           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 NO. 06-CR-3624-F IN THE 214 TH DISTRICT COURT
                         FROM NUECES COUNTY

             M EYERS, J., delivered the opinion of the Court, in which P RICE,
W OMACK, J OHNSON, H ERVEY, C OCHRAN, A LCALA, JJ., joined. C OCHRAN, J., filed a
concurring opinion, in which J OHNSON and A LCALA, JJ., joined. K ELLER, P.J., filed a
dissenting opinion, in which K EASLER, J., joined.

                                      OPINION

       A jury convicted Applicant of capital murder for the death of a four-year-old child

she and her husband were in the process of adopting. The trial court sentenced her to life

imprisonment without parole. Her conviction and sentence were upheld by the court of

appeals and we refused her petition for discretionary review. Overton v. State, No. 13-07-

00735-CR, 2009 Tex. App. LEXIS 8312 (Tex. App.–Corpus Christi Oct. 29, 2009, pet.

ref’d) (mem. op., not designated for publication); In re Overton, No. PD-1807-09, 2010
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Tex. Crim. App. LEXIS 124 (Tex. Crim. App. Mar. 24, 2010). Applicant filed an article

11.07 application for writ of habeas corpus alleging that she is actually innocent based

upon newly discovered evidence, that she received ineffective assistance of counsel, and

that the State failed to turn over exculpatory evidence. We ordered the trial court to

conduct an evidentiary hearing for further factual development of Applicant’s claims. Ex

parte Overton, No. WR-75,804-02, 2012 Tex. Crim. App. Unpub. LEXIS 85 (Tex. Crim.

App. Feb. 8, 2012). In response, the habeas judge conducted the hearing and entered

findings of facts and conclusions of law, ultimately recommending that relief be denied.

We ordered the application be filed and set for submission to determine whether:

       (1) Applicant received ineffective assistance of counsel at trial. Specifically,
       whether counsel were ineffective for failing to enter into evidence the
       deposition of Dr. Michael Moritz or to otherwise attempt to secure his
       availability to testify at Applicant’s trial, and whether counsel provided
       conflicting advice regarding lesser included offense instructions being
       included in the jury charge. The parties shall also address whether
       Applicant was prejudiced by mis-communication among the defense team
       regarding the pre-trial investigation; and

       (2) The State failed to disclose exculpatory evidence in this case.

Because we conclude that Applicant did receive ineffective assistance of counsel, relief is

granted.

                                     BACKGROUND

       In October 2006, Applicant and her husband brought the four-year-old boy they

were in the process of adopting, A.B., into an urgent care center. According to one of the

nurses present at the center, A.B. was not breathing and began to vomit excessively when
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chest compressions were performed on him. The nurse testified that the vomit had the

color and odor of chili, which is what Applicant had said she fed him before bringing him

into the center. One of the doctors at the center testified that there was a huge amount of

vomit and that they had to suction the contents from the child’s mouth. Paramedics arrived

and established an airway into the child, but he was not making any spontaneous

movements. He was eventually taken across the street to Spohn South Hospital and then

transferred to Driscoll Children’s Hospital, where he died the next day.

        Dr. Alexandre Rotta, the pediatric critical-care specialist at Driscoll who treated

A.B., testified that when the child arrived from Spohn, he had to be connected to a

ventilator and receive minutes of CPR before a pulse returned. A computer axial

tomogram (“CAT”) scan was ordered to observe the child’s brain and it revealed that he

had brain swelling as well as bleeding inside and around his brain. Dr. Rotta also ordered a

second sample of A.B.’s blood to be tested when he learned of the Spohn blood test that

showed the child’s sodium level to be “incredibly high” at 242. Dr. Rotta explained that

normal levels of sodium should be between 135 and 145. The second blood test showed

the child’s sodium level to be greater than 250, which was the highest Dr. Rotta had ever

seen.

        Dr. Rotta went on to testify about the symptoms an individual with sodium

intoxication would experience. He stated that one would first feel general discomfort with

the possibility of nausea and vomiting. Within thirty minutes, the patient would have
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“pronounced thirst” and “try to seek water at any cost” because people cannot “tolerate

having a high sodium without wanting to fix it.” Following this would be more discomfort,

changes in consciousness and behavior, difficulty breathing, loss of consciousness,

seizures, and then cardiorespiratory arrest. Dr. Rotta stated that he thought the seizures and

loss of consciousness would occur within one to one-and-a-half hours after the salt

intoxication.

       Although Dr. Rotta knew that A.B. had a “much greater chance of not surviving

than surviving,” they continued to try to resuscitate him. Dr. Rotta explained that when a

child goes into cardiac arrest outside of the hospital, there is less than a ten-percent chance

of survival and those who do survive have “significant neurological devastation.” Dr.

Rotta did conclude that the child could have survived if he had been taken to the hospital

more quickly. Dr. Rotta also testified that he thought Applicant’s description of the

timeline was unusual and did not understand why she would take him to an urgent care

clinic if he was in full arrest.

       The medical examiner determined that A.B.’s death was a homicide, and Applicant

was charged with capital murder. The indictment alleged that she caused the death of A.B.

by giving him an acute toxic level of sodium or by failing to provide him with adequate or

timely medical care.

       At trial, Applicant testified that A.B. was “obsessed with eating” and ate more than

her other children at every meal. She explained that he was having worsening problems
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with eating off of the floor, getting into the trash, and even eating the cat food. She said

that he would become upset whenever she prevented him from eating what he wanted, and

that she had reported his excessive and inappropriate eating behaviors to the adoption

supervisor.

       On the day of the incident, Applicant testified that she fed the children breakfast

when they woke up and then they went to bed to watch cartoons. Applicant said that she

fell asleep at that point and when she awoke, A.B. was in the pantry on a stool, eating an

unknown substance. She put him in timeout for three minutes and explained that they

would go to eat when Larry, Applicant’s husband, arrived home from work. A.B.,

however, upset over not getting food, threw a tantrum, defecated in his pants, and then

threw his feces at Applicant. This behavior had occurred before, so Applicant gave him a

wipe and helped him change his clothes. Upon getting everything cleaned up, however,

A.B. did the same thing again, this time smearing his feces on the floor. Applicant

eventually told him that she would give him something to eat, and fed him a leftover soup

and chili mixture from the night before.

       Larry Overton returned home while A.B. was eating and cleaned up the mess he

had made. Applicant, Larry, A.B., and one of Applicant’s children then went to

Applicant’s chiropractor appointment. On the way, they stopped at McDonald’s to get

food for Larry and Applicant; A.B. became upset when he was not allowed to get anything

because he had already eaten. When they returned home from the appointment, Larry went
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back to work and A.B. again went to the kitchen and complained he was hungry. After he

began crying, Applicant decided to give him more chili with Zatarain’s seasoning added to

it. When she refused to give him a second serving, however, A.B. became extremely upset

and threatened to defecate on her. She decided to give him a cup of water with “a couple

of sprinkles of the Zatarain’s” in it so that he would get the flavor she thought he wanted

and calm down. She filled a full cup of water and then poured some out thinking it would

be too much for the child. She then put the mixture in a sippy cup and A.B. drank it.

       After finishing with the water, A.B. asked for more chili and began to throw a fit.

He tantrumed for “20 minutes or so” when he suddenly stumbled to the floor, said he was

cold, and threw up. Applicant simply “thought that he had gotten himself so worked up

that he threw up.” She called Larry and told him A.B. was “freaking out” and that he

needed to come home. While waiting for Larry, Applicant and A.B. started to clean up the

vomit when A.B. began to shake. He went to his bedroom and Applicant wrapped him in

blankets and put a heating pad under him.

       Larry returned home and Applicant consulted her EMT and nursing books and

decided that A.B. might be “in some sort of shock,” but she was not overly worried

because that had happened before. However, in order to warm him further, Applicant and

her husband placed him in a warm bath. At that point, she testified that A.B.’s breathing

began to sound congested, so she used a nebulizer on him until his breathing got better.

According to Applicant, when they took him out of the tub and dressed him, he was
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moaning and “lethargic.” Although Applicant determined that his vital signs were normal,

she began to think there was something more seriously wrong with him when the abnormal

breathing returned. As he became less responsive, Applicant sensed the situation had

become “serious.” She had not realized this sooner, she said, because his behavior had

been similar to her youngest son’s when he had pneumonia a few months prior and to her

other children when they had the flu.

       At this point, Larry and Applicant drove A.B. to the urgent care center. On the way,

Applicant called the adoption coordinator for the necessary forms for him to see the

doctor. She told the coordinator that the child had “funny” breathing and was not

“responding well.” During the ride, however, A.B. stopped breathing altogether and

Applicant began CPR. She stated that he vomited into her mouth and then began breathing

again. However, as they were taking him out of the car in the parking lot of the urgent care

center, he stopped breathing again. They took him inside the center, which eventually

transferred him to Spohn, which then transferred him to Driscoll Children’s Hospital

where he died the next day.

       The jury convicted Applicant of capital murder and the trial court sentenced her to

life imprisonment. A jury poll was conducted and each juror stated that he or she found

Applicant guilty based on her failure to obtain medical care for A.B., rather than on the

theory that she forced the child to consume the sodium. On direct appeal, Applicant

challenged the sufficiency of the evidence; claimed there was error in the indictment and
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jury charge; alleged that the State withheld material exculpatory evidence and presented

“extra-record” evidence to the jury; asserted that there was newly discovered evidence;

alleged that there was prosecutorial misconduct; and claimed that the trial court abused its

discretion in allowing testimony from the State’s expert witnesses. Overton, 2009 Tex.

App. LEXIS 8312, at *1. The court of appeals overruled all of Applicant’s issues and

affirmed the judgment of the trial court. Id. at *159-60. We then refused Applicant’s

petition of discretionary review and she filed this application for writ of habeas corpus.

                                       DR. MORITZ

       Dr. Michael Moritz is a leading expert on hypernatremia, or sodium intoxication,

and has written extensively on the subject. He was hired by Applicant’s defense team and

gave a deposition, but that deposition was never entered into evidence at Applicant’s trial

and he did not otherwise testify. Applicant now claims that the defense team’s failure to

present his testimony or deposition constitutes ineffective assistance of counsel.

His Testimony

       Dr. Moritz’s deposition was conducted during the middle of the criminal trial by

Brad Condit, the Overtons’ civil lawyer in the child-custody case.1 Only two of

Applicant’s criminal-defense attorneys, David Stith and Chris Pinedo, either attended or

watched a portion of the deposition, neither seeing the entire thing. Pinedo, however,

recommended to John Gilmore, the lead trial counsel, that the deposition not be used. At

        1
        As a result of A.B.’s death, Applicant’s other children were removed and custody
proceedings initiated.
                                                                              Overton - Page 9

the habeas hearing, Pinedo testified that he did this because the deposition contained

objectionable material and was too “messed up” to be edited and played for the jury. He

believed that interruptions and invalid objections made by the prosecution during the

deposition rendered it “useless,” and he asserted that “cutting and pasting a deposition can

be very difficult with a lot of needless interruptions.” He also explained that, although they

originally planned to call Dr. Moritz live at trial, it was postponed twice. Rather than ask

the Court for a continuance to accommodate the doctor, who could not travel on the

Sabbath, the deposition was conducted by Brad Condit in the middle of the criminal trial

so that the doctor could return home.

       Dr. Moritz’s deposition was about two hours in length and contained much

testimony that was favorable to the defense. It began with a lengthy history of his work,

his research, and his published papers on the subject of hypernatremia. He then went on to

describe, in detail, emotional deprivation syndrome, which is often associated with

extreme eating habits and explained how many of its features were present in A.B. He

refuted much of what Dr. Rotta testified to, such as the amount of Zatarain’s A.B. would

have had to ingest for his sodium to be at the level it was, and determined that Dr. Rotta

did not evaluate the cause of A.B.’s hypernatremia at all, a significant oversight. He

described the difficulty Applicant would have had in forcing that amount of salt or

Zatarain’s into A.B., who would have fought back, spit it out, or vomited, but asserted that

if A.B. had a psychological problem, such as emotional deprivation syndrome, he could
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have consumed it voluntarily. Dr. Moritz also ultimately concluded that Applicant did not

poison the child and that A.B. consuming something himself was the most likely cause of

his sodium intoxication.

       Dr. Moritz did make some statements in the deposition that were helpful to the

State’s case. He discussed a case in which an infant had a sodium level of 274, higher than

A.B.’s, and did recover. He admitted that the only information he received regarding the

possibility of child abuse by Applicant was given to him by the defense. He also stated that

the mortality rate of a person in A.B.’s situation would be “a minimum of a thirty to fifty

percent,” which could be considered favorable to the State’s case.

       However, Dr. Moritz also specifically testified about the issue of Applicant’s

omission in not getting A.B. medical care sooner. The following includes that pertinent

testimony:

        Q: [By Brad Condit] Doctor, are you a father yourself?

        A: [By Dr. Moritz] I am.

        Q: How many children do you have?

        A: I have six.

        Q: Based on your life experience, your training, your research, your
        experience as a doctor, what would be the window of opportunity, assuming
        that [A.B.] consumed the amount of sodium you have calculated, in an
        acute period of time, for the parents to have sought treatment that would
        have resulted in a recovery?

               Sandra Eastwood, for the State: Objection. Calls for the ultimate
               finding by the factfinder. “Being a father himself” is not a reason to
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       be commenting on this. If from a medical perspective he can define
       the window of opportunity, the State does not object. But as to him
       being a father, I would object to that.

Q: Take out the fact that you have experience as a father. Please answer the
question.

A: [By Dr. Moritz] On a medical basis, what we know from the literature,
animals, humans, case studies, we know that salt poisoning and acute
hypernatremia, meaning sodium levels that goes very rapid, goes high very
rapidly, is lethal. That’s what we know. And regardless of what treatment is
offered, we know that the mortality, the death rate, of sodiums in this range
are very high. Many cases of sodiums this high have actually happened in
the hospital under physicians’ supervision or in the emergency room where
they gave salt as an emetic in the emergency room. And many times, even
though therapy is introduced, there is no guarantee that a person could
survive that. Now when it happens in the field, and we’re talking about a
sodium level-

Q: Field. You mean in a home?

A: Yeah, in the home. You’re talking about a sodium level that is clearly
amongst the highest ever reported in a child of that age-the 274 we have is
an infant-of a child of that age, and understanding that there is going to be a
period of time, just a physical period of time, for the child to get from the
home to the hospital. Give it whatever, a half of an hour, forty minutes. If
the child has the acute sodium ingestion, it will take at least an hour for the
child to manifest significant amount of symptoms for the patient to say
‘Wow, I think this child is deathly ill and needs to go to the hospital.’ This
is very different-

       Sandra Eastwood: Objection. That’s a psychological conclusion. It is
       up to the jury with what point a parent should say ‘Wow, I need to go
       to the hospital.’

A: Well, for example, most of the times if someone would bring someone to
the emerg- you know call 9-1-1 and bring them to the emergency room, it
would be for something like the child can’t breathe-

       Sandra Eastwood: Objection. He’s not qualified himself as being
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              familiar with ER procedures.

       A: This would be just examples. Just examples. Uh, the child can’t breathe,
       the child turned blue, the child passed out. Or bleeding, the child cut
       themselves and is bleeding. These are things where someone would say,
       ‘Wow, I need to bring someone to the emergency room.’ But when you
       have something like vomiting, confusion, lethargy, meaning sleepy, not
       acting right, these are things that are more subtle. And for a parent who
       doesn’t know what salt poisoning is, has never seen it before, it would take
       a period of time for them to figure out what’s going on out of the blue when
       someone poisons themselves, and you don’t know that they’ve poisoned
       themselves, it takes a while to figure out what is going on. And if it took an
       hour, then whatever, a half an hour to get to the hospital, and then blood
       needs to be taken, and it takes usually anywhere between 45 and 75 minutes
       to get a sodium level back from the lab. And when you would get a sodium
       value of 245, which would be the highest ever reported, you would want to
       repeat that value. And you’re talking another hour to get that back. There’s
       going to be a minimum three or four hours, under the best circumstances,
       before you can address it, then most people, including myself, have, in fact,
       never managed someone with a sodium of 245. And there’s limited things
       that you have at your disposal to treat that then what we call good
       supportive care: maintaining the blood pressure, giving the fluids, and
       hoping that things work out. But there’s no quote unquote specific therapy.
       And I’m someone whose published on using dialysis for this situation and
       I’ve used dialysis for this situation. It’s not clear what you do. And I’ve
       published on how to, it’s not clear what you have at your disposal and if
       someone lives or if someone dies, to a large degree, it’s luck. There’s no
       way you could predict, no one could say that ‘I could treat this and
       guarantee survival,’ with this situation. The mortality is very high. A
       minimum of a thirty to fifty percent mortality with someone who has a
       sodium of that, that high. And that’s what the animal data shows. With
       sodium values in the 200s...

              Sandra Eastwood: Objection. Narrative.

Dr. Moritz’s opinion remained the same after trial, as evidenced by this testimony at the

habeas hearing:

       Q: [By Mr. Raley, for the Applicant] All right. Back to our question about if
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       she’d called 9-1-1 and the ambulance had come as quickly as they could,
       took him to the hospital as quickly as they could, triaged, decided to do labs
       at some point. Lab results came back; lab results had to be repeated. Do you
       have an opinion based on reasonable medical certainty and your education,
       your experience in this field as someone who has studied dozens of
       hypernatremia cases even since the trial of this case, do you have an opinion
       whether or not with a sodium level of 245 he could have saved even in the
       best of care, even if that 9-1-1 call had been made immediately, the
       ambulance had come immediately, and they’d taken him in and gave him
       the very, very best of care? With a blood sodium level of 245, do you have
       an opinion as to whether it is more likely than not that he still would have
       died no matter what?

              Mr. Norman, for the State: I would object as speculative, Your
              Honor.

              The Court: Overruled.

       Q: You can answer.

       A: I would say it would be exceedingly unlikely for him to live; and if he
       did, in all probability or almost certainly there would be irreversible
       neurological injury.

Ineffective Assistance of Counsel

       In order for us to grant habeas corpus relief for ineffective assistance of counsel,

an applicant must establish, by a preponderance of the evidence, that: (1) trial counsel’s

performance fell “below an objective standard of reasonableness”, and (2) there was a

reasonable probability that the result of the proceedings would have been different but for

trial counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 688

(1984).

       There is a strong presumption that counsel’s conduct was reasonable and judicial
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scrutiny of it will be highly deferential. Ex parte Flores, 387 S.W.3d 626, 636 (Tex. Crim.

App. 2012); Ex parte Rogers, 369 S.W.3d 858, 862 (Tex. Crim. App. 2012). In fact,

“strategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, 466 U.S. at 690. However, where

counsel’s deficient conduct is sufficient to undermine confidence in the outcome of the

proceeding, “reasonable probability” that the result would have been different exists. Id.

at 694. The Strickland test is judged by the viewpoint of counsel at the time he acted,

rather than through hindsight. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App.

2012).

         At the habeas hearing, Applicant’s trial attorneys testified. David Jones, one of the

attorneys who was supposed to advise the team on medical issues, testified that he did not

view Dr. Moritz’s deposition and that the decision to not use him during the trial was

“completely ineffective.” He thought Dr. Moritz’s testimony would have been “extremely

valuable for the jury,” as “he rebutted everything that Rotta said,” and would have “firmly

convinced [the jury] of Hannah’s innocence.” John Gilmore, the senior criminal lawyer

on Applicant’s defense team, testified that he also did not review the tape of Moritz’s

deposition himself and that he agreed with Mr. Jones’s testimony about their

ineffectiveness.

         The decision to not present Dr. Moritz’s testimony to the jury does not appear to be

the result of any thoroughly investigated trial strategy and was not a reasonable decision
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by Applicant’s defense attorneys. Chris Pinedo described the choice not to present it as a

product of the difficultly in editing around the prosecution’s improper comments, not as a

strategic decision by the Applicant’s defense team. Further, there was no strategy

described in not requesting a continuance to accommodate Dr. Moritz’s travel

restrictions. It is clear from the habeas hearing and deposition itself that Dr. Moritz’s

testimony would have directly supported Applicant’s defense and refuted much of the

State’s evidence. Pinedo even states in an affidavit that “Dr. Moritz’s testimony was

essential to prove that [A.B.] would not have survived from the sodium poisoning he

suffered. Even if he had ingested the sodium at a hospital, it is highly unlikely he would

have survived.” Given the pertinence of that testimony, and no convincing strategy or

reason to keep it from the jury, it was objectively unreasonable for Applicant’s counsel to

not attempt to present it.

       With the first prong of the Strickland test established, we now consider whether

there is a reasonable probability that counsel’s performance affected the result of the trial.

Dr. Moritz was an extremely well-qualified expert on salt intoxication, as evidenced by

the discussion during his testimony about his career path, research, and published papers.

In his deposition, he was knowledgeable and able to explain complicated medical

concepts with ease. During his testimony, he not only refuted much of what Dr. Rotta

testified to for the State, but also established that he was better informed on the subject of

salt intoxication than Dr. Rotta. Further, Dr. Moritz testified that A.B’s survival,
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regardless of when he was brought to the hospital, would have been determined largely by

luck. He described the mortality rate with salt intoxication as very high and said that it

was extremely unlikely that A.B. would have lived, irrespective of how quickly medical

care was given. Because the jury convicted Applicant based on a theory of failing to

provide A.B. with adequate or timely medical care, this testimony goes directly to the

verdict rendered in her trial.

       We believe that Dr. Moritz’s credibility combined with his testimony would have

had a strong impact on the jury and sufficiently undermines the outcome of the trial. But

for the defense team’s failure to present Dr. Moritz’s testimony to the jury in some way,

there is a reasonable probability that the outcome of Appellant’s trial would have been

different. Both prongs of the Strickland test have been established.

                                      CONCLUSION

       Applicant has met her burden in satisfying both prongs of the Strickland test and

established that she received ineffective assistance of counsel. Because defense counsel’s

performance fell below a reasonable standard and there is a reasonable probability that

the outcome of Applicant’s trial would have been different but for that performance, we

grant relief. Because we are granting relief on Applicant’s first claim of ineffective

assistance of counsel, there is no need for us to address the second issue of whether the

State failed to disclose exculpatory evidence. We reverse Applicant’s conviction and

remand her case to the trial court for a new trial.
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Filed: September 17, 2014

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