                                                                             WR-80,923-02
                                                               COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                               Transmitted 6/1/2015 2:03:46 PM
                                                                 Accepted 6/1/2015 2:28:04 PM
                                                                                ABEL ACOSTA
                                                                                        CLERK

                              No. WR-80,923-02                   RECEIVED
                                                          COURT OF CRIMINAL APPEALS
                                                                 6/1/2015
                    In the Court of Criminal Appeals        ABEL ACOSTA, CLERK
                                of Texas

                       In re RODERICK HARRIS,
                                Relator

                          No. W09-00409-Y(A)
                       Criminal District Court No.7
                         of Dallas County, Texas




                             STATE'S RESPONSE

To Relator Roderick Harris's Motion for Leave to File Application
   for Writ of Prohibition, Application for Writ of Prohibition,
                   and Request for Injunction



Susan Hawk                              Shelly 0 'Brien Yeatts
Criminal District Attorney              Assistant District Attorney
Dallas County, Texas                    State Bar No. 24033487
                                        133 N. Riverfront Blvd., LB-19
                                        Dallas, TX 75207-4399
                                        (214) 653-3625
                                        (214) 653-3643 fax
                                        syeatts@dallascounty .org

                         REAL PARTY IN INTEREST
                IDENTITY OF PARTIES AND COUNSEL

1.   Relator is Roderick Harris, who is represented by the Office of Capital
     Writs. Counsel of record is Brad Levenson, Robert Romig, and Jeremy
     Schepers.

2.   Respondent is the Honorable Elizabeth Frizell, Presiding Judge of the
     Criminal District Court No.7 of Dallas County, Texas.

3.   The Real Party in Interest is Susan Hawk, Criminal District Attorney of
     Dallas County, Texas. Counsel of record is Shelly O'Brien Yeatts.




                                  ii
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

TABLE OF AUTHORITIES ............................................................................... ;.... iv

STATE'S RESPONSE ............................................................................................... 1

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF THE CASE AND STATEMENT OF FACTS ........................... 1

ARGUMENT ............................................................................................................. 4

PRAYER .................................................................................................................. 11

VERIFICATION ...................................................................................................... 11

CERTIFICATE OF SERVICE ................................................................................ 12

EXHIBITS .................................................................................................................. .

         Exhibit A: Initial Application for Writ of Habeas Corpus (without exhibits)
         Exhibit B: Order Designating Issues for an 11.071 Hearing
         Exhibit C: Trial Court's Amended Order on State's Motion for Disclosure
                    of Roderick Harris's Trial Files, issued April 24, 2015




                                                        111
                                         TABLE OF AUTHORITIES

Cases·

Burnett v. State,
  642 S.W.2d 765 (Tex.              Cr~m.    App. 1982) ........................................................................ 9

Cameron v. State,
  241 S.W.3d 15 (Tex. Crim. App. 2007) .......................................................................... 6

Carmona v. State,
  941 S.W.2d 949 (Tex. Crim. App. 1997)........................................................................ 6

Harris v. State, No. AP-76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517
  (Tex. Crim. App. May 21, 2014) (not designated for pUblication) ................................. 1

In re McCann,    .
   422 S.W.3d 701 (Tex. Crim. App. 2013) ............................................................... passim

Pope v. State,
  207 S.W.3d 352 (Tex. Crim. App. 2006) ........................................................................ 6

Simon V. Levario,
  306 S.W.3d 318 (Tex. Crim. App. 2009) ........................................................................ 5

State ex rei. Lykos v. Fine,
  330 S.W.3d 904 (Tex. Crim. App. 2011) ........................................................................ 4

State ex rei. Wade V. Mays,
   689 S. W.2d 893 (Tex. Crim. App. 1985) ........................................................................ 5

State V. Thomas,
  428 S.W.3d 99 (Tex. Crim. App. 2014) .......................................................................... 7

Strickland V. Washington,
   466 U.S. 668 (1984) ......................................................................................................... 3

Woodruff V. State,
 330 S.W.3d 709 (Tex. App.-Texarkana 2010, pet. rerd) ............................................. 7




                                                          IV
Statutes

Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8(a), 9(a) (West Supp. 2014) ..................... 7, 8

Rules

Tex. R. Evid. 104(a)............................................................................................................. 6

Tex. R. Evid. 503(a), (b) ...................................................................................................... 6

Tex. R. Evid. 503(b)(2) ......................................................................................................... 6

Tex. R. Evid. 503(c) ............................................................................................................. 9

Tex. R. Evid. 503(d)(3) ........................................................................................................ 7




                                                            v
                               STATE'S RESPONSE


      The Real Party in Interest, Susan Hawk, the Criminal District Attorney of

Dallas County, Texas, hereinafter referred to as "the State," submits this response

to Relator Roderick Harris's Motion for Leave to File Application for Writ of

Prohibition, Application for Writ of Prohibition, and Request for Injunction.


                               ISSUE PRESENTED


      Whether the trial court, pursuant to its authority to direct the gathering of

evidence for the resolution of habeas claims under Article 11.071 of the Code of

Criminal Procedure, may exercise discretion to order Relator Roderick Harris to

produce to the State the portions of his trial files relevant to his habeas claims of

ineffective assistance of prior counsel.


       STATEMENT OF THE CASE AND STATEMENT OF FACTS


      Relator Roderick Harris was convicted and sentenced to death in May 2012

for the capital murder of Alfredo Gallardo in the course of a   ro~bery.   This Court

affirmed his conviction and sentence on direct appeal. Harris v. State, No. AP-

76,810, 2014 Tex. Crim. App. Unpub. LEXIS 517 (Tex. Crim. App. May 21,

2014) (not designated for pUblication). Attorneys-Brad Lollar, Doug Parks, Mike

Howard, and Calvin 10hnson represented Harris at trial.         After trial, the court

.appointed the Office of Capital Writs (OCW) to represent Harris in his Article
                                       1
11.071 application for writ of haheas corpus. With Harris's authorization, trial

counsel t~ndered Harris's original trial files to DCW. See generally In re McCann,

422 S.W.3d 701, 704-705 (Tex. Crim. App. 2013) (explaining that the contents of

the trial file belongs to the defendant).

      Following an investigation, OCW filed a post-conviction application for writ

of habeas corpus on Harris's behalf, challenging his conviction and death sentence.

(Exhibit A). The application is pending in the trial court. Five out of six of

Harris's claims for relief in the application (not counting subparts) allege

ineffective assistance of counsel. These claims encompass counsel's performance

during the pre-trial investigation, the guilt-innocence phase, and the punishment

phase and include allegations that trial counsel was ineffective for:

         • failing to sufficiently investigate and present punishment phase
         evidence that Harris suffers from fetal alcohol spectrum disorder
         and was exposed to toxic levels of lead as a child (Application at
         16-41);

         • failing to present sufficient expert testimony in the punishment
         phase to explain the mitigating impact of Harris's life history
         (Application at 41-70);

         • failing to offer punishment phase evidence in the form of Harris's
         own gang expert testimony to rebut the State's evidence of his
         involvement in a West Da~las street gang (Application at 70-75);

         • failing to object to evidence in the punishment phase that Harris
         wore a restraint device while being transported in a courthouse
         elevator during jury selection (Application at 75-83);



                                        2
         • failing to object during the guilt-innocence phase to the
         admission of autopsy photos of the second decedent at the scene,
         Carlos Gallardo, and to the medical examiner's corresponding
         testimony (Application at 84-95);

         • failing to raise guilt-innocence phase objections to the admission
         of (a) crime scene photographs and police officer testimony
         regarding attempts to save the complainant's life at the scene, (b)
         references in police officers' testimony that Harris shot at the
         officers when he exited the Gallardo family's trailer, (c) evidence
         regarding a gun, ammunition, and gloves seized from Harris's
         vehicle, which authorities found parked in the driveway next door,
         and (d) a jail book-in sheet which identified Harris's vehicle
         (Application at 96-104).

(Exhibit A). Harris's across-the-board challenges to trial counsel's investigation,

treatment of certain guilt-innocence evidence, and failure to present sufficient or

particular mitigation evidence in this case place trial counsel's entire performance

at issue. In light of these claims, the trial court must make findings of fact and

conclusions of law regarding whether Harris's attorneys performed deficiently and,

if so, whether that performance prejudiced his defense.            See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

      The trial court's "Order Designating Issues" in the habeas proceeding

designated all of Harris's ineffective   assist~ce   claims for further fact gathering

and scheduled an evidentiary hearing. (Exhibit B). On the State's motion and in

preparation for the evidentiary hearing, the trial court ordered OCW to provide the

State with access to the portions of Harris's trial files relevant to his claims of

ineffective assistance. (Exhibit C).
                                         3
       OCW filed an application for writ of prohibition and request for injunction

with this Court, seeking extraordinary relief from th~ trial court's order. I Before

making a decision on Harris's motion for leave to file, this Court has provided the

State and the trial court an opportunity to respond.

                                         ARGUMENT

       Harris fails to demonstrate he is entitled to the extraordinary relief he

requests, namely, to be free from the trial court's order to provide the State with

access to the portions of his trial         fi~es   relevant to his ineffective assistance of

counsel claims.

       Relief on a petition for writ of prohibition is available only if a relator shows

that he has (1) a clear and indisputable right to the relief sought and (2) no other

adequate legal remedy available. McCann, 422 S.W.3d at 704; State ex reI. Lykos

v. Fine, 330 S.W.3d 904, 907 (Tex. Crim. App. 2011). The State agrees that Harris

has no other vehicle for obtaining relief from the trial court's order to provide the

State access to his trial files; however, he cannot" show a clear right to relief.




I In other Dallas eounty death penalty Writs in which oew has been appointed to represent an
applicant, oew has acknowledged the waiver of privileges in relation to ineffective assistance
of counsel claims and agreed to release the files. In Ex parte Medina, No. W07-32923-S(A),
oew turned over all the trial files. In Ex parte Garry Green, No. W09-59380-S(A), oew
turned over portions of the files and provided a privilege log of excepted items. In Ex parte Juan
Lizcano, No. W05-59563-S(A), oew agreed to release the files but the trial court substituted
other counsel before the release actually occurred. Despite -its position on release of trial files in
the past, oew has in this instance declined to release the trial files.
                                              4
      To demonstrate a clear right to relief, Harris must show the act he seeks to

prohibit is ministerial and does not involve a discretionary or judicial decision. An

applicant satisfies this requirement if the facts and circumstances dictate but one

rational decision under unequivocal, well-settled, and clearly controlling legal

principles. See Simon v. Levario, 306 S. W.3d 318, 320 (Tex. Crim. App. 2009)

(citing State ex reI. Young v. Sixth Judicial District Court of Appeals, 236 S. W.3 d

207, 210 (Tex. Crim. App. 2007»; State ex rei. Wade v. Mays, 689 S.W.2d 893,

897 (Tex. Crim. App. 1985). The relator on a writ of prohibition "must make a

clear showing that under certain facts, the law is subject to but one interpretation;

he then must show that undisputed facts exist which entitle him unequivocally to a

right flowing from that single interpretation." Wade, 689 S.W.2d. at 898 n.ll.

Even if the issue is one of first impression, a relator may establish a clear right to

relief where well-settled law governs the issue. McCann, 422 S.W.3d at 704.

      Evidence which may later reflect and be relevant to a defense team's

effective or ineffective representation of a client takes many forms, including

communications between the attorneys and the client, communications among the

attorneys and their experts or consultants, materials generated and collected by the

attorneys and their agents, evaluations performed at the attorneys' request, the

attorneys' mental impressions and analysis, and the tangible records and files

maintained by the attorneys.     Harris's assertions of post-conviction ineffective


                                       5
assistance of counsel claims constitute a waiver of the attendant attorney-client and

work-product privileges and allow the State access to communications and

materials which would usually be protected from disclosure, including the contents

of his trial files.

       The attorney-client privilege is an evidentiary privilege which protects

against the compelled disclosure of confidential communications. Pope v. State,

207 S.W.3d 352, 357 (Tex. Crim. App. 2006); see Tex. R. Evid. 503(a), (b). The

attorney-client privilege belongs to and protects the client. Pope, 207 S. W.3d at

357; Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App. 1997). Preliminary

questions concerning the existence of a privilege shall be determined by the trial

court. Tex. R. Evid. 104(a). In determining whether the attorney-client privilege

has been waived, a court examines the totality of the circumstances and reasonable

inferences therefrom. Carmona, 941 S.W.2d 954.

       The attorney work-product doctrine or privilege functions as a qualified

privilege to prevent an attorney from being compelled to disclose his work product

to an adversary. Pope, 207 S.W.3d at 357-358. The purpose of the doctrine is to

stimulate the production of information for trials. Id.         Although not expressly

provided for, the attorney work-product privilege falls within Texas Rule of

Evidence 503(b)(2).    Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.

2007); see Tex. R. Evid. 503(b)(2)   (ind:icat~ng   that a criminal client has a privilege

                                       6
to prevent his attorney or the attorney's representative from disclosing facts which

developed as a result of the attorney-client relationship).

       Harris's assertions of post-conviction ineffective assistance of counsel

claims have resulted in a waiver of the attorney-client and work-product privileges.

See State v. Thomas, 428 S.W.3d 99, 106 (Tex. Crim. App. 2014) ("When counsel

faces an ineffective-assistance claim, the attorney-client privilege is waived, and

trial counsel has the opportunity to explain his actions"); Tex. R. Evid. 503{d){3)

(establishing that the attorney-client privilege does not extend to communications

"relevant to an issue of breach of duty by the lawyer to the client or by the client to

the lawyer"); Woodruff v. State, 330 S.W.3d 709, 728 (Tex. App.-Texarkana

2010, pet. ref d) (holding that the exceptions of Texas Rule of Evidence 503{d)

also apply to the work-product privilege in the proper circumstances).

      The parties agree that Harris's assertions of ineffective assistance of counsel

constitute a waiver of his attorney-client privileges. The parties disagree whether

the trial court may, based on Harris's waiver, order his habeas counsel to disclose

to the State the contents of the trial files relevant to his claims.

       Article 11.071 of the Code of Criminal Procedure, which governs habeas

proceedings in death penalty cases, requires the trial court to determine what, if

any, fact issues require resolution and the manner in which those issues should be

resolved. See Tex. Code Crim. Proc. Ann. art. 11.071, §§ 8{a), 9{a) {West Supp.


                                         7
2014).    The statute gives the trial court discretion to use various avenues for

resolving issues, including requiring affidavits, depositions, interrogatories, and

evidentiary hearings and using personal recollection. Id. § 9(a). Through these

avenues, including an evidentiary hearing, the trial court receives evidence relevant

to the contested fact issues. In conjunction with its authority to hold an evidentiary

hearing in this habeas proceeding and receive evidence, the trial court ordered

DeW to provide the State access to the' portions of Harris's trial files that are

relevant to his ineffective assistance of trial counsel claims prior to the hearing.

Nothing in Article 11.071 prohibits a trial judge from ordering. such discovery

during the evidence gathering process.

      Moreover, there is no other legal bar to ordering this discovery. Harris does

not claim the files are not discoverable. Indeed, he concedes that his ineffective

assistance of counsel complaints act as a waiver of his privilege.        He argues,

however, that the court must order his trial lawyers-not his writ lawyers-to tum

the files over. Harris does not explain why the court must go elsewhere for the

files, and no legal reason is otherwise apparent. The trial files belong to Harris.

See McCann, 422 S.W.3d at 704-705 (reaffirming that a client owns the contents

of his or her file). And his current counsel has possession of originals and/or

copIes.




                                       8
      Harris seeks to place the burden on the individual trial attorneys to

determine the application and scope of Harris's attorney-client waiver, i.e. to

identify which documents in the files are relevant to his ineffective assistance of

counsel claims. However, the right to claim or waive the attorney-client privilege

belongs to Harris, not his trial attorneys. See Burnett v. State, 642 S.W.2d 765,

770 (Tex. Crim. App. 1982) ("The law is 'perfectly plain that the waiver [of the

client-attorney privilege], like the privilege, belongs solely to the client, and not to

the attorney. "'); Tex. R. Evid. 503(c) (indicating that the lawyer may claim the

privilege "only on behalf of the client").

      The State agrees with OCW that it does not "represent" trial counsel for

purposes of this writ proceeding; however, the State is in the position of defending

against Harris's habeas claims, which he has elected to formulate and file. Harris

contends that "[hlow trial counsel chooses to defend themselves from these claims,

and to what extent the limited waiver of privileged information will be effectuated,

is a decision for trial counsel, not the State to make." (Application at 8). This

inference that trial counsel is responsible for release of documents from the files

ignores this Court's holdings that a criminal defendant's file is the defendant's

property.   See McCann, 422 S.W.3d at 704-705; Burnett, 642 S.W.2d at 769

(holding a tape recording of the defendant's pre-hypnotic interview was the

defendant's property and subject to the attorney-client privilege). Moreover, that


                                        9
the trial files might be available through an alternative source does not mean the

trial court did not have discretion to order Harris to release them.

      The trial court determines the extent of the waiver of privileged information

based on the relevancy of the information to the asserted claims.                 These

determinatioI)s properly lie solely within the trial court's discretion. Contrary to

Harris's contentions, the State is not seeking to determine the extent of the waiver.

Furthermore, Harris acknowledges that documents from his trial files relevant to

his ineffective assistance of counsel claims may be disclosed and admitted into

evidence at a hearing. Nothing deprives the trial court of the discretion to regulate

the timing of the disclosure of the files and to order it to occur earlier.

      By accusing his counsel of ineffectiveness, Harris has waived any privileges

attendant to his trial files, which in effect record much of the    repr~sentation.   The

trial court's order for Harris to produce the files to the State prior to an evidentiary

hearing was discretionary; Harris presents this Court with no authority that

deprives the trial court of its discretion to order production of the files. The trial

court here exercised a manifestly judicial-not a ministerial-function.

Accordingly, this Court should deny Harris's request for the extraordinary remedy

of prohibition.




                                        10
                                     PRAYER

      The State prays that this Court deny Harris's motion for leave to file his

application for a writ of prohibition and the application itself. Moreover, the State

asks this Court to lift its order staying the discovery order and any hearings on the

habeas application.




Susan Hawk                             Shelly Brien Y tts
Criminal District Attorney             Assistant District Attorney
Dallas County, Texas                   State Bar No. 24033487
                                       133 N. Riverfront Blvd., LB-19
                                       Dallas, TX 75207-4399
                                       (214) 653-3625
                                       (214) 653-3643 fax
                                       syeatts@dallascounty.org


                                VERIFICATION

STATE OF TEXAS                  §
                                §
COUNTY OF DALLAS                §

       I, Shelly O'Brien Yea~s, attest and affirm that I have reviewed the response,
that I have personal knowledge of the factual statements it contains, and that those
factual statements are true and correct and supported by competent evidence
included in the appendix or record.~


                                     ~Brien            Y. atts




                                      11
                         CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing response has been served on the
following on June 1,2015:

      Hon. Elizabeth Frizell
      Criminal District Court No.7
      133 N. Riverfront Blvd.
      Dallas, Texas 75207

      Brad D. Levenson
      Robert Romig
      Office of Capital Writs
      1700 N. Congress Ave., Suite 460
      Austin, Texas 78711
      Brad.Levenson@owc.texas.gov
      Robert.Romig@ocw.texas.gov
      ATTORNEYS FOR RELATOR ~~


                                      Shelly 0   rien Yes




                                     12
                  EXHIBIT A

Roderick Harris's Initial Application for Writ of
       Habeas Corpus (without exhibits)
        '-Ii
        I
                            FO               \/J IOq- (J)-/CY1-Y (fl)
                IN CRIMINAL DISTRICT COURT NO.7
                0           --




   2014 JUN 11 PM 3: 21 DALLAS COUNTY, TEXAS
     G;,io          0   0    ,:-HYHiS
       to:, i   :,",       ~~LEHK
     0"\ ;,~,           '-! , iEXAS
      ", /h1                     ;';1 PUTY
                                                   )     Trial Cause No.
EX PARTE                                           )     F09-00409
RODERICK HARRIS,                                   )
        APPLICANT                                  )
                                                   )
                                                   )

  INITIAL APPLICATION FOR WRIT OF HABEAS CORPUS (FILED
       PURSUANT TO TEX. CODE CRIM. PROC. ART. 11.071)




                                                   BRAD D. LEVENSON (No. 24073411)
                                                   Director, Office of Capital Writs
                                                   (E-mail: Brad.Levenson@ocw.texas.gov)
                                                   ROBERT ROMIG (No. 24060517)
                                                   (E-mail: Robert.Romig@ocw.texas.gov)
                                                   SAM FARINA-HENRY (No. 24082979)
                                                   (E-mail: Sam.Farina-Henry@ocw.texas.gov)
                                                   RYAN CARLYLE KENT (No. 24090205)
                                                   (E-mail: Ryan.Kent@ocw.texas.gov)
                                                   Post-Conviction Attorneys
                                                   Office of Capital Writs
                                                   1700 North Congress Avenue, Suite 460
                                                   Austin, Texas 78711
                                                   (512) 463-8600
                                                   (512) 463-8590 (fax)

                                                   Attorneys for Applicant
                                         TABLE OF CONTENTS

APPLICATION FOR A WRIT OF HABEAS CORPUS ......................................... 1

PROCEDURAL HISTORy ...................................................................................... 4

    A. Trial Court Proceedings .................................................................................. 4

    B. State Appellate Proceedings ........................................................................... 6

    C. State Habeas Proceedings ............................................................................... 6

STATEMENT OF FACTS ....................................................................................... 6

    A. Guilt/Innocence Phase Presentation ............................................................... 6

    B. Punishment Phase Presentation ...................................................................... 7

STANDARD OF CARE ........................................................................................... 9

    A. Ineffective Assistance of Trial CounseL ........................................................ 9

    B. Ineffective Assistance of Appellate CounseL .............................................. 13

    C. Scope of the Waiver of Attorney-Client Privilege ....................................... 13

ARGUMENT .......................................................................................................... 16

CLAIM ONE: TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE
BY FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN
MITIGATING EVIDENCE DURING HARRIS'S TRIAL ................................... 16

    A. Trial Counsel Was Ineffective for Failing to Investigate and Present
       Available Evidence that Harris Suffers from Fetal Alcohol Spectrum
       Disorder ......................................................................................................... 20

    B. Trial Counsel Failed to Uncover and Present Information That Harris Was
       Exposed to Toxic Levels of Lead as a Child ................................................ 34

    C. Trial Counsel Failed to Retain and Present Testimony from Expert
       Witnesses to Explain the Mitigating Impact of Harris's Life History ......... 41

    D. Trial Counsel's Failure to Present This Mitigating Information Was
       Deficient and Prejudiced Harris's Trial.. ...................................................... 69
                                                            ..
                                                            11
CLAIM TWO: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
PRESENT A GANG EXPERT TO OFFER AN EXPERT OPINION TO REBUT
THE PROSECUTION'S EVIDENCE OF HARRIS'S GANG INVOLVEMENT 70

    A. Relevant Facts ............................................................................................... 70

    B. Trial Counsel Was Ineffective for Failing to Rebut the Prosecution's
       Evidence of Harris's Gang Affiliation by Presenting Testimony from a Gang
       Expert ............................................................................................................ 72

    C. Harris was Prejudiced by Trial Counsel's Failure to Present Testimony from
       a Gang Expert ............................................................................................... 75

CLAIM THREE: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
OBJECT TO INHERENTLY PREJUDICIAL TESTIMONY INFORMING THE
JURY THAT HARRIS WAS RESTRAINED ....................................................... 75

    A. Restraint Evidence Presented to Jury at Harris's TriaL ............................... 76

    B. Restraint Evidence Was Objectionable ........................................................ 78

    C. Trial Counsel Was Ineffective for Failing to Object to Restraint Evidence 80

    D. Harris Was Prejudiced by Trial Counsel's Failure to Object. ...................... 82

CLAIM FOUR: HARRIS WAS DENIED DUE PROCESS BY TRIAL
COUNSEL'S FAILURE TO OBJECT OT THE ADMISSION OF FORENSIC
EVIDENCE CONCERNING CARLOS GALLARDO ......................................... 84

    A. Relevant Facts ............................................................................................... 84

   B. Legal Standards ............................................................................................. 86

    C. Trial Counsel Performed Ineffectively by Failing to Object to Testimony and
       Exhibits Concerning the Death of Carlos Gallardo ...................................... 89

   D. Conclusion .................................................................................................... 95

CLAIM FIVE: HARRIS WAS DENIED DUE PROCESS BY TRIAL
COUNSEL'S FAILURES TO OBJECT TO PREJUDICIAL, CUMULATIVE,
AND INADMISSIBLE EVIDENCE ...................................................................... 95

   A. Relevant Facts ............................................................................................... 96

                                                            III
    B. Legal Standards ............................................................................................. 96

    C. Trial Counsel Performed Ineffectively by Failing to Object to Prejudicial
       and Cumulative Testimony Concerning the Crime Scene and Harris's
       Shooting at Police Officers, as well as to Prejudicial and Inadmissible
       Evidence Seized from the Ford Crown Victoria .......................................... 97

    D. Conclusion .................................................................................................. 103

CLAIM SIX: HARRIS'S CONSTITUTIONAL RIGHTS WERE VIOLATED
WHEN THE TRIAL COURT REFUSED TO INSTRUCT THE JURY THAT A
VOTE BY ONE JUROR WOULD RESULT IN A LIFE SENTENCE .............. 104

    A. As Applied to Harris's Jury, the "10-12 Rule" Unconstitutionally Impaired a
       Juror's Ability to Answer Special Issue Three ........................................... 106

    B. The Supreme Court Has Invalidated Jury Instructions That Place an Added
       Burden on the Sentencer Before Finding Mitigating Circumstances ......... 109

    C. Conclusion .................................................................................................. 111

PRAYER FOR RELIEF ........................................................................................ 112




                                                          IV
                                        TABLE OF AUTHORITIES

Cases
Allen v. United States, 164 U.S. 492 (1896) ......................................................... 108
Arizona v. Washington, 434 U.S. 497 (1978) ....................................................... 108
Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ............................................... 14
Bobby v. Van Hook, 558 U.S. 4 (2009) ................................................................... 10
Cullen v. Pinholster,_U.S._, 131 S. Ct. 1388 (2011) ....................................... 10
Downum v. United States, 372 U.S. 734 (1963) ................................................... 108
Evitts v. Lucey, 469 U.S. 387 (1985) ...................................................................... 13
Harrington v. Richter, _ U.S. _, 131 S. Ct. 770 (2011) ................................ 10, 12
In re Nat 'I Mortg. Equity Corp. Mortg. Pool Certificates Sec. Litig., 120 F.R.D.
   687 (C.D. Cal. 1988) ........................................................................................... 15
Johnson v. Alabama, 256 F .3d 1156 (1Ith Cir. 2001) ............................................ 15
Laughner v. United States, 373 F.2d 326 (5th Cir. 1967) ....................................... 14
Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876 (B.D. Pa. 1976) ...................... 15
McKoy v. North Carolina, 494 U.S. 433 (1990) ................................................... 111
Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) ....................................................... 11
Mills v. Maryland, 486 U.S. 367 (1988) ............................................... 109, 110, 111
Padilla v. Kentucky, 559 U.S. 356 (2010) .............................................................. 10
Porter v. McCollum, 558 U.S. 30 (2009) ...................................................... 9, 12, 93
Ries v. Quarterman, 522 F.3d 517 (5th Cir. 2008) ................................................. 13
Rompilla v. Beard, 545 U.S. 374 (2005) ....................................................... 9, 10, 11
Smith v. Robbins, 528 U.S. 259 (2000) ............................................................ passim
Strickland v. Washington, 466 U.S. 668 (1984) .............................................. passim
United States v. Basham, Cr. No. 4:02-992-JFA, 2012 WL 1130657 (D.S.C. Apr.
   4,2012) ................................................................................................................ 15
United States v. Pinson, 584 F.3d 972 (10th Cir. 2009) ......................................... 14
Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006) ......................................................... 9
Wiggins v. Smith, 539 U.S. 510 (2003) ............................................................ passim
Williams v. Taylor, 529 U.S. 362 (2000) ................................................................ 12
Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................... 1
Statutes
Alabama v. Lewis, 36 So. 3d 72 (Ala. Crim. App. 2008) ....................................... 15
Beall v. Ditmore, 867 S.W.2d 791 (Tex. App.-EI Paso 1993) ............................. 80
Boone v. State, 230 S.W.3d 907 (Tex. App.-Houston 2007) ............................... 79
Cedillos v. State, 250 S.W.3d 145 (Tex. App.-Eastland 2008) ............................ 79
Draughon v. State, 831 S. W.2d 331 (Tex. Crim. App. 1992) ...................... 106, 111
Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005) ................................ 70

                                                              v
Ex parte Ellis, 233 S.W.3d 324 (Tex. Crim. App. 2007) ........................................ 70
Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) ....................................... 9
Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) .............. 11, 12, 13,41
Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012) .................................... 9
Ex parte Martinez, 195 S.W.3d 713 (Tex. Crim. App. 2006) ................................. 12
Ex parte Santana, 227 S.W.3d 700 (Tex. Crim. App. 2007) ............................ 13, 88
Frazierv. State, 600 S.W.2d271 (Tex. Crim. App.1979) ................................... 102
In re Dean, 711 A.2d 257 (N.H. 1998) ................................................................... 15
Joseph v. State, 3 S.W.3d 627 (Tex. App.-Houston [14th Dist.] 1999) ............... 14
Long v. State, 590 S.W.2d 138 (Tex. Crim. App. 1979) ....................................... 102
Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455 (Tex. 1982) ..................... 14
Meza v .State, 206 S.W.3d 684 (Tex. Crim. App. 2006) ........................................ 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ................ 87,97,99
Moreno v. State, 22 S.W.3d 482 (Tex. Crim. App. 1999) .......................... 87, 88, 97
Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996) ...................................... 92
Robertson v. State, 777 S.W.2d 427 (Tex. Crim. App. 1989) ................................ 91
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) .................................. 86, 87
Saldana v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ...................................... 80
Shuffieldv. State, 189 S.W.3d 782 (Tex. Crim. App. 2005) ....................... 87, 94,97
State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) .................................... 88
Stone v. State, 17 S.W.3d 348 (Tex. Crim. App. 2000) .......................................... 91
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ...................................... 9
Waldrip v. Head, 532 S.E.2d 380 (Ga. 2000) ......................................................... 15
West v. Solita, 563 S.W.2d 240 (Tex. 1978) ........................................................... 14
Wiseman v. State, 223 S.W.3d 45 (Tex. App.-Houston [1st Dist.] 2006) ............ 79
Wood v. State, No. 09-10-00195-CR, 2012 WL 1448333 (Tex. App.-Beaumont
  Apr. 25, 2012) .................................................................................................... 103
Other Authorities
TEX. CODE CRIM. PROC. art. 37.071 .............................................................. 104, 105
TEX. R. EVID. 101 .................................................................................................... 86
TEX. R. EVID. 402 .................................................................................................... 91
TEX. R. EVID. 403 ............................................................................................. passim
TEX. R. EVID. 404 .............................................................................................. 86,91
TEX. R. EVID. 503 .................................................................................................... 13
TEX. R. EVID. 802 .................................................................................................. 103
TEX. R. EVID. 901 .................................................................................................. 103
TEX. R. EVID. 902 .................................................................................................. 103




                                                           Vi
Rules
ABA Standing Comm. on Ethics & Profl Responsibility, Formal Opinion 10-456
  (2010) ................................................................................................................... 16
ABA, ABA STANDARDS FOR CRIMINAL JUSTICE (3d ed. 1993) ........................ 10, 11
ABA, Guidelines for the Appointment and Performance of Defense Counsel in
  Death Penalty Cases, 31 HOFSTRA L. REv. 913 (2003) ............................... passim
State Bar of Tex., Guidelines and Standards for Texas Capital Counsel, 69 TEX.
  B.J. 966 (2006) ........................................................................................ 10, 11, 16




                                                               Vll
             APPLICATION FOR A WRIT OF HABEAS CORPUS

                              This is a Capital Case
       In 1976, the Supreme Court banned the practice of sentencing that made the
death penalty mandatory for all capital murders. Woodson v. North Carolina, 428
U.S. 280 (1976). Because of the "diverse frailties of mankind" the Court held that
the Constitution required "particularized consideration of relevant aspects of the
character and record of each convicted defendant before the imposition upon him
of a sentence of death." Id. at 303-04. This landmark decision recognized the
importance of presenting mitigating evidence specifically tailored to an individual
defendant.
       There is a "belief, long held by this society, that defendants who commit
criminal acts that are attributable to a disadvantaged background ... may be less
culpable than defendants who have no such excuse." Wiggins v. Smith, 539 U.S.
510, 535 (2003). The State attempted to portray Roderick Harris as a defendant
with no mitigating factors in his life story, someone who had "a pretty decent
childhood" who was "so fortunate to have family" testify on his behalf. (66 RR at
40-41, 74-75, 89.) However, this characterization of Harris is wholly inaccurate,
for Harris was destined for disadvantage before he was born.
       Harris was born to seventeen-year-old single mother Pamela Maddox. Ms.
Maddox, born and raised in West Dallas, had spent at least a decade prior to
Harris's birth living with her own mother at 3544 Nomas Street, less than half a
mile downwind of a lead smelting facility that was later declared a Superfund
hazardous waste site. As a child, Ms. Maddox was exposed to toxic levels of lead
in the air and in the ground. Because lead accumulates in the bones, and can be
transferred from mother to child during pregnancy, Harris likely was exposed to
lead in utero.


                                         1
      Harris lived on Nomas Street, in the shadow of the lead smelter, for
approximately six of the first eight years of his life. Children are particularly
sensitive to lead exposure, which can damage the central nervous system, damage
the brain, and result in cognitive and academic deficits.
      Harmful as it is, lead was not the only toxin Harris was exposed to in utero.
Harris's mother consumed alcohol during the first trimester, before she was aware
of her pregnancy. As a result, Harris exhibits deficits in cognitive functioning, and
has a history of neurodevelopmental disorders that are consistent with a diagnosis
of Alcohol Related Neurodevelopmental Disorder, one of the specific diagnostic
conditions of Fetal Alcohol Spectrum Disorder ("FASD"). Individuals with FASD
suffer from deficits in an array of cognitive functions, including attention, learning,
logical thinking, impulse inhibition, and self-regulation. Because of these deficits,
these individuals also struggle socially and are linked to disproportionate rates of
mental illness, drug abuse, and involvement in the criminal justice system.
      As he grew up, Harris struggled at home and in school. For most of his
childhood, the relationship between Harris's mother and stepfather was physically
and verbally abusive. Harris and his half-brothers were often left alone, or taken to
adult parties where there was open consumption of alcohol and marijuana. Mr.
Maddox treated Harris more strictly than his two biological sons, and this, in tum,
led Harris to run away from home as a juvenile.
      At the age of seven, Harris was diagnosed with Attention Deficit
Hyperactivity Disorder ("ADHD") and he was prescribed Ritalin.            Despite the
positive effect Ritalin had on Harris's behavior, his parents frequently took him off
the medication, citing Harris's zombie-like affect when he took it. Harris cycled
on and off the medication until he reached puberty, when the treatment was
discontinued altogether.


                                          2
       Along with ADHD, Harris labored with learning disabilities throughout his
time in school. He was continuously placed in special education classes, and he
struggled behaviorally, as well, earning several suspensions and expulsions, which
led to his involvement in the juvenile justice system.
      It is not altogether surprising that amidst this chaotic background, Harris
found some solace in a juvenile street gang. Harris joined the gang at the age of
ten but left it before dropping out of high school. The gang he joined was not a
violent, organized criminal enterprise but functioned more as a group of similarly-
situated adolescents from the same neighborhood.
      Harris's jury did not hear the full complement of information available to
describe his childhood, adolescence, and early adulthood. Moreover, no evidence
was presented about Harris's prenatal exposure to two poisonous substances-
alcohol and lead-nor the effects of this exposure on his cognitive functioning.
This evidence was available, could have been presented through the testimony of
both lay and expert witnesses, and would have been incredibly relevant and
persuasive to a juror during Harris's trial.
      Because Harris's constitutional and statutory rights were violated by the
omission of this evidence from his trial, Harris's verdict and death sentence should
be reversed.




                                           3
                                             I.
                            PROCEDURAL HISTORY

      Roderick Harris is confined under a sentence of death pursuant to the
judgment of Criminal District Court No.7, Dallas County, Texas, cause number
F09-00409, which was rendered on May 21,2012 (66 RR at 107)1 and entered on
the same day (2 CR at 709).
   A. Trial Court Proceedings
      The Court appointed Brad Lollar, Doug Parks, and Mike Howard to
represent Harris during his capital trial.
     1. Indictment
      On June 2, 2009, a grand jury indicted Harris with capital murder for
intentionally causing the death of Alfredo Gallardo while in the course of
committing and attempting the offense of robbery. (1 CR at 7.)
     2. Recusal Proceedings
      Harris's case was initially assigned to the 203rd District Court in Dallas
County, Judge Teresa Hawthorne presiding. On December 19, 2011, Judge
Hawthorne heard arguments pertaining to pretrial motions filed on behalf of
Harris. (4 RR at 5, et seq.) During this proceeding, Judge Hawthorne granted
several defense motions which declared the death penalty unconstitutional. (ld. at
19.) The State filed a motion to recuse Judge Hawthorne on December 21,2011 (2
CR at 572), and a hearing was held on January 3, 2012, before Presiding
Administrative Judge John Ovard. (6 RR at 6, et seq.) Judge Ovard granted the
State's motion to recuse Judge Hawthorne, and the case was assigned to Criminal
District Court No.7, Judge Michael Snipes presiding. (2 CR at 581-82.) Judge



      1"CR" refers to the Clerk's Record of Harris's capital trial. "RR" refers to
the Reporter's Record of Harris's capital trial.
                                             4
Snipes later reviewed de novo Judge Hawthorne's constitutional rulings, which he
overturned. (8 RR at 14-34.)
     3. Trial
        Voir dire began on January 9, 2012, and concluded on March 26, 2012. (9
RR at 4; 52 RR at 75.) Harris was arraigned on May 8, 2012, and entered a plea of
not guilty. (58 RR at 6-7.) Later that day, the State gave an opening statement and
called the first witness. (Id. at 17, 27.) The State rested its case for guilt on May
10,2012. (60 RR at 75.) Defense counsel did not give an opening statement, but
did call one witness before resting its case. (Id. at 79, 81.) Both sides gave closing
arguments, and the case was submitted to the jury for deliberation. (Id. at 92-125.)
The jury returned with a verdict finding Harris guilty of capital murder. (Id. at
126.)
        The punishment phase began on May 14, 2012, with the State giving an
opening statement. (62 RR at 19.) The State then presented its case regarding
punishment, and rested on May 16, 2012.         (64 RR at 118.) Defense counsel
proceeded to give an opening statement before presenting its case. (Id. at 140.)
After calling a number of witnesses, defense counsel rested on May 17,2012. (65
RR at 233.) The State then presented several witnesses in rebuttal, including five
witnesses who provided victim impact testimony. (Id. at 234-95, 300-16.) The
next day, May 18, 2012, both sides presented closing arguments before the case
was given to the jury. (66 RR at 30, et seq.) The jury did not reach a verdict as to
punishment during the first day of deliberations, so the Court excused the jury for
the weekend. (Id. at 96.) On May 21, 2012, the jury reconvened to continue
deliberations, and returned with a verdict later that day, answering "Yes" to
Special Issue One and "No to Special Issue Two. (Id. at 103-04.) Harris was then
formally sentenced to death by the Court. (Id. at 107.)


                                          5
   B. State Appellate Proceedings
      Harris was notified of his right to appeal on May 21, 2012. (2 CR at 712.)
He was declared indigent and on May 23, 2012, John Tatum was appointed to
represent Harris for the purpose of filing a direct appeal. (Id. at 713.) Appellate
counsel filed a motion for a new trial on June 15,2012, which was overruled. (Id.
at 714.)
      On September 3, 2013, appellate counsel filed an opening appellate brief in
Roderick Harris v. The State a/Texas, cause number AP-76,810. The State filed
its brief in response on January 28, 2014.     Both the State and post-conviction
counsel filed motions requesting that the clerk and court reporter supplement the
trial record. The clerk did so and ultimately provided four supplements to the
clerk's record. (See CR Supps. 1-4.) Both the State and direct appeal counsel
presented oral argument before the CCA on April 2, 2014. On May 21, 2014, the
CCA denied Harris's direct appeal in full.
   C. State Habeas Proceedings
      On May 22, 2012, the Office of Capital Writs ("OCW") was appointed to
represent Harris for the purpose of investigating and filing a writ of habeas corpus
pursuant to Article 11.071 of the Texas Code of Criminal Procedure.            This
Application follows.
                                        II.
                           STATEMENT OF FACTS

   A. Guilt/Innocence Phase Presentation
      During the guilt/innocence phase of Harris's trial, the prosecution presented
evidence and testimony to show that on March 17, 2009, Harris shot and killed
Alfredo Gallardo while in the course of robbing Alfredo and his family. Though
Harris was only on trial for the death of Alfredo, the State presented evidence that
Harris shot and killed Alfredo's brother, Carlos Gallardo.        Specifically, the
                                         6
prosecution presented testimony from three members of the Gallardo family who
described how Harris entered their home, held them at gunpoint, and attempted to
rob them before engaging in a struggle with Alfredo and Carlos, during which both
were shot and killed. (58 RR at 37-151.) Alfredo's son, Omar Gallardo, fled the
scene and notified a security guard, who then called the police. (Id. at 27-37.) As a
result, a number of officers from the Dallas Police Department were present at the
scene when Harris exited the Gallardo's trailer home. Several responding officers
testified about the apprehension of Harris. (Id. at 151-241; 59 RR at 8-48, 146-59.)
A number of police officers, crime scene technicians, and lab analysts were called
to testify regarding the collection and analysis of evidence found at the scene. (59
RR at 49-103, 127-45, 159-261; 60 RR at 52-75.) Two Dallas County medical
examiners testified about the wounds and causes of death for both Alfredo
Gallardo and Carlos Gallardo. (59 RR at 261-302.)
      Following the testimony of the medical examiners, it was brought to the
court's attention that a juror had discussed reading newspaper articles about the
trial with several other jurors. After questioning the offending juror, as well as the
remaining jurors, he was dismissed and the first alternate juror seated. Defense
counsel's motion for a mistrial was denied. (60 RR at 5-50.)
      The defense presented one witness, recalling Alfredo's daughter Yahaira
Gallardo to the stand. (Id. at 79-81.) Yahaira testified that her father was wearing
a white T-shirt at the time he was shot.       Following Yahaira's testimony, the
defense rested its case. (Id. at 81.)
      Closing arguments took place shortly thereafter, and, later that same day, the
jury found Harris guilty of capital murder. (Id. at 126.)
   B. Punishment Phase Presentation
      The State's presentation at punishment initially focused on Harris's
extraneous offenses in middle school and high school (62 RR at 27-38, 72-93), as a
                                          7
juvenile living in Atlanta (id. at 94-118), and as a juvenile and young adult living
in the Dallas area (id. at 119-225; 63 RR at 125-36). The jury also heard testimony
that Harris was affiliated with a street gang. (62 RR at 43-70.) The State also
implicated Harris in an unsolved armed robbery committed on February 15, 2009
(id. at 229-73; 63 RR at 11-125), and in an unsolved robbery-murder committed on
March 3, 2009 (63 RR at 137-316; 64 RR at 24-118).            After presenting this
evidence, the State rested. (64 RR at 118.)
      The defense's presentation at punishment consisted of three parts. First, trial
counsel sought to undermine a witness's photographic identification of Harris as
the shooter in the unsolved armed robbery committed on February 15, 2009. (64
RR at 155-215.) Second, trial counsel solicited testimony from Harris's mother
Pamela Maddox, stepfather Ramon Maddox, Sf., half-brother Ramon Maddox, Jr.,
and maternal cousin Shamy Conley concerning Harris's upbringing, childhood,
learning disability, and drug use. (ld. at 215-93; 65 RR at 29-63, 70-118.) Finally,
four expert witnesses were presented, testifying about prison conditions (65 RR at
170-92),   risk factors for delinquent behavior (id. at 152-70), Harris's drug
addiction (id. at 119-46), and the Texas Department of Criminal Justice's inmate
classification system (id. at 193-233).
      The State presented rebuttal testimony regarding Harris's behavior while at
the Dallas County Jail (65 at 261-84), and the impact of Alfredo's death on his
family (id. at 285-95, 308-16). In addition, an investigator with the Dallas County
District Attorney's Office testified about phone calls made by Harris while he was
incarcerated at the Dallas County Jail. (Id. at 295-308; 66 RR at 10-23.)




                                          8
                                          III.
                              STANDARD OF CARE

   A. Ineffective Assistance of Trial Counsel
       A criminal defendant is guaranteed the right to trial representation. This
Sixth Amendment right to counsel "preserves the fairness, consistency, and
reliability of criminal proceedings by ensuring that the process is an adversarial
one." Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
      An ineffective assistance of counsel claim has two components: Harris must
show that counsel's performance was deficient, and that the deficiency prejudiced
the defense.    Strickland v. Washington, 466 U.S. 668, 687 (1984); Porter v.
McCollum, 558 U.S. 30, 38-39 (2009); Wiggins, 539 U.S. at 521; Virgil v. Dretke,
446 F.3d 598, 608 (5th Cir. 2006); Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.
Crim. App. 2012); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)
("[A]ppellant must show a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.").
      To establish deficiency, Harris must show his counsel's representation fell
below an objective standard of reasonableness. Porter, 558 U.S. at 38-39 (quoting
Strickland, 466 U.S. at 688). A defendant need only prove ineffective assistance of
counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. This
standard governs the claim as a whole, and does not replace the more lenient
"reasonable probability" standard for the prejudice prong.
      The Supreme Court has reiterated that it applies a "case-by-case approach to
determining whether an attorney's perfonnance was unconstitutionally deficient
under Strickland." Rompilla v. Beard, 545 U.S. 374, 393-94 (2005) (O'Connor, J.,
concurring) (citing Strickland, 466 U.S. 668).
      Deficient performance is performance that is "inconsistent with the standard
of professional competence in capital cases that prevailed [at the time of the trial]."
                                           9
Cullen v. Pinholster, _U.S._, 131 S. Ct. 1388, 1407 (2011). The Supreme Court
has repeatedly assessed the reasonableness of counsel's performance by looking to
"[p]revailing norms of practice as reflected in [the] American Bar Association
standards." Strickland, 466 U.S. at 688; see also Padilla v. Kentucky, 559 U.S.
356,367 (2010) (noting that the ABA Standards "may be valuable measures of the
prevailing professional norms of effective representation"); Rompilla, 545 U.S. at
387 ('''[W]e long have referred [to the ABA Standards for Criminal Justice] as
"guides to determining what is reasonable."'" (quoting Wiggins, 539 U.S. at 524)).
Because adequacy is based upon "counsel's perspective at the time," Strickland,
466 U.S. at 689, courts must look to the guidelines then in effect. See Bobby v.
Van Hook, 558 U.S. 4 (2009).
      At the time of Harris's trial, his attorneys' obligations were governed by the
"prevailing professional norms," even if those norms did not align with a less
rigorous defense based on "most common customs." Harrington v. Richter, _
U.S. _,131 S. Ct. 770, 788 (2011). The Supreme Court instructs courts to look at
the "norms of practice as reflected in the American Bar Association and the like"
and to consider "all the circumstances" of a case. Strickland, 466 U.S. at 688.
These sources of norms include the ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, 31     HOFSTRA L.   REv. 913
(2003) ("ABA Guidelines"), and the ABA Standards for Criminal Justice (3d ed.
1993) ("ABA Standards"). See also State Bar of Tex., Guidelines and Standards
for Texas Capital Counsel, 69 TEX. BJ. 966 (2006) ("Texas Guidelines").
      Defense counsel has a duty to make reasonable investigations or to make a
reasonable decision that l11akes particular investigations unnecessary.    Wiggins,
539 U.S. at 521; Strickland, 466 U.S. at 690-91. "[The] Guidelines applied the
clear requirements for investigation set forth in the earlier Standards to death
penalty cases and imposed ... similarly forceful directive[s]." Rompilla, 545 U.S.
                                        10
at 387 n.7.      Pursuant to the ABA Guidelines, counsel was required to conduct
"thorough and independent investigations relating to the issues of both guilt and
penalty." ABA Guidelines, Guideline 10.7. A court must consider not only the
quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further. Miller v. Dretke,
420 F.3d 356, 361 (5th Cir. 2005); Wiggins, 539 U.S. at 521. When defense
counsel is not aware of the relevant mitigating evidence, "the issue is not whether
he was ineffective for failing to present [the] evidence ... , but rather whether he
failed to conduct a reasonable investigation to uncover mitigating evidence." Ex
parte Gonzales, 204 S.W.3d 391,396 (Tex. Crim. App. 2006).
          Similarly, the ABA Standards state that counsel "should conduct a prompt
investigation of the circumstances of the case and explore all avenues leading to
facts relevant to the merits of the case and the penalty." ABA Standards, Standard
4-4.1; Texas Guidelines, Guideline 11.1.          Most significantly, "[t]he duty to
investigate exists regardless of the accused's admissions or statements to defense
counsel of facts constituting guilt or the accused's stated desire to plead guilty."
ld. Similarly, the duty to investigate may exist despite the accused's failure to
mention potentially mitigating evidence or the accused's affirmative denial that
such evidence exists. Romp illa , 545 U.S. at 377; Ex parte Gonzales, 204 S.W.3d
at 396.
      Once capital trial counsel completes the necessary pretrial investigation, he
must then formulate a defense theory "that will be effective in connection with
both guilt and penalty, and should seek to minimize any inconsistencies." ABA
Guidelines, Guideline 10.1 0.1. The CCA holds capital counsel to an even higher
standard: "It is not sufficient to inquire generally and leave it up to the defendant to
raise topics or respond to open-ended questions. Like a doctor, [capital] defense
counsel must be anned with a comprehensive check-list of possibilities, and
                                           11
forcefully inquire about each topic." Ex parte Gonzales, 204 S.W.3d at 400-01
(Cochran, 1, concurring).
       To establish prejudice, Harris "must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable
probability is "a probability sufficient to undermine confidence in [the] outcome."
Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at 693-94). Harris need not
show that counsel's deficient conduct "more likely than not altered the outcome"
in his case, Strickland, 466 U.S. at 693, but he must demonstrate that "the
likelihood of a different result [is] substantial, not just conceivable." Richter, 131
S. Ct. at 792. State courts "must decide whether the undiscovered and unoffered
evidence would have created a reasonable probability that, had the jury heard it,
the jury's verdict would have been different." Ex parte Martinez, 195 S.W.3d 713,
731 (Tex. Crim. App. 2006).
       State post-conviction courts must analyze a capital penalty phase
ineffectiveness claim by "reweigh[ing] the evidence in aggravation against the
totality of available mitigating evidence." Wiggins, 539 U.S. at 534. It is not
necessary for the petitioner to demonstrate that the newly presented mitigation
evidence would necessarily overcome the aggravating circumstances. Williams v.
Taylor, 529 U.S. 362, 394-98 (2000). The Constitution requires that state post-
conviction courts "engage with what [a defendant] actually went through," as
expressed in mitigating evidence. Porter, 558 U.S. at 44. It is not only incorrect
but "unreasonable to discount to irrelevance [mitigating] evidence ... [or] to
conclude that [certain mitigating evidence] would be reduced to inconsequential
proportions simply because the jury would also have learned [of related
aggravating evidence]." Jd. The CCA has "adapted the Supreme Court's prejudice
test to require that there is a reasonable probability that, absent the errors, the jury
                                           12
would have answered the mitigation issue differently." Ex parte Gonzales, 204
S.W.3d at 394.
   B. Ineffective Assistance of Appellate Counsel
         Ineffective assistance of appellate counsel claims are governed by
Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000) ("the proper standard for
evaluating [a petitioner's] claim that appellate counsel was ineffective ... is that
enunciated in Strickland v. Washington"); Evitts v. Lucey, 469 U.S. 387, 396-97
(1985) (the Fourteenth Amendment requires the assistance of counsel to appellants
for their first appeal as of right); accord Ries v. Quarterman, 522 F.3d 517, 531-32
(5th Cir. 2008); Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App.
2007).
         An appellate counsel has a duty to reVIew the record and present any
potentially meritorious claims. Meza v. State, 206 S. W.3d 684, 689 (Tex. Crim.
App. 2006) (noting appellate counsel's "constitutional duty to review the record
for any arguable error").
   C. Scope of the Waiver of Attorney-Client Privilege
         Harris recognizes that raising specific issues of ineffective assistance of
counsel as developed in this Application operates as a limited waiver of privileged
information; however, he asserts his right to have all privileged information not
directly relevant to his claims remain privileged.
      Under the Texas Rules of Evidence, confidential communications between a
client and his attorney are privileged. TEX. R. EVID. 503(b)(1)(A) ("A client has a
privilege to refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the rendition of
professional legal services to the client ... between the client ... and the client's
lawyer."). The privileged nature of communications between client and attorney


                                          13
remains intact, even upon the tennination of the attorney-client relationship. See
Maryland Am. Gen. Ins. v. Blackmon, 639 S.W.2d 455,458 (Tex. 1982).
         The privilege between attorney and client is not absolute.     It is "well-
established ... that when an attorney's professional conduct is challenged by the
client, the privilege is waived so far as necessary to defend the attorney's
character." West v. So lito , 563 S.W.2d 240,245 n.3 (Tex. 1978). In the context of
criminal law, courts across the nation have consistently "held that a claim of
ineffective assistance of counsel by a defendant against a fonner attorney waives
the attorney-client privilege." Joseph v. State, 3 S.W.3d 627, 637 (Tex. App.-
Houston [14th Dist.] 1999) (citing Laughner v. United States, 373 F.2d 326, 327
(5th Cir. 1967)); see also United States v. Pinson, 584 F.3d 972, 978 (lOth Cir.
2009).
         However, any Waiver of the attorney-client privilege only applies to
communications relevant to the claim of ineffective assistance of counsel.
Laughner, 373 F.2d at 327 (where "the client alleges a breach of duty to him by the
attorney, ... he thereby waives the privilege as to all communications relevant to
that issue" (emphasis added)). Courts have consistently limited the scope of these
waivers, pennitting disclosure of only those confidential communications that are
"necessary to prove or disprove [the client's] claims." Pinson, 584 F.3d at 978
(emphasis added).2


      2   See also Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003)
("Because a waiver is required so as to be fair to the opposing side, the rationale
only supports a waiver broad enough to serve that purpose. Courts, including ours,
that have imposed waivers under the fairness principle have therefore closely
tailored the scope of the waiver to the needs of the opposing party in litigating the
claim in question."); Johnson v. Alabama, 256 F.3d 1156, 1179 (11 th Cir. 2001)
("[A] habeas petitioner alleging that his counsel made unreasonable strategic
decisions waives any claim of privilege over the contents of communications with
counsel relevant to assessing the reasonableness of those decisions in the
                                         14
      Predecessor counsel's duty to limit disclosure to information relevant to the
claim of ineffective assistance also flows from counsel's continuing duty to the
former client. Both the ABA Guidelines and the Texas Guidelines stipulate that,
"[i]n accordance with professional norms, all persons who are or have been


circumstances." (emphasis added)); United States v. Basham, Cr. No. 4:02-992-
JFA, 2012 WL 1130657 at *6 (D.S.C. Apr. 4, 2012) (unpublished) ("the
Government will not use and will not make copies of any material or information
in trial counsel's files that is not related or relevant to a claim in Basham's § 2255
Motion" (emphasis added)); In re Nat'l Mortg. Equity Corp. Mortg. Pool
Certificates Sec. Litig., 120 F.R.D. 687, 692 (C.D. Cal. 1988) (in which the court
"reject[ed] the suggestion made by some parties that 'selective' disclosure should
not be allowed, that if the exception is permitted to be invoked, all attorney-client
communications should be disclosed" as "directly contrary to the reasonable
necessity standard"); Levin v. Ripple Twist Mills, Inc., 416 F. Supp. 876, 886-87
(E.D. Pa. 1976) ("In almost any case when an attorney and a former client are
adversaries in the courtroom, there will be a credibility contest between them. This
does not entitle the attorney to rummage through every file he has on that
particular client (regardless of its relatedness to the subject matter of the present
case) and to publicize any confidential communication he comes across which may
tend to impeach his former client. At the very least, the word 'necessary' in the
disciplinary rule requires that the probative value of the disclosed material be great
enough to outweigh the potential damage the disclosure will cause to the client and
the legal profession."); Alabama v. Lewis, 36 So. 3d 72, 77-78 (Ala. Crim. App.
2008) (noting that, by alleging "ineffective assistance of counsel during the trial
and direct appeal of these cases, the defendant waived the benefits of both the
attorney-client privilege and the work product privilege, but only with respect to
matters relevant to his allegations of ineffective assistance of counsel" (second
emphasis added)); Waldrip v. Head, 532 S.E.2d 380, 387 (Ga. 2000) ("[W]e hold
that a habeas petitioner who asserts a claim of ineffective assistance of counsel
makes a limited waiver of the attorney-client privilege and work product doctrine
and the state is entitled only to counsel's documents and files relevant to the
specific allegations of ineffectiveness." (emphasis added)); In re Dean, 711 A.2d
257, 258-59 (N.H. 1998) ("We hold that claims of ineffective assistance of
counsel, whether brought in a motion for new trial or in a habeas corpus
proceeding, constitute a waiver of the attorney-client privilege to the extent
relevant to the ineffectiveness claim; the waiver is a limited one." (emphasis
added)).
                                          15
members of the defense team have a continuing duty to safeguard the interests of
the client." ABA Guidelines, Guideline 10.13; Texas Guidelines, Guideline 11.8.
ABA Formal Opinion 10-456 states that, in the context of an ineffective assistance
of counsel claim, lawyers may disclose information "reasonably necessary" for
resolution of the ineffectiveness claim. ABA Standing Comm. on Ethics & Profl
Responsibility, Formal Opinion 10-456, at 5 (2010). However, the opinion further
states that it is "highly unlikely that a disclosure in response to a prosecution
request, prior to a court-supervised response by way of testimony or otherwise,
will be justifiable." ld.
                                         IV.

                                   ARGUMENT

                                   CLAIM ONE
   TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY
FAILING TO SUFFICIENTLY INVESTIGATE AND PRESENT CERTAIN
       MITIGATING EVIDENCE DURING HARRIS'S TRIAL

      At the heart of the punishment phase of a capital trial is the presentation of
mitigation evidence and the concept of moral culpability.         Moral culpability
acknowledges an elementary psychological reality-that people do not arrive at
their choices from the same path. Thus, it follows that the degree of an individual's
"blameworthiness" for capital murder may vary depending on what factors and
experiences shape, influence, and/or compromise that choice.               A jury's
understanding of the evidence affecting the moral culpability of a defendant is
critical to a jury's consideration of the appropriate punishment for a capital
offense.
      Mitigating evidence is not developed to provide a defense to the crime or to
challenge evidence of guilt, nor is it an excuse or explanation for a crime. Instead,
it provides a context for the crime by describing an individual's life experiences

                                         16
that serve to inspire compassion, empathy, mercy, and/or understanding. Indeed,
mitigating evidence is any evidence that "might serve' as a basis for a sentence less
than death.'"   Tennard v. Dretke, 542 U.S. 274, 287 (2004) (quoting Skipper v.
South Carolina, 476 U.S. 1, 5 (1986)) (emphasis added); Coble v. State, 330
S.W.3d 253,296 (Tex. Crim. App. 2010) (acknowledging Tennard's language that
no nexus is required between mitigating evidence and the crime).
      The standards for professional norms for capital representation require that
trial counsel make a thorough investigation into the areas of mitigating evidence
that might be presented on a defendant's behalf. ABA Guidelines, Guideline 10.7
(commentary) (noting that a "penalty phase preparation requires extensive and
generally unparalleled investigation into personal and family history"); ABA,
Supplementary Guidelines for the Mitigation Function of Defense Teams in Death
Penalty Cases, 36 HOFSTRA L. REv. 677, 688 (2008) ("ABA Mitigation
Guidelines") ("It is the duty of counsel to lead the team in conducting an
exhaustive investigation into the life history of the client. It is therefore incumbent
upon the defense to interview all relevant persons and obtain all relevant records
and documents that enable the defense to develop and implement an effective
defense strategy.").
      But it is also not enough to simply gather the facts of a defendant's life story
and then present it through lay witness testimony.        An expert should also be
retained to synthesize that information into a coherent psycho-social narrative for
presentation to the jury.    See ABA Guidelines, Guideline 10.11 (commentary)
(noting the importance of presenting "the client's complete social history" at
punishment); see also ABA Mitigation Guidelines, Guideline 10.11.            Such an
expert lises their particularized expertise relevant to the defendant to present his
social history in a cohesive narrative for the jUly. John Blume, Mental Health
Issues in Criminal Cases: The Elements of a Competent and Reliable Mental
                                          17
Health Examination, 17 THE ADVOCATE 4, 10 (Aug. 1995) ("[P]ersuasive expert
testimony must ... enable the jury to see the world from your client's perspective,
i.e., to appreciate his subjective experience.").
      Like any subject matter which warrants an expert opinion, the forces that
have helped to determine a defendant's life story must be explained to the jury in a
way that illuminates why they are relevant to moral culpability. It is not sufficient
to present a parade of witnesses discussing the defendant's history-an expert
witness is needed to give that life history context. Put differently,

      you have to give the fact-finder a view of the crime from the
      defendant's perspective. If you don't, you run the risk of making your
      client seem "otherly," frightening and thus expendable. What you
      strive for is to enable the fact-finder to look through your client's eyes
      and to walk, at least for a few minutes, in his shoes.

Blume, ante, at 1O.
      During the defense's presentation on mitigation during the punishment phase
of trial, counsel offered testimony from four family members-Harris's mother,
brother, stepfather, and cousin-to discuss various details of Harris's life story.
(64 RR at 215, 257; 65 RR at 29, 88.) Their testimony explained to the jury that
Harris's family (including his mother) struggled with mental illness; that Harris
was exposed to family violence, physical abuse, and drug abuse as a child; that
Harris was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD")
and put on Ritalin; and that Harris began running away from home, became
involved in juvenile gang and street life, and ultimately dropped out of school. (64
RR at 215, 257; 65 RR at 29, 88.) Counsel understood the potential impact of
these facts when woven together as a narrative, arguing to the jury in closing that
the facts they had presented were meant to tell the jury "how a child, how a baby,
came to where this man is today." (66 RR at 42.)


                                           18
      Counsel's investigation and presentation of Harris's mitigation case,
however, failed to fulfill their purpose in two respects. First, counsel failed to
investigate and develop evidence regarding two very serious and mitigating root
causes of Harris's life impairments. Evidence was available that Harris suffered
from prenatal exposure to alcohol, causing cognitive impairments consistent with
Fetal Alcohol Spectrum Disorder ("FASD"). Further, Harris was exposed to toxic
levels of lead from a smelter located in the heart of his childhood neighborhood.
      Second, counsel failed to investigate and develop sufficient expert testimony
to explain to the jury why the facts of Harris's life that were presented by family
members should be considered mitigating. The only expert testimony the jury
heard relating to mitigation came from an addictions expert discussing the impact
of Harris's drug use and from a psychologist speaking academically about risk
factors for childhood delinquency.     (65 RR at 19, 64, 152.)      Without further
explanation from expert witnesses about the mitigating impact of Harris's life
trajectory, the jury was left without a context to understand why Harris's
behavioral issues as a child, his ADHD diagnosis, or his entry into gang life and
drug use were mitigating. Instead, the jury heard the State explain that "from all
accounts," Harris had "a pretty decent childhood, growing up together, playing,
fun, you know, happy." (66 RR at 74.)
      Yet, substantial expert testimony was available that would have explained
why Harris's life trajectory was not of his own making but the product of many
environmental, social, and institutional forces.     Beginning with his prenatal
exposure to both alcohol and lead, Harris entered the world disadvantaged and
impaired.   His family circumstances deprived him of secure attachments and
healthy childhood development. And when Harris's cognitive and developmental
impairments began to manifest, they were misinterpreted by both his parents and
school officials and treated as mere behavioral problems. Harris entered what has
                                         19
become known as the "school to pnson pipeline," pointing his life trajectory
toward street life, gangs, drug abuse, and, ultimately, incarceration through the
juvenile and adult criminal justice systems.
      Such testimony would have offered Harris's jury a starkly different
understanding of why Harris's life story was mitigating and why Harris deserved a
life sentence. Counsel's failure to investigate and present the above-mentioned
information constituted deficient performance of capital counsel and prejudiced
Harris's trial. Counsel's ineffective assistance violated Harris's rights under the
state and federal Constitutions, state statutory law, and United States Supreme
Court and state case law. For these reasons, his sentence should be reversed.
   A. Trial Counsel Was Ineffective for Failing to Investigate and Present
      Available Evidence that Harris Suffers from Fetal Alcohol Spectrum
      Disorder
      Prior to Roderick Harris's capital murder trial, counsel was aware that
Harris's mother, Pamela Maddox, drank alcohol while she was pregnant with
Harris. However, counsel failed to thoroughly investigate the effect Ms. Maddox's
prenatal drinking had on Harris.     Had trial counsel done so, they would have
discovered that Harris suffers from FASD, an umbrella term that encompasses a set
of neurological conditions resulting from prenatal brain damage caused by
maternal consumption of alcohol during pregnancy. This failure deprived the jury
of significant mitigating evidence that reasonably could have influenced the verdict
in Harris's punishment phase.
     1. What Is Fetal Alcohol Spectrum Disorder?
      F ASD is an umbrella term for several medical diagnoses caused by maternal
consumption of alcohol during pregnancy.       (Ex. 1 at '-;11 [Aff. of Dr. Natalie




                                         20
-   ---------------------------------------------


      Brown].)3 The mother's drinking leads to prenatal brain damage in the developing
      embryo or fetus.      (ld. )      There are three distinct yet closely-related specific
     diagnoses encompassed by FASD: Fetal Alcohol Syndrome ("FAS"), Partial Fetal
     Alcohol Syndrome ("Partial F AS"), and Alcohol Related Neurodevelopmental
     Disorder ("ARND"). (Jd.)             In general, the three conditions do not vary in the
     severity of the associated brain damage, but are distinguished by variations in the
     external, physical damage attributed to the disorder (e.g., facial abnormalities,
     growth deficits). (ld.) Similarly, damage to the central nervous system can be
     equally severe, regardless of the specific condition that is diagnosed. (Jd.)
             F ASD has a worldwide diagnostic history that at the time of Harris's capital
     murder trial spanned nearly forty years. (Ex. 1 at ~12 [Aff. of Dr. Natalie Brown].)
     FAS was first recognized in 1973 by researchers at the University of Washington.
     (Jd.)   Diagnostic criteria for F ASD were published in 1996 by the Institute of
     Medicine, the health arm of the independent National Academy of Sciences. (ld.)
     In 2004, the Centers for Disease Control and Prevention expanded upon and
     quantified the diagnostic criteria, making them more explicit. (ld.)
             Under the diagnostic criteria, a diagnosis of F AS requires three present
     factors: (1) presence of facial abnormalities (e.g., small palpebral fissures or eye
     slits, smooth philtrum or groove between the bottom of the nose and upper lip, and
     thin upper lip); (2) a growth deficit at any point in life; and (3) central nervous
     system abnormality. (Ex. 1 at,-r13 [Aff. of Dr. Natalie Brown].) A central nervous
     system      abnormality     can     be      measured    structurally    (e.g.,   neuroimaging),
     neurologically     (e.g.,       seIzures,     gait    problems),   or      functionally   (e.g.,
     neuropsychological testing). (Jd.)



             Dr. Brown is a licensed psychologist who specializes in the evaluation of
             3
     individuals with FASD. (Ex. 1 at ,-r,-r1-2, 4,6-7 [Aff. of Dr. Natalie Brown].)
                                                      21
       If there is confirmation of prenatal exposure to alcohol, a diagnosis of Partial
FAS or ARND can be reached. (Ex. I at'i[13 [Aff. of Dr. Natalie Brown].) A
Partial F AS diagnosis requires central nervous system abnormality along with one
or more of the above-mentioned facial abnormalities. (Id.) A diagnosis of ARND
requires only a central nervous system abnormality. (Id.)
       Brain damage resulting from F ASD can cause an array of functional deficits
and impaired neurocognitive functioning.         (Ex. I at 'i[I4 [Aff. of Dr. Natalie
Brown].)         Basic deficits attributed to F ASD are referred to as "primary
disabilities."     (Id.)   These disabilities include deficits in attention, learning,
memory, language development, logical thinking, impulse inhibition and behavior
control, among others. (Id.) Only about 10% of individuals with FASD have IQ
scores at or below 70, and a score above 70 may mask other significant cognitive
deficits that, when considered together, have a substantial negative impact on
adaptive and/or social functioning. (Id.) This is due to the fact that individuals
with F ASD generally perform best in structured, familiar settings in which they
can rely on external guidance as opposed to their own judgment. (Id. at 'i[I5.)
Thus, IQ test scores reflect the performance of an individual with FASD in a
situation which favors them, i.e., a controlled, structured setting. (Id.) In contrast,
when an individual with F ASD is left to their own devices with little or no
direction, the individual's adaptive deficits are exposed. (Id.) This decline in
adaptive performance is associated with executive dysfunction, which is controlled
by the prefrontal cortex of the brain. (Id.) Neuroimaging studies have revealed
that the prefrontal cortex is particularly sensitive to the teratogenic effects of
maternal alcohol use during pregnancy. (Id.)
      The deficits in cognitive functioning attributed to FASD often result in
individuals suffering what are referred to as "secondary disabilities." (Ex. 1 at'i[16
[Aff. of Dr. Natalie Brown].)         Secondary disabilities are the product of the
                                            22
interaction    between   neurological    executive    dysfunction    and    traumatic
environmental experiences in childhood.       (Jd.)   Individuals with F ASD have
deficits in social skills and social judgment (an executive function). (Jd.) When
faced with a stressful situation, individuals with FASD frequently react with
ineffective coping responses (e.g., internalizing or externalizing behaviors). (Jd.)
Thus, these secondary disabilities reflect maladaptive coping reactions to
environmental stress and usually can result in mental health disorders, school
disruption, substance abuse, criminal behavior, confinement, poor work history,
and struggling to live independently as an adult. (Jd.) In fact, nearly two-thirds of
juveniles with FASD will go on to commit a crime at least once in their lives. (ld.)
Epidemiological studies estimate that 5% of the United States population are
afflicted with FASD, and that FASD afflicts between 16% and 23% of individuals
caught up in the criminal justice system. (Jd.)
      The effects of these secondary disabilities can be mitigated with early
intervention, such as the provision of developmental disabilities services, and
nurturing, stable, and protective caregiving. (Ex. 1 at    ~17   [Aff. of Dr. Natalie
Brown].)      However, the risk of secondary disabilities associated with FASD
increases in the absence of a diagnosis early in childhood. (Jd.) Diagnosis of
F ASD is typically conducted in children prior to the onset of puberty, which can
alter facial structures and obscure any abnormalities that previously existed. (Jd.)
However, most children afflicted with FASD (such as those with Partial FAS or
ARND) do not display any external manifestation of their FASD condition, nor are
they intellectually disabled, as discussed above.       (ld.)    As a result, many
individuals "slip through the cracks" and are never diagnosed with FASD;
consequently, they never receive professional intervention that could ameliorate
their social and adaptive deficits. (Jd.) As an undiagnosed youth with FASD
grows older, adults are increasingly likely to attribute the youth's poor judgment,
                                         23
impulse control, and decision-making to willful misconduct, rather than to the
cognitive impairments of F ASD. (1d.) Diagnosis of FASD in individuals over the
age of eighteen becomes increasingly difficult, largely due to the absence or
destruction of educational and medical records that chronicled childhood deficits.
(ld.)
        2. Fetal Alcohol Spectrum Disorder Was Widely Recognized by the
           Medical and Legal Communities at the Time of Harris's Trial
         At the time of Harris's capital trial, psychologists and medical doctors were
qualified to diagnose the central nervous system damage reSUlting from F ASD as
"consistent with FASD". (Ex. 1 at ,-r18 [Aff. of Dr. Natalie Brown].) By the time
of Harris's trial, FASD was well-recognized in the medical and psychological
community. (ld. at ,-r30.) A sampling of the research and available data includes
that

         • In 1973, F AS was first recognized in the United States by researchers at
           the University of Washington.         Several articles about FAS were
           published in the prestigious medical journal Lancet.
         • In 1977, the National Institute of Alcohol Abuse and Alcoholism
           ("NIAAA") issued an advisory that six or more drinks per day put a
           pregnant woman at risk of producing a child with birth defects. Later
           research would determine that much less exposure also could cause
           F ASD conditions.
         • In 1978, F AS was an integral part of a specially commissioned report to
           the U.S. Congress-the Third Special Report to Congress on Alcohol and
           Health: Fetal Alcohol Syndrome-which was published by the
           Department of Health and Human Services ("HHS") and the NIAAA.
           After more than 250 published case reports, it was clear by this time that
           F AS was one of several identifiable disorders associated with maternal
           alcohol abuse. The term "Fetal Alcohol Effects" (or "F AE") was coined
           to classify F ASD conditions without the full array of facial abnormalities
           associated with FAS. (F AE now is an outdated term, having been
           replaced in 1996 with the term "Alcohol Related Neurodevelopmental
           Disorder" (or "ARND").)


                                           24
 • By 1979, over 600 cases of FAS had been reported worldwide. In the
    book Fetal Alcohol Syndrome and Fetal Alcohol Effects, Dr. Ernest Abel
    reported cases of FAS in articles from Australia, Belgium, Brazil,
    Canada, Chile, Czechoslovakia, France, Germany, Hungary, Ireland,
    Italy, South Africa, Spain, Sweden, Switzerland, and the United States.
• By 1980, the Research Society on Alcoholism issued the first diagnostic
   guidelines for FAS, which involved three diagnostic criteria in the
    context of prenatal alcohol exposure: "A pattern of characteristic facial
    features, pre-postnatal deficit in height and weight, and central nervous
    system damage."
• By 1981, HHS and NIAAA provided more information on FAS in the
   Fourth Special Report to Congress on Alcohol and Health: Fetal Alcohol
   Syndrome. In this same year, the U.S. Surgeon General issued a national
   health advisory recommending that pregnant women or women
   considering getting pregnant should abstain from using alcohol because
   of possible harm to the unborn child. The Surgeon General noted
   adverse effects "with only 1 ounce/day of absolute alcohol or 2 drinks
   and risk ofFAS in children of heavy drinkers."
• In 1982, information on FAS appeared in the fourteenth edition of the
   Merck Manual. Therein, the Merck Manual noted that "the most serious
   consequence [of drinking alcohol during pregnancy] is mental
   retardati on."
• In 1983, the Fifth Special Report to Congress on Alcohol and Health:
   Fetal Alcohol Syndrome was issued and contained more information
   about FAS.
• In 1984, an updated edition of Dr. Ernest Abel's treatise, Fetal Alcohol
   Syndrome and Fetal Alcohol Effects, became one of the first medical
   textbooks to summarize the mechanisms and laboratory research on the
   effects of alcohol in laboratory animals and selected cases.
• In 1985, the first non-medical book on FAS-A Poison Stronger Than
   Love by Anastasia Shkilnyk-further brought the condition to the
   attention of the lay public.
• In 1987, more infonnation on FAS was published in the Sixth Special
   Report to Congress on Alcohol and Health: Fetal Alcohol Syndrome.
• In 1988, the Alcoholic Beverage Labeling Act, PL 100-690, was passed
   into law. The law mandated a warning label on every alcoholic beverage
   container sold in the United States, which stated: "According to the
   Surgeon General, women should not drink alcoholic beverages during


                                 25
     pregnancy because of the risk of birth defects." This law was widely
     publicized in the media around the time of its passage.
•    In 1989, The Broken Cord by Michael Dorris was published. This was
     the first nationally distributed book on FAS and its impact on a family.
     Dr. Dorris cited 165 articles and books and three videos that addressed
     the dangers of drinking during pregnancy. The book became very
     popular and is still referred to today as a "classic" in FASD literature in
     terms of describing the long-term behavioral and developmental effects
     of prenatal alcohol exposure.
•    In 1990, Congress received more information on F AS in the Seventh
    Special Report to Congress on Alcohol and Health: Fetal Alcohol
    Syndrome.
•    In 1992, the sixteenth edition of the Merck Manual included F AS, noting
    that the condition was "the leading known cause of mental retardation."
     The Merck Manual also noted the "severe behavioral effects," "varying
     degrees of mental retardation," and "abnormal neurobehavioral
     development" associated with the condition.
•   In 1993, HHSINIAAA published the Eighth Special Report to Congress
     on Alcohol and Health: Fetal Alcohol Syndrome.
•   In 1995, Fetal Alcohol Syndrome: Diagnosis, Epidemiology, Prevention
    and Treatment, edited by Kathleen Stratton and her colleagues, was
    published. This Institute of Medicine ("10M") textbook consolidated the
    research and practical knowledge on F AS available in the United States
    at the time and provided a uniform basis for diagnosis.
•   In 1995, the seventeenth edition of the Merck Manual was published.
    Among other things, the Merck Manual noted the behavioral effects of
    FAS (e.g., "varying degrees of mental retardation and abnormal
    neurobehavioral development").
•   In 1996, Alcohol, Pregnancy, and the Developing Child, edited by Hans-
    Ludwig Spohr and Hans-Christoph Steinhausen, was published. This
    was the European counterpart to the Stratton publication from 1995.
•   In 1996, there were two groundbreaking publications in the United
    States. The first of these, a publication by the 10M, formalized FASD
    diagnosis by publishing diagnostic criteria for five conditions under the
    FASD umbrella: FAS with confirmed prenatal exposure, FAS without
    confinned prenatal exposure, Partial FAS, ARND, and Alcohol Related
    Birth Defects. (The lattermost condition focused solely on damage to
    physical structures outside the central nervous system, such as organs,
    limbs, and skeletal structure.)       With this 10M publication, older

                                   26
            terminology (e.g., Fetal Alcohol Effects, encephalopathy) began to be
           replaced with newer terms, such as Partial F AS and ARND. Eventually,
           the umbrella term "Fetal Alcohol Spectrum Disorders" was promulgated
           as an inclusive term for all five 10M diagnostic categories.
       •   Also in 1996, the Centers for Disease Control and Prevention published
           the results of a large research study on secondary disabilities associated
           with FASD. The study, led by Dr. Ann Streissguth at the University of
           Washington, focused on the developmental trajectory of individuals with
           F ASD. Adverse developmental outcomes (i.e., adaptive problems) were
           described as "secondary disabilities." Some of the most surprising
           findings were that individuals with F ASD were at a high risk to commit
           crimes, engage in substance abuse, and have mental health histories that
           included inappropriate sexual behaviors. Adults with F ASD were at an
           extremely high risk of having employment problems and difficulty living
           independently. The authors of the study concluded that secondary
           disabilities arose in the context of environmental adversity and lack of
           protective factors.
      •    In 1997, Fetal Alcohol Syndrome: A Guide for Families and
           Communities by Ann Streissguth was published by HHS and NlAAA.
           This book contained a developmental view of FASD and referenced the
           secondary disabilities study that had just been published. On page 241 of
           that work, Dr. Streissguth wrote that, "[a]s of 1997, several authors have
           described FASIF AE from a criminal justice perspective (see Barnett,
           1997; Dagher-Margosian, 1997; Fehr, 1995; LaDue & Dunne, 1997; arid
           Novick, 1997)."
      •    In 1997, HHSINIAAA published the Ninth Special Report to Congress
           on Alcohol and Health: Fetal Alcohol Syndrome.
      •    In 2000, HHSINIAAA published the Tenth Special Report to Congress
           on Alcohol and Health: Fetal Alcohol Syndrome.
      •    In 2001, Craig Lesley's Storm Riders was published. This commercially
           successful book focuses on Lesley's adopted son who suffers from FAS
           and the condition's effects.
      •    In 2004, the Centers for Disease Control published a detailed diagnostic
           manual for FASD that quantified diagnosis and resolved some of the
           ambiguities from the 1996 10M publication.

      Furthermore, F ASD was also widely used as mitigating evidence at the time
of Harris's trial. Multiple authors had written about the application ofFASD to the
criminal justice system. (Ex. 1 at   ~30   [Aff. of Dr. Natalie Brown].) Numerous
                                           27
cases across the country had already presented FASD as a relevant, mitigating
factor at the punishment stage. (Id. at ~31 (citing twenty-three cases that presented
FASD as mitigating prior to Harris's trial).) Evidence that Harris suffers from
FASD could and should have been presented to the jury.
       3. Before Trial, Counsel Possessed Evidence that Harris Suffered from
          FASD
        A significant body of evidence was available to trial counsel that indicated
Harris was afflicted with F ASD. Trial counsel overlooked these clear signs and
failed to pursue the necessary medical investigation and consultation that would
have revealed Harris suffers from FASD. See Wiggins, 539 U.S. at 522-23.
        During the defense presentation at the punishment phase of Harris's trial,
counsel elicited testimony from Harris's mother, Pamela Maddox, that she drank
alcohol, smoked cigarettes, and smoked marijuana during the first six weeks of her
pregnancy with Harris. (64 RR at 222-24.) Trial counsel was in possession of this
information prior to Harris's trial. Defense mitigation investigator Brendan Ross
conducted an interview with Ms. Maddox in November 2011 during which Ms.
Maddox admitted to consuming alcohol during the period immediately prior to her
discovery that she was pregnant with Harris.
        Post-conviction investigation has revealed that, at minimum, Ms. Maddox
drank several glasses of wine on the weekends during the first six weeks of her
pregnancy with Harris. (Ex. 11 at ~7 [Aff. of Pamela Maddox].) Ms. Maddox also
confirmed that she smoked marijuana and cigarettes during this time period. (Id.)
Ms. Maddox was unaware that she was pregnant until she went to the hospital with
pneumonia-like symptoms, where she discovered that she was with child. (Id. at
~6.)   As she testified at trial, she stated that she stopped drinking once she learned
that she was pregnant. (Id. at ~7.)



                                           28
       While pretrial confinuation of prenatal exposure to alcohol alone should
have triggered further investigation into FASD, trial counsel was in possession of
additional infonnation relevant to the cognitive deficits and secondary disabilities
consistent with FASD that further indicated the need to consult an expert in the
field ofF ASD.
       While Harris was born at full-term and was a nonnal birth weight, he was
"severely depressed" immediately after he was delivered by cesarean section. (Ex.
1 at ~21 [Aff. of Dr. Natalie Brown].) Harris's Apgar score was initially three and
only increased to eight after five minutes of treatment. 4 (Id.) Pregnancy-induced
hypertension was diagnosed as the etiology behind Harris's neonate distress. Such
hypertension can be caused by prenatal alcohol exposure. (Id.)
       Additionally, Harris's family members and school records chronicled his
childhood struggles with two neurodevelopmental disorders, social skill deficits,
and behavioral problems, all of which stemmed from executive functioning
problems. (Ex. 1 at ~~22-23 [Aff. of Dr. Natalie Brown].) Harris was diagnosed
around the age of seven with ADHD, and a 1991 psychological evaluation resulted
in a diagnosis of dysthymia. (Id. at   ~~23,   27.) School records also indicated that
Harris struggled with learning disabilities. (ld. at   ~~22-23.)      A 1994 evaluation
resulted in diagnoses of dysthymia, ADHD, and "developmental problems in
Arithmetic, Expressive Writing, and Reading." (Id. at         ~23.)     Testing in 2000
indicated concrete thinking, inadequate coping defenses, anxiety, and interpersonal


      4   Apgar is a scoring method that assesses the health of newborns
immediately after birth. The score is compiled from adding individual scores for
the infant's respiratory effort, heart rate, skin color, response to a catheter in the
nostril, and muscle tone. Scores for these factors range from zero to two points,
and the scores are summed. Thus, the highest possible Apgar score is ten. A
newborn with a score between zero and three needs immediate resuscitation. (Ex.
1 at ~21, n.2 [Aff. of Dr. Natalie Brown].)
                                          29
skill deficits. (Jd. at ~22.) A 2003 psychological evaluation documented diagnoses
of depression, anxiety, and ADHD, as well as a behavioral history of numerous
runaway episodes. (Jd. at ~23.) Harris's documented struggles in school constitute
examples of deficits in executive function, mood regulation, social skills, and
adaptive coping. (Jd. at ~~22-23.)
      Trial counsel elicited testimony from Harris's mother, stepfather, and
younger brother. Each witness described Harris's diagnosis with ADHD, and his
intermittent treatment with Ritalin.        Moreover, each of the three witnesses
described Harris's learning disabilities, his depression, and his pattern of running
away from home.
     4. This Evidence Establishes That Harris Meets Diagnostic Criteria for
        Fetal Alcohol Spectrum Disorder
      A diagnosis of FASD requires abnormalities to the central nervous system in
the context of confirmed prenatal alcohol exposure. (Ex. 1 at        ~40   [Aff. of Dr.
Natalie Brown].) The more specific diagnosis of ARND does not require the
observation of facial abnormalities.       (Id.)   Harris possesses qualifying central
nervous system abnormalities which, coupled with his confirmed prenatal exposure
to alcohol, means that he meets diagnostic criteria for ARND, one of the conditions
under the FASD umbrella. (Jd. at ,-r29.)
      Trial   counsel   retained     Dr.     Antoinette   McGarrahan       to   conduct
neuropsychological testing on Harris. (Ex. 1 at ~25 [Aff. of Dr. Natalie Brown].)5
A review of this testing, which occurred in November 2011, indicates that Harris
has significant deficits    in four major cognitive domains:            (1) academic


        5 At the request of post-conviction counsel, Dr. James Underhill, a licensed
neuropsychologist, reviewed Dr. McGarrahan's raw testing data. (Ex. 6 at ~10
[Aff. of Dr. James Underhill].) Dr. Underhill compiled a list of Harris's scores on
the tests, as well as scores for any subscales within the testing measures. (Jd. at
,-r12.) This list of scores was provided to Dr. Brown for review.
                                           30
achievement; (2) executive functioning; (3) visual spatial integration; and (4)
auditory and visual memory. (Jd.) Harris's testing revealed a WAIS-IV IQ score
of 84, placing him in the low average range. (Id.) Although this score does not
fall into the intellectually deficient range, there were significant discrepancies
among the four WAIS-IV indices, suggesting the possibility of brain damage
consistent with FASD. (Jd.) Harris displayed deficient ability in all academic
areas, and, despite completing the tenth grade, his academic skills ranged from
fifth to seventh grade. (Id.) Harris's results on a visual-spatial integration test
(Hooper Visual Orientation Test) fell more than 1 standard deviation below the
mean. (Jd.) Scores on tests of auditory and visual memory and learning (Wechsler
Memory Scale-4, California Verbal Learning Test, Rey Complex Figure Test) fell
1 to 2.5 standard deviations below the mean. (Id.) Several of Harris's scores on
tests of executive function (Wisconsin Card Sorting Test, Boston Naming Test) fell
1 to 3 standard deviations below the mean. (Id.) Overall, these deficits provide
convergent evidence that is highly suggestive of frontal lobe brain damage, with
some damage in the temporal and parietal lobes. (Jd.) These neuropsychological
deficits mirror deficits observed in individuals with F ASD, and qualify as a central
nervous system abnormality required for a diagnosis ofFASD. (Id. at ,-r40.)
      Harris was also diagnosed with two neurodevelopmental disorders that are
correlated with individuals afflicted with FASD, a learning disorder (especially in
mathematics) and ADHD.          (Ex. 1 at ,-r35 [Aff. of Dr. Natalie Brown].)
Neurodevelopmental disorders typically stem from brain damage. (Id.) Harris's
birth records provide additional support that he was likely born with brain damage,
as they indicate Harris was in "severe" distress at birth, a complication that, like
developmental disabilities and learning disorders, is associated with F ASD. (Id.)
      Screening questionnaires (Fetal Alcohol Behavior Scale) were administered
to three of Harris's family members during post-conviction investigation. (Ex. 1 at
                                         31
~37   [Aff. of Dr. Natalie Brown].) Each response contained scores that placed
Harris's behavior in the FASD range. (Jd.)
       Finally, Harris's mother Pamela Maddox confirmed in pretrial and post-
conviction investigation that she consumed alcohol during at least the first six
weeks of her pregnancy with Harris. (See 64 RR at 222-24; Ex. 11 at      ~7   [Aff. of
Pamela Maddox].) Given Harris's confirmed prenatal exposure to alcohol, his
deficits in four discrete cognitive domains revealed by neuropsychological testing,
and his lifelong neurodevelopmental disorders (ADHD and learning disorder), it is
clear that Harris meets the diagnostic criteria for ARND, a condition on the
spectrum ofFASD. 6
      5. Trial Counsel's Failure to Develop and Present Evidence Harris
         Suffered from FASD Constitutes Deficient Performance That
         Prejudiced Harris
       As discussed above, prior to Harris's capital trial defense counsel was in
possession of numerous pieces of evidence that should have led to an investigation
into whether Harris was afflicted with FASD. First and foremost, counsel knew
that Harris's mother consumed alcohol during the first six weeks of her pregnancy
because Ms. Maddox admitted as much to Brendan Ross, defense counsel's
mitigation investigator. Moreover, trial counsel affirmatively elicited testimony to
this effect from Ms. Maddox during the punishment phase of Harris's trial,
indicating that they were both aware of this information and knew it to be relevant.

       6 Examination of a childhood photograph of Roderick Harris indicates
possible facial dysmorphology consistent with FASD. Consultation with a medical
doctor with expertise in FASD could likely result in a diagnosis of FAS or Partial
FAS. Regardless of the specific condition (F AS, Partial FAS, or ARND) , all
FASD conditions involve similar degrees of brain damage and functional
impairment. Thus, the specific diagnostic condition is forensically irrelevant. (Ex.
1 at ~40 [Aff. of Dr. Natalie Brown].) Regardless, Harris intends to undergo
further medical testing and will supplement this application with any updated
FASD information.
                                       32
(64 RR at 222-24.) The fact that trial counsel had maternal confirmation that
Harris was exposed to alcohol in utero should have prompted a consultation with a
psychologist or medical doctor with expertise in FASD.7
      In addition to Harris's confirmed prenatal exposure to alcohol, trial counsel
overlooked several clear and consistent "red flags" that Harris suffered from
serious, chronic cognitive difficulties and associated adaptive dysfunction. From
birth, Harris's records indicate a likelihood that he suffered from brain damage.
(Ex. 1 at   ~35   [Aff. of Dr. Natalie Brown].) Moreover, Harris's school records
indicate a long history with learning disorders, ADHD, depressed mood,
dysthymia, and suicidal ideations.      (Id. at   ~~22-23.)   Trial counsel elicited
testimony about these factors from Harris's mother, stepfather, and younger
brother during the punishment phase as well. (64 RR at 215-293; 65 RR at 29-62,
70-87.) This information should have operated as a clear warning sign to trial
counsel that Harris had considerable problems with cognitive functioning, which
should have prompted         further investigation into the etiology of these
complications.
      In light of trial counsel's confirmation of Harris's prenatal exposure to
alcohol, trial counsel's failure to consult a psychologist or medical doctor with
expertise in FASD is a glaring omission. Had trial counsel sought to explain the
underlying cause of the troubling aspects of Harris's cognitive and behavioral
impainnents, such an investigation would have led to consultation with an expert
in the area of FASD who could have testified that Harris meets the diagnostic
criteria for ARND, one of the specific conditions ofFASD. (Ex. 1 at     ~39   [Aff. of
Dr. Natalie Brown].)


       7 According to Dr. Brown, it is common practice for trial counsel to hire an
F ASD specialist whenever prenatal alcohol exposure is merely suspected. (Ex. 1
at ~38 [Aff. of Dr. Natalie Brown].)
                                         33
        A diagnosis of ARND would have proven to be powerful mitigating
evidence for a jury to hear. Individuals with ARND are, through no fault of their
own, born with serious cognitive impairments. These impairments include deficits
in a broad array of neurocognitive functions, such as attention, learning, logical
thinking, impulse inhibition, and self-regulation, which are certainly relevant to the
mitigating circumstances special issue posed to capital juries in Texas. (See Ex.
lat   ~l4   [Aff. of Dr. Natalie Brown].) Moreover, individuals with FASD suffer
"secondary disabilities" that inhibit their ability to have successful social
interactions and integration, leading to higher than average rates of criminal
infractions and incarceration. (ld. at ~l6.)
       Thus, had trial counsel presented evidence that Harris suffers from ARND, a
condition ofFASD, there is a reasonable probability that the jury's sentence would
have been affected. See Wiggins, 539 U.S. at 534-35; Strickland, 466 U.S. at 694-
95. As such, Harris's death sentence should be reversed and he should be granted
a new punishment phase trial.
   B. Trial Counsel Failed to Uncover and Present Information That Harris
      Was Exposed to Toxic Levels of Lead as a Child
       In addition to fetal alcohol exposure, Harris's cognitive and childhood
development were likely affected by his exposure, both in utero and during
infancy, to toxic levels of lead. For fifty years, a lead smelting facility operated on
a lot at the comer of Westmoreland Road and Singleton Boulevard in West Dallas.
Roderick Harris's mother, Pamela Maddox, grew up near this facility, first in the
housing projects on Delhi Street, and later in a house located at 3544 Nomas
Street, less than half a mile from the smelter. Seventeen-year-old Pamela was still
residing at the Nomas Street house when she gave birth to Roderick Harris in 1984.
Harris spent the first several years of his life on Nomas Street, and spent most of
the first decade of his life in a fourteen-square-mile area of West Dallas that

                                          34
eventually was declared a Superfund site due to lead contamination from the
smelting facility.
      Children are highly susceptible to lead poisoning, and the toxic effects of
exposure can include damage to the central nervous system, which can lead to low
IQ scores and deficits in cognitive function and academic skills. Exposure can also
cause behavioral problems, including ADHD. Trial counsel failed to uncover and
present evidence that Harris was exposed to high levels of lead during his early
childhood, which exposure provides an explanation for Harris's cognitive,
adaptive, and behavioral deficits.
     1. Toxicological Significance of Exposure to Lead
       The toxic effects of exposure to lead have been recognized for more than
two thousand years. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) Ingestion of lead
can have many adverse health effects and can negatively affect several organ
systems in the human body, including the gastrointestinal, immune, and
reproductive systems, as well as the central nervous system. (Id.)
       Children are more at risk of suffering the negative effects of lead exposure
than are adults. (Ex. 2 at ~8 [Aff. of Dr. Thomas Dydek].) This is both because
children are more likely to ingest more lead than adults and because the effects of
lead ingestion are more pronounced in children. (Jd. at ~6.) However, even before
birth, fetuses in utero can absorb lead from the mother. (Id. at ~7.) Absorbed lead
accumulates in the bones of adults, and can re-enter the bloodstream through a
process known as "bone resorption," which occurs during pregnancy. (Id.)
       One of the primary routes of exposure to lead is through the ingestion of
contaminated dirt, soil, and household dust.      (Ex. 2 at ~6 [Aff. of Dr. Thomas
Dydek].) Because children spend more time on the ground (for example, while
playing or crawling), they are more likely to ingest or inhale lead particulates. (Id.)
Similarly, children have a habit of ingesting dirt, either intentionally or by way of
                                          35
placing their dirty hands and toys in their mouths. (Id.)     Once a child ingests
contaminated material, the absorption of lead into the blood is five to ten times
greater than in adults.    (Id.) Furthermore, children are more likely to have
nutritional deficits in certain minerals, such as iron or calcium, which facilitates
greater absorption of lead. (Id.) Finally, the central nervous systems of young
children are not fully developed. (Id.) Thus, it is more likely that lead in the
bloodstream of children will reach, and negatively affect, sensitive brain tissues.
(fd.) Adults who were exposed to high levels of lead as children exhibit damage to
both grey and white matter in the brain. (fd. at -09.) Lead exposure is associated
with damage to the frontal lobes, parietal lobes, basal ganglia, cerebellar
hemisphere, and cerebellar vermix. (fd.) Aside from brain damage, the effects of
lead exposure on the central nervous system include low IQ and deficits in
cognitive functioning and academic skills. (fd. at -08.) Lead exposure has also
been associated with higher incidences of ADHD. (Id.)
     2. History of the RSR Corporation Lead Smelting Facility
      In the early 1930s, a secondary lead smelting facility opened and began
operations west of downtown Dallas. (Ex. 21 at 5 [Agency for Toxic Substances
and Disease Registry ("ATSDR") Public Health Assessment].)8              Secondary
smelting operations recover lead from pre-existing sources, such as batteries,
cables, pipes, and other metals.      (Ex. 22 at 5 [EPA Superfund Record of
Decision].)9 The smelting facility in west Dallas was primarily tasked with the
recovery of lead from recycled automobile batteries. (fd.)



       8 Ex. 21 is publicly available at the following website:
http://www.atsdr.cdc.gov/HAC/phalPHA.asp?docid=134&pg=0 (last visited June
8,2014).
       9 Ex. 22 is publicly available at the following website: http://www.epa.gov/
superfund/sites/rods/fulltext/r0695 095 .pdf (last visited June 8, 2014).
                                          36
      Although the facility was originally located outside the Dallas city limits, the
surrounding area was annexed by the city in the 1950s. (Ex. 21 at 6 [ATSDR
Public Health Assessment].) In the years that followed, residences, schools, and a
major housing project were constructed nearby. (Jd.) Despite this metropolitan
growth, air emissions from the smelter continued without control until 1968. (ld.)
In 1971, the smelter was purchased by the RSR Corporation ("RSR"). (ld.) Over
the next thirteen years, RSR was ordered to upgrade its emissions control devices
due to enforcement actions and lawsuits brought by the City of Dallas, the State of
Texas, and the Texas Air Control Board.         (ld. at 7.) A 1983 lawsuit alleged
damages from the air emissions of lead, and RSR was ordered to remove and
replace contaminated soil, implement a comprehensive plan for remediation, and
screen children for lead blood levels.      (ld.)   In February 1984, RSR ceased
operation of the smelter and sold the facility to the Murmur Corporation. (ld.)
Later that year, the City of Dallas denied Murmur's application for an operating
permit. Remedial work, consisting of the removal of contaminated soils, began in
1984 and continued into 1985. (Jd. at 7.) A second removal effort was initiated in
1991 by the EPA. (Jd.)       In 1993, the EPA proposed listing the RSR site and
surrounding area on the National Priorities List of Superfund sites. (Jd. at 8.)
      There were several sources for the contamination that plagued the area
surrounding the RSR site. (Ex. 21 at 5 [ATSDR Public Health Assessment].) Air
emissions deposited lead in the residential properties surrounding the smelter,
primarily in the areas north and northeast of the site. (Jd.) Contamination also
occurred due to the use of battery chips (plastic pieces of battery casings generated
from the smelting activities) as residential fill and paving material. (Jd.) Slag, a
toxic byproduct of the smelting operation, was also used as residential fill in the
area and deposited in nearby landfills. (Jd.)


                                          37
      3. Harris Likely Was Exposed to Lead as a Young Child and May Have
         Suffered Adverse Effects Due to This Exposure
          Harris spent much of the first decade of his life within half a mile of the
epicenter of a Superfund site which exposed him to elevated levels of lead as a
child. Hmvever, Harris's exposure to lead likely began before he was even born.
(See Ex. 2 at ,-r,-r7, 15 [Aff. of Dr. Thomas Dydek].)
          Roderick Harris's maternal grandmother, Shirley Cook, grew up at 3541
Pueblo Street in West Dallas. (Ex. 8 at ,-r7 [Aff. of Shirley Cook].) Ms. Cook
remembers smelling the RSR plant's emissions in the air.           (Id. at 'Il8.)   The
emissions smelled like "tar or sulfur, something bad like that." (Id.) Physical
particles from the emissions landed in the neighborhood and were visible on the
windshields and hoods of cars. (Id.) Ms. Cook saw black plastic chips in the
driveways of houses in the Pueblo Street neighborhood where she grew up. (Id. at
,-rIO.)
          Ms. Cook gave birth to Harris's mother, Pamela Maddox, in 1967. At the
time of Ms. Maddox's birth, Ms. Cook was living in the housing projects in West
Dallas. (Ex. 8 at,-r7 [Aff. of Shirley Cook].) In the early 1970s, Ms. Cook moved
her family, including Ms. Maddox, to a house located at 3544 Nomas Street in
West Dallas. (Id.) This house on Nomas Street was less than half a mile from the
RSR Corporation lead smelting facility located on the southeast comer of
Westmoreland Road and Singleton Boulevard. (Ex. 23 [Google Maps].) Ms. Cook
found black plastic chips when digging in the yard of this house. (Ex. 8 at ,-rIO
[Aff. of Shirley Cook].)
          The smelter was fully operational during Ms. Maddox's childhood when she
would have been most at risk of ingesting toxic levels of lead. (See Ex. 2 at 'Il,-r6,
12 [Aff. of Dr. Thomas Dydek].)         Ms. Cook reports that all of her children,
including Ms. Maddox, played in the dirt at the house on Nomas Street. (Ex. 8 at

                                          38
~13    [Aff. of Shirley Cook].) It is likely that Ms. Maddox accumulated a significant
amount of lead in her bones that could have been transferred in utero to Harris.
(See Ex. 2 at ~~7, 15 [Aff. of Dr. Thomas Dydek].)
         Ms. Maddox lived with her mother at 3544 Nomas Street when she became
pregnant with Harris. (Ex. 11 at      ~11   [Aff. of Pamela Maddox].) She lived at that
house for the duration of her pregnancy, and continued to live at the house for
about a year after Harris's birth on June 12, 1984. (Id.) From there, Ms. Maddox
and Harris moved a few houses down Nomas Street to live with Ms. Maddox's
sister Sherry. (Id.) Ms. Maddox and Harris lived in public housing in Oak Cliff
for a period of time, during which Harris would visit Ms. Cook's house on Nomas
Street several times per week. (Id. at       ~12.)   When Harris was around four years
old, he and his mother moved into Ms. Cook's house on Nomas Street where they
lived for about four years. (Id.)
         As a young child, Harris frequently played in the yard of his grandmother's
house (later his mother's house) at 3544 Nomas Street, and at the home of Ms.
Cook's father at 3541 Pueblo Street. (Ex. 11 at       ~12   [Aff. of Pamela Maddox]; Ex.
8 at     ~12   [Aff. of Shirley Cook].) Ms. Cook and Ms. Maddox both recall that
Harris played in the dirt and put dirt and dirty toys in his mouth, as many children
are prone to do. (Ex. 11 at     ~13   [Aff. of Pamela Maddox]; Ex. 8 at      ~13   [Aff. of
Shirley Cook].) Soils within a half mile radius of the smelter, particularly to the
northeast, were found to have very high levels of lead due to air emissions from the
RSR Corporation smelter. (Ex. 21 at 6-7,52 [ATSDR Public Health Assessment].)
Harris and his mother caught crawdads in the ditch near their house on Nomas
Street, which they would later consume. (Ex. 12 at          ~12   [Aff. of Ramon Maddox,
Sr.].)
         Harris was also taken to play in nearby parks, including the park at Amelia
Earhart Leaming Center, where Harris later attended school for two years. (Ex. 11
                                             39
at   ~13    [Aff. of Pamela Maddox]; Ex. 12 at   ~14   [Aff. of Ramon Maddox, Sr.].)
Amelia Earhart Learning Center was one of the sites where the remedial removal
of soil occurred in the early 1990s. (See Ex. 24 [Dallas News Photos].)lo Harris
then attended Priscilla Tyler Elementary School in West Dallas. (Ex. 12 at          ~14

[Aff. of Ramon Maddox, Sr.].) Harris and his family moved away from the house
at 3544 Nomas Street in 1992. (Id. at ~10.)
           Throughout his life, and from a young age, Harris exhibited medical,
psychological, and neurodevelopmental conditions that are associated and
correlated with childhood exposure to lead. (Ex. 2 at         ~18    [Aff. of Dr. Thomas
Dydek].) Harris was diagnosed with ADHD at the age of seven, and ADHD has
been associated with exposure to lead. (Id. at    ~8.)   Harris struggled with learning
disabilities that plagued him during his time in school and required him to enroll in
special education classes until he dropped out of high school in the eleventh grade.
The central nervous system of children is particularly sensitive to the effects of
lead, and exposure can cause declines in academic achievement and learning
disabilities. (Id.) Lead exposure as a child can also cause damage to the brain,
particularly in the frontal and parietal lobes.     (Id. at   ~9.)   Neuropsychological
testing of Harris revealed damage to these areas of his brain. (Ex. 1 at ~25 [Aff. of
Dr. Natalie Brown].)
      4. Conclusion
           Capital trial counsel has a duty to conduct an investigation to uncover
mitigating evidence. In the context of mitigation, evidence that a defendant has
been disadvantaged is particularly important "because of the belief, long held by



         Ex. 24 consists of Photos 13, 14, and 15 from a publicly-available photo
           10
gallery found at http://www.dallasnews.com/news/photos/20121212-the-burden-
of-Iead-historic-photos-of-west-dallas-rsr-smelter-and-environmental-
contamination.ece?ssimg=820213#ssTop820217 (last visited June 8, 2014).
                                          40
this society, that defendants who commit criminal acts that are attributable to a
disadvantaged background ... may be less culpable than defendants who have no
such excuse." Wiggins, 539 U.S. at 535 (citing Penry v. Lynaugh, 492 U.S. 302,
319 (1989)); see also Ex parte Gonzales, 204 S.W.3d at 399 (granting habeas relief
due to trial counsel's ineffective assistance for failing to present evidence that the
defendant suffered post-traumatic stress disorder due to childhood trauma). Here,
trial counsel neither discovered nor presented evidence that Harris was chronically
exposed to a highly toxic substance, lead, from before his birth through the early,
formative years of his life.     Lead exposure is associated with a number of
cognitive, behavioral, intellectual, and neurodevelopmental problems, problems
which plagued Harris throughout his life. He faced disadvantages from a young
age partly because of where he was born. Evidence that Harris was exposed to
toxic amounts of lead would have been powerful mitigating evidence, and there is
a reasonable probability that the result of his punishment phase would have been
different had it been presented to the jury. See Strickland, 466 U.S. at 694.
   C. Trial Counsel Failed to Retain and Present Testimony from Expert
      Witnesses to Explain the Mitigating Impact of Harris's Life History
      As discussed above, presenting lay witnesses to describe various facts about
a defendant's life will typically fall short of the complete mitigation presentation
necessary to explain to a jury the reasons a death sentence is not warranted. The
reason is two-fold. First, a single lay witness often will be unable by his or her
testimony alone to tell the entire story of a defendant in a cohesive manner. Even
close family members will not have witnessed every aspect of a defendant's life;
thus, a jury presented with lay witness testimony alone receives what amounts to
pieces of a puzzle, rather than a linear explanation of a life history. Second, having
lived through many of the events they are describing themselves, lay witnesses will
almost always lack both the perspective and the training to fully explain the

                                          41
~~   --   -~---------------------------------------




           significance of life events. Expert witness testimony is necessary to fit the pieces
           of the defendant's life story together and explain for the jury the significance of the
           resulting picture.
                   Just as evidence regarding the impacts of prenatal exposure to alcohol and
           toxic levels of lead requires the testimony of specialized expert witnesses, so too
           does the testimony of Harris's family members require interpretation and
           explanation by qualified experts.      Through the testimony of Harris's mother,
           stepfather, brother, and cousin, the jury learned the following facts about Harris's
           life:

                   • Harris's biological father was incarcerated for most of Harris's life.
                   • Harris's mother and stepfather frequently drank and smoked marijuana
                     during Harris's childhood.
                   • Harris received "whoopings" from his stepfather with belts or extension
                     cords.
                   • Harris got in trouble at school.
                   • At seven years old, Harris was diagnosed with ADHD, for which he was
                     prescribed Ritalin and placed into special education classes.
                   • Harris had a history of running away from home.
                   • As an early teenager, Harris was briefly involved in a youth street gang.
                   • Harris abused drugs, specifically marijuana and PCP.
                   • Harris was a loving father to his own children.

           (64 RR at 215,256; 65 RR at 29, 88.) Without further explanation, these factual
           statements resting on their own fail to communicate why a jury should find them
           mitigating, either individually or taken as a whole. Indeed, several of the facts-
           that Harris was involved in a gang, that Harris abused illegal drugs, and that Harris
           frequently ran away from home-on their face appear to be aggravating rather than
           mitigating facts.
                   Trial counsel's presentation of expert witnesses at Harris's punishment
           phase did little to explain the importance of these facts or to offer the jury a way of


                                                     42
understanding Harris's life story as a whole. Dr. John Roache was presented as an
addictions expert to explain why drugs are addictive and how marijuana and PCP
affect the body. (65 RR at 119.) Dr. Gilda Kessner, a psychologist, was presented
to describe certain childhood risk factors for later delinquent or violent behavior-
factors that have been identified through Department of Justice research. (65 RR
at 152.) Both experts offered a mostly academic explanation of their topics, devoid
of application to Harris's specific life story. Neither expert met with Harris or
other witnesses, and both specifically denied being asked to render an opinion
about Harris himself. ll (65 RR at 141, 154, 162.)
      Had trial counsel investigated further, however, and retained the assistance
of expert witnesses in fields relating to Harris's specific life narrative, they would
have been able to present the jury with a comprehensive and cohesive explanation
of Harris's life trajectory. Such testimony would have explained why so many of
the negative pieces of his life story were not Harris's fault, and why the path of his
life trajectory was both predictable and sadly common. Moreover, this testimony
would have turned what appeared to be many aggravating facts about Harris's life
story into significantly mitigating information.
     1. Expert Testimony Available to be Presented
      Several different types of expert testimony were available to fill this role,
either individually or in tandem. For example, counsel could have retained the
assistance of a social worker, such as Laura Sovine. Ms. Sovine is employed by
Travis County Health and Human Services where she supervises a team of social
workers who provide intensive support services for families. (Ex. 5 at,-rl [Aff. of


      11  Trial counsel also presented the testimony of James Aiken and S.O.
Woods as experts regarding prison classification and whether there was a
probability Harris would commit acts of violence, as well as the testimony of Dr.
Charles Weaver, an eyewitness identification expert. (65 RR at 147, 170, 193.)
                                       43
Laura Sovine].) In addition, she has experience working with both at-risk youth
and formerly incarcerated offenders. (Jd. at       ~2.)    She is an adjunct faculty member
at the University of Texas at Austin School of Social Work. (Jd. at              ~3.)   Ms.
Sovine would have been able to examine how Harris's early childhood
development influenced his behavior as a youth and adult.
          Next, counsel could have retained an expert in the field of youth gangs, such
as Charles Rotramel, to evaluate whether Harris's involvement in a youth gang was
as scary and dangerous as the prosecution made it out to be. Mr. Rotramel is the
founder and executive director of Youth Advocates, a non-profit youth
development organization that provides assistance and support to young people
throughout the Houston area. (Ex. 4 at          ~~1-2     [Aff. of Charles Rotramel].) Mr.
Rotramel has over thirty years of experience working directly with at-risk and
gang-related youth in the Houston area. (ld. at ~1.) His work has taken place both
inside the juvenile justice and criminal justice systems as well as on the streets and
in neighborhoods.        (Id. at     ~4.)   He has spoken at universities, non-profit
organizations, and governmental agencies, and has testified before the Texas State
Senate and House on the subjects of gangs and gang violence. (Jd. at ~12.)
          Further, counsel could have retained an expert to examine Harris's history of
behavioral issues in school, resulting discipline and suspensions, and subsequent
involvement in the juvenile justice system. For example, Dr. Courtney Robinson
has studied what has become known as the "school to prison pipeline." (Ex. 3 at
~,-r1-4   [Aff. of Dr. Courtney Robinson].) In addition to work experience dealing
with both educational institutions and the juvenile justice system, Dr. Robinson
holds a doctorate degree in cultural studies in education from the University of
Texas at Austin. (Jd. at    ~,-rl,   3.) Her research has focused on the ways in which
African American students (especially males) are routinely separated from the
regular classroom for behavioral issues and directed toward the juvenile justice
                                              44
system.      (Id. at   ~~2,   4.)    She has specifically studied the histories of African
American males incarcerated in the Dallas area, finding common life events and
trajectories. (Jd. at ~2.)
     2. Harris's Life History Explained 12
       Testimony from expert witnesses like those described above would have
offered the jury a stunningly different and substantially more complete
understanding of the mitigating nature of· Roderick Harris's life history.
Specifically, the jury would have learned that, from his birth (and even before it),
            13
Roderick         was at a distinct disadvantage in life. Early negative impacts to his
childhood development left Roderick with several impairments to his mental health
and social functioning.             Rather than address these impairments, however, his
family impeded what little treatment he received and attempted to use strict
discipline to solve problems.             School officials similarly reacted to Roderick's
issues as behavioral problems and disciplinary issues.              Instead of positively
intervening, this served to drive Roderick away from home and school, into the
street life of gangs, drugs, and crime. As opposed to a story of a deviant youth,
Roderick's life history shows a sadly common trajectory of a youth funneled into
the criminal justice system.
      a. Early Setbacks and Impairments
      As already mentioned, Roderick was exposed to alcohol during the early
stages of his mother's pregnancy and to toxic levels of lead in utero and during
infancy. These carried with them a significant risk of cognitive and developmental

       12 The testimony of the expert witnesses cited within this claim comes not
only from the evidence presented at trial but also from the investigation done by
post-conviction counsel. These experts' affidavits are cited, as is appropriate, but,
for ease of readability, their analyses and opinions have not been set out in block
quotations despite being quoted directly and paraphrased.
       13 For clarity of the narrative, Mr. Harris and his family member will be

referred to by their first names in this section.
                                                45
---------------------------------------



   impairments. See Parts A and B, ante. In addition, Roderick was born into a
   family situation that contributed to further impairments in his emotional and
   psychological development.
         Roderick did not experience a nurturing and stable early childhood. Once
   home from the hospital, Roderick's mother, Pamela, continued to act as the
   seventeen-year-old girl she was, instead of providing stable parenting to Roderick.
   Pamela would frequently leave Roderick in the care of her mother, Roderick's
   paternal grandmother, or even neighbors living in the same West Dallas housing
   projects.   Even after Pamela moved out of her mother's home and married
   Roderick's stepfather, she continued to drop off Roderick there several times a
   week. Roderick was left with a rotating cast of caregivers. (Ex. 5 at    ~17    [Aff. of
   Laura Sovine]; Ex. 11 at ~8 [Aff. of Pamela Maddox]; Ex. 8 at ~16 [Aff. of Shirley
   Cook].)
         Roderick's biological father, Eric Propes, had a reputation for being a street
   hustler-someone out to make a quick dollar. Starting in his teenage years, Eric
  had a history of stealing from stores and breaking into houses. He went to prison
   shortly after Roderick was born.      Eric was never in Roderick's life for any
  appreciable length of time, bouncing in and out of prison frequently. (Ex. 5 at ~18
   [Aff. of Laura Sovine]; Ex. 10 at   ~12   [Aff. of Michael Harris]; Ex. 15 at   ~~10-18

   [Aff. of Eric Propes].)
         When Roderick was around three years old, his mother married Ramon
  Maddox, Sr. In their first years of marriage, Ramon, Sr., and Pamela did not take
  steps to settle the family but, instead, created further chaos and instability. Ramon,
  Sr., joined Pamela in frequent partying. Ramon, Sr., himself had been raised by a
  father who was a drug addict and who had spent time in prison, as well as by a
  mother who was an alcoholic. Ramon, Sr., and Pamela often went out to smoke
  marijuana and drink alcohol, leaving at home Roderick and, later, their other sons
                                              46
to care for themselves at young ages. Roderick was left to care for himself and his
younger brothers in much the same way that Ramon, Sr., had been left by his own
parents. Sometimes Ramon, Sr., and Pamela would take the children with them to
parties, staying out until three or four   0' clock   in the morning. It is not surprising
that, for Roderick's early childhood, both of his parents were unable to model good
parenting-parenting that they themselves had not received. (Ex. 5 at              ~~20-21

[Aff. of Laura Sovine]; Ex. 13 at      ~~5,   7 [Aff. of Ramon Maddox, Jr.]; Ex. 12 at
~~4,   17 [Aff. of Ramon Maddox, Sr.].)
        Ramon, Sr., and Pamela had a physically abusive relationship reminiscent of
abusive behaviors they had witnessed in their own childhoods. Both would be
physically and verbally abusive to each other, particularly when they had been
drinking. Roderick witnessed these fights and became withdrawn and upset. In
addition, Roderick frequently received "whoopings" throughout his life from his
parents.    (Ex. 5 at   ~22   [Aff. of Laura Sovine]; Ex. 11 at      ~18   [Aff. of Pamela
Maddox]; Ex. 13 at ~6 [Aff. of Ramon Maddox, Jr.].)
        In addition, a number of Roderick's family members suffered from mental
illness. On Roderick's maternal side, these family members included Roderick's
mother. (Ex. 11 at      ~43   [Aff. of Pamela Maddox].) Roderick's maternal great-
grandmother also suffered from mental health problems, with symptoms including
paranoid delusions, similar to Pamela's. (Ex. 8 at          ~4   [Aff. of Shirley Cook].)
Several other family members of Roderick's appear to have mental health
problems, spanning several generations. (Ex. 8 at          ~~5-6   [Aff. of Shirley Cook];
Ex. 11 at    ~43   [Aff. of Pamela Maddox].)          On Roderick's paternal side, his
biological father's family tree also has several generations with family members
who have mental illness, including schizophrenia and bipolar disorder. (Ex. 15 at
~3   [Aff. of Eric Propes]; Ex. 5 at ~14 [Aff. of Laura Sovine].)


                                              47
       According to Attachment Theory, the most important time in a child's life
for the brain to develop is between the ages of zero and three. During this time,
children either form a secure or an insecure (anxious) attachment. Parents who are
nurturing, close in proximity, and sensitive usually will raise a child with secure
attachments and, therefore, the appropriate hard-wiring of the frontal lobe-the
area of the brain responsible for executive functioning, decision-making, and
emotional regulation. Parents who are not sensitive tend to raise children with
insecure attachments. Children in this scenario have a much lowered capacity for
emotional regulation and impulse control, and they seek to control their
environment in unhealthy ways to have their needs met, needs such as care and
belonging.    Children with insecure attachments raised in chaotic and stressful
environments will, without intervention, have significant impairments in behavior
and general social functioning. (Ex. 5 at ~16 [Aff. of Laura Sovine].)
      In addition to a lack of stable and nurturing parental figures, the
neighborhoods Roderick grew up in were far from nurturing. Roderick's earliest
memory is of stepping on a rat when he was two years old in the West Dallas
housing projects where his family lived. His next memory is of seeing a naked
man running through the projects when Roderick was three; a man he later learned
was high on PCP. He recalls being picked on by bullies on his way home from
pre-kindergarten classes and of being chased by loose dogs. Bullying, grief, and
loss, abandonment by his father, a chaotic and scary environment-these were all
things which further served to undermine his healthy childhood development. (Ex.
5 at ,-r19 [Aff. of Laura Sovine].)
      Roderick's brothers, Bradon and Ramon, Jr., were born shortly after Ramon,
Sr., and Pamela were man'ied. Roderick was four and five when they were born.
Rather than creating allies for him, though, their births drove a wedge that
separated him from the rest of the family. As his natural children, Ramon, Sr.,
                                        48
favored Bradon and Ramon, Jr. Other family members could tell that Ramon, Sr.,
was more strict with Roderick about his behavior. Ramon, Sr., himself notes that
Roderick was bothered by the attention Ramon, Sr., would give to Bradon and
Ramon, Jr., and that he did things for them that made Roderick feel left out. (Ex. 5
at   ~23   [Aff. of Laura Sovine]; Ex. 12 at   ~19   [Aff. of Ramon Maddox, Sr.]; Ex. 11
at ~17 [Aff. of Pamela Maddox].)
           Because Roderick formed insecure attachments, he was more likely to have
difficulty managing his emotions. When parents are non-responsive or insensitive
and children do not have their needs met, they often go through frequent negative
affect states with poor ability to control their emotions. As a result, from a very
early age, Roderick started acting out to get attention. At home, this took the form
of destructive actions-destroying items around the house or punching holes in a
waterbed. From other relatives, Roderick sought attention and care, acting funny
and trying to be the clown in the room. This behavior was partly brain based and
partly environmentally based-when they have no positive role models, it is
almost impossible for children to learn how to manage emotions such as sadness,
anger, and frustration without acting out. New patterns can be learned but serious
intervention is required. (Ex. 5 at     ~~24-25      [Aff. of Laura Sovine]; Ex. 10 at   ~6

[Aff. of Michael Harris]; Ex. 12 at ~~8-9 [Aff. of Ramon Maddox, Sr.].)
           b. Misidentified as a Problem Child
           At a young age, Roderick began to show the SIgns of cognitive and
developmental impairments that were likely results of the alcohol and lead
exposure in utero and lack of proper attachment development. Roderick was easily
distracted, had a hard time sitting still, and could not stay in one place long. (Ex.
12 at ~23 [Aff. of Ramon Maddox, Sr.]; Ex. 10 at ~8 [Aff. of Michael Harris].) He
began to wander away from the house without telling anyone. Family members
would find him wandering the street, sometimes riding a bus around the city and
                                           49
sometimes entering empty buildings. When asked why he did this, Roderick did
not know.     (Ex. 8 at   ~~18-19    [Aff. of Shirley Cook].) Roderick did not have
patience, acted up, had a hard time listening to his parents, and could not
comprehend things when he became upset. (Ex. 5 at          ~26   [Aff. of Laura Sovine];
Ex. 11 at ~15 [Aff. of Pamela Maddox]; Ex. 12 at ~9 [Aff. of Ramon Maddox, Sr.];
Ex. 8 at ~17 [Aff. of Shirley Cook].)
        In addition, Roderick struggled in school, having a hard time understanding
new information.          Ramon, Sr., noticed that Roderick simply memorized
information to get by. It seemed like Roderick knew the material, but with further
examination it became clear that Roderick did not actually understand the
information. (Ex. 5 at     ~28   [Aff. of Laura Sovine]; Ex. 12 at   ~25   [Aff. of Ramon
Maddox, Sr.]; Ex. 11 at ~19 [Aff. of Pamela Maddox].)
        Yet these signs were misidentified by both Roderick's family and school
officials as behavioral issues and rule-breaking. Roderick's stepfather considered
sending Roderick to see a doctor because of his behaviors, but his mother did not
think there was a problem. And the family did not have enough money to afford a
doctor. So instead, Ramon, Sr., reacted by punishing Roderick for his behaviors,
often with whoopings. Even when he got a whooping for running off, Roderick
would not seem to understand why he would receive such punishments. (Ex. 5 at
~27   [Aff. of Laura Sovine]; Ex. 8 at ~~18-19 [Aff. of Shirley Cook].)
        When Roderick began getting in trouble at school, he remembers his mother,
rather than providing guidance and parenting, telling the principal of the school
simply to "paddle" him if he misbehaved. Without proper intervention, Roderick
continued to act out. For example, around the age of six, Roderick brought razor
blades to school. For this he received what would be the first of many expulsions.
(Ex. 19 at 199 [Juvenile Records].)         Based on his behavioral issues and poor


                                            50
academic performance, Roderick was placed into special education programs. (Ex.
20 at 49 [Garland ISD Records]; Ex. 5 at ~29 [Aff. of Laura Sovine].)
      This misidentification of Roderick as a "problem child" continued despite
evaluations by school officials and doctors that showed Roderick was struggling
with cognitive and psychological impairments. In 1991, Roderick, now seven
years old, was given a psychological evaluation by his school that resulted in a
diagnosis of dysthymia, a condition characterized by low energy levels, low self-
esteem, low capacity for pleasure in life, and sometimes suicidal ideation. (Ex. 20
at 49 [Garland ISD Records].)        Around the same time, Roderick was also
diagnosed by his family physician as having ADHD.14 (Ex. 19 at 213 [Juvenile
Records]; Ex. 27 at 108 [Promise House Records]; Ex. 11 at ~20 [Aff. of Pamela
Maddox]; Ex. 5 at ~30 [Aff. of Laura Sovine].)
      Instead of assisting Roderick with the necessary intervention, his diagnosis
of ADHD started a struggle between school and medical officials and his parents
that would last for the rest of Roderick's childhood.      Although Roderick was
prescribed Ritalin for his ADHD, his parents did not like how it made Roderick act
like a zombie. Periodically, Roderick's stepfather made Roderick stop taking the
medication. Even when he was taking it, Roderick's mother would have him skip
doses. Then, when Roderick's behavior worsened, he would be referred by the
school or his parents to another evaluation or treatment program. They, in turn,
would re-prescribe Ritalin until his parents again took him off of it, thus repeating
the negative cycle. (Ex. 12 at   ~~26-27    [Aff. of Ramon Maddox, Sr.]; Ex. 11 at
~~20-21   [Aff. of Pamela Maddox] Ex. 5 at ~31 [Aff. of Laura Sovine].)




       14 As discussed, ante, many of the symptoms characteristic of ADHD mirror
the cognitive deficits and behavioral issues associated with FASD and can also be
attributed to lead exposure.
                                           51
                                                                                       -----:




      This cycle of on-again, off-again medication was particularly unfortunate
because the National Institute of Mental Health has concluded that medication is
the most effective treatment for ADHD symptoms of inattention and hyperactivity.
Further, behavioral therapy is the most effective treatment for impulse control
issues. Roderick exhibited all of these symptoms but was never offered behavioral
or any other kind of therapy, and his parents took him off the most effective
medication at a young age. (Ex. 5 at ~32 [Aff. of Laura Sovine].)
      Roderick's parents focus blame for Roderick's behavioral Issues on the
schools he attended. They suggest that the schools did not sufficiently support his
special education needs and just wanted to solve the problem through prescription
drugs. As a result, his parents moved him from school to school whenever they did
not think the school was helping Roderick enough. Probably as a result of this
movement and Roderick's problems in school, family members report that
Roderick did not have many friends growing up. He mostly kept to himself, and
his closest friends were his cousins. (Ex. 5 at ~~34-35 [Aff. of Laura Sovine]; Ex.
12 at ~~18, 26-27 [Aff. of Ramon Maddox, Sr.]; Ex. 11 at ~~20, 35 [Aff. of Pamela
Maddox].)
      Roderick's relationships, though, were compromised by his cognitive and
developmental impairments. His cousins remember that Roderick could only play
games or socialize for a brief time before he felt compelled to move on. Roderick
would start a basketball game or other sport with his cousins and then wander
away suddenly after only a short time. He similarly could not sit long enough to
watch a movie or television show.        Roderick seemed easily distracted and
impulsive. He got upset when he did not understand what was going on around
him. He could not pay attention for long periods of time, struggled to follow
directions, and was not good at adapting to change. (Ex. 5 at   ~35   [Aff. of Laura


                                        52
Sovine]; Ex. 8 at ,-r20 [Aff. of Shirley Cook]; Ex. 11 at ,-r,-r23-24 [Aff. of Pamela
Maddox]; Ex. 17 at,-r4 [Aff. of Willie Propes].)
       Evaluations of Roderick into his youth continued to show problems with
respect to both his mental health and intellectual development.           In 1994, a
psychological evaluation confirmed diagnoses of dysthymia, ADHD, and
developmental problems in math, reading, and writing skills. (Ex. 20 at 49-50
[Garland ISD Records].) Another evaluation conducted in 1997 similarly found
diagnoses of dysthymic disorder, early onset, with anxious traits, as well as ADHD
and suicidal ideation. (Ex. 20 at 50 [Garland ISD Records]; Ex. 5 at ,-r36 [Aff. of
Laura Sovine].)
       Roderick continued to struggle in school. He acted out and started fights.
He did this particularly when he was frustrated and did not understand the
schoolwork. He often felt left out and picked on. He hit his desk or threw his
papers. He also felt embarrassed due to his placement in special education classes
and being required to ride a special school bus while his peers walked to school
from their neighborhood. (Ex. 5 at ,-r38 [Aff. of Laura Sovine]; Ex. 11 at ,-r,-r26-28
[Aff. of Pamela Maddox].)
      Often, children with insecure attachments operate in "survival mode" and
therefore are likely to respond to stress with a "fight or flight" mechanism in a
manner more extreme than most. Roderick's defensiveness was a function of his
assuming insults and feeling insecure about his learning disabilities, and, as a
consequence, he lashed out in order to protect himself or survive in rough areas.
(Ex. 5 at ,-r39 [Aff. of Laura Sovine].)
      Despite his serious mental health and developmental issues, Roderick
continued to receive little or no support from the school system or his family.
School reports consistently documented the diagnoses of ADHD but did not offer
any behavior-modification plan or treatment other than medication. There is no
                                           53
mention in any of Roderick's records of accommodations made for Roderick in the
classroom, nor counseling or behavior modification offered to help him figure out
how to work around his disorder and to learn. Roderick's parents continued to
subvert his treatment, taking him off Ritalin whenever they felt he seemed "dazed"
or slow to them. (Ex. 5 at ~37 [Aff. of Laura Sovine].)
      Amidst this backdrop, Roderick began to struggle with depression and began
talking about his thoughts of suicide. He told his mother he wanted to jump off a
bridge. His brother remembers a time Roderick tried to hang himself off the stairs
with a belt. Another time he tried to cut himself. Other family members observed
him depressed and suicidal.     In response, Roderick's parents took him to the
Timberlawn psychiatric facility in Dallas, which again prescribed Ritalin. His
stepfather, however, again took him off the drug.         His behavior continued to
decline in school, particularly when he was no longer taking Ritalin. (Ex. 5 at ~40
[Aff. of Laura Sovine]; Ex. 11 at ~29 [Aff. of Pamela Maddox]; Ex. 12 at ~28 [Aff.
of Ramon Maddox, Sr.]; Ex. 13 at ~~14-15 [Aff. of Ramon Maddox, Jr.].)
      c. Divergent Pathways
      The effect of Roderick's cognitive and psychological impairments to his
development, and those impairments' subsequent misidentification as behavioral
problems, ultimately created a self-fulfilling prophesy.       Roderick was driven
further into isolation and away from positive interventions.       Instead, he found
acceptance amongst numerous negative influences.            At the same time, his
continued self-destructive behaviors confirmed his parents' and school officials'
belief that Roderick needed more punishment and discipline. These two forces set
Roderick on a trajectory aimed for the juvenile justice system and, later, the
criminal justice system. (Ex. 5 at ~4 7 [Aff. of Laura SovineJ.)




                                         54
              i. Running Away
           When Roderick was around thirteen years old, his parents began to leave
behind their habits of partying and abuse, and to focus on their family.               Both
parents report that it was around this time that they learned how to manage their
marriage without arguments and violence. Ramon, Sr., particularly was motivated
to raise his children differently than he was parented. He became very strict with
the children and was suddenly providing a lot of oversight. Ramon, Sr., started
monitoring Roderick and his brothers' school work and making them participate in
church activities. He did not let them stay out past a certain time or spend too
much time at friends' houses. (Ex. 5 at ~41 [Aff. of Laura Sovine]; Ex. 12 at ~30
[Aff. of Ramon Maddox, Sr.]; Ex. 13 at ~8 [Aff. of Ramon Maddox, Jr.].)
           The suddenness and harshness of this strictness backfired for Roderick.
Other family members noted how strict Ramon, Sr., had become.                   Roderick's
cousins did not like to come to the house to play. Ramon, Sr., admits that when
Roderick would not live up to his strictness, he would punish him by giving
whoopings, usually with a belt or extension cord. (Ex. 5 at            ~43   [Aff. of Laura
Sovine]; Ex. 12 at ~30 [Aff. of Ramon Maddox, Sr.]; Ex. 13 at ~I2 [Aff. of Ramon
Maddox, Jr.]; Ex. 11 at     ~~3I-32   [Aff. of Pamela Maddox]; Ex. 7 at      ~~5-6   [Aff. of
Shamy Conley].)
           Roderick struggled within this system of parenting, as he was unable to
change his behavior to accord with Ramon, Sr.' s rules. Whereas his brothers were
abJe to adapt and learn how to avoid getting punished, Roderick was not. He
would simply repeat the same behaviors that earlier had led to whoopings. (Ex. 5
at   ~45   [Aff. of Laura Sovine]; Ex. 12 at   ~30   [Aff. of Ramon Maddox, Sr.]; Ex. 13
at   ~12   [Aff. of Ramon Maddox, Jr.]; Ex. 11 at      ~~31-32   [Aff. of Pamela Maddox];
Ex. 7 at ~8 [Aff. of Shamy Conley].)


                                               55
      Probably in response to this punishment, Roderick began to run away from
home. His parents and siblings could tell that Roderick would leave home in order
to avoid the whoopings or when he got in trouble at school. At first, these episodes
only lasted a few hours. Roderick's parents were relieved when he returned home
and therefore did not punish him. As time went on, however, Roderick began
staying away for longer periods. Sometimes his stepfather went out looking for
him and brought him back home. Other times Roderick stayed away for a day or
more, and his parents reported him as a runaway to the police. (Ex. 5 at ~46 [Aff.
of Laura Sovine]; Ex. 12 at   ~31    [Aff. of Ramon Maddox, Sr.]; Ex. 13 at ~~12-13
[Aff. of Ramon Maddox, Jr.]; Ex. 11 at ~33 [Aff. of Pamela Maddox].)
         ii. Street Life and Gang Affiliation
      Around this same time, Roderick began spending more time with his
biological father's (Eric Propes) side of the family. Because of his feelings of
ostracism or detachment from his mother's side, Roderick likely was looking for a
place where he felt more connected. The cousins from his father's side also lived
in the same rough neighborhood and shared that experience. Rather than being a
positive role model, though, they exposed Roderick to further violence, gang
activity, and drugs. (Ex. 5 at    ~48   [Aff. of Laura Sovine]; Ex. 10 at   ~~10-11   [Aff.
of Michael Harris]; Ex. 17 at ~12 [Aff. of Willie Propes].)
      Like his brothers, parents, and school officials, these cousins also noticed
that Roderick mentally struggled to keep up with them. In addition to his short
attention span, Roderick seemed slow to understand things. Conversations went
over his head, and he became upset when someone used a word he did not know.
He believed the other person was insulting him. Roderick's cousins had to explain
to Roderick what was meant, even getting a dictionary out to show him the
definitions of words. (Ex. 5 at     ~49   [Aff. of Laura Sovine]; Ex. 16 at   ~6   [Aff. of
Kenneth Propes]; Ex. 17 at   ~4   [Aff. of Willie Propes].)
                                             56
        Because of his slowness, Roderick's cousms noted that he was taken
advantage of by others. Roderick did not seem to understand risks and would get
into trouble doing what others asked him to do.           He also frequently became
depressed around his cousins. He felt no one cared about him and that he was an
outcast. It was for this reason that his cousins believed Roderick joined a gang-
he wanted to fit in. (Ex. 5 at   ~50   [Aff. of Laura Sovine]; Ex. 16 at   ~~6-7   [Aff. of
Kenneth Propes]; Ex. 17 at '~5-7 [Aff. of Willie Propes].)
        Roderick joined a local juvenile gang known as the Fish Trap Bloods,
sometime between eight and ten years old.            (Ex. 4 at   ~30   [Aff. of Charles
Rotramel].)     Based on his life history and current circumstances, it was
unsurprising that Roderick joined a gang as his profile fit the type of youth at risk
for joining a gang.       Juveniles who join gangs share a common set of
characteristics: they are raised by parents with weak parenting skills; there is low
parental involvement in their lives; they grow up in poverty conditions; they have
not developed many social ties or friends; they are bullied or excluded from peer
groups; and they come from neighborhoods that are in disrepair and unsafe. (ld. at
~18.)   Roderick's life history contained many if not all of these characteristics.
Almost every risk factor for juvenile delinquency was present in his early life. (ld.
at ~~30, 39-40.)
        Roderick, like most youth who join gangs, was motivated to fill the void
created by his failures to connect with his family, his peers, and other caring adults.
A gang fills the role in the lives of its members as a place of belonging. Often,
because they come from abusive and/or neglectful homes that are characterized by
chaos and hostility, juvenile gang members would rather spend time with their
fellow gang members than with anyone else. Because they lack social skills and
are often not involved in any positive activities, they have nothing else to do and
no one else to spend time with. These youths consequently see their gang as a
                                            57
positive force in their lives-as a beneficial group rather than a criminal enterprise.
With no other place of belonging, the gang became a sort of safe haven for
Roderick in his tumultuous world. (Ex. 4 at ~~23, 31 [Aff. of Charles Rotramel].)
      That a youth street gang is where Roderick found his belonging at an
impressionable age had lasting negative consequences for his life trajectory. Even
though most youths leave gangs before the age of twenty-one (Roderick left when
he was sixteen), research reveals several consequences to gang membership. First,
individuals who participated in youth street gangs are three times more likely to
engage in adult criminal behavior between the ages of twenty-seven and thirty-
three. Youths who join gangs learn to place value on criminal activity from an
early age and start committing smaller crimes such as burglaries of automobiles
and homes, graffiti, or trying to fight rival gang members. Second, individuals
who participated in youth street gangs are 50% less likely to complete high school
than those who do not participate. And third, former youth gang members are
three times more likely to have substance abuse issues, and twice as likely to
experience mental health issues such as depression and anxiety. (Ex. 4 at ~~26, 29
[Aff. of Charles Rotramel].)
      In fact, Roderick's life trajectory following his gang membership followed
these same patterns. As will be discussed later, Roderick dropped out of school in
the eleventh grade and became more and more involved in criminal activity. It was
also around the same time of his involvement in the Fish Trap Bloods that
Roderick began using illegal drugs. At first, Roderick mainly smoked marijuana.
However, he soon began smoking "wet" or marijuana cigarettes dipped in PCP.
Roderick developed a PCP habit; by the time he entered high school, Roderick was




                                         58
                                ls
smoking PCP on a daily basis.        (Ex. 17 at ~~11-12 [Aff. of Willie Propes]; Ex. 13
at ~16 [Aff. of Ramon Maddox, Jr.]; Ex. 11 at ~36 [Aff. of Pamela Maddox].)
           iii. School to Prison Pipeline
      Because school officials misidentified Roderick's impairments and struggles
as disciplinary issues, formal intervention points during his teenage years funneled
him into the juvenile justice system rather than to treatment and support.
      In November 1998, Roderick showed up at Brandenberg Middle School,
about ten miles from his home in Garland, where officials noted he was a former
student. He had been moved from Brandenberg to Florence Middle School by his
parents. After speaking with administrators at Florence Middle School, it was
discovered that Roderick had been suspended from that school and had run away
from home the day before. Roderick's mother confirmed that she had reported
Roderick as a runaway. However, Roderick was placed in the Letot Center, a
Dallas County Juvenile Department emergency crisis-intervention center, because
his mother refused to pick him up. Roderick told staff at Letot that he wanted to
stay at the facility. Instead, he was released back to his mother. (Ex. 19 at 31-37
[Juvenile Records]; Ex. 25 at 51 [Dallas Police Dep't Records]; Ex. 5 at     ~57   [Aff.
of Laura Sovine].)
      Again, on February 16, 1999, Roderick took his mother's car and ran away,
attempting to drive to Longview, Texas, where his grandmother lived. After this
episode, Roderick was taken by his parents to the Promise House youth residential

      15  Many times, when someone with a mental health disorder-or, like
Roderick, several mental health disorders-does not receive proper medication or
treatment, they seek to "self-medicate" through use of alcohol and other drugs.
This often is their way of regulating their own symptoms and moods, or providing
relief to often painful psychic symptoms. It is possible that Roderick's self-
medication influenced how and why Roderick became so heavily involved in drugs
at such an early age, in addition to the fact that it was readily available to him in
his neighborhood and through his gang. (Ex. 5 at ~53 [Aff. of Laura Sovine].)
                                         59
treatment facility, where he was enrolled in an emergency shelter program. (Ex.
27 at 3-7 [Promise House Records]; Ex. 5 at ~58 [Aff. of Laura Sovine].)
      Promise House was one of the few treatment programs Roderick received
that could have led to further intervention.     Promise House provides support
services for homeless, runaway, and at-risk youth from the ages of ten to
seventeen. In addition to acting as an emergency shelter, Promise House provides
individual and group counseling, as well as other educational programs.           A
Promise House employee who remembers Roderick describes Promise House as "a
place for these kids to catch their breath and feel safe."      Unfortunately, the
program only lasted for thirty days. After that, youth either moved on to another
facility or were sent back home. (Ex. 5 at ~59 [Aff. of Laura Sovine]; Ex. 9 at ~~3-
4 [Aff. of Lisa Escobedo].)
      Roderick successfully completed his thirty-day program and was sent back
home. Counselors noted he had trouble conforming to the rules while at Promise
House. But they also noted that Roderick showed remorse for his outbursts and
that he recognized a need to control his impulses.      One employee remembers
Roderick as a sweet boy whose biggest issue was that he struggled in his school
work and ultimately gave up trying when he felt he could not do it. (Ex. 27 at 82-
86 [Promise House Records]; Ex. 5 at ~61 [Aff. of Laura Sovine]; Ex. 9 at ~8 [Aff.
of Lisa Escobedo].)
      Despite his brief stay at Promise House, nothing significant changed in
Roderick's life at home or at school. Once again, Roderick's stepfather made him
stop taking the Ritalin that Promise House gave to Roderick because Ramon, Sr.,
did not like the way it made Roderick act. Roderick continued to struggle with
depression and thoughts of suicide. Indeed, Roderick started threatening suicide
weekly. On several occasions he grabbed a knife from the kitchen or threatened to
do so, as though he were going to hurt himself. Yet Roderick's parents never
                                        60
sought further treatment or counseling for his suicidal behaviors.          Instead,
Roderick ran away from home three more times in the fall of 1999. (Ex. 12 at
~~29,   32 [Aff. of Ramon Maddox, Sr.]; Ex. 5 at ~62 [Aff. of Laura Sovine]; Ex. 25
at 55-67 [Dallas Police Dep't Records].)
        Repeatedly, Roderick's mental health disorder and behavioral problems
were met with anger and punishment. None of these consequences were teaching
tools nor modes of counseling. They only served to punish and were based on the
assumption that the problem was Roderick's anger when, in reality, the problem
was Roderick's lack of coping skills with illnesses and a chaotic environment
unresponsive to his needs. For example, in February 2000 Roderick took a six
inch "survival" knife to school and was arrested for possession of a weapon. He
was sent to a Dallas County emergency shelter and given a psychological
evaluation.    Dallas County Juvenile officials identified Roderick's actions as
inappropriate displays of anger and an anger-management problem. Roderick was
expelled from Samuell High School and sent to an alternative school program.
(Ex. 19 at 16-29 [Juvenile Records]; Ex. 5 at ~~63-64 [Aff. of Laura Sovine].)
        On April 11, 2000, Roderick received a. psychological evaluation.         This
report noted Roderick's prior diagnoses of depression, anxiety, and ADHD. It
noted that, when off his medication, Roderick was observed to be less patient, and
that the incident involving Roderick bringing a knife to school had occurred while
he was not medicated. The psychological evaluation also noted Roderick's history
of running away from home. The evaluation further noted Roderick's depression
and suicidal ideation. Regarding Roderick's mental state, the report noted that

        Roderick tries to deny and repress noxious ideation, but his defenses
        are not adequate to keep such thoughts out of conscious awareness for
        long. He has a history of fleeing when he feels threatened or
        overwhelmed. The data depict an individual who is anxious,
        dysphoric, indecisive, and pessimistic .... Roderick does not relate
                                           61
      well to others and appears to lack age-appropriate empathy in a naIve
      way. He does not know what to expect from others, particularly
      strangers, and apparently develops fears when isolated or otherwise
      under duress.     Roderick is at best dysthymic, and his poor
      interpersonal relations leave social/emotional needs unmet. His
      reactions may manifest rather unpredictably and without consideration
      of the consequences, except that the act may ward off perceived
      threat.

(Ex. 20 at 65 [Garland ISD Records]; Ex. 5 at    ~65   [Aff. of Laura Sovine].) Yet,
the evaluator concluded that Roderick should continue to receive special education
services under a classification of "Emotional Disturbance." Roderick was sent to
an anger management program and ordered to complete six months of probation
and sixteen hours of community service as punishment for bringing the knife to
school. (Ex. 19 at 114-17 [Juvenile Records].)
      Then, while at school in September 2000, Roderick was arrested for
possession of marijuana.    This possession is somewhat unsurprising given that
Roderick's parents modeled the behavior of smoking marijuana openly. The arrest
report noted that "suitable supervision, care, or protection [was] not provided by
parent, guardian, custodian, or other person" and that Roderick was in need of
"suitable supervision." A detention hearing was held and Roderick was placed in
detention at an emergency shelter where he was to undergo a chemical assessment.
Roderick's probation officer met with him at the emergency detention shelter.
Staff informed the officer that Roderick had been acting out and failed to complete
orientation. When asked about it, Roderick informed the officer that he wanted to
be locked up and that he did not want to go home. A psychological evaluation
done at the shelter diagnosed Roderick with conduct disorder and parent-child
relational problems.   Roderick stayed at the emergency shelter awaiting his
November court date on the marijuana charge. (Ex. 5 at          ~67   [Aff. of Laura
Sovine]; Ex. 19 at 5-15, 71, 108, 162, 180, 197-201,264-66 [Juvenile Records].)
                                        62
       Once again, Roderick received punishment rather than long-term treatment
to address his underlying problems. He was sentenced to one year of probation
and thirty-two hours of community service. He was also ordered to complete a
thirty-day drug education program. Despite his prior statements of not wishing to
return home, he was remanded into the custody of his mother. Roderick was
placed in an alternative school and ordered to attend several boot camp programs.
During the spring of 2001, Roderick attended the alternative school and an after-
school program at the same place he had attended his anger management program.
(Ex. 19 at 99-103 [Juvenile Records]; Ex. 20, at 27-29 [Garland ISD Records]; Ex.
5 at ,-r,-r68-69 [Aff. of Laura Sovine].)
       Roderick's experience of school suspensions and punishments instead of
treatment plans is not unique. African American boys are particularly at risk for
being identified by schools as behavioral problems and separated into special
education classes.     The tendency to punish a child's impulsivity as disruptive
behavior, rather than to see it as a sign of potential mental health problems, leads
school officials to perceive the child as a "problem," which in tum promotes the
child's own perception of himself as a "problem child." This reaction by school
institutions to children like Roderick creates a substantial risk that those children
will be funneled into the juvenile justice system and, subsequently, into the adult
criminal justice system.      This phenomenon is known as the "school to prison
pipeline." (Ex. 3 at ,-r,-r12-14 [Aff. of Dr. Courtney Robinson]; Ex. 5 at ,-r72 [Aff. of
Laura Sovine].)
      This pipeline is reinforced by the way young African American male
students are identified for special education classes and discipline.           African
American students are more often referred to special education for behavioral
reasons rather than learning disabilities, and African American males are three
times as likely to be labeled emotionally disordered.            In addition, African
                                            63
American students were three times more likely to receive suspenslOn, as
compared to their white peers. (Ex. 3 at ~~19-20 [Aff. of Dr. Courtney Robinson].)
      In addition, policies-such as Texas's "zero tolerance" policy-which
mandate automatic suspension and other penalties for rule infractions, with no
exceptions, elevate what often should be treated as misbehavior to, in essence,
criminal conduct. Such policies have dramatically increased the rate of African
American students' suspensions and serve to expose these students sooner and
more frequently to the juvenile justice system. These students become even further
at risk of self-identifying themselves as criminals and continuing on that path. (Ex.
3 at ~~14', 26, 28 [Aff. of Dr. Courtney Robinson].)
      Roderick's experience of being assigned to special education courses for his
behavioral issues and his multiple suspensions through his school career parallels
what research has found regarding the "school to prison pipeline." Roderick's
cognitive and psychological impairments were not treated therapeutically and
constructively-he was not seen as a "troubled" but eager leamer, he was seen as a
"criminal." Roderick's narrative aligns with those of many incarcerated African
American men from Dallas whose own struggles with the "school to prison
pipeline" have been documented.       Ultimately, the school to prison pipeline is
caused not by African American students engaging in behaviors that are dangerous
and criminal but by the reactions of school institutions to those behaviors. African
American males, in particular, are disproportionately and more harshly disciplined
in schools, pushed out of the educational system, and later entrenched in the
criminal justice system. This was the same fate experienced by Roderick. (Ex. 3
at ~~24, 26, 27, 36 [Aff. of Dr. Courtney Robinson].)
      d. Inevitable Outcomes
      As Roderick neared adulthood, the trajectory of his life was all but
established. Without serious intervention, the numerous risk factors and influences
                                         64
pushing him toward a life on the streets-a life embroiled with drug addiction and
crime-were unlikely to be preempted.          That intervention did not come, and,
instead, Roderick continued to face life events which spurred him toward these
inevitable outcomes.
        Instead of returning to high school in Garland, Roderick and his family
moved in August 2001 to Clayton County, Georgia, outside of Atlanta, to take care
of Ramon, Sr.' s ailing mother. (Ex. 12 at    ~34   [Aff. of Ramon Maddox, Sr.]; Ex.
11 at   ~38   [Aff. of Pamela Maddox].) The choice to move to Clayton County was
particularly unfortunate for Roderick. To make way for the 1994 Olympics, large
numbers of low income and public housing projects were moved out of Atlanta and
into Clayton County. These changes created massive instability in the culture of
Clayton County, where racial unrest and violence became common. By 2001,
gangs had proliferated and the area was dominated by unemployment, closed
businesses, public housing projects, and racial unrest. As a young teenager without
connections, friends, and support networks in this new environment, Roderick
continued to engage in negative activities.     (Ex. 4 at   ~~37-38   [Aff. of Charles
Rotramel].)
        Shortly after arriving in Georgia, Roderick ran away from home again. His
parents did not report his running away until five days later when he had not
returned. Nearly two weeks after he had run away, Pamela called police and told
them that Roderick had returned home. No further action was taken. Over the
next year, Roderick continued to run away from home and to become increasingly
involved with the criminal justice system.          In February 2002, Roderick was
arrested for criminal trespass of an apartment in the same complex as his family.
The apartment's inhabitant, Chris Arno, told police that he previously had told
Roderick to stay off his property but that Roderick was essentially homeless.
Roderick had confronted Arno a few days before and demanded to stay in Amo's
                                         65
apartment. Arno refused but later found Roderick sleeping on his front porch and
called the police. Roderick told police that he had left his family's apartment
because of problems with his parents. He stated that he was staying on Arno's
front porch to avoid "homeboys" that were looking for him. The police arrested
Roderick for trespassing. Roderick was arrested twice more for other incidents
like this before the family returned to Dallas in October 2002. (Ex. 26 at 10-24
[Clayton County Records]; Ex. 5 at ~~75-76 [Aff. of Laura Sovine].)
      Upon returning to Dallas, Roderick spiraled into the street life that would
eventually lead to his arrest for capital murder. After briefly being enrolled in
school, Roderick dropped out before completing the eleventh grade. Once again,
school evaluations noted that Roderick had a history of runaway episodes, suicidal
gestures, poor frustration tolerance, and impulsivity, as well as his previous
diagnoses of depression, anxiety, and ADHD. Yet there again appeared to be little
to no effort on the part of school officials or Roderick's parents to guide him
toward serious mental health intervention. Instead, the evaluations erroneously
stated that "[t]he culture and lifestyle experienced by the student have provided an
atmosphere conducive to the development of positive learning and behavioral
patterns. There appears to be no lack of previous educational opportunities as
indicated by the student's sociological status."    (Ex. 5 at ~77 [Aff. of Laura
Sovine]; Ex. 20 at 39 [Garland ISD Records].)
      Once Roderick dropped out of school, his parents gave him an ultimatum-
go back to school or live somewhere else. In response, Roderick left home for the
final time. He started living with various family members throughout the Dallas
area, drifting from home to home or spending periods of time living on the streets.
He became involved in several romantic relationships and would live with his
girlfriends for periods of time. By the age of twenty-four, Roderick had three
children with two different mothers. But without steady employment, and having
                                        66
poor parenting skills learned from his own childhood, Roderick was not able to
support a family or be a stable father figure. (Ex. 5 at ~78 [Aff. of Laura Sovine];
Ex. 12 at   ~35   [Aff. of Ramon Maddox, Sr.]; Ex. 11 at     ~~39-40    [Aff. of Pamela
Maddox]; Ex. 10 at     ~~9-10   [Aff. of Michael Harris]; Ex. 7 at   ~~9-10,   12 [Aff. of
Shamy Conley].)
       Roderick struggled to stay off the streets and out of trouble. From the time
he dropped out of high school, Roderick was on probation for various drug
possession cases and burglaries.       He frequently failed to appear for probation
meetings or drug testing and was often behind in paying his probation fees. At one
point, he was robbed at gunpoint; instead of telling anyone, however, he started
carrying a gun for protection.      He held down very little in the way of steady
employment. Selling drugs became his only stable source of income. In addition,
Roderick still was addicted to PCP. As his addiction to the drug grew worse, so
did his behavior and his reactions to it. He would become paranoid while he was
high, believing people were after him. He would have hallucinations and hear
voices. Roderick descended further and further into a world of street life, drug
addiction, and crime. (Ex. 5 at    ~~79-80   [Aff. of Laura Sovine]; Ex. 12 at ~~36-37
[Aff. of Ramon Maddox, Sr.]; Ex. 10 at ~14 [Aff. of Michael Harris]; Ex. 17 at ~13
[Aff. of Willie Propes].)
     3. Conclusion
      Had counsel presented this narrative of Harris's life history, complete with
explanation of it by expert witnesses, the jury would have learned significantly
more and different infonnation than it did. Moreover, the jury would have been
given a way to understand this information, a context, in order to detennine that it
was mitigating. Expert witnesses could have explained how these life events came
together to shape the person Harris became, and that Harris himself was not the
root cause of his actions.
                                             67
       To understand how a person comes to take certain actions in life, one
       must look at what elements of his life were brought to bear on that
       decision. Often what appear to be unexplainable, irrational actions
       can be traced to life events that occurred in the person's past.
       Roderick's current circumstances seem to be the result of a complex
       set of both biological, individual, environmental, and systemic risk
       factors and issues, all interacting with the other to create a "perfect
       storm."

(Ex. 5 at   ~8   [Aff. of Laura Sovine].) Rather, Harris was disadvantaged from the
moment of his birth and put into a trajectory designed for failure.

       [Negative factors of the kind Roderick faced] will create an insecure
       attachment, which will hard wire the brain for less success in learning
       and executive functioning. Add to that a genetic predisposition for
       and then development of mental health diagnoses, and a family and
       school system who do not provide treatment or support, and the odds
       are a child will not be successful. When the child is not successful,
       and does not know why, and does not have tools to learn how to
       succeed, he will continue along that path, as Roderick seems to have
       done.

(Ex. 5 at ~82 [Aff. of Laura Sovine].)
       Indeed what is noteworthy about Harris's case is the amount of contacts with
adults that Harris had that could have led to effective interventions.      Records
indicate that Harris had contact with numerous adults (including social workers,
detention officers, parole officers, and teachers) who could have connected him to
resources that might have helped him tum his life in a different direction. (Ex. 4 at
~41   [Aff. of Charles Rotramel].) That this did not happen had more to do with
systemic issues than it did with Harris's own behavior.

       A careful review of Roderick's records from his adolescence exposes
       a critical failure of the educational, mental health, and child welfare
       systems to assist a young man who was doing everything he could to
       ask for help. Roderick attempted suicide, expressed that he felt
       depressed and worthless, ran away from home repeatedly, asked to be

                                          68
      locked up rather than go home, and told adults repeatedly that his
      home environment was not acceptable. The absence of effective
      interventions is the most significant factor that led to Roderick's youth
      gang membership and later involvement in the criminal justice
      system.

(Ex. 4 at ~43 [Aff. of Charles Rotramel].)
      This trajectory was also not unique to Harris. The institutional and systemic
forces that send young African American males away from schools and into the
prison system is a problem still being addressed by our society.

      Identifiable circumstances have led to the over-representation of
      African American men in the school to prison pipeline. . .. The
      narrative of Mr. Harris and so many formerly incarcerated African
      American men illuminate the circumstances that collide to make
      incarceration a more likely outcome in the lives of African American
      youth. The construction of the pipeline is the combination of
      integration, racial disparity in special education, and zero tolerance
      policies that exasperated the problem of how African American
      students were disciplined. This combination provided an entryway
      into the pipeline leading from school to prison.

(Ex. 3 at ~33 [Aff. of Dr. Courtney Robinson].)
      Ultimately, the jury would have been left with the inescapable conclusion
that the events and circumstances that led Harris to the crimes he committed as an
adult were not entirely of his own making. See Blume, ante ("[E]xplain to the jury
how a child who was born into this world innocent developed into the person who
committed this terrible crime.").
   D. Trial Counsel's Failure to Present This Mitigating Information Was
      Deficient and Prejudiced Harris's Trial
      The information available to be presented at Harris's capital trial in favor of
a life sentence was significantly greater that what his jury heard. See Walbey v.
Quarterman, 309 Fed. App'x 795, 802 (5th Cir. 2009) ("This standard clearly
contemplates that even when some mitigating evidence is presented at trial,
                                          69
prejudice is still possible if that evidence is substantially incomplete." (emphasis in
original)). Trial counsel's failure to investigate and develop this information did
not meet professional norms expected of capital counsel and constituted deficient
performance. Had such testimony been presented, there is a reasonable probability
that the outcome of Harris's trial would have been different. See Strickland, 466
U.S. at 694; Ex parte Ellis, 233 S.W.3d 324, 329-30 (Tex. Crim. App. 2007); Ex
parte Chandler, 182 S.W.3d 350,353 (Tex. Crim. App. 2005).
                                   CLAIM TWO

 TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO PRESENT A
   GANG EXPERT TO OFFER AN EXPERT OPINION TO REBUT THE
  PROSECUTION'S EVIDENCE OF HARRIS'S GANG INVOLVEMENT

      During the punishment phase of trial, a feature of the State's case for the
death penalty was the admission of evidence that Harris belonged to a gang. The
State used this evidence to argue that there was a probability Harris would commit
criminal acts of violence based on his choice of living a "gang lifestyle" and
subsequent criminal conduct. However, the testimony of a gang expert would have
informed jurors Harris was only a former member of a juvenile gang and that
certain sociological, environmental, and developmental factors led to Harris's
affiliation. Trial counsel's failure to offer an expert opinion regarding Harris's
gang affiliation to rebut the State's evidence fell below the generally recognized
standard of care.      Thus, Harris's sentence of death was unlawfully and
unconstitutionally imposed in violation of his applicable state and federal
Constitutional rights, state statutory law, and United States Supreme Court and
state case law.
   A. Relevant Facts
      Prior to Harris's trial, the Court granted the State's motion requesting
permission to photograph Harris's tattoos, as they were "potentially gang-related."

                                          70
(2 CR at 613-14.) The State later filed notice that the State intended to introduce
evidence at trial that Harris was "a member of a criminal street gang known as
'Bloods.'" (2 CR at 643.)
      At punishment, the State presented testimony from Detective Barrett Nelson
of the Dallas Police Department. (62 RR at 43.) Nelson was a member of the gang
unit in Dallas for fifteen years and was offered as an expert witness on the subject
of gangs. According to Nelson, Texas law defines a gang as a group of more than
three individuals with common identifying symbols that commits a crime. (ld. at
45.) Nelson testified that gang members can be identified through their tattoos,
clothing, and their geographical location. (Id. at 43-46.)
       In preparation for trial, Nelson analyzed several photographs of Harris's
tattoos. Nelson testified that these tattoos contained features that indicated Harris
was a member of a gang known as the Fish Trap Bloods. (62 RR at 46-53.)
Additionally, Nelson reviewed a drawing allegedly made by Harris. This paper
contained symbols that are affiliated with the Bloods.       (ld. at 54-55.) Nelson
further testified that Harris was in possession of several red items during the
commission of the underlying offense. Red is a color affiliated with the Bloods.
(ld. at 64.)
       On cross-examination, Nelson admitted that the Fish Trap Bloods were not
an organized criminal street gang, and that the Fish Trap housing projects no
longer exist. Nelson also testified that the Fish Trap Bloods committed crimes as
individuals, not as a collective. (62 RR at 65-67.)
       Harris's mother, Pamela Maddox, did not know whether Harris was in a
gang, nor did she notice Harris's tattoos when he was fourteen years old. (64 RR
at 246-47.) Similarly, HalTis's cousin, Shamy Conley, testified that did not know
anything about Harris's alleged gang activity. (65 RR at 93.) Harris's younger
brother, Ramon Maddox, Jr., testified that Harris had joined a neighborhood gang
                                          71
around the age of ten years old.            (64 RR at 268.) Harris's stepfather, Ramon
Maddox, Sr., testified that he had only heard about Harris possibly being in a gang,
but he never asked Harris about his tattoos. (65 RR at 79-80.)
          During closing arguments, the State discussed Harris's gang affiliation
several times. The State argued that Harris was a member of "The Bloods," a gang
that "engaged in criminal acts of violence." (66 RR at 29.) Furthermore, the State
claimed that Harris was a "hustler" from the "hood," a violent gang member, and
as such, was someone who would resort to violence and threats to accomplish his
goals. (Id. at 39.) According to the State, Harris liked the "gang lifestyle" and
adopted it from an early age. (Id. at 79, 87.)
   B. Trial Counsel Was Ineffective for Failing to Rebut the Prosecution's
      Evidence of Harris's Gang Affiliation by Presenting Testimony from a
      Gang Expert
          As previously discussed in Claim One, ante, trial counsel could have sought
out the testimony of an expert witness who could have testified about youth gang
involvement.           Someone like Charles Rotramel, who has significant experience
working with disaffected youth and street gangs, would have been able to speak to
the jury about two pivotal pieces of information the jury needed to understand
when assessing the probability that Harris would commit future violent acts. (Ex.
4 at   '1\'1\1-13   [Aff. of Charles Rotramel].) First, Mr. Rotramel could have explained
that youth gangs are not the violent, criminal organizations that are regularly
portrayed by popular media.            Second, Mr. Rotramel could have explained that
Han-is himself had only been involved in a gang as a youth, was no longer in a
gang, and therefore would not automatically be part of a gang in prison.
       1. The Truth About Youth Gangs
         In Mr. Rotramel's experience, many adults assume that juvenile street gangs
function like adult criminal gangs or drug gangs. They assume these gangs have a
tight leadership group that dictates the gang's activities and determines its next
                                               72
movements. They assume that juvenile street gangs are involved in various kinds
of criminal enterprises such as the drug trade, prostitution, and armed robberies.
And many adults assume that it is impossible to get out of a gang once a youth gets
Ill.   (Ex. 4 at '1126 [Aff. of Charles Rotramel].)
         In fact, these assumptions are false. Juvenile street gangs are not nearly the
dangerous criminal enterprise people fear. Most often these youth take only an
opportunistic approach to crime-focusing on burglaries of automobiles and
homes, or graffiti, or trying to fight rival gang members. While these juvenile
street gangs can certainly become violent at times, the violence is often limited in
scope to other rival juvenile street gang members. Because of their young age,
most juvenile street gang members are not trusted enough by major drug traffickers
to be involved in significant elements of the drug trade.          Likewise, because
membership in juvenile street gangs is fluid, there often is not a reliable core of
members to take on a major role in a criminal enterprise. (Ex. 4 at '11'1120, 26 [Af£
of Charles Rotramel].)
         In addition, the fact that Harris was involved with a youth gang had no
bearing on whether he would be a member of an adult gang in prison. Typically,
juvenile street gangs are unrelated to adult criminal gangs. Research shows that
juvenile gang membership rarely involves "graduation" to adult criminal gangs.
Indeed, adult prison gangs and drug gangs often view juvenile street gangs with
disdain because they are seen as "kiddie crime" rather than organized criminal
activity. Furthermore, adult criminal gangs do not desire to have juveniles as
members because they are viewed as irrational, unreliable, and impetuous. Even
when juvenile street gang members enter into the adult criminal justice system,
adult gang members often refuse entry into the more serious criminal enterprises
because these juveniles are seen as a poor investment. (Ex. 4 at '1120 [Af£ of
Charles Rotramel].)
                                             73
     2. Harris's Leaving of the Gang
      Even if Harris's involvement in a gang was somehow relevant to the
question of whether there was a probability Harris would commit acts of violence,
Mr. Rotramel also could have explained to the jury that all evidence showed that
Harris left the gang before turning eighteen, like the majority of youth gang
members do. There is a perception by the general public that juvenile street gangs
are tightly knit units where kids join but they cannot get out. This perception is
false. Actually, juvenile street gang membership is fluid, and changes frequently.
Juveniles get into gangs and then often quickly get out of them. Sometimes they
join rival gangs. Because juvenile street gangs are so closely tied to a specific
neighborhood, when youth move out of the neighborhood they often leave behind
their gang membership. Unlike adult prison gangs, it is fairly easy for a youth to
leave a juvenile street gang. They can be "jumped" or "cliqued" out, or they can
simply "fade away" by disappearing from the gang's daily activities. Juvenile
street gangs often lack the cohesion and camaraderie associated with adult gang
membership. This is because juvenile gang members lack strong social bonds, and
they mistrust even their own fellow gang members.         Also, because they are
adolescents, they often move on to other pursuits quickly and without much
forethought. (Ex. 4 at ~21 [Aff. of Charles Rotramel].)
      Harris left the Fish Trap Blood gang by being "jumped out," around age
sixteen. This choice by Harris is not surprising. He had moved many times since
joining the gang and was still reporting by age sixteen that he did not have any
friends or feel connected to anyone. The gang served no purpose in his life at that
point. He did not spend time with the gang's members and did not benefit in any
way from gang membership. Harris made the decision to definitively leave the
gang in the most conclusive manner possible by getting "jumped out."          This
indicates that he had no allegiance to the gang or its members and saw no reason to
                                        74
continue his membership. Such decisions are extremely common for juvenile gang
members who can join on a whim and leave the gang just as quickly. (Ex. 4 at ,-r42
[Aff. of Charles Rotramel].)
   C. Harris was Prejudiced by Trial Counsel's Failure to Present Testimony
      from a Gang Expert
      Through the testimony of Detective Barrett Nelson, the prosecution
attempted to persuade the jury that Harris's gang affiliation made him a "future
danger" and supported the imposition of the death penalty. Trial counsel failed to
present any expert testimony to challenge the prosecution's assertions regarding
Harris's gang affiliation and its meaning. In reality, Harris's membership in a
youth gang was far less significant, scary, or dangerous that the prosecution made
it out to be. In addition, Harris's membership in a youth gang meant that he easily
left when he no longer felt the social need to be in the gang, and there was little
likelihood that his former membership in a youth gang would translate to
membership in an adult prison gang. Trial counsel's failure to present expert
witness testimony, such as that provided by Charles Rotramel, on a subject that
was almost certainly going to be brought up by the prosecution (and was)
constituted deficient performance that prejudiced Harris's trial.
                                  CLAIM THREE

 TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO
  INHERENTLY PREJUDICIAL TESTIMONY INFORMING THE JURY
              THAT HARRIS WAS RESTRAINED

      It is axiomatic that, in most cases, a jury's knowledge that a criminal
defendant is shackled or restrained during trial proceedings undermines the
presumption of innocence and is inherently prejudicial. HatTis's trial counsel were
ineffective when they failed to object to a State witness's testimony that informed
the jury Harris had been restrained during trial by a remotely activated custody


                                         75
control device, or stun belt. Trial counsel then doubled down on their error by
affirmatively eliciting further testimony from the witness about the stun belt. Trial
counsel's failure to object to testimony about the restraint on cross examination,
and subsequent questions, violated Harris's rights under the state and federal
Constitutions and United States Supreme Court and Texas case law.
   A. Restraint Evidence Presented to Jury at Harris's Trial
      During the punishment phase of Harris's trial, the State called as a witness
Bobby Moorehead, a deputy sheriff with the Dallas County Sheriff s Department
who had been a bailiff during voir dire in Harris's trial. (65 RR at 234.) The State
called Deputy Moorehead to identify two drawings Harris made during voir dire,
and the drawings were entered into evidence. (Id. at 234-35.)
      On cross examination, trial counsel elicited testimony from Deputy
Moorehead establishing that he had spent significant time with Harris during the
twelve weeks of voir dire and that, during that time, Harris had not been
disrespectful to him or caused him any trouble. (65 RR at 237,239.) Trial counsel
made a broad, open-ended request to the State's witness that he "[g]o ahead and
tell them about the elevator incident."       (Id. at 240.)   According to Deputy
Moorehead, at some point during voir dire, he and his partner had been
transporting Harris to the courtroom via elevator and, for some unknown reason,
the elevator doors closed, leaving Harris alone on the elevator. (Id. at 240-42.)
Deputy Moorehead testified that Harris was not in handcuffs or leg cuffs at the
time of this incident. (Id. at 242.) After the doors closed, the elevator proceeded
to another floor and two court reporters embarked. (Id. at 243-44.) Eventually, the
elevator with Harris and the court reporters returned. (Jd.) Deputy Moorehead
testified that, to his knowledge, Harris did not attempt to escape or otherwise take
advantage of the incident. (Id. at 245.) Deputy Moorehead also confirmed that
Harris "did not cause" the elevator incident. (Id. 242.)
                                         76
      During this testimony, Deputy Moorehead also stated that he had placed a
remotely activated custody control device on Harris which he controlled. (65 at
241.) Trial counsel did not object to the witness proffering this testimony before
the jury. (Id.) Instead, trial counsel engaged in the following exchange with the
witness:

      A.     I placed a device on Mr. Harris called a RACC belt, R-A-C-C.
             That stands for remotely activated custody control devise. I had
             the control to the device. The device is capable -
      Q.     Let me stop you there. That is a stun belt so in case they act up,
             you can zap them?
      A.     Some people refer to it as a stun belt.
      Q.     All right.
      A.     It has the capability of shocking a person with approximately
             75 to 85,000 volts zero amperage, but it does incapacitate the
             person that's wearing it.

(Id.) Later in the cross examination, trial counsel also asked Deputy Moorehead to
confirm that use of the stun belt was "standard procedure in these types of cases,"
which he did. (Id. at 242-43.) When trial counsel subsequently asked Deputy
Moorehead to confirm that Harris had not attempted to escape or otherwise take
advantage of the incident, Deputy Moorehead testified that he had not but also
stated that "Mr. Harris knew that I could stop him at the point. He had been told
what the belt would do and I don't think there was ever a doubt in his mind that I
would activate it." (Id. at 245.)
      On redirect examination, the State asked Deputy Moorehead whether Harris
wore the stun belt "evelY single day" of the twelve weeks of voir dire, and Deputy
Moorehead confirmed he did. (65 RR at 246.) The State also asked several other
questions eliciting additional testimony about the stun belt, including:

      • Deputy Moorehead or one of the other bailiffs had control of the stun
        belt's remote activation device at all times. (Id.)

                                          77
      • Harris knew "from day one what would happen if the belt were
        activated" because he had to sign a form acknowledging that he was
        aware of the stun belt's capabilities every morning. (Id. at 246-47.)
      • Harris told Deputy Moorehead afterwards that he thought. Deputy
        Moorehead was going to shock him during the incident. (Id. at 247.)

Trial counsel failed to object to this entire line of questioning. (Jd. at 246-47.)
Instead, trial counsel merely confirmed on recross that Deputy Moorehead had not
shocked Harris. (Jd. at 247.)
   B. Restraint Evidence Was Objectionable
      Courts have long recognized a criminal defendant's right to avoid appearing
before a jury in visible shackles. See, e.g., Deck v. Missouri, 544 U.S. 622, 630
(2005); Bell v. State, 415 S.W.3d 278, 281-83 (Tex. Crim. App. 2013).           The
Supreme Court has acknowledged that, although use of visible restraints is allowed
in certain exceptional circumstances, the law generally "forbids" such use during
the guilt or penalty phase for several reasons. Deck, 544 U.S. at 626. Chief among
them is the deleterious effect a jury's view of a defendant in shackles would have
on the bedrock of the justice system-the presumption of innocence. Id. at 630;
see also Bell, 415 S.W.3d at 282.
      The Supreme Court has found that "[v]isible shackling undermines the
presumption of innocence and the related fairness of the fact finding process."
Deck, 544 U.S. at 630. Specifically, it has held that visible shackles or restraints
"suggest[] to the jury that the justice system itself sees a 'need to separate a
defendant from the community at large. '"    Id. (quoting Holbrook v. Flynn, 475
U.S. 560, 569 (1986)).      Consequently, the Supreme Court determined that
unjustified visible shackling or restraint of a defendant before a jury is an
"inherently prejudicial" due process violation. Id. at 635. Likewise, Texas courts
have found that "shackling error may rise to the level of constitutional error when


                                        78
the record reflects a reasonable probability that the jury was aware of the
defendant's shackles." Bell, 415 S.W.3d at 283.
      It is defense counsel's duty to protect a defendant from this prejudice-both
at trial and on appeal-by objecting when a jury is being informed ofa defendant's
restraints or shackles. Significantly, if defense counsel fails to do so, then the issue
is waived on appeal. See Cedillas v. State, 250 S.W.3d 145, 150 (Tex. App.-
Eastland 2008, no pet.) ("Because appellant did not object on the record to the use
of restraints in the jury's presence, the issue is waived, and appellant's first issue is
overruled."). This is the case even where the record indicates that the jury was
aware of the defendant's restraints. Id. at 149-50. That is, even the "most basic
rights of criminal defendants are subject to waiver." Id. at 149 (citing Peretz v.
United States, 501 U.S. 923, 936 (1991)).
      Where defense counsel properly objects to a defendant appearing before a
jury in restraints and the trial counsel overrules the objection without setting out an
adequate basis on the record for why visible restraints are necessary under the
particular facts of the case, the issue is preserved for appeal. See, e.g., Boone v.
State, 230 S.W.3d 907, 909-11 (Tex. App.-Houston 2007, no pet.) (reversing and
remanding for a new trial); Wiseman     v.   State, 223 S.W.3d 45,48-49 (Tex. App.-
Houston [1 st Dist.] 2006, pet. ref d) (same). On appeal, an appellate court must
determine whether a jury's knowledge of the defendant's shackling "constituted
harmful error." Wiseman, 223 S.W.3d at 51. "The test [] is whether [the appellate
court] can conclude beyond a reasonable doubt that the shackles did not contribute
to appellant's conviction or punishment." Id. If it cannot, the defendant is entitled
to a remand. Id. at 52.




                                             79
   C. Trial Counsel Was Ineffective for Failing to Object to Restraint
      Evidence
      Counsel in any trial has an affirmative duty to make timely objections to
improper testimony, state the specific grounds for the objection and obtain a ruling
on the objection from the trial court. See Beall v. Ditmore, 867 S.W.2d 791, 793
(Tex. App.-EI Paso 1993, no pet.) (civil trial); Saldana v. State, 70 S.W.3d 873,
889 (Tex. Crim. App. 2002) (criminal trial). Failure to do so results in waiver of
the issue on appeal. Saldana, 70 S.W.3d at 889. This duty is amplified in a capital
trial where trial counsel has a duty to "protect[] the client's rights against later
contentions by the government that the claim has been waived, defaulted, not
exhausted, or otherwise forfeited." ABA Guidelines, Guideline 10.8(A)(3)(c). The
ABA Guidelines advise that trial counsel in a capital case should "know and follow
the procedural requirements for issue preservation and act with the understanding
that the failure to raise an issue by motion, objection or other appropriate
procedure may well forfeit the ability of the client to obtain relief on that issue in
subsequent proceedings." ABA Guidelines, Guideline 10.8 (commentary).
      Generally, evidence that a criminal defendant is or has been restrained
during trial proceedings is inadmissible, as the defendant's presumption of
innocence is threatened when jurors at his trial have knowledge that a criminal
defendant is or has been restrained.        Indeed, such knowledge is inherently
prejudicial, as it allows jurors to make negative assumptions that the justice system
believes that the defendant is dangerous and that the community at large needs to
be protected from him or her. These implicit messages to jurors can undoubtedly
negate the jurors' obligations to presume that the defendant is innocent until
proven guilty.
       Likewise, the jury's knowledge of a criminal defendant's restraints can
severely impact the punishment phase of a trial. This is particularly true in the

                                          80
punishment phase of a capital trial, where the jury must decide whether the
defendant poses a future danger in the course of deciding whether the death penalty
should be imposed. See Deck, 544 U.S. at 630 (holding visible restrains during
punishment phase violates due process); Bell, 415 S. W.3 d at 284 ("The fact that a
defendant is shackled without cause gives the jury the perception that he is a much
more dangerous criminal and may prevent him from receiving a fair trial.")
(Meyers, J., dissenting); Long v. State, 823 S.W.2d 259, 284 (Tex. Crim. App.
1992) ("What better evidence could there be to show dangerousness than to have
the defendant shackled while being tried?") (Maloney, J., dissenting); see also
Marquez v. Collins, 11 F.3d 1241, 1243 (5th Cir. 1994) ("Shackling carries the
message that the state and the judge think the defendant is dangerous, even in the
courtroom.") .
        Trial counsel opened the door for the prosecution to elicit further negative
and otherwise-inadmissible testimony regarding the stun belt from the witness.
Specifically, the State took advantage of trial counsel's errors by procuring
additional testimony that downplayed Harris's good behavior by implying that
Harris failed to take advantage of the elevator incident only because of the stun
belt.   F or example, Deputy Moorehead proffered testimony that Harris was
reminded every morning for twelve weeks of what the stun belt could do to him if
activated. (65 RR at 246-47.) The State even secured testimony from the witness
that Harris had told him after the elevator incident that he had been afraid of the
stun belt-clearly inadmissible hearsay testimony that trial counsel failed to
challenge. (Id. at 247.)




                                          81
       In sum, trial counsel allowed a witness on cross examination to give
                                                                      16
unhelpful testimony that Harris had been restrained during trial           and made no
effort to keep that inadmissible information away from the jury. Trial counsel did
not request the jury be instructed to disregard the harmful testimony, but instead
opened the door to additional testimony about the stun belt. This failure to keep
inherently prejudicial testimony away from the jury negated trial counsel's purpose
at the punishment phase and constitutes deficient performance. See, e.g., Garcia v.
State, 308 S.W.3d 62, 68 (Tex. App.-San Antonio 2009, no pet.) (trial counsel
ineffective where "there could have been no reasonable trial strategy" to "elicit and
open the door to" inherently prejudicial extraneous offense evidence); Walker v.
State, 195 S.W.3d 250, 263 (Tex. App.-San Antonio 2006) (trial counsel
ineffective for failing to object to inherently prejudicial evidence that "afforded the
jury an evidentiary basis for choosing to believe" the State's narrative of the case);
Hall v. State, 161 S.W.3d 142, 154 (Tex. App.-Texarkana 2005) (trial counsel
ineffective for failing to object to "numerous ... prejudicial matters"); Mares v.
State, 52 S.W.3d 886, 893 (Tex. App.-San Antonio 2001) (trial counsel
ineffective where "[t]here can be no strategy in failing to interpose an objection" to
inadmissible testimony that was "directly contrary" to the defense's goal at the
punishment phase).
   D. Harris Was Prejudiced by Trial Counsel's Failure to Object
      Trial counsel repeatedly allowed extremely harmful, inadmissible testimony
to be presented to the jury. Indeed, courts have routinely characterized this type of


      16 Although Deputy Moorehead's testimony only referenced use of the stun
belt during voir dire, no other testimony was offered establishing whether or not
Harris was restrained only during voir dire. That is, there was no evidence
provided suggesting that Harris was not restrained throughout the trial. Thus, the
jury reasonably could have presumed that Harris was restrained as he was sitting
there during the punishment phase.
                                          82
presentation to the jury as "inherently prejudicial" because they acknowledge that a
jury's knowledge of a criminal defendant's restraints during trial severely erodes
the bedrock of the justice system, the presumption of innocence. See, e.g., Deck,
544 U.S. at 630; Bell, 415 S.W.3d at 282. This is particularly the case here, where
Deputy Moorehead's testimony about the stun belt was not only inadmissible on its
face, it nullified any positive testimony trial counsel elicited that showed Harris did
not pose a future harm.
      Had trial counsel not elicited Deputy Moorehead's inadmissible testimony
about the stun belt and requested it be stricken once it was before the jury, there is
a reasonable probability the jury would have determined that Harris would commit
future acts of violence.    See ABA Guidelines, Guideline 10.11 (commentary)
("Finally, in preparing a defense presentation on mitigation counsel must try to
anticipate the evidence that may be admitted in response and to tailor the
presentation to avoid opening the door to damaging rebuttal evidence that would
otherwise be inadmissible." (emphasis added)). Such a finding on the first special
issue-whether there is a probability that the defendant constitutes a continuing
threat to society-would have resulted in a life sentence rather than the death
penalty. Because trial counsel's perfonnance was deficient in this regard, and
Harris suffered prejudice, he is entitled to a new hearing on punishment.) 7




      )7 To the extent that these arguments should have been raised on appeal,
appellate counsel was ineffective for failing to present them. See Smith, 528 U.S.
at 285.
                                          83
                                 CLAIM FOUR
    HARRIS WAS DENIED DUE PROCESS BY TRIAL COUNSEL'S
FAILURE TO OBJECT OT THE ADMISSION OF FORENSIC EVIDENCE
             CONCERNING CARLOS GALLARDO

      During the guilt/iml0cence phase of Harris's trial for the murder of Alfredo
Gallardo, the State offered into evidence testimony and exhibits concerning the
death of the victim's brother, Carlos. Evidence of this extraneous offense was
inadmissible and unduly prejudiced Harris's case, particularly as the testimony and
exhibits were substantial and needlessly inflammatory. And while the trial court
erred by overruling counsel's pretrial objections to the admission of Carlos's
autopsy photographs, trial and appellate counsel themselves rendered ineffective
assistance by failing to preserve and raise, respectively, the admissibility of the
medical examiner's testimony, as well as the issue of its being both excessive and
graphic. Collectively and individually, these errors deprived Harris of his rights
under the Texas and United States Constitutions, Texas statutory law, and United
States Supreme Court and Texas case law; his conviction, therefore, should be
reversed.
   A. Relevant Facts
      On May 1, 2009, a grand jury indictment was filed charging Harris with the
capital murder of Alfredo Gallardo, committed during the commission of a robbery
of Alfredo's home in Dallas County. (1 CR at 7; see also 58 RR at 17-18.) On the
second day of that trial, Dallas County Medical Examiner Reade Quinton was
called to offer testimony concerning his autopsy of Carlos Gallardo, Alfredo's
brother, who like Alfredo had been shot and killed during the same robbery. (59
RR at 289-302.)
      To assist Dr. Quinton in his testimony, the State offered five photographic
exhibits into evidence-State's Exhibits 23, 141, 142, 143, and 144. (59 RR at

                                        84
293.) Trial counsel objected to these autopsy photographs at a pretrial hearing but
was overruled. (59 RR at 292.)
       In addition to describing these photographic depictions, Dr. Quinton also
provided, without objection, the following testimony on direct examination:

       Q.        Describe for the jury what the bullet is actually doing as it
                 travels through [the left side of Carlos's face]; the damage it is
                 doing, basically?
       A.        Okay. Well, as it enters the left side of the face, basically, it's
                 going through the maxilla, which is the bony area sort of behind
                 the nose. It then enters sort of the nasal pharynx area, which is
                 part of the upper airway, goes through the mandible, which is
                 part of the jaw here, and then exits. It's a highly, highly
                 vascular region, a lot of large vessels like the carotid arteries
                 pass through that area.
       Q.        SO based on that, is it fair to say, you would expect a massive
                 blood loss from this particular gunshot sound?
       A.        Yes, that's correct.
       Q.        Would it be painful for an individual to sustain a gunshot
                 wound through the nose and out the side of his face?
       A.        Yes.

(59 RR at 294-95.)
       In addition to testifying to the gunshot wound to Carlos's face, Dr. Quinton
also offered testimony concerning a second gunshot wound to Carlos's left
shoulder.    (59 RR at 296.)         As before, the testimony addressed the bullet's
trajectory, as well as the damage it inflicted on Carlos; specifically, Dr. Quinton
testified that

       [the bullet] enters the left shoulder and is basically coming straight
       across the body and going slightly downward as well. It passes
       through the shoulder, enters the left pleural cavity, so the space that
       contains the lung, basically goes through both lobes of the lung - of
       the left lung, and stops right around the aorta, basically grazes the
       aorta as it passes by.


                                             85
(Id.) Dr. Quinton then added: "The left chest cavity had around - slightly over 800
milliliters of blood in the chest cavity, which is about - to put it in normal terms, is
about half a 2-liter bottle of Coke." (Id.) Again, trial counsel offered no objection
to this or any other part of Dr. Quinton's testimony.
   B. Legal Standards
       The Texas Rules of Evidence articulate the standards by which evidence is
to be admitted or rejected in both criminal and civil proceedings. TEX. R.         EVID.

101 (b).   With respect to extraneous offense evidence proffered during atrial's
guilt/innocence phase, Texas courts determine admissibility through a two-part
analysis. First, the extraneous offense evidence must be relevant per Rule 401 of
the Texas Rules of Evidence. Rogers v. State, 853 S.W.2d 29,32 (Tex. Crim. App.
1993). If it is relevant, then the court must ensure that the evidence is admissible
"as an exception under Rule 404(b )." Id. (internal quotations omitted). Rule
404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity
therewith," but it qualifies this prohibition by allowing for such evidence "for other
purposes, such as proof of motive, opportunity, intent, preparation, plan
knowledge, identity, or absence of mistake or accident." TEX. R.          EVID.   404(b).
Furthermore, the CCA has distinguished two types of extraneous offense evidence:
(1) evidence of other offenses connected with the primary offense (referred to as
"same transaction contextual evidence"); and (2) general background evidence
(referred to as "background contextual evidence"). Rogers, 853 S.W.2d at 33
(citing Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991)). Same
transaction contextual evidence are those "acts, words, and conduct [of a
defendant] at the time of the commission of the offense" or at the time of the
defendant's arrest, id. at 33 n.6 (emphasis omitted), and it "is admissible as an


                                           86
exception under Rule 404(b) where such evidence is necessary to the jury's
understanding of the instant offense." ld. at 33 (emphasis in original).18
      As a corollary concern, Rule 403 calls for the exclusion of relevant evidence
"if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403.
The CCA has shed light on the meaning of Rule 403 's "unfair prejudice" standard
by explaining that "[t]he prejudicial effect may be created by the tendency of the
evidence to prove some adverse fact not properly in issue or unfairly to excite
emotions against the defendant." Montgomery v. State, 810 S.W.2d 372,378 (Tex.
Crim. App. 1990) (internal quotations omitted). It also has specified four non-
exhaustive factors for Rule 403 analysis, viz., (1) the probative value of the
evidence; (2) the potential of the evidence to influence the jury in an irrational and
indelible way; (3) the time required for the proponent to develop the evidence; and
(4) the proponent's need for the evidence. Shuffield v. State, 189 S.W.3d 782,787
(Tex. Crim. App. 2005) (citing Montgomery, 810 S.W.2d at 389-90).             A trial
court's improper application of Rule 403 is subject to harm analysis. See Moreno
v. State, 22 S.W.3d 482, 487 (Tex. Crim. App. 1999) (citing Montgomery, 810

S.W.2d at 391).
       As between testimony and photographic evidence, the CCA has held that,
"[g]enerally, a photograph is admissible if verbal testimony as to matters depicted
in the photograph is also admissible." Gallo v. State, 239 S.W.3d 757, 762 (Tex.


       18 Necessity in this context may be understood as when "several crimes are
intermixed, or blended with one another, or connected so that they form an
indivisible criminal transaction, and full proof by testimony, whether direct or
circumstantial, of anyone of them cannot be given without showing the others."
Mayes, 816 S.W.2d at 86 n.4 (emphasis added) (citing Nichols v. State, 260 S.W.
1050 (Tex. Crim. App. 1924)).
                                         87
Crim. App. 2007) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App.
1997); Long, 823 S.W.2d at 271-72, superseded by rule on other grounds by Bell,
415 S.W.3d at 282). Admissibility is a function of the Texas Rules of Evidence,
most commonly Rules 401 and 403. Id.
      Trial courts are "entitled to broad discretion in ruling on a Rule 403
objection," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005), and
they likewise are entitled to considerable deference with respect to their
interpretations and applications of the other rules of evidence. See, e.g., Devoe v.
State, 354 S.W.3d 457,469 (Tex. Crim. App. 2011) ("A trial court's ruling on the
admissibility of extraneous offenses is reviewed under an abuse-of-discretion
standard.   Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005)[.]").
However, these rulings necessarily exist only after trial counsel timely objects to
unfairly prejudicial evidence, including witness testimony. Trial counsel therefore
has a duty to ensure, by way of timely objection, that his client is protected from
the impact of such testimony. See Strickland, 466 U.S. at 687-89 (remarking on
the breadth of counsel's responsibilities); Moreno, 22 S.W.3d at 484, 489 (a claim
of error having been properly preserved, finding that the trial court erred in
applying Rule 403); see also Mazon v. State, 991 S.W.2d 841, 846 (Tex. Crim.
App. 1999) (the State having timely objected to the admission of victim character
evidence, reviewing a trial court's application of Rule 403). Appellate counsel
likewise has a duty to review the record and to present to a reviewing court any
potentially meritorious claims. Meza, 206 S.W.3d at 689. "An applicant must
demonstrate that counsel's decision not to raise a particular point of error was
objectively unreasonable and that there is a reasonable probability that, but for
counsel's failure to raise that issue, the applicant would have prevailed on appeal."
Ex parte Santana, 227 S.W.3d at 704-05 (citing Smith, 528 U.S. at 285-86).


                                         88
   C. Trial Counsel Performed Ineffectively by Failing to Object to Testimony
      and Exhibits Concerning the Death of Carlos Gallardo
      As indicated, Harris faced a capital charge not on double-homicide grounds
but, instead, for the murder of Alfredo Gallardo while "in the course of committing
and attempting to commit the offense of robbery of [Alfredo Gallardo l" (1 CR at
7 (emphasis omitted) (tracking the language of Section 19.03(a)(2) of the Texas
Penal Code).) Whereas testimony and other evidence concerning Alfredo's death
was probative-as was evidence showing that Harris had robbed the Gallardo
family-evidence concerning Carlos's death was not.          But even were one to
assume the contrary, the State's decision not to indict Harris for Carlos's murder
correspondingly diminished the relevance of Carlos's death to an adjudication of
Harris's guilt with respect to the death of Alfredo, and then to such a degree that
the evidence adduced at trial became more prejudicial than probative. Thus, in
multiple respects trial counsel performed ineffectively by failing to object to the
testimony of Dr. Quinton, who performed the autopsy of Carlos, as well as to the
admission into evidence of exhibits to assist Dr. Quinton with his testimony.
     1. Carlos's Death Stemmed from an Extraneous Offense the Details of
        Which Were Inadmissible
      On several occasions during the guilt/innocence phase, the State called the
jury's attention to Carlos's death.   (See, e.g., 58 RR at 21-22 (State's opening
argument); 59 RR at 249-254 (testimony of trace evidence examiner); id. at 289-
302 (testimony of Reade Quinton); 60 RR at 98, 113 (State's closing argument).)
In the State's view, Harris's shooting of Alfredo and Carlos were part of the same
transaction, and Carlos's death was relevant to an adjudication of Harris's
culpability for Alfredo's death insomuch as the perceived similarity between the
two men's gunshot wounds helped to establish Harris's intentions:

      MR. BROOKS: And if this thing was anything but intentional, how
      do you explain Carlos being dead? If this thing was anything other
                                         89
       than being intentional, how do you explain Carlos dead with almost
       identical wounds as his brother, Alfredo? You can't explain it other
       than saying it is intentional.

(60 RR at 113 (emphasis added).)19 The State also argued that the two shootings
'Nere similar on the basis of physical proximity, and it sought, through testimony
                                      20
concerning the absence of stippling        around Alfredo's gunshot wound to the chest
and Carlos's gunshot wound to the shoulder to establish that both Alfredo and
Carlos were greater than three feet away from Harris when he discharged the gun.
(59 RR at 272, 295.)
      In fact, the brothers' wounds were not "almost identical,,,21 nor were they the
result of the same transaction.       According to Yahaira Gallardo's eyewitness
testimony, her father Alfredo was shot as he and Harris struggled in the bathtub: "I
thought like my dad fell on top of [Harris] and that's when the shooting came out,
like he was shooting." (58 RR at 103.) This was a discrete event that occurred
before Carlos was shot; insight into it was not gained by exploring the details of




      19   (el 58 RR at 185-86 (brief argument by the State to remove from the
jury's charge a limiting instruction, initially included per Rule 404(b): "Because
these offenses all occurred in the course of the case in chief, it is all the same
transaction evidence. The limiting instruction is not required.").)
       20 As explained by Dallas County Medical Examiner J oni McClain, stippling
is "where gunpowder particles strike the skin." (59 RR at 271.) Evidence of
stippling can enable one to estimate the distance between a discharged firearm and
a gunshot wound. (See, e.g., id. at 272.)
       21 Specifically, Alfredo sustained gunshot wounds to his left cheek and to the
left side of his chest (State's Ex. 140, at 2), whereas Carlos sustained gunshot
wounds "on the side of [his] nose" and "on the lateral left shoulder" (State's Ex.
146, at 2). The State also nearly misled the jury by drawing attention to the
absence of stippling on Alfredo's gunshot wound to the chest, (59 RR at 272), for
there would be no stippling-even from a close-proximity discharge-if Alfredo
was wearing a shirt at the time he was shot, which he inarguably was. (See 60 RR
at 80 (testimony of Yah air a Gallardo).)
                                             90
Carlos's death. (See id. at 102-07.)22 Accordingly, Dr. Quinton's testimony-and
the exhibits to     support that testimony-were irrelevant and constituted
impermissible character evidence of the sort prohibited by the Texas Rules of
Evidence.      See TEX. R. EVID. 402 ("Evidence which is not relevant is
inadmissible."); TEX. R. EVID. 404(b). See also Rogers, 853 S.W.3d at 32 n.3
("[Rule 404(b)] codifie[s] the common law principle that a defendant should be
tried only for the offense for which he is charged and not for being a criminal
generally.,,).23
       The CCA has observed that "[0 ]ne should be tried for only the crime for
which he is indicted, and not for being a criminal generally." Stone v. State, 17
S.W.3d 348, 353-54 (Tex. Crim. App. 2000). Likewise, in Robertson v. State the
Court held that counsel had "performed deficiently under the first prong of
Strickland by allowing the jury to hear prejudicial and clearly inadmissible
evidence because this evidence could serve no strategic value." 777 S.W.2d 427,
429-30 (Tex. Crim. App. 1989). Although trial counsels' performances in Stone
and Robertson may have been especially slack given that counsel themselves had
introduced the extraneous offense evidence, the result is no different whether one
actively undermines his client's case or sits idly by as the State does so through the
introduction of irrelevant, prejudicial evidence.




       22 Neither the State nor the defense ever offered a version of events that had
Alfredo being shot after Carlos. (See, e.g., 58 RR at 21-22 (in State's opening
argument, averring that Alfredo was shot before Carlos).)
       23 The State further distracted from the issues to be decided by the jury by
soliciting testimony from a Dallas County Crime Laboratory trace evidence
examiner concerning her analysis of Carlos's clothing, (see 59 RR at 249-54), and
it compounded its error by proffering as evidence the examiner's notes. (See
State's Ex. 127.)
                                          91
     2. Assuming that Details Concerning Carlos's Death Were Admissible,
        Dr. Quinton's Testimony and the Supporting Autopsy Photographs
        Were Unduly Graphic and Prejudicial
      Although the indictment in Harris's case focused solely on Alfredo's death,
the State nevertheless called Dr. Quinton to testify regarding his autopsy of Carlos,
and to do so at length and with a degree of specificity which unduly prejudiced
Harris. The vascularity of the nasal pharynx area, amount of blood loss, and-
most egregiously-degree to which Carlos experienced pain held no probative
value for a jury empaneled to assess Harris's culpability in the death of Alfredo.
(See 59 RR at 295.) Furthermore, this testimony had the potential to influence the
jury in an irrational and indelible way by calling attention to Carlos's
disfigurement and suffering, neither of which operated as a fact of consequence or
helped to resolve the ultimate issue of Harris's capital trial. See Rankin v. State,
974 S.W.2d 707, 709-10 (Tex. Crim. App. 1996), withdrawn in part and on other
grounds, 974 S.W.2d at 717 (Tex. Crim. App. 1998). The State also had no
legitimate need to solicit this testimony from Dr. Quinton, which it did by asking
about "the damage [the bullet] is doing," whether one "would expect a massive
blood loss from this particular gunshot wound," and whether it would "be painful
for an individual to sustain a gunshot wound through the nose and out the side of
his face." (59 RR at 294-95.i 4 Whether and how Harris shot Carlos arguably was
relevant to inferring his mental state when, moments before, he shot Alfredo, but
the four Rule 403 factors explicitly mentioned in Montgomery and reiterated in
Shuffield weigh against penllitting this testimony by Dr. Quinton.



      24 (Compare 59 RR at 294 ("Describe for the jury what the bullet is actually
doing as it travels through [the left side of Carlos's face]; the damage it is doing,
basically?" (emphasis added)), with id. at 295-96 ("Would you describe for the
jury the gunshot wound they're looking at in State's Exhibit 144, where it goes
through Carlos' body?" (emphasis added)).)
                                          92
      Rather than provide the trial court with an opportunity to analyze Dr.
Quinton's testimony to determine whether, based on Rule 403, its content was
more probative than prejudicial, trial counsel failed to object to this or any other
part of his testimony. The substance of Dr. Quinton's testimony risked arousing
the jury's sympathies. Trial counsel therefore cannot be said to have provided
objectively-reasonable assistance such as to assure this Court that Harris's trial on
the merits was fair. See Porter, 558 U.S. at 38-39 (quoting Strickland, 466 U.S. at
688); Smith, 528 U.S. at 285.

      Moreover, counsel's failure to object to Dr. Quinton's testimony prejudiced
Harris's case. The State, for its part, recognized the rhetorical value of drawing
attention to Carlos's death, for prosecutors in their closing arguments twice
compared the manner of Alfredo's death to that of Carlos's in an effort to
demonstrate Harris's intent. (60 RR at 98, 113.) Indeed, on both occasions the
State went so far as to claim that this comparison-a comparison which remains
highly questionable 25-was dispositive of the question of intent. (ld.) Its decision
to focus on Carlos's death thereby magnified the improper effect of Dr. Quinton's
testimony. In short, the damage wrought by the bullets which struck Carlos and
the acuity of the pain he experienced held no probative value whatsoever. By
drawing attention to Carlos's gunshot wounds, the State increased the probability
that its improper questioning of Dr. Quinton would affect the jury's decision-
making and, therefore, that an adjudication of Harris's guilt would be prejudiced.
      These failure       further hamstrung Harris's defense by limiting the
effectiveness of counsel's arguments against the introduction of the unduly
prejudicial photographs of Carlos Gallardo, which photographs were admitted into
evidence during Dr. Quinton'S direct examination. (59 RR at 292.) At a pretrial


      25   See Part C-l, ante.
                                         93
hearing, the trial court itself recognized these depictions to be "gruesome," yet it
rationalized their admission upon musing, "that's what happens when you have a
murder trial." (55 RR at 14.)
      To be sure, "a trial court does not err merely because it admits into evidence
photographs which are gruesome," Sonnier v. State, 913 S.W.2d 511, 519 (Tex.
Crim. App. 1995), but as gruesome photographs become less relevant to the crime
charged so too does their presentation to the jury become more objectionable on
Rule 403 grounds. On one end of the spectrum would be cases such as Sonnier v.
State and Shuffield v. State. In Sonnier, the CCA upheld the trial court's ruling
respecting graphical depictions of the two victims because "they depict[ ed] nothing
more than the reality of the brutal crime committed." (Id. at 514, 519). And in
Shuffield, the Court likewise agreed that images of the victim "show[ed] only the
injuries that the victim received and are no more gruesome than would be
expected." Shuffield, 189 S.W.3d at 787-88.
      In Harris's case, however, the autopsy photographs of Carlos had no bearing
on the crime for which Harris was charged, viz., the robbery and murder of Alfredo
Gallardo. By the trial court's own comments while overruling counsel's Rule 403
objection-again, "that's what happens when you have a murder trial" (55 RR at
14 )-it is clear that this ruling was based, in part, on the mistaken assumption that
the extraneous offense of Harris shooting Carlos could inform the jury's decision-
making with regards to the charged offense. Had trial counsel argued against the
introduction of this extraneous offense evidence, the trial court would have been
called upon to perfonn an entirely different Rule 403 calculation with respect to
the autopsy photographs-one far more favorable to Harris, the result of which
more likely would have favored suppression of the "gruesome" photographic
evidence.


                                         94
   D. Conclusion
      During the guilt/innocence phase of Harris's trial, the State introduced
detailed forensic evidence regarding the death of Carlos Gallardo. This evidence,
however, was not probative as to any element of the crime for which Harris was
indicted-namely, the capital murder of Carlos's brother, Alfredo. The prejudicial
nature of the State's evidence regarding Carlos's death far outweighed any
probative value and surpassed what might even be permissible as "contextual
evidence." By failing to object to the admission of this evidence, trial counsel's
performance was deficient. And as there is a reasonable probability that a jury
would have reached a different verdict had this evidence been excluded, Harris
                                                               26
should receive a new trial. See Strickland, 466 U.S. at 688.
                                  CLAIM FIVE

     HARRIS WAS DENIED DUE PROCESS BY TRIAL COUNSEL'S
    FAILURES TO OBJECT TO PREJUDICIAL, CUMULATIVE, AND
                  INADMISSIBLE EVIDENCE

      During the guilt/innocence phase of Harris's trial, counsel routinely failed to
object to testimony and exhibits which individually and collectively prejudiced
their client's case.   While the Texas Rules of Evidence exist to prevent the
admission of such evidence, these rules remain no more than a dead letter when
counsel at both the trial and appellate level decline or forget to invoke them. In
Harris's case, the excludable evidence served to cast him in an unfavorable light
without contributing meaningfully to the issues before the jury. By these errors
Harris was deprived of his rights under the Texas and United States Constitutions,




      26 To the extent that these arguments should have been raised on appeal,
appellate counsel was ineffective for failing to present them. See Smith, 528 U.S.
at 285.
                                        95
Texas statutory law, and United States Supreme Court and Texas case law; his
conviction, therefore, should be reversed.
   A. Relevant Facts
      As Harris exited the Gallardos' trailer, he immediately confronted first-
responders from the Dallas Police Department who yelled to him to get on the
ground. (See 58 RR at 166, 173.) Harris fired his weapon-a AO-caliber pistol-
while fleeing toward the back of the trailer, where he ran into and was shot by
another officer, Justin Bowen. (Id. at 211-14.) Shortly thereafter, Officer Bronc
McCoy and another officer entered the trailer and discovered Alfredo and Carlos
Gallardo in the bathroom, both men clearly wounded. (59 RR at 14, 18, 39.) The
officers concluded that Carlos was dead but that Alfredo was still alive. (Id. at 18.)
Officer McCoy then attempted to revive Alfredo by performing CPR, during which
time a third officer, Daniel Fogle, entered the bathroom and began to assist. (Id. at
20-21, 39.) Without trial counsel objection, both Officer McCoy and Officer Fogle
testified at length regarding their unsuccessful efforts to save Alfredo's life. (See
id. at 18-25,39-41.)
      Additionally, at the crime scene investigators found a 1987 Ford Crown
Victoria which they later determined was Harris's vehicle.             The car was
impounded, and, pursuant to a search warrant, photographed and searched by
Detective Donald Whitsitt of the Dallas Police Department. (Id. at 132.) Nine
items were collected from the vehicle, including a .22-caliber submachine gun, .22-
caliber ammunition, gloves, and AO-caliber ammunition.          (Id. at 138.) Again
without trial counsel objection, these items were admitted into evidence during the
guilt/innocence phase of Harris's trial. (See State's Exs. 107, 109, 110, lIlA-D.)
   B. Legal Standards
      As mentioned in Claim Four, ante, Rule 403 calls for the exclusion of
relevant evidence "if its probative value is substantially outweighed by the danger

                                         96
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence."
TEX. R.   EVID.   403. In other words, "[t]he prejudicial effect may be created by the
tendency of the evidence to prove some adverse fact not properly in issue or
unfairly to excite emotions against the defendant." Montgomery, 810 S.W.2d at
378 (internal quotations omitted). If relevant evidence has low probative value or
a meaningful potential to influence the jury in an irrational and indelible way, or if
its proponent will require significant time to develop the evidence or has a pressing
need for it, then the Rule 403 balancing test will favor exclusion over admission.
Shuffield, 189 S.W.3d at 787 (citing Montgomery, 810 S.W.2d at 389-90). Finally,
and as is touched upon throughout this Application, both trial and appellate counsel
have a duty to zealously represent their clients, which necessarily includes arguing
against the admission of irrelevant and unfairly prejudicial evidence.            See
Strickland, 466 U.S. at 687-89 (remarking on the breadth of counsel's
responsibilities); Moreno, 22 S.W.3d at 484 (a claim of error having been properly
preserved, finding that the trial court erred in applying Rule 403); Meza, 206
S.W.3d at 689. If there exists a reasonable probability that a jury would have
reached a different verdict had such evidence been excluded, a defendant must
receive a new trial. See Strickland, 466 U.S. at 694.
   C. Trial Counsel Performed Ineffectively by Failing to Object to
      Prejudicial and Cumulative Testimony Concerning the Crime Scene
      and Harris's Shooting at Police Officers, as well as to Prejudicial and
      Inadmissible Evidence Seized from the Ford Crown Victoria
      During its case-in-chief, the State solicited testimony and proffered exhibits
to which trial counsel should have objected. Had they done so, evidence that was
individually and collectively prejudicial to Harris likely would have been excluded,
thereby improving the overall fairness of the proceedings.           That excludable
evidence is discussed below in two parts: first, the crime scene descriptions and
                                           97
references to Harris's shooting at Dallas police officers; and, second, evidence
seized from the Ford Crown Victoria.
     1. Crime Scene Descriptions and References to Harris's Shooting at
        Dallas Police Officers
      On the second day of Harris's trial, the State called as witnesses Dallas
Police Officers Bronc McCoy and Daniel Fogle. (59 RR at 8, 28.) Both Officer
McCoy and Officer Fogle were among the first police officers to enter the
Gallardos' trailer, which they did shortly after Harris had been shot and restrained
as he attempted to flee the scene. (Id. at 13, 37-38.) In addition to the "very
graphic" photographs proffered by the State to aid Officers McCoy and Fogle in
their testimony, (id. at 16 (comment by the trial court); see also State's Exs. 31-42
(crime scene photographs)), the prosecution solicited testimony from Officers
McCoy and Fogle concerning their discovery of Alfredo-then dying-as well as
his deceased brother, Carlos.
      The two officers' descriptions of the cnme scene embody Rule 403's
admonition against "unfair prejudice" and "needless[ly] ... cumulative evidence."
TEX. R. EVID. 403. At length, and in gruesome and inflammatory detail, each
officer recounted finding Alfredo's near-lifeless body as he lay in the Gallardos'
bathtub, bleeding profusely and struggling for air. For his part, Officer McCoy
testified that, "[i]t sounded like [Alfredo] was gurgling on his blood" (59 RR at
18), "he was covered in blood" (id. at 20), "[h]e had one massive [gunshot wound]
into his face" (id.), "[ w]hen I started doing CPR, the more I compressed, the more
blood came out [of his gunshot wounds],' (id.) "when I did the chest compressions,
more blood would come from his face and his chest" (id. at 21), "[h]e was very
slick, I was very siick, we were sweating" (id.) "he was covered in blood" (id.),
"every time I did a chest compression on him, the blood would squirt out
everywhere" (id.), "[h]e was a large individual and was covered in blood" (id. at

                                         98
22), "I could hear his blood flowing down the bathtub" (id.), "[h]e was losing so
much blood" (id.), "we just started grabbing towels and wiping him down" (id. at
23), "I was pretty saturated in his blood" (id. at 25), "I didn't want his family to see
me like that" (id.).
        In similar fashion, Officer Rivera testified that, "[Alfredo] had what
appeared to be a bubbling chest wound from one of the bullet holes," (59 RR at
39), "[the chest wound] appeared to be bubbling, which meant that air was coming
in and out of the lungs through that wound" (id. at 40), "the blood looked to be
bubbling when [Officer McCoy] was doing CPR" (id.), "[Alfredo] was definitely
seriously injured, basically, barely hanging on to life at that point" (id.), "the
gentleman in the bathtub was still kind of gurgling and making noises at that point,
just to indicate he was still alive" (id. at 41), "[h]e was, basically, I think, choking
on blood, attempting to breathe" (id.).
        Even if one might reasonably maintain that some discussion of Officer
McCoy's and Officer Fogle's efforts to resuscitate Alfredo was relevant to an
adjudication of Harris's culpability for Alfredo's death-an assertion Harris
contests-the probative value of the two officers' testimony did not outweigh the
dangers of unfair prejudice and of needlessly presenting cumulative evidence. See
TEX.   R. EVID. 403. Whether blood "squirt[ s]" or "bubble [s]" from an open wound
and makes a recognizable sourid as it flows down a bathtub drain were not issues
properly before the jury, and those details, coupled with the pitiable and gratuitous
description of Alfredo, were guaranteed to "unfairly [] excite emotions against the
defendant." Montgomery, 810 S. W.2d at 378 (internal quotations omitted).
        It also is important to consider the State's active role in soliciting this
unduly prejudicial testimony. A sampling of the prosecutor's questions illustrates
the point:


                                          99
     Q.      And given the amount of blood around his face, did it surprise
             you [Officer McCoy] that he didn't have a pulse?

      Q.     And when you first arrived, you said that his face, in particular,
             was pretty slick and had a lot of blood. Is that representative of
             the amount of blood or did he have more when you first-

      Q.     And when you say that you did not know if he was shot or
             stabbed, describe for the jury how it is that you can't know
             something like that.

      Q.     Okay. And when you [Officer Fogle] said that it was a - I think
             you described it as sucking chest wound; is that right?

      Q.     How did you know air was coming in and out [of the lungs
             through Alfredo's chest wound]?

      Q.     And what condition did you think this individual was in when
             you observed him?

      Q.     And that gurgling, have you heard something like that before?

      Q.     And describe for the jury what your thought was when you
             heard that [gurgling sound].

(59 RR at 19, 21-22, 39-41.) To be sure, Harris's trial could not have been an
anesthetized presentation of the events of March 17, 2009, but this concession does
not absolve the State for its repetitive attention to graphic details wholly irrelevant
to the jury's guilt/innocence determination, nor does it approbate trial counsel's
failures to object to each excessive reference to the victim's disfigurement and

suffering.
      In addition, and not unlike the unfairly prejudicial and cumulative
description of the crime scene provided by Officers McCoy and Fogle, recurrent
references to Harris's shooting at first-responders as he exited the Gallardos' trailer
also infected Harris's trial with undue prejudice. Five of the seven Dallas police

                                          100
officers who testified during the State's case-in-chief addressed the subject. (See
58 RR at 166-67, 172-73, 191,212; 59 RR at 31-32.) This fact was minimally
relevant to an adjudication of Harris's culpability in the shooting death of Alfredo;
by its third or fourth mention, whether Harris had fired at officers of the Dallas
Police Department ceased to edify, became cumulative, and should have been
objected to by trial counsel.     In failing to do so, counsel allowed the jury's
attention to be drawn needlessly and repeatedly to Harris's conduct after he exited
the Gallardos' trailer, the negative character of which further undermined the
fairness of Harris's capital trial for the murder of Alfredo.
     2. Evidence Seized from the Ford Crown Victoria
      During its case-in-chief, the State admitted into evidence a .22-caliber
submachine gun, .22-caliber ammunition, and gloves which had been seized
pursuant to a search ofa 1987 Ford Crown Victoria which had been parked outside
of the Gallardos' trailer and impounded. 27 (See 59 RR at 139 (admitting State's
Ex. 107 (.22-caliber submachine gun); id. at 140 (admitting State's Exs. l11A-D
(gloves); 60 RR at 66 (admitting State's Ex. 109 (.22-caliber ammunition».) The
submachine gun had not been used in the robbery or the shooting, and the forensic
evidence confinned that Alfredo had been shot with a AO-caliber weapon-
specifically, a Glock AO Smith and Wesson. (60 RR at 65; see also 59 RR at 91
(admitting State's Ex. 89).)
      The seized items did not "illuminate[] a circumstance otherwise dimly
perceived by the fact-finder," thus did they lack the legitimate purpose served by
background information. Mayes, 816 S.W.2d at 85. While it might have been bad
enough for the jury to hear evidence irrelevant to the robbery of the Gallardos and



      27Also seized from Harris's car was AO-caliber ammunition. (See 59 RR at
141 (admitting State's Ex. 110).)
                                      101
shooting of Alfredo,28 the connotations of these items helped to foster a prejudicial
image of Harris as a danger to the community. Accordingly, whether on Rule 401,
Rule 403, or 404(b) grounds, the evidence seized from Harris's vehicle should
have been objected to and excluded from the guilt/innocence phase of his trial.
       Trial counsel also failed to object to the admission into evidence of the
Dallas County Jail booking sheet which the State proffered during its direct
examination of Eduardo Arturo Ibarra, a Dallas police detective assigned to the
Special Investigations Unit.     (See 59 RR at 179-80.) Importantly, among the
evidence adduced at trial the booking sheet was the only link between Harris and
the vehicle which held the .22-caliber sub machine gun, .22-caliber ammunition,
and gloves. (Compare State's Ex. 46 (booking sheet listing Harris's license plate
as "RDP 641"), with State's Ex. 45 (showing the license plate of the impounded
1987 Ford Crown Victoria as "RDP 641").) Had the booking sheet been excluded
by way of a timely objection, a proper foundation would not have been laid to
                                       29
introduce these items into evidence.
      And the booking sheet should have been excluded. As the CCA has written,
"[h]earsay is without probative value." Frazier v. State, 600 S.W.2d 271, 272
(Tex. Crim. App. 1979). The contents of an unauthenticated booking sheet are
hearsay; accordingly, they "should not [be] admitted for any purpose." Long v.
State, 590 S.W.2d 138, 140 (Tex. Crim. App. 1979) (panel decision). To remove
this bar, a party that seeks to proffer into evidence a booking sheet must


       28 Among Rule 403' s several concerns is the "danger of ... confusion of the
issues." TEX. R. EVID. 403.
       29 In fact, the State proffered the booking sheet after it had proffered the .22-
caliber submachine gun, .22-caliber ammunition, and gloves. Thus, even if the
booking sheet had been admissible, the State still would have erred by referring to
"Roderick Harris' vehicle" during its discussion of the seized items. (See, e.g., 59
RR at 132.)
                                           102
authenticate the booking sheet per Rule 901 of the Texas Rules of Evidence or
comparable, satisfactory means. Id.; see also TEX. R. EVID. 901 (addressing the
evidentiary requirement of authentication or identification).
       In Harris's case, the Dallas County Jail booking sheet proffered by the State
lacked the hallmarks of authentication which so troubled the Court in Long. (See
State's Ex. 46.) Specifically, the county jail's booking sheet was neither certified
nor signed, and it was offered into evidence during the direct examination of
Detective Ibarra who gave no testimony concerning the preparation of the booking
sheet-whether by his own hand or as a witness thereto. (See 59 RR at 179-80.)
In addition, no steps were taken by the State to authenticate the booking sheet
pursuant to Rule 902 of the Texas Rules of Evidence. See, e.g., TEX. R. EVID.
902(10) (providing for self-authentication of business records); Wood v. State, No.
09-10-00195-CR, 2012 WL 1448333, at *7 (Tex. App.-Beaumont Apr. 25, 2012)
(finding a booking sheet admissible because a custodian of records completed a
business records affidavit). Thus, as was the case in Long, the booking sheet
admitted into evidence at Harris's trial should have been excluded under the
hearsay rule.    See TEX. R. EVID. 802 ("Hearsay is not admissible except as
provided by statute or these rules or by other rules prescribed pursuant to statutory
authority.").   More precisely, trial counsel should have objected to the State's
proffer of the booking sheet, the law on this point being unmistakable.         And
appellate counsel should have raised this issue on direct appeal so as to vindicate
Harris's right to a fair trial uncontaminated by prejudicial and inadmissible
evidence. See Smith, 528 U.S. at 285.
   D. Conclusion
      During the guilt/innocence phase of Harris's trial, counsel routinely failed to
guard against excludable evidence-evidence either irrelevant or unfairly
prejudicial to an adjudication of Harris's culpability for the capital murder of
                                         103
Alfredo Gallardo. Being such, this evidence should have been objected to by trial
counsel, and their failure to do so should have been an error raised on direct
appeal. As there exists a reasonable probability that a jury would have reached a
different verdict had this evidence been excluded, Harris should receive a new
trial. See Strickland, 466 U.S. at 694; Smith, 528 U.S. at 285.
                                    CLAIM SIX

HARRIS'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE
TRIAL COURT REFUSED TO INSTRUCT THE JURY THAT A VOTE BY
       ONE JUROR WOULD RESULT IN A LIFE SENTENCE

       The jury instruction in the Texas capital sentencing scheme violates Harris's
applicable state and federal Constitutional rights, as well as state statutory law and
state case law. Therefore, Harris's death sentence should be vacated.
      Under Texas law, up to three special issues are submitted to the jury during
the sentencing phase of a capital trial: (1) whether there is a probability that the
defendant constitutes a continuing threat to society; (2) whether the defendant
actually caused, intended, or anticipated the death of the deceased; (3) and
whether, considering all the evidence, there are sufficient mitigating circumstances
to warrant life without parole rather than death.30 TEX. CODE CRIM. PROC. art.
37.071, § 2(b)(1 )-(2), (e)(1).
      The court shall sentence a defendant to death if jury answers "Yes" to the
first two special issues and "No" to the third special issue. If the jury returns a
"No" answer to either of the first two special issues, a "Yes" to the third special
issue, or if the jury is unable to answer all of the questions submitted to them under



       30 The second special issue is used in cases where the jury has found a
defendant guilty under the law of parties. TEX. CODE CRIM. PROC. mi. 37.071, §
2(b )(2). In Harris's case the jury was only given the first and third special issues.
(66 RR at 24-25.)
                                         104
these guidelines, the court shall sentence the defendant to life without parole. TEX.
CODE CRIM. PROC. art. 37.071, § 2(g).
      However, the jury is statutorily misinformed about the full impact of the way
it answers these special issues. The jury is instructed that it cannot answer "Yes"
to either of the first two special issues without unanimous agreement and that it
cannot answer "No" to those questions unless at least ten jurors agree. TEX. CODE
CRIM. PROC. art. 37.071, § 2(d)(2). Similarly, the jury is to be instructed that it
may not answer "No" to the third special issue without unanimous agreement and
that it may only answer "Yes" if at least ten or more jurors agree. TEX. CODE
CRIM. PROC. art. 37.071, § 2(f)(2). The jury is informed by the judge that if the
jury unanimously finds a mitigating circumstance under the third special issue, the
defendant will be sentenced to life without parole. TEX. CODE CRIM. PROC. art.
37.071, § 2( e)(2). Yet, the jury is not instructed about, and indeed is prohibited
from being informed of, the effect of failure to agree on any of the questions
submitted to them, which also renders a life without parole sentence. TEX. CODE
CRIM. PROC. art. 37.071, § 2(a)(1).
      Despite objections from defense counsel that this statutory "10-12 Rule"
would mislead the jury, the trial court instructed the jury in accordance with the
statute. Indeed, post-conviction investigation has revealed that at least one juror at
Harris's trial believed that the mitigation evidence presented on Harris's behalf
warranted a sentence of life without parole rather than death. However, because
she believed that the jury's decision needed to be unanimous and she could not
change the minds of the other jurors, she changed her vote-even though she still
believed that there was sufficient evidence to mitigate against a death verdict.
Following deliberations, the jury returned unanimous answers of "Yes" to the
continuing threat question and "No" to the mitigating circumstances question. (66
RR at 103-04.)
                                         105
       Because this statutory scheme misinforms the jury and brings outside
considerations that impermissibly bear on the jury's verdict, the Texas statute
violates the principles of the Eighth and Fourteenth Amendments, depriving Harris
of a fair sentencing trial.
   A. As Applied to Harris's Jury, the "10-12 Rule" Unconstitutionally
      Impaired a Juror's Ability to Answer Special Issue Three
       The Court of Criminal Appeals has held that a juror's free exercise of his or
her own judgment of the merits of each case should not be inhibited by statute or
jury instruction. Draughon v. State, 831 S.W.2d 331, 338 (Tex. Crim. App. 1992)
(citing Mills v. Maryland, 486 U.S. 367 (1988)). Further, the court in Draughon
specifically recognized that this is a danger of the" 10-12 Rule" and the statutory
prohibition of informing the jurors of the true effect of a hung jury. Id. That is, the
court determined that "the danger that jurors, unaware of the operation of the law,
might mistakenly think a sentence other than death to be impossible unless ten of
them agree" was constitutionally suspect. Id. In an effort to minimize this danger,
the court stated that "no juror would be misled" into thinking a vote for death
should be given unless ten or more jurors agreed to a life sentence. Id.
      Yet this scenario-which the CCA believed would never occur in practice-
actually occurred here. Juror Mackey participated in deliberations at both the guilt
and punishment phases of Harris's trial. (Ex. 14 at      ~2   [Aff. of Juror Mackey].)
After hearing punishment phase testimony proffered by the State and the defense,
Juror Mackey believed that "there were several mitigating circumstances which
warranted a sentence of life imprisonment without the possibility of parole" rather
than a death sentence. (ld. at ~4.) Specifically, Juror Mackey thought that Harris's
age, drug use, lack of intervention and family influences were persuasive
mitigating factors favoring a life sentence. (ld.) Juror Mackey has stated that at



                                         106
least two other jurors, Juror Lagrone and Juror Hawkins, likewise initially favored
a life sentence during deliberations. (ld. at ~9.)
        However, Juror Mackey could not persuade other jurors to vote against the
death penalty. (Ex. 14 at ~~5, 10 [Aff. of Juror Mackey].) The jury foreman, Juror
Golz, pushed for the jury's vote to be unanimous. (ld. at    ~11.)   Additionally, the
jury specifically discussed during punishment phase deliberations whether a non-
unanimous verdict would result in a mistrial. (ld. at      ~8.)   According to Juror
Mackey, at least one other juror expressed belief during that conversation that
Harris would "get off' if the jury did not reach a unanimous verdict. (ld.) The
jury even attempted to obtain clarification of this point from the court by sending
the question to the judge. (ld.; see also 66 RR at 98; 2 CR at 692.) In response,
the court merely requested that the jury continue to deliberate, indicating to the
jury that the judge "could not answer our question." (Ex. 14 at      ~8   [Aff. of Juror
Mackey]; see also 66 RR 98; 2 CR 692.)
        As deliberations progressed, the three jurors who initially voted for life-
including Juror Mackey-eventually changed their votes. (Ex. 14 at           ~9   [Aff. of
Juror Mackey].) Juror Lagrone did so after further discussing the language of the
instructions. (ld.) Juror Hawkins held out the longest even though she "seemed
very opposed to giving the death penalty" and changed her vote, in Juror Mackey's
opinion, "so that everyone could go home." (ld.)
        According to Juror Mackey, she eventually changed her vote because she
could not convince the other jurors to give "any weight" to her position that
mitigating circumstances favored a life sentence and she "could not convince
anyone else to vote for life" to get the unanimous vote Juror Golz wanted (Ex. 14
at   ~~10,   11 [Aff. of Juror Mackey].)        Although Juror Mackey would have
continued to deliberate, she "did not feel there were any options left." (ld. at ~11.)


                                          107
She believed then and still believes that "there were sufficient mitigating
circumstances to give Mr. Harris a life sentence." (Id. at ,-r12.)
      Juror Mackey's ability to exercise her individual judgment was impaired by
the fraudulent statutorily-mandated jury instruction that deliberately misstate the
realities of the capital sentencing scheme in Texas. Based on the jury's apparent
understanding of the court's instructions, Juror Mackey would have needed to
convince at least nine of her fellow jurors to answer a special issue in favor of a
life sentence to end the deliberative process. However, accomplishing this was an
impossible task, according to Juror Mackey. Consequently, Juror Mackey turned
to other considerations to resolve the impasse in the jury room.
      As demonstrated by Juror Mackey, the "10-12 Rule" encourages the
consideration of impermissible outside influences during jury deliberations. By
misleading jurors as to the result of their failure to reach a unanimous or ten vote
agreement, the statute improperly coerces juries into death sentences on the basis
of stimuli divorced from the merits of the case.
      It is a classic and common feature of American jurisprudence that when a
jury is unable to agree a mistrial may be declared and a new trial held. Arizona v.
Washington, 434 U.S. 497, 509 (1978); Downum v. United States, 372 U.S. 734,
736 (1963). Yet this option is so costly and cumbersome, the law presumes that
jurors should enter deliberations able to be swayed in their opinion in order to
reach a verdict. Allen v. United States, 164 U.S. 492, 501 (1896). A reasonable
juror should feel the weight of the instructions from the trial court and attempt to
avoid reaching an impasse.
      This concern over having a mistrial understandably rises to new heights in a
capital case. Unlike nearly all other cases, the constitutionally required procedures
and safeguards that take place in a capital trial create an atmosphere in which a
juror is keenly aware of the expense and care being taken.           In this setting, a
                                          108
reasonable juror would understandably be loath to be the cause of a mistrial by
failing to reach a verdict. The jurors are then instructed that they must reach a
unanimous (or ten person) vote in order to answer the special issues in the
punishment phase. Yet, unlike any trials that a juror might be generally familiar
with, under Texas law a verdict will be reached if the jury fails to answer the
special issues during the punishment phase. The law's desire for unanimity no
longer operates.
      By intentionally failing to instruct the jury that a sentence of life without
parole will result, even if the jury fails to reach an agreement on any of the special
issues, the statute misleads jurors about the effects of their vote. A reasonable
juror could, therefore, labor under the impression that a failure to reach an
agreement with the other eleven jurors would result in a costly re-trial. Instead of
operating as an intended incentive to reach a verdict, in a capital case the "10-12
Rule" creates an outside influence on a juror's deliberation and vote, as it did here.
      Juror Mackey's ultimate capitulation to the death sentence given to Harris
was not the result of careful deliberation that changed her answer to the special
issues; rather, it was the result of her very reasonable misunderstanding that
unanimity was required in capital sentencing.           Because the Texas capital
sentencing instructions resulted in an unconstitutional deliberative process in
Harris's case, his death sentence should be vacated.
   B. The Supreme Court Has Invalidated Jury Instructions That Place an
      Added Burden on the Sentencer Before Finding Mitigating
      Circumstances
      In Mills, the Supreme Court considered a capital sentencing scheme that
required jurors to unanimously agree on mitigating factors. Mills, 486 U.S. 367.
In the state of Maryland, the capital sentencing jury proceeded through three
sections of a verdict form. In Section I, the jury was asked to evaluate whether any


                                          109
of ten aggravating factors was present. Id. at 385-86. If the jury unanimously
found at least one aggravating factor, it was instructed to move on to Section II,
where it was instructed to mark "Yes" next to any mitigating factors it
unanimously found. Id. at 386-88. The jury was only instructed to move on to
Section III if one of more of the mitigating factors in Section II had been marked
"Yes.,,31 Id. at 388. If all the mitigating factors in Section II were marked "No,"
the defendant was sentenced to death. Id. at 389.
      In assessing the constitutionality of this sentencing scheme, the Mills Court
noted that "in a capital case 'the sentencer [may] not be precluded from
considering, as a mitigating factor, any aspect of the defendant's character or
record and any of the circumstances of the offense that the defendant proffers as a
basis for a sentence of less than death. '" I d. at 374 (alteration and emphasis in
original) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (quoting
Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion))). The Mills Court
held that the Maryland capital sentencing scheme was unconstitutional because a
reasonable jury could have interpreted the jury instructions and the accompanying
verdict form as requiring that the jury should mark "No" next to a mitigating factor
unless the jurors were unanimous, even if all but one of the jurors thought that
factor was present. See id. at 378-79,384. Given this potential interpretation by a
reasonable juror, there was an unacceptable risk that the jury could be prevented
from reaching the balancing stage even if all twelve jurors believed that some
mitigating circumstance was present but could not agree on a particular mitigating
factor. Id. at 384 ("[T]he sentencer must be permitted to consider all mitigating
evidence. The possibility that a single juror could block such consideration, and


      31 In Section III, jurors were asked to balance the mitigating circumstances
marked "Yes" in Section II against the aggravating circum'stances marked "Yes" in
Section I. Id. at 388-89.
                                        110
consequently require the jury to impose the death penalty,           IS   one we dare not
risk.").
       Similarly, in McKoy v. North Carolina the Supreme Court examined a North
Carolina capital sentencing scheme that burdened the ability of a jury to reach a
life sentence. 494 U.S. 433 (1990). In that case, the requirement that the jury find
the presence of an individual mitigating factor unanimously was explicit in the
statute. Id. at 435. Because the unanimity "requirement prevent[ed] the jury from
considering, in deciding whether to impose the death penalty, any mitigating factor
that the jury does not unanimously find," the North Carolina statute violated the
Eighth and Fourteenth Amendments "by preventing the sentencer from considering
all mitigating evidence." Id.
   C. Conclusion
       Though the CCA has upheld prior constitutional challenges to the "10-12
Rule," these rulings were predicated on the notion that capital jurors would not be
misled by the instructions required by the statute. See Draughon, 831 S.W.2d at
338. But the deliberations that occurred during the punishment phase of Harris's
trial are a clear example of the potential hazard of the "10-12 Rule" that was
dismissed by the CCA. Here, the jury was clearly unsure of the effect of a non-
unanimous vote on the special issue questions, as evidenced by the jury's questions
to the court seeking clarification. (Ex. 14 at   ~8   [Aff. of Juror Mackey]; see also 66
RR 98; 2 CR 692.) Further, at least one juror voiced the position that a non-
unanimous vote would cause a mistrial. (Ex. 14 at           ~8   [Aff. of Mackey].) The
jury's general confusion about the jury instruction coupled with the jury foreman's
push for a unanimous vote resulted in Juror Mackey capitulating to the jury's
ultimate decision, even though she believed mitigation evidence supported a life
sentence. (Id. at   ~~10,   11.) Thus, the "10-12 Rule" unconstitutionally violated
Harris's due process rights to a fair, impartial trial, as well as his Eighth
                                          III
against an arbitrarily imposed punishment.        As such, Harris's death sentence
                     32
should be vacated.
                                         IV.
                             PRAYER FOR RELIEF

      WHEREFORE, Roderick Harris respectfully requests that this Court:
             1. Order an evidentiary hearing for the purpose of examining the
                merits of his claims;
            2. Vacate his death sentence and conviction of capital murder;
             3. Grant any other relief that the law or justice may require.


Respectfully submitted,


DATED: June 11,2014




                                           By     1~~
                                                Ryan Carlyle Kent
                                                Post-Conviction Attorney




      32 For purposes of preservation, Harris further asserts that Article 37.071 is
facially unconstitutional due to the improper inhibitive effects the "10-12 Rule"
has on jury deliberations and the statutorily-mandated false sentencing instructions
regarding the number of votes that will result in a sentence of life imprisonment
without parole.      Because the Texas capital sentencing statute is facially
unconstitutional, Harris's death sentence should be vacated.
                                         112
STATE OF TEXAS                  §
COUNTY OF DALLAS                §

VERIFICATION

    BEFORE ME, the undersigned authority, on this day personally appeared
    Sam Farina-Henry, who upon being duly sworn by me testified as follows:


           1.       I am a member of the State Bar of Texas.

           2.    I am the duly authorized attorney for Roderick Harris, having
           the authority to prepare and to verify Mr. Harris's Application for
           Post-Conviction Writ of Habeas Corpus.

           3.      I have prepared and have read the foregoing Application for
           Post-Conviction Writ of Habeas Corpus, and I believe all allegations
           in it to be true.




    SUBSCRIBED AND SWORN TO BEFORE ME on this 11 th day of June,
    2014.




                                               otary Public, State of Texas

       Notary wIhout Bond




                                        113
                          CERTIFICATE OF SERVICE

I, the undersigned, declare and certify that I have served the foregoing Application
for Writ of Habeas Corpus by hand to:

District Clerk, Writ Desk                      Judge Michael R. Snipes
Frank Crowley Courts Building                  Criminal District Court No.7
133 N. Riverfront Boulevard                    Frank Crowley Courts Building
Lock Box 12                                    133 N. Riverfront Boulevard
Dallas, TX 75207                               Lock Box 54
(Original and one copy, via mail)              Dallas, TX 75207
                                               (One courtesy copy, via mail)

Dallas County District Attorney
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Lock Box 19
Dallas, TX 75207
(One copy, by hand; one copy, bye-mail)

Roderick Harris
Polunsky Unit #999573
3872 FM 350 South
Livingston, Texas 77351
(One copy, by hand)


      This certification is executed on June 11, 2014, at Austin, Texas.

      I declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge.




                                         114
                 EXHIBITB

Order Designating Issues for an 11.071 Hearing
                             NO. W09-00409-Y(A)

EX PARTE                                §
RODERICK HARRIS                         §
                                        §

                     STATE'S PROPOSED                -----DEPUTY
        ORDER DESIGNATING ISSUES FOR AN 11.071 HEARING

      A jury convicted Applicant Roderick Harris of capital murder for the murder

of Alfredo Gallardo in the course of a home-invasion robbery. Pursuant to the

jury's answers to the special issues, the Court sentenced Harris to death on May

21, 2012. Harris filed an Application for Writ of Habeas Corpus in this Court on

June 11,2014, and the State filed its answer on December 10,2014.

      Having reviewed Harris's application and the State's answer, and pursuant

to Article 11.071, Section 9 of the Code of Criminal Procedure, this Court

determines that controverted, unresolved factual issues exist regarding issues

designated as Claims One through Five in Harris's application for writ of habeas

corpus, as follows.

      ( 1) Whether Harris's trial counsel provided ineffective assistance for
      not sufficiently investigating and presenting punishment phase
      evidence that he allegedly suffered from fetal alcohol spectrum
      disorder and was exposed to toxic levels of lead as a child; and
      further, whether counsel should have presented additional expert
      testimony to explain the mitigating impact of his life history.




                                         1
      (2) Whether trial counsel was ineffective in the punishment phase for
      not offering into evidence gang expert testimony to rebut the State's
      evidence of Harris's involvement in a West Dallas street gang.

      (3) Whether Harris's trial counsel was ineffective for not objecting to
      evidence in the punishmeOnt phase that Harris wore a restraint device
      while being transported in a courthouse elevator during jury selection.

      (4) Whether Harris's trial counsel was ineffective and Harris was
      denied due process when trial counsel did not object during the
      guilt/innocence phase to the admission of autopsy photos and the
      medical examiner's testimony regarding the death of Carlos Gallardo
      (the brother of the complainant).

      (5) Whether Harris's trial counsel was ineffective and Harris was
      denied due process when counsel did not raise guilt/innocence phase
      complaints about the admission of (a) crime scene photographs and
      testimony by police officers regarding their attempts to save Alfredo
      Gallardo's life at the scene, (b) police officers' testimony that Harris
      shot at the officers when he exited the Gallardo family's trailer, (c)
      evidence seized from Harris's vehicle, which authorities found parked
      in the driveway next door, and (d) a jail book-in sheet which
      identified Harris' s vehicl~.

      Therefore, the Court designates the issues above numbered one through five

as issues upon which it will receive evidence at a hearing to be scheduled at a date

agreed to by the Court and the parties.

BY THE FOLLOWING SIGNATURE, THE TRIAL COURT HEREBY ADOPTS
THE ABOVE PROPOSED ORDER.

      Signed the     ~+1\ day of     iild. ,2015.


                                          2
                  EXHIBITC

Trial Court's Amended Order on State's Motion for
     Disclosure of Roderick Harris's Trial Files
                Issued April 24, 2015
                                IN CRIMINAL DISTRICT COURT 7
                                    DALLAS COUNTY, TEXAS

EX PARTE                                     )(                    Cause No.
Roderick Harris                              )(                    F09·00409· Y(A)
APPLICANT                                    )(

                   AMENDED ORDER ON STATE'S MOTION FOR DISCLOSURE
                           OF RODERICK HARRIS'S TRIAL FILES


The Court GRANTS the State's Motion for Disclosure of Roderick Harris's Trial Files. The
Defendant's Appellate Counsel sha II disclose only the parts of the Defendant's flies that are
relevant to ineffective assistance of Counsel. The relevant portions of the Defendant's files are
to be provided to the State via electronic copy by May 1,2015, along with a privilege log
describing and categorizing any non-responsive items.
