassified in the literature as child abuse when they likely were not. Fatal voluntary
salt poisoning is well described in adults, but primarily in patients with psychiatric or developmental
conditions.” Dr. Moritz’s article stated that, out of his case studies of about twenty children, “[t]here
is only one documented report of forced salt poisoning to an older child in the literature, a five-year-
old. All other reports are in infants.”
        14
          Dr. Cortes distinguished an acute intoxication as “where you took a large amount of a
poison,” whereas a chronic exposure is a lesser amount over a longer period of time, “then you reach
a point where even a small amount of that material can throw you into an acute intoxication and you
become symptomatic.”
                                                          Overton Concurring Opinion         Page 12

applicant was wholly unaware.15

       Dr. Cortes agreed that he would not have called 911 at the first symptoms that A.B.

experienced, vomiting. Nor would he have called 911 when a child says that he has chills;

he, like applicant, would check his vitals and try to warm him up. He would not necessarily

call 911 when a child started to have congested breathing as A.B. did, because the nebulizer

treatment temporarily cleared it up. Dr. Cortes agreed that when A.B. “became more

lethargic and less communicative with the parents, [he] would expect her then to make haste

and take him to a medical facility.” According to the defense theory, that is precisely what

applicant did. But it was already too late.

       The symptoms of hypernatremia (salt poisoning) are vomiting, chills, and irregular

breathing, leading to lethargy, cessation of breathing and heart failure. Up until the child


       15
           Although she was unaware of A.B.’s medical problem, she did tell the CPS worker
assigned to A.B.’s adoption during a home visit the week before A.B.’s death that A.B.’s “behavior
had been more difficult since the accident,” and that A.B. “had started picking up things from the
floor and the trash and he was trying to eat those [things].” The CPS worker, trained to spot
problematic behavior, told applicant of a condition called “pica” that includes the symptom of eating
from the trash and, if A.B.’s strange behavior continued, applicant should “seek advice from a
pediatric or other professionals.”
         A.B.’s tantrums and strange eating behavior had increased after a car accident the family had
been in two weeks earlier. Applicant’s husband accidentally ran a stop sign and another car hit them.
Applicant was thrown against the windshield and cut her forehead badly. She had blood streaming
down her face which terrified all of the children, especially A.B. Applicant suffered whiplash, her
face was cut and bruised, four front teeth were loose, and her lip was “busted.” She spent most of
the next two weeks in bed or going to a chiropractor.
         According to one scientific case study on fatal salt poisoning that Dr. Moritz referred to,
“mental or emotional disorders are crucial for voluntary ingestion of toxic amounts of salt. We
suggest that this phenomenon be called ‘psychogenic salt intake.’ . . . We call for increased
awareness by practising doctors of this rare, yet widely available, form of intoxication.” Y. Ofran,
et al., Fatal voluntary salt intake resulting in the highest ever documented sodium plasma level in
adults (255 mmol L-1), 256 J. INTERNAL MED . 525, 527 (2004).
                                                         Overton Concurring Opinion        Page 13

becomes lethargic, the symptoms are not alarming and indicate only a mild condition. Dr.

Cortes, who, unlike applicant, is familiar with hypernatremia, testified that once the child

becomes lethargic and less communicative, “brain injury, neuronal injury, has occurred; and

I think the likelihood of being able to save somebody at that point is very small.”

Hypernatremia is so rare that the hospital doctors did not recognize that A.B. had high salt

levels for several hours. During that time, they gave him three rounds of sodium bicarbonate

and well as intravenous saline solution.16

3.     The Significance of the Vomitus and of Dr. Cortes’s Medical Records to the Defense
       Theory of A.B.’s Cause of Death.

       Dr. Melinek, the defense expert at trial, testified at the writ hearing that once she knew

that A.B.’s vomit at the Urgent Care Center was so low in sodium, she could now say that

it was “crucial” to find out what other substances were in the vomit. That analysis would

help determine whether A.B. ate straight sodium or whether he ate another substance that

contained sodium shortly before he vomited. Based upon all of the information that she had

learned both before and after the trial, Dr. Melinek was now of the opinion that A.B. had a

pre-existing “baseline neurologic dysfunction . . . in terms of abnormal behaviors, eating

inappropriate things, going through the garbage, being found in the pantry on the day that his

sodium went sky high.” She knew that applicant gave A.B. “some baseline sodium in the

form of the chili and the Zatarain’s” that was consistent with the vomit exhibit. “But he



       16
         That treatment did not contribute to his death; A.B. was effectively brain dead by the time
he experienced an incident of cardiac arrest in the car on the way to the Urgent Care Center.
                                                       Overton Concurring Opinion       Page 14

probably at some point ingested a load of salt on his own, either through getting into the

pantry or dumping it into his own chili when Mrs. Overton was not paying attention because

she was paying attention maybe to another child.” 17

       Dr. Melinek also explained that salt poisoning will lead to coagulopathy or blood

clotting that makes small scars, insect bites, and scratches appear gorged with blood and

more pronounced.18 Sodium poisoning also affects the brain and makes it swell. So by the

time that A.B. suffered a cardiac arrest as applicant and her husband pulled into the Urgent

Care Center, A.B. already had signs of impending death. But, according to Dr. Melinek, this

seizure “happened precipitously” and “there’s no way it could have been predicted or

expected.” A.B.’s gorging on salt several hours earlier was “a potentially fatal insult, and

no amount of medical care is going to necessarily recover his functions.” Even immediate

and massive hydration at a hospital will not help.

       Dr. Melinek testified that, taking into consideration all of the newly discovered

evidence, including the vomitus from the Urgent Care Center, A.B.’s full prior medical



       17
         Indeed, she was in the bedroom with her two-year-old son while A.B., the four-year-old,
was out in the kitchen pantry.
       18
          Dr. Melinek testified that salt poisoning affects the blood system
        on the osmolality but also on the clotting mechanisms of the body, cause a person to
        go into what’s called DIC, or disseminated intravascular coagulation. So what
        happens is the small blood vessels get clotted off. And I saw that under the
        microscope when I testified the first time. And it informed me to the fact that [A.B.]
        would therefore be more likely to bleed and it would enhance the appearance of a lot
        of the lesions on his body that were noted at the time of the autopsy.
Don’t you wish medical experts learned to speak English? A person with coagulopathy bleeds and
bruises very easily. The condition is similar to hemophilia.
                                                       Overton Concurring Opinion       Page 15

records, and applicant’s trial testimony, it was her opinion that A.B.’s death was an

“accident.”19 However, Dr. Melinek repeatedly said that, in making finer distinctions

concerning death by salt poisoning, she would defer to Dr. Moritz, who had published

numerous articles in the field of hypernatremia, so she would trust him and his opinion more

than that of any critical-care pediatrician.

       In sum, applicant contends that, if the prosecution had turned over (1) the correct

information concerning the vomitus, its origin, and the time it was collected at the Urgent

Care Center, and (2) Dr. Cortes’s full medical records that showed that Ms. Hamil was wrong

about A.B. being a normal, healthy four-year-old, then applicant would have called Dr.

Cortes to testify on her behalf and Dr. Melinek would have been confident that A.B.’s death

was a tragic accident that applicant could not have anticipated or prevented once A.B.

climbed into the pantry by himself that morning.

       The Court does not resolve applicant’s Brady claims because it properly grants

applicant relief on one of her ineffective assistance of counsel claims. But those claims and

the evidence that, she argues, supports them provide a broader context in which to assess the

harm that the failure to call Dr. Moritz caused to the reliability of the verdict.


       19
          Dr. Melinek explained that her opinion at trial was that A.B.’s cause of death was
“undetermined” because she did not have enough information. Now she did.
               At the time of trial and given that I didn’t have all the additional information,
       this gastric information, the information about the full medical records, and also with
       regards to Hannah Overton, her own testimony–because I didn’t get to hear other
       people’s testimony; I only got to testify by what I reviewed up until that point–now
       reviewing everything, I think that this is an accident.
                                                       Overton Concurring Opinion       Page 16

B.     Applicant’s Lawyers – Too Many Cooks in the Kitchen

       Although applicant’s five lawyers at trial were individually highly experienced and

competent, they suffered from a serious failure to communicate competently with each other,

with the doctors and experts, with the prosecution, and with applicant.

       For example, one lawyer was in charge of all discovery, but he was not a criminal

defense attorney and was unaware of criminal procedure or Brady disclosures. He was the

one who saw a labeled brown bag at the police station, but did not open it. This was the bag

that contained the crucial Beemis container of vomitus. If he had opened the brown bag and

seen the Beemis container, he would surely have asked, “What’s this?” And the prosecutor

would have had to tell him precisely what it was and where it came from.

       One lawyer attempted to visit with Dr. Cortes in the courtroom hallway, but was first

told by the second-chair prosecutor that Dr. Cortes was “the prosecution’s witness” and he

couldn’t talk to the doctor. Then she relented and said that he could talk to him for just a few

minutes. Dr. Cortes thought he wasn’t supposed to talk to the defense so he was guarded,

and the lawyer quickly ended the conversation. Dr. Cortes, of course, is a medical doctor and

A.B.’s treating pediatrician. He had a wealth of information about A.B.’s prior medical

condition and would have shared it with the defense had he been reassured by both the

prosecutor and the defense that he didn’t “belong” to either party. He was a Dr. Friday, “Just

the facts, ma’am,” witness who could help the jury get to the truth of A.B.’s life and death.

       Further, all of the defense counsel must shoulder some degree of responsibility for
                                                           Overton Concurring Opinion         Page 17

failing to fully explain the law of lesser-included offenses to applicant. She apparently

believed that, if the defense requested any lesser-included offenses, that was tantamount to

pleading guilty to those lesser offenses and she would not be able to appeal if the jury found

her guilty of one of them.20

       This factual scenario is one in which any competent defense counsel should seek,

along with intervening lesser-included offenses, an instruction on criminally negligent

homicide for failing to recognize the seriousness of A.B.’s medical condition.

       If a defendant “intelligently” chooses to limit her options to either a capital murder

conviction with a sentence of life without parole or a “not guilty” (especially given the

extensive adverse pretrial publicity in a “baby killing” case), and rejects the option of a two-

year sentence for criminally negligent homicide, defense counsel has an obligation to both

himself and his client to put that difficult-to-understand decision fully on the record.21 Even


       20
         To be fair to defense counsel, the law up until shortly before the trial was that a defendant
who requested a lesser-included offense could not attack the sufficiency of the evidence of that lesser
offense. In McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006), we explained that
when a defendant requests an instruction on a lesser-included offense, he is not admitting that the
evidence is sufficient to prove that lesser offense.
       21
            Applicant’s lead counsel, an attorney experienced in criminal law, testified that applicant
was given incorrect advice by an attorney who was not a criminal defense lawyer. Lead counsel
explained to her
         [t]hat if she were convicted of capital murder, she would get a life sentence without
         parole. She would be taking a chance doing that. If some of the jurors thought that
         she was not guilty of capital murder and some of them thought she was guilty, then
         there was a chance that they could compromise on a lesser offense. So I advised her
         I thought that there was evidence that supported lesser offenses, such as criminally
         negligent homicide.
Good advice. He should have delivered it more strongly–at least delivered it on the record in front
of the trial judge and asked her if she really wanted to forego a potential compromise.
                                                          Overton Concurring Opinion        Page 18

the lead prosecutor in this case agreed that the jury would probably have returned a

conviction on a lesser-included offense in this case rather than a capital-murder conviction.22

       Of course, as the majority explains, the failure to introduce Dr. Moritz’s deposition

or otherwise obtain his testimony was a glaring error, one that, by itself, establishes defective

performance and harm to applicant under Strickland v. Washington.23 If it had not been so

tragic, led to an unreliable verdict, and created such a waste of scarce judicial resources, this

failure would smack of the Abbott and Costello skit, “Who’s on First?” 24



       22
         The lead prosecutor’s post-trial affidavit stated,
       Based on my experience and considering the factors applicable to the Hannah
       Overton trial, particularly the jury’s “omission poll,” the jury in the Hannah Overton
       case in all likelihood would have returned a verdict on a lesser-included offense had
       the jurors been given that option.
       23
            466 U.S. 668 (1984).
       24
        This baseball comedy routine was first made famous on the Kate Smith Radio Hour in
1938. The skit begins with the following:
      Abbott:         Strange as it may seem, they give ball players nowadays very peculiar
                        names.
       Costello:        Funny names?

       Abbott:          Nicknames, nicknames. Now, on the St. Louis team we have Who’s on
                        first, What’s on second, I Don’t Know is on third--
       Costello:        That’s what I want to find out. I want you to tell me the names of the
                        fellows on the St. Louis team.
       Abbott:          I’m telling you. Who’s on first, What’s on second, I Don’t Know is on
                        third--
       Costello:        You know the fellows’ names?

       Abbott:          Yes.

       Costello:        Well, then who’s playing first?
                                                           Overton Concurring Opinion         Page 19

       These are some of the problems with the attorneys’ actions concerning the deposition:

       •       The deposition was conducted by one civil attorney while another watched and
               a third attorney watched a portion of it (no attorney of record participated in
               the deposition).

       •       None of the criminal-defense attorneys were aware of, or informed of, Dr.
               Moritz’s opinion before trial, thus, they could not develop testimony from
               other witnesses to support that opinion.

       •       None of the criminal-defense attorneys viewed the videotape of the deposition,
               thus, they could not have intelligently decided whether the testimony was
               important enough to spend time splicing out the prosecutor’s objections and
               inadmissible matters.

       •       The criminal-defense lawyer who was in charge of the medical aspects of the
               defense did not attend the deposition or ever view it during trial.25

       •       The lead defense counsel failed to look at the videotaped deposition. He relied
               on a co-counsel who told him the deposition was “not usable.” 26



       Abbott:         Yes.

       Costello:       I mean the fellow’s name on first base.

       Abbott:         Who.

From there it gets worse.
       25
           At the writ hearing, this lawyer broke down in tears, admitting that he had been ineffective
for failing to attend Dr. Moritz’s deposition and failing to even view the videotape before the end
of the trial. After watching the videotape shortly before the writ hearing, the lawyer realized that he
had “failed miserably” by not presenting Dr. Moritz’s testimony to the jury.
       26
           Part of the reason that the co-counsel thought that the deposition was “unusable” was
because the lead prosecutor, during her cross-examination, suggested that applicant’s children had
said that she punished them for mouthing off by putting a piece of pizza pepper on their tongues.
Such cross-examination would not be admissible as it is hearsay. The prosecutor would have to call
the children to testify. According to applicant, one of her former pastors had told her that this was
a good way to instruct children that words and the use of one’s tongue can cause harm to others. The
truth of this matter is not before us, but admissible evidence of extraneous offenses may be offered
under Rules 404(b) and 403 at a retrial.
                                                         Overton Concurring Opinion    Page 20

There was no excuse for this. During the trial, the trial judge repeatedly asked defense

counsel if they wanted to offer Dr. Moritz’s videotaped deposition. The prosecutors said that

they did not object to having the tape edited. During the writ hearing, the prosecutor

forcefully cross-examined one of the defense attorneys on his failure to offer Dr. Moritz’s

edited deposition, perhaps unwittingly establishing applicant’s ineffective-assistance claim.

       In sum, I agree with the Court that Dr. Moritz’s testimony was essential to applicant’s

defense. His opinion concerned the probability that A.B. could not have survived the

ingestion of so much salt even if applicant had called 911 or raced him to the hospital at the

first whisper of a symptom of illness.27 If the jurors concluded that applicant knowingly

caused A.B.’s death because she failed to seek medical care for him (as they said when

polled), Dr. Moritz’s testimony directly and fully rebuts that theory of criminal liability. Of

course, a jury is not required to believe this testimony, but, if believed, Dr. Moritz’s

testimony exonerates applicant from criminal liability. Defense counsel was constitutionally

ineffective for not permitting the jury to hear it and make its own assessment of credibility

and scientific reliability. The present conviction “resulted from a breakdown in the adversary

process that render[ed] the result unreliable.”28 Applicant is entitled to relief.

Filed: September 17, 2014
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       27
            The majority quotes that testimony on pages 11-13 of the opinion.
       28
            Strickland, 466 U.S. at 687.
