           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. WR-78,106-01



                  EX PARTE DOUGLAS TYRONE ARMSTRONG



           ON APPLICATION FOR WRIT OF HABEAS CORPUS
       CAUSE NO. CR-2095-06-G IN THE 370TH JUDICIAL DISTRICT COURT
                            HIDALGO COUNTY


       Per curiam. K ELLER, P.J., dissents.

                                         ORDER

       This is a post-conviction application for writ of habeas corpus filed pursuant to the

provisions of Texas Code of Criminal Procedure article 11.071. Applicant was convicted in

January 2007 of capital murder committed in April 2006. T EX. P ENAL C ODE A NN. §

19.03(a). Based on the jury’s answers to the special issues set forth in the Texas Code of

Criminal Procedure, Article 37.071, sections 2(b) and 2(e), the trial court sentenced him to
                                                                                   Armstrong - 2
death. Art. 37.071, § 2(g).1 This Court affirmed applicant’s conviction and sentence on

direct appeal. Armstrong v. State, No. AP-75,706 (Tex. Crim. App. Jan. 27, 2010) (not

designated for publication). Applicant filed his initial post-conviction application for writ

of habeas corpus in the convicting court on February 19, 2009. He filed his second habeas

application on November 18, 2011. He filed his third habeas application on July 12, 2012.

Applicant filed his fourth habeas application on September 22, 2014. The trial court

forwarded all four applications to this Court, and we received them on April 20, 2015, and

October 22, 2014. In this order, we will address only the initial application.

       In his initial habeas application, applicant raises five grounds for relief challenging

the validity of his conviction and sentence. In Allegation One (C), applicant alleges that trial

counsel failed to conduct a constitutionally adequate investigation of mitigating evidence.

Specifically, applicant states that trial counsel never identified and developed the lay and

expert witnesses needed to give the jury a complete picture of applicant’s life, although

counsel presented cursory evidence that applicant suffered from poverty and abuse as a child

through the testimony of applicant’s younger sister, Sheila Armstrong. Applicant alleges

that, if trial counsel had conducted an adequate mitigation investigation, counsel would have

discovered that Applicant: grew up with abusive, neglectful parents, who spent any money

the family had on alcohol; was so poor that he and his siblings often went hungry; lived in

dangerous neighborhoods and was exposed to strangers coming and going from the house


       1
        Unless otherwise indicated all references to Articles refer to the Code of Criminal
Procedure.
                                                                                  Armstrong - 3
where his parents sold alcohol “after hours”; witnessed extreme violence between his

parents; was subjected to physical and sexual abuse; was subjected to his father’s attempt to

kill the whole family by burning down the house; and witnessed his father being shot in the

doorway of their home.

       Applicant also alleges that mental health experts who evaluated him post-conviction

have determined that he suffers from dysthymia, substance dependence, personality disorder-

not otherwise specified, and brain damage. They have also determined that applicant’s

history of an abusive home environment, failure and teasing in school, and experience as a

juvenile in prison, led to applicant being traumatized, frightened, guarded, and at risk for

responding to situations in a violent manner. They note that applicant’s limited cognitive

abilities and coping skills prevented him from responding well to stressful situations, and his

reactions were those that his family had modeled for him. Applicant asserts that the jury

heard no expert testimony at trial to explain how applicant’s background affected his mental

health and life choices.

       Applicant has alleged facts that, if true, might entitle him to relief. See Strickland v.

Washington, 466 U.S. 668 (1984). We apply a two-part test for determining whether a

defendant has been constitutionally deprived of effective assistance of counsel: (1) deficient

performance, and (2) prejudice. See Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim.

App. 2010) (citing Strickland, 466 U.S. at 687). Deficient performance means that “counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 246. When trial counsel does not conduct a
                                                                                 Armstrong - 4
complete investigation, his conduct is “reasonable only to the extent that reasonable

professional judgments support the limitations on investigation.” Id. (quoting Wiggins v.

Smith, 539 U.S. 510, 533 (2003)).

                              DEFICIENT PERFORMANCE

       The evidence adduced in the motion for new trial proceedings and the habeas

proceedings establishes deficient performance.       Co-counsel for the defense, who was

primarily responsible for the mitigation investigation, as well as the mitigation investigators

who assisted her, consistently stated that they did not have time to complete the mitigation

investigation before trial. Co-counsel stated that, based on a prior disagreement with lead

counsel that resulted in the withdrawal of a motion for continuance she had filed in the trial

court, she believed that: (1) she could not file a motion for continuance without the

agreement of lead counsel; and (2) lead counsel would not agree to a continuance.

       A mitigation investigator stated that she did not have time to travel to Alabama and

Georgia, where applicant had lived until he moved to Texas less than five months before the

instant offense. She stated that traveling to those states would have been important because

applicant’s family members lived in those states, and applicant’s school, medical, mental

health, juvenile, employment, and prison records were in those states. Further, traveling to

those states would have been the best way to find anyone outside the family who might

remember applicant, such as teachers, doctors, counselors, and supervisors.

       The mitigation investigators’ pretrial notes indicated that, based on their interviews

with applicant, they wanted to know more about his immediate family members’ mental
                                                                                 Armstrong - 5
health and medical history. They also noted the need for a neuropsychological evaluation to

assess applicant for brain damage, and for a psychiatric evaluation based on applicant’s

previous suicide attempts. However, the mitigation investigators did not obtain records

concerning applicant’s family members, and the specified mental health evaluations were not

done. Co-counsel for the defense conceded that these failures were not the result of

reasonable professional judgment. Thus, the record shows that trial counsel’s mitigation

investigation was deficient.

                                        PREJUDICE

       Establishing prejudice requires showing “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Ex

parte Napper, 322 S.W.3d at 248 (quoting Strickland, 466 U.S. at 694). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. It is not

enough that counsel’s errors could have had “some conceivable effect on the outcome of the

proceeding,” but a defendant does not have to show that counsel’s deficient conduct “more

likely than not altered the outcome of the case.” Id. at 248-49. In cases where trial counsel’s

failure to investigate and present evidence constituted deficient performance, we evaluate

prejudice by considering the totality of the evidence, both that adduced at trial, and that

adduced in the habeas proceedings. See Ex parte Gonzales, 204 S.W.3d 391, 398 (Tex.

Crim. App. 2006).

       During the punishment phase, the defense team presented the testimony of a pastor,

David Ray, who had seen applicant and his girlfriend, Cynthia Losoya, at church in the
                                                                                  Armstrong - 6
months before the offense. Ray testified that he knew applicant as a nice gentleman and a

good person. Following applicant’s arrest, Ray had visited applicant in jail twice a month.

Applicant’s girlfriend, Cynthia, testified that she was pregnant with applicant’s child and that

she loved him, although at the time of his arrest, she had been angry with him because he

used cocaine and stayed out late after work.

       Applicant’s younger sister, Sheila Armstrong, testified that she and applicant had the

same parents, and they had four older half-siblings who had a different father. The family

moved so often that Sheila and applicant attended four different elementary schools. Their

half-siblings treated them “differently,” and they especially treated applicant “differently,”

because he resembled his father.

       Sheila testified that applicant was close to his mother but not to his father, who was

abusive. When Sheila and applicant were in fourth grade, their father would lock applicant

in an empty room. Sheila would sneak food to him through the window. Sometimes Sheila

and applicant would hide in the attic all day, waiting for their mother to come home. Their

father would beat applicant with old train tracks, broom sticks, extension cords, or whatever

he had, sometimes to the point that applicant bled. Their father also abused their mother, and

on one occasion when he beat her, he knocked her eye out. Sheila testified that their father

often took all of the family’s money, so that they had to go to shelters and community centers

for food. Sheila was not sure if their father had drug and alcohol problems. He raped Sheila

when she was fourteen, and she became pregnant.
                                                                                Armstrong - 7
       Sheila also testified that applicant was in special education classes in school. Sheila

was younger than applicant, but she ended up being grades ahead of him because he failed

several times. She recalled that applicant was seeing a psychiatrist and a counselor on a

weekly basis until he went to “juvy.” He went to counseling as a child because he was

“slow” and exhibited some strange behaviors, such as shaving his eyebrows and plucking out

his eyelashes.

       Sheila also testified that, when applicant was 15 or 16 years old, he committed a

robbery in Alabama, was tried as an adult, and was convicted and sentenced to ten years.

Their mother died while applicant was in jail in Georgia. Applicant lived with Sheila in

California after he got out of jail. He had a job in California, but he went with Sheila when

she moved back to Alabama. He then moved to Georgia, where he lived with a woman who

became pregnant. They lived together with the baby until applicant found her with another

man and threatened them, which resulted in applicant’s conviction for terroristic threat.

Sheila testified that she heard that applicant had problems with alcohol and drugs, but she

had not seen it. Applicant always had a job and worked.

       During closing argument, defense counsel argued that applicant’s childhood abuse,

drug involvement, educational background, and juvenile history were mitigating

circumstances. Counsel also focused on the fact that Cynthia was pregnant and that applicant

had been working steadily since he moved to Texas. The defense argued that applicant could

be a good father to his baby if he received a life sentence.
                                                                                Armstrong - 8
       The State presented evidence of applicant’s prior Alabama felony convictions for

robbery, arson, and theft, as well as applicant’s Georgia felony conviction for terroristic

threat. The State argued in closing that, based on his past conduct, applicant was a future

danger. Additionally, the State argued that the offense of conviction, in which applicant took

a knife to the throat of someone he knew, was a close and personal attack that established

applicant’s future dangerousness.

       The State noted that applicant had other children from past relationships, but having

children had not stopped applicant from committing crimes in Alabama and Georgia,

including one against his child’s mother. Thus, the State argued, there was no reason to

believe that applicant had changed just because he had a baby with Cynthia.

       The State argued further that the defense had presented applicant’s “sister who loves

him, who claims that he was abused when he was a child, who claims that she was even more

abused than he was. She supposedly has a child by a step-dad, and yet she never committed

a single crime. . . .” The State noted that, even though applicant had regularly attended

mental health counseling “since” he was twelve years old, he had not changed. It was not

enough for applicant “to complain about something that happened when he was twelve years

old,” when he was not “interested in help.”          Others who grew up in unfortunate

circumstances, like Sheila and the victim in this case, did not commit capital murder.

Therefore, the State reasoned, applicant’s background was not sufficiently mitigating.

       Post-conviction, applicant has located additional family members whose potential

testimony would have corroborated Sheila’s testimony as well as added more details
                                                                                Armstrong - 9
concerning applicant’s childhood and background. In addition, applicant has located some

records of mental health counseling that he received as a child which indicate that, contrary

to the State’s trial argument that applicant had been in counseling every week “since” he was

twelve years old, applicant attended counseling sporadically; they suggest that his mother

stopped taking him when she decided that he did not need to go any more.

       Applicant has also provided the reports of mental health experts indicating that he has

a learning disability and brain damage, and diagnosing him with dysthymic disorder, alcohol

dependence, cocaine dependence, and personality disorder-not otherwise specified, with

characteristics of paranoid and borderline personality disorders. These experts opine that

applicant’s disabilities and disorders are the result of a number of environmental factors,

including his family dysfunction, childhood trauma, and substance abuse during adolescence.

One expert notes that the presence of scars on applicant’s skull confirms that applicant

suffered multiple head traumas, which is consistent with family members’ accounts of the

abuse he sustained as a child.

       None of the witnesses who offered potentially mitigating evidence in the form of

affidavits and expert reports testified at the live evidentiary hearing. Instead, the State

“agreed to stipulate” to the admissibility of “a whole bunch of affidavits,” “not necessarily

the credibility and truthfulness of them, but that the witnesses, if they’re brought forward,”

would “testify substantially the same as is reflected in those affidavits.”

       In its conclusions of law, the trial court describes applicant’s post-conviction

mitigating evidence as “largely cumulative” of Sheila’s trial testimony, and concludes,
                                                                                Armstrong - 10
without elaboration, that this evidence “would not have affected the end result.” We review

these conclusions of law de novo. See Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim.

App. 2014).

       We do not believe that the current record is sufficient to resolve the question of

whether there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the punishment proceeding would have been different. Specifically, the post-

conviction affidavits of applicant’s family member witnesses contain evidence that would

have been of some benefit to the defense, and all but one of these witnesses attest that they

would have provided this information if they had been asked about it before trial. However,

these witnesses do not expressly state that they would have been available to testify at trial.

See, e.g., Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007).

       One witness who lives in Alabama informed the defense team before trial that she was

not able to travel to Texas to testify. However, because all of the family member witnesses

reside out of state, the defense team could have applied to take their depositions. See T EX.

C ODE C RIM. P ROC. Ch. 39; see also Frangias v. State, 450 S.W.3d 125, 138-39 (Tex. Crim.

App. 2013). The trial court has not made credibility findings concerning these witnesses’

potential testimony, or findings as to whether these witnesses would have been available to

testify at trial or to provide depositions.

       Additionally, the post-conviction reports of applicant’s mental health experts contain

information that would have been of some benefit to the defense. One of applicant’s experts

opines that applicant’s disorders arose in part from his family dysfunction and childhood
                                                                                 Armstrong - 11
trauma. This evidence is similar to evidence that we have found to have mitigating value.

See, e.g., Ex parte Gonzales, 204 S.W.3d at 399. The trial court has not made credibility

findings or any other findings of fact specifically addressing these reports.

       We remand this application for the trial court to gather information and make specific

findings of fact concerning the credibility of applicant’s post-conviction mitigating evidence.

The trial court shall also make findings as to whether applicant’s proffered witnesses would

have been available to testify at trial or to give depositions. The trial court shall also make

any other findings of fact and conclusions of law that it deems relevant and appropriate to

the disposition of applicant’s claim for habeas corpus relief.

       This application will be held in abeyance until the trial court has resolved the fact

issues. The issues shall be resolved within 90 days of this order. A supplemental transcript

containing all affidavits and interrogatories or the transcription of the court reporter’s notes

from any hearing or deposition, along with the trial court’s supplemental findings of fact and

conclusions of law, shall be forwarded to this Court within 120 days of the date of this order.

Any extensions of time shall be obtained from this Court.

       IT IS SO ORDERED THIS THE 18TH DAY OF NOVEMBER, 2015.

Do Not Publish
