IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 832176 IN THE 176TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY
Per curiam. Keller, P.J., and Hervey, J., dissented.
O P I N I O N
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of murder, and punishment was assessed at forty years' confinement. Her conviction was affirmed on direct appeal. Abrams v. State, No. 14-00-01295-CR (Tex. App. - Houston [14th Dist.], delivered January 17, 2002, pet. ref'd).
Applicant contends that she received ineffective assistance of trial counsel, because counsel failed to object to the jury charge or request an instruction on self defense and/or defense of property, and failed to investigate these defenses. Furthermore, Applicant alleges that counsel was ineffective for failing to request notice of the State's expert witnesses, failing to voir dire the State's police witness, and failing to challenge her qualifications as an expert witness.
The trial court conducted a habeas hearing and entered findings of fact and conclusions of law, finding that counsel was effective and recommending that relief be denied. Because we do not believe that the record supports the trial court's findings and conclusions, we grant relief, finding that Applicant's trial attorney failed to provide effective assistance under the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). Counsel concedes that he did not perform any independent investigation prior to trial. Although he was aware that Applicant had a self-defense claim that was supported by the evidence, counsel did not argue self-defense at trial, and did not request an instruction on self-defense in the jury charge. Counsel testified at the habeas hearing that he did not argue self-defense because Applicant and her husband refused to raise the defense, maintaining that the stabbing was an "accident." It appears that counsel failed to understand that what Applicant referred to as an "accident" was in fact the basis of a legal self-defense claim.
There is evidence in the record indicating that counsel wanted to argue self-defense, but only under a set of facts that would require Applicant to lie on the stand about the circumstances of the offense. Counsel failed to argue self-defense under the theory supported by Applicant's account of the events, which was that she intentionally stabbed someone whom she mistakenly believed to be an intruder in her home, out of reasonable fear that she would be harmed by that intruder. Only after the stabbing did she realize that the "intruder" was actually her cousin and lover, Christopher Moore. Realizing this, she attempted to save his life by calling 9-1-1, trying to stop the bleeding, and accompanying him to the hospital in the ambulance.
The record of the trial shows that counsel's cross-examination of the State's witnesses consisted almost entirely of trying to get each witness to concede that the stabbing could have been "accidental." Defense counsel called only two witnesses for the defense; Applicant and her husband. After Applicant conceded on cross-examination that she stabbed the victim with the intent to hurt him (although she was under the mistaken impression that he was an intruder), counsel continued to argue that she lacked the required intent to commit murder. Although the State was not required to prove that Applicant intended to kill Christopher Moore, specifically, counsel's only argument in her defense was that she lacked intent. It has long been held that a criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance of counsel. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982); Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). In this case, counsel demonstrated no clear understanding of the law of self-defense, defense of property, mistake of fact, or the intent required to prove murder. Applicant's defense was certainly prejudiced by counsel's failure to understand the law applicable to the case, because by failing to request an instruction on self-defense or defense of property, counsel gave the jury no option but to convict Applicant of murder.
Applicant also alleges that counsel was ineffective for failing to challenge the testimony of a State's witness, Officer Stacy Suro. Officer Suro, part of the Crime Scene Unit that collected evidence at the scene, testified at trial that, based on the blood spatters she observed in Applicant's bathtub, the bathtub was not wet when the blood spatters were deposited. Officer Suro's testimony, which drew no objection from the defense, conflicted with Applicant's claim that she had been taking a bath when she heard noises in the other room, leading her to believe that there was an intruder in her apartment. During closing arguments, the prosecutor argued (again without objection) that Officer Suro's testimony showed that Applicant was lying.
During the habeas hearing, defense counsel testified that he did not move for notification of the State's expert witnesses under Article 39.14(b) of the Texas Code of Criminal Procedure, or challenge Officer Suro's qualifications as a blood spatter expert under Texas Evidence Rule 704(b) because "it doesn't work." Counsel also testified that he did not believe that Officer Suro's testimony was relevant in any way to the defense theory. Counsel persisted in this view despite the fact that the State used the testimony to undermine Applicant's credibility and negate the only defensive theory raised by the evidence.
The trial court in its habeas findings finds that Officer Suro was not presented as an expert, and that her testimony was "lay opinion" testimony rather than expert testimony. The court appears to rely on Officer Suro's testimony during the habeas hearing, in which she asserted that she was not and is not now qualified to testify as an expert on blood spatter evidence. However, Officer Suro's lack of expert qualifications do not automatically render the testimony she gave at trial "lay opinion" testimony. The fact that Officer Suro was not qualified to testify as an expert is precisely the reason why counsel should have challenged her testimony.
Applicant was clearly prejudiced by counsel's failure to challenge Officer Suro's testimony. Applicant has submitted an affidavit from an expert in forensic science, Professor Edward E. Hueske. It is Professor Hueske's opinion, after reviewing the evidence in this case, that Officer Suro's conclusions are not supported, and that there was, in fact, evidence indicating that the tub was still wet when the bloodstains were deposited. If the jury had heard Professor Hueske's opinion, or if the defense had challenged Officer Suro's qualifications and testimony, there is a reasonable chance that the result of the trial would have been different.
We believe that Applicant has met her burden of showing that counsel's performance was deficient, and that counsel's errors were so serious as to deprive Applicant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1984). Habeas corpus relief is granted. The trial court's judgment is vacated, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the indictment.
DO NOT PUBLISH
DELIVERED: March 29, 2006