ACCEPTED
03-15-00316-CR
8155350
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/9/2015 11:28:26 AM
JEFFREY D. KYLE
CLERK
No. 03-15-00316-CR
FILED IN
______________________________________________________
3rd COURT OF APPEALS
AUSTIN, TEXAS
12/9/2015 11:28:26 AM
In The Court of Appeals JEFFREY D. KYLE
For The Third Court of Appeals District Clerk
Austin, Texas
______________________________________________________
Heather Lauren Richards,
Appellant,
v.
The State of Texas,
Appellee.
______________________________________________________
ON APPEAL FROM THE 207th DISTRICT COURT, COMAL
COUNTY, TEXAS TRIAL COURT CAUSE NO. CR2014-091
______________________________________________________
BRIEF FOR APPELLANT REQUESTING ORAL
ARGUMENT
______________________________________________________
Amanda Erwin
State Bar No. 24042939
109 East Hopkins Street, Suite 200
San Marcos, Texas 78666
Telephone: (512) 938-1800
Telecopier: (512) 938-1804
Amanda@TheErwinLawFirm.com
Counsel for Heather Lauren Richards
Identity of Parties and Counsel
Appellant:
Heather Lauren Richards
Appellate Counsel:
Amanda Erwin
The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200
San Marcos, Texas 78666
Telephone: (512) 938-1800
Telecopier: (512) 938-1804
Trial Counsel:
John Olson
20634 Creek River
San Antonio, Texas 78259
Telephone: (210) 307-0336
Wayne Huff
P.O. Box 2334
Boerne, Texas 78006
Telephone: (210) 488-4440
Appellee:
The State of Texas
Appellate Counsel:
Joshua Presley
Chief Appellate Prosecutor
Comal County Criminal District Attorney’s Office
150 N. Seguin, Suite 307
New Braunfels, Texas 78130
Trial Counsel:
Chari Kelly and Jacqueline Doyer
Comal County Criminal District Attorney’s Office
150 N. Seguin, Suite 307
ii
New Braunfels, Texas 78130
Trial Judge:
Hon. Dibrell W. Waldrip
iii
Table of Contents
Page
Identity of Parties and Counsel …....….…………………...ii
Table of Contents ………….………………..iii
Index of Authorities …………………………...iv
Statement of Case …………………………...1
Oral Argument Requested …………………………...2
Statement of Facts …………………………...2
Summary of the Argument …………………….........14
Appellant’s Point of Error One ………………………….16
Appellant’s Point of Error Two ………………………….26
Appellant’s Point of Error Three ………………………….38
Appellant’s Point of Error Four ………………………….44
Prayer ………………………….50
Certificate of Service ………………………….51
Certificate of Word Compliance ………………………….52
iv
Index of Authorities
Page
Cases
Apolinar v. State, 155 S.W.3d 184 (Tex. Crim. App. 2005) ………...42
Barshaw v. Sate, 342 S.W.3d 91 (Tex. Crim. App. 2011) …………..40
Bell v. Cone, 535 U.S. 685 (2000) ………………………..28
Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986) …………….29
Buttefield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) ………..20
Coffey v. State, 796 S.W.2d 175 (Tex. Crim. App. 1990) …………...20
Collier v. Turpin, 155 F.3d 1277 (11th Cir. 1998) ……..…………….28
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) ……………49
Ex Parte Shorthouse, 640 S.W.2d 924 (Tex. Crim. App. 1982) …….20
Hardwick v. Crosby, 320 F.3d 1127 (11th Cir. 2003) ………………..28
Jackson v. State, 766 S.W.2d 504 (Tex. Crim. App. 1985) ………....29
Kastigar v. United States, 406 U.S.441 (1972) …..………………..20
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997) ……………..40
Kyles v. Whitley, 514 U.S. 419 (1995) ………………………..35
Maness v. Meyes, 419 U.S. 449 (1975) ………………………..20
Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) ………………………28
McCarty v. State, 257 S.W.3 238 (Tex. Crim. App. 2008) ………….39
McMann v. Richardson, 397 U.S. 759 (1970) ………………………26
v
Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999) …………………….28
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) ……45
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) …………...40
Paris v. State, 35 Tex.Crim. 82 (1885) ………………………..25
Profitt v. Waldron, 831 F.2d 1245 (5th Cir. 1987) …………………...29
Strickland v. Washington, 466 U.S. 668 (1984) ……………………..26
Thompson v. State, 514 S.W.2d 275 (Tex. Crim. App. 1974) ……….22
United States v. Dominguez Benitez, 542 U.S. 74 (2004) …………...27
Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) …………….39
Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000) ……………...29
Wiggins v. Smith, 539 U.S. 510 (2003) ………………………..27
Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) ……….26
Statutes
TEX. CODE CRIM. PROC. § 1.04. ……………………16
TEX. CODE CRIM. PROC. § 2.03. ……………………17
Rules
TEX. R. APP. P. 9.4 ……………………...9
TEX. R. APP. P. 9.5 ……………………...8
TEX. R. EVID. 402 …………………….44
TEX. R. EVID. 403 ……………………..44
vi
TEX R. EVID 802 …………………….39
TEX R. EVID 803 …………………….39
vii
Statement of the Case
This is an appeal from a criminal proceeding. On February 12, 2014, a
Comal County grand jury returned an indictment charging the Appellant,
Heather Lauren Richards, with one count of Attempt to Commit Capital
Murder with the Underlying offense of Kidnapping, one count of
Aggravated Kidnapping, one count of Aggravated Sexual Assault, one count
of Aggravated Robbery, and one count of Tampering with Physical
Evidence. (1 CR 15).
On May 5, 2015, after being duly selected, a jury was sworn. (6 RR
15). Ms. Richards entered a plea of not guilty to all the offenses as
contained in the indictment. (6 RR 21). The jury subsequently found Ms.
Richards guilty on all five counts, and further assessed punishment at fifty
(50) years confinement in the Institutional Division of the Texas Department
of Criminal Justice, and a zero (0) dollar fine on all five counts. (1 CR 279-
293). The trial court certified Ms. Richards’ right to appeal. (1 CR 234).
Notice of appeal was timely filed. (1 CR 236).
Statement of the Issues
Point of Error One:
Appellant was denied due process and the presumption of innocence
when the trial court compelled the testimony of all three codefendants during
1
the Appellant’s trial
Point of Error Two:
Appellant was denied the effective assistance of counsel.
Point of Error Three:
It was error for the trial court to admit State’s Exhibit 70, inadmissible
hearsay.
Point of Error Four:
It was error for the trial court to admit irrelevant and inflammatory
photographs during the punishment phase of trial.
Oral Argument Requested
The Appellant respectfully requests that oral argument be granted in
this case.
Statement of Facts
This is an appeal from a criminal proceeding. On February 12, 2014, a
Comal County grand jury returned an indictment charging the Appellant,
Heather Lauren Richards, with one count of Attempt to Commit Capital
Murder with the Underlying offense of Kidnapping, one count of
Aggravated Kidnapping, one count of Aggravated Sexual Assault, one count
of Aggravated Robbery, and one count of Tampering with Physical
Evidence. (1 CR 15).
2
On May 5, 2015, after being duly selected, a jury was sworn, (6 RR
15). Ms. Richards entered a plea of not guilty to all the offenses as
contained in the indictment. (6 RR 21). The State made an opening
statement, and the Defense did not. (6 RR 22-33). The State then called the
alleged victim, Ms. Dana Huth. (6 RR 33).
Ms. Huth testified that she currently was residing in the Comal County
Jail because she had a pending motion to revoke her felony possession of
controlled substance probation out of Comal County. (6 RR 34). Ms. Huth
testified that at the time of the alleged offense, she was in a sexual
relationship with a Travis Nealon. (6 RR 39). Ms. Huth testified that she
believed Mr. Nealon and Ms. Richards were just roommates. (6 RR 41).
On December 8th, 2013, Ms. Huth and her friend Clint went to a Big
Mike’s House; Big Mike was also a codefendant but passed away in the
Comal County Jail awaiting trial. (6 RR 42). Trace Smith and Kayla
Lardieri, codefendants of Ms. Richards, were at the home when Ms. Huth
arrived. (6 RR 44). Sometime later, Ms. Richards and Sheena Hopkins,
another codefendant of Ms. Richards, arrived. (6 RR 44).
At some point, Ms. Huth voluntarily went into a bedroom with all three
woman codefendants. (6 RR 45). Ms. Richards confronted Ms. Huth about
having a sexual relationship with her boyfriend, and Ms. Lardieri confronted
3
Ms. Huth about cloning phones. (6 RR 49-50). Ms. Richards tased Ms.
Huth, and told her to take her clothes off. (6 RR 51). After Ms. Huth
removed her clothing, Ms. Lardieri penetrated Ms. Huth’s vagina to see if
she had a wire inside of her vagina. (6 RR 52). Ms. Richards cut Ms.
Huth’s necklace off of Ms. Huth’s neck with a pocketknife. (6 RR 53). Ms.
Richards and Ms. Lardieri began stabbing Ms. Huth. (6 RR 54). Ms. Huth
attempted to open the door to the bedroom, and Mr. Smith pushed her back
inside of the room. (6 RR 57). Ms. Huth was then handcuffed, shackled,
and gagged. (6 RR 57). At some point during the incident, Ms. Richards cut
the back of Ms. Huth’s neck and stated, “where is your God now?” Also, at
some point during the incident, Ms. Richards and Ms. Lardieri repeatedly
kicked Ms. Huth in her head. (6 RR 58). Ms. Huth was blindfolded,
wrapped in a sheet, and removed from the home and left inside of a toolshed
by Mr. Smith. (6 RR 60).
Ms. Huth managed to escape the toolshed, and found shelter in a
neighbor’s vehicle. (6 RR 62-66). Ms. Huth testified that she heard the
Appellant’s vehicle come back to Big Mike’s home at some point during the
night. (6 RR 67). In the morning, the neighbor appeared on her porch, and
Ms. Huth honked the neighbor’s horn to get her attention. (6 RR 69). Ms.
Huth asked the neighbor to not contact the police, but to call her friend Clint
4
Barkley. (6 RR 69). The neighbor called law enforcement. (6 RR 69). Ms.
Huth was hospitalized due to her injuries, and has scars from the altercation.
(6 RR 70).
Next, the State called Mariah Daenman, the women who discovered
Ms. Huth in her vehicle and contacted law enforcement. (6 RR 115-116).
Ms. Daenman testified that Ms. Huth begged her to not call law
enforcement. (6 RR 121).
Next, the State called William James, who testified that he was over at
Big Mike’s the morning after the alleged offense. (6 RR 131).
Next the State called Adrianna De Leon, a deputy at the Comal County
Sheriff’s Office. (6 RR 141). Deputy De Leon responded to the scene
where Ms. Huth was discovered in a vehicle. (6 RR 142). Deputy De Leon
took photographs of Ms. Huth’s condition, and collected physical evidence.
(6 RR 145-146). Over the objection of trial counsel, the Court admitted
Sate’s Exhibit 70, an interview of Ms. Huth at the Christus Sana Rosa
Hospital, in which Ms. Huth is receiving medical treatment and is in
immense pain. (6 RR 172).
Next, the State called Clint Barkley, a friend of Dana Huth, who
brought Ms. Huth to Big Mike’s home the night of the incident. (6 RR 185).
Mr. Barkley testified that he was currently residing in the Comal County Jail
5
waiting to be sent to prison for the offense of aggravated assault. (6 RR
184). Mr. Barkley testified that he thought that he heard Ms. Huth call out
his name when she was in the back bedroom, and also heard a lot of
rumbling, and a “stun gun going off at least 12, maybe as many as 20 times.”
(6 RR 189). Mr. Barkley further testified that he could have gone into the
bedroom, but he would have had to kill everyone in the house to gain entry.
(6 RR 195). The State failed to disclose to trial counsel that Mr. Barkley
had a prior impeachable conviction for murder. (1 CR 301).
Next, the State called Keith Stanislawski, a deputy with the Comal
County Sheriff’s Office. (6 RR 196). Deputy Stanislawski was also
dispatched to the scene where Ms. Huth was discovered. (6 RR 197).
Deputy Stanislawski took photographs of the scene. (6 RR 204).
Next, the State called Adrienne Pierce, a paramedic with the Canyon
Lake Fire EMS. (6 RR 208). Ms. Pierce attended to Ms. Huth and helped
load her into an ambulance. (6 RR 213-216).
Next, the State called Charles Motz, a detective with the Comal County
Sheriff’s Office. (7 RR 21). Detective Motz interviewed the alleged victim
at the University Hospital, and also took photographs of her. (7 RR 22).
The medical records were introduced into evidence through Detective Motz,
and Detective Motz testified that the medical records indicated that the
6
alleged victim used amphetamines on a daily basis. (7 RR 31, 52).
Next, the State recalled William James, who testified that he viewed a
video of the alleged offense. (7 RR 66). Mr. James testified that on the
video, he watched Ms. Richards tackle and hold down Ms. Huth. (7 RR 68).
Next, the State called Chris Garza, a detective with the Comal County
Sheriff’s Office. (7 RR 70). Detective Garza interviewed the alleged victim
when she was released from the hospital. (7 RR 70).
Next, the State called Ernest Ramirez, an officer with the University
Hospital Police. (7 RR 73). Officer Ramirez assisted in a photo line up. (7
RR 75).
Next the State called Jerry Stoval, a friend of Ms. Lardieri, Mr. Smith,
and Big Mike. (7 RR 87-88). Mr. Stoval was at Big Mike’s home the night
of the alleged offense, and testified that he heard “griping and yelling”
coming from the bedroom that the women were in. (7 RR 90). Mr. Smith
and Mrs. Lardieri were living with Mr. Stoval at the time of the incident, and
they returned to Mr. Stoval’s home the evening of the incident. (7 RR 92).
Mr. Stoval further testified that Mr. Smith used one of his burn pits that
evening. (7 RR 94).
Next, the State called Brian Morgan, a sergeant with the Comal County
Sheriff’s Office. (7 RR 99). Sergeant Morgan obtained a search warrant
7
for the residence of Mr. Chapin, or Big Mike, and conducted a search of the
property. (7 RR 100-101). Sergeant Morgan took photographs and a video
during his search. (7 RR 1052-105). Sergeant Morgan also collected
evidence during his search. (7 RR 132). Additionally, Sergeant Morgan
also conducted a search of Mr. Stoval’s home, and recovered items from Mr.
Stoval’s burn pit (7 RR 138-139).
Sergeant Morgan further testified that Ms. Huth identified Ms. Richards
in a photo lineup. (7 RR 144). Sergeant Morgan interviewed Ms. Richards,
and this interview was admitted and published to the jury. (7 RR 149).
Next, the State called Sheena Hopkins, a codefendant, to testify
pursuant to an order of use immunity. (8 RR 38). The State elicited that Ms.
Hopkins was still awaiting trial. (8 RR 38). Ms. Hopkins testified that on
the day of the incident, she went over to Mike Chapin’s home with Ms.
Richards, so that Ms. Richards could talk to Ms. Huth about Ms. Huth
sleeping with Ms. Richards’ boyfriend. (8 RR 40). Ms. Richards brought a
pocketknife and a taser with her to Mike Chapin’s home. (8 RR 40).
Ms. Richards, Ms. Hopkins, and Ms. Lardieri went into a bedroom in
the home, as did Ms. Huth. (8 RR 42). Ms. Richards confronted Ms. Huth
about sleeping with her boyfriend, and Ms. Huth admitted to such and began
to talk negatively about Ms. Richards’ boyfriend. (8 RR 42). Ms. Richards
8
tased Ms. Huth and took Ms. Huth’s phone to see if there was any
communication between Ms. Huth and Ms. Richards’ boyfriend located on
the phone. (8 RR 43).
Ms. Huth was asked to take her clothes off, which she did, and and Ms.
Lardieri penetrated Ms. Huth’s vagina with her fingers to search for a wire.
(8 RR 46). Ms. Huth attempted to get up and leave the room, but Ms.
Lardieri and Ms. Richards tackled Ms. Huth to the ground, and Ms. Richards
held a knife to Ms. Huth’s throat. (8 RR 47). Ms. Lardieri cut Ms. Huth on
the back of her neck, stabbed her in one of her legs, kicked her, stomped on
her, tased her several times, and spit on her. (8 RR 48).
During this, Ms. Richards was just holding Ms. Huth down. (8 RR 48).
Mr. Smith came into the bedroom and instructed the women to “wrap it up,”
and Ms. Hopkins was instructed to get handcuffs. (8 RR 49). Ms. Huth was
then handcuffed, chained up, and wrapped in a blanket. (8 RR 49). Ms.
Richards, Mr. Smith, and Ms. Lardieri took Ms. Huth to a shed. (8 RR 54).
The State impeached Ms. Hopkins several times with testimony that the
State made clear was from another trial proceeding. (8 RR 57-59; 91). Ms.
Hopkins testified that she recorded the incident with Mike Chapin’s cell
phone. (8 RR 60). At some point during the encounter, Mr. Smith held a
shotgun to Ms. Huth’s face. (8 RR 89).
9
Next, the State called Kayla Lardieri, a codefendant, to testify pursuant
to an alleged order of use immunity. (8 RR 98). Ms. Lardieri was dressed
in her jail uniform, and the State elicited that she currently resided in the
Comal County Jail. (8 RR 99). The evening of the alleged offense, Ms.
Lardieri, Ms. Richards, Ms. Hopkins, and Ms. Huth went into a bedroom in
Mike Chapin’s home. (8 RR 105-106).
Ms. Richards confronted Ms. Huth about sleeping with her boyfriend,
which Ms. Huth eventually admitted to. (8 RR 106). Ms. Huth then began
to “talk crap” about Ms. Richards’ boyfriend, and Ms. Richards punched Ms.
Huth. (8 RR 106). Ms. Lardieri confronted Ms. Huth about cloning her
phone, and being a “snitch.” (8 RR 107). Ms. Lardieri testified that Ms.
Richards tased Ms. Huth, and Ms. Richards instructed Ms. Huth to remove
Ms. Huth’s clothing so that they could search Ms. Huth for a wire. (8 RR
109). Ms. Lardieri testified that she did not ever penetrate Ms. Huth’s
vagina, and simply swiped the inside of Ms. Huth’s thigh with Ms.
Lardieri’s hand wrapped around a t-shirt. (8 RR 110).
Ms. Richards than tased Ms. Huth again. (8 RR 112). Ms. Lardieri
testified that Ms. Richards then stabbed Ms. Huth. (8 RR 113). Ms.
Lardieri testified that she did stab Ms. Huth one time, and kick Ms. Huth one
time, but that Ms. Richards kicked Ms. Huth more than five times and Ms.
10
Richards stabbed Ms. Huth “probably” more than ten times. (8 RR 114).
Ms. Huth tried to get away, but Ms. Richards grabbed Ms. Huth by her
hair and pulled her back into the room. (8 RR 114). Ms. Richards then
punched, kicked, and stabbed Ms. Huth more times. (8 RR 114). Ms.
Richards then cut Ms. Huth’s neck, and “it looked like she was trying to cut
her head off.” (8 RR 115). During the altercation, Ms. Lardieri tased Ms.
Huth about ten times. (8 RR 116).
Ms. Richards stated that they might as well finish it off, and burn Ms.
Huth’s body in Ms. Richards’ mother’s fire pit, but Ms. Lardieri talked Ms.
Richards out of this idea. (8 RR 117-118). Mike Chapin instructed
everyone to put Ms. Huth in the shed, and Ms. Huth was handcuffed, and
Ms. Richards gagged her. (8 RR 120). Ms. Huth was then wrapped in a
sheet and carried out to the shed. (8 RR 121). Ms. Lardieri denied having
any knowledge of Mr. Smith destroying the evidence of the incident. ( 8 RR
125-126).
On cross-examination, trial counsel questioned Ms. Lardieri about
whether or not she had a conversation with Amanda Chavira regarding the
alleged offense, and Ms. Lardieri denied such. (8 RR 149). At the bench,
trial counsel indicated to the trial court and the State that trial counsel was
going to file a motion to have certain portions of Ms. Chavira’s testimony
11
admitted, however, this never occurred. (8 RR 150). The trial court
recessed the case for the weekend, as trial counsel indicated that he “hadn’t
even gotten over to the testimony of the other –,” representing to the trial
court that he intended to continue cross-examination; however, on Monday,
trial counsel simply passed the witness. (8 RR 156-157).
The State then called Trace Smith, a codefendant, to testify pursuant to
an alleged order of use immunity. (9 RR 16-17). Before the jury was
brought in, Mr. Smith was repeatedly warned by the trial court that if Mr.
Smith refused to testify, that he could face contempt of court. ( 9 RR 13-
15).
Mr. Smith testified in his jail uniform, and testified that he currently
lived at the Comal County Jail. (9 RR 16). Mr. Smith testified that he had
prior felony convictions for credit card abuse and possession of a controlled
substance. (9 RR 16). Mr. Smith testified that Ms. Huth was a local drug
dealer and con artist, and that he believed Ms. Huth was recording
conversations of Mr. Smith dealing drugs. (9 RR 18).
Mr. Smith testified that he, Ms. Lardieri, Ms. Hopkins, and Ms.
Richards used drugs in the bedroom at Mike Chapin’s home the night of the
alleged offense. (9 RR 25). Mr. Smith went back into the bedroom
sometime later to confront Ms. Huth about the recordings, and then went
12
back to the bedroom a second time, because he was told by Mr. Chapin to
“go shut her the fuck up with a shotgun.” (9 RR 25). Mr. Smith then was
informed that Ms. Huth was bleeding out. (9 RR 29). Mr. Chapin discussed
taking Ms. Huth’s body to a pig farm, and then instructed Mr. Smith to put
Ms. Huth in the shed. (9 RR 29). Ms. Huth was handcuffed, put in a sheet,
and taken to the shed. (9 RR 30). Mr. Smith testified that he destroyed the
evidence of the altercation, and that Ms. Lardieri was aware of this fact. (9
RR 33, 54). Mr. Smith further testified that Ms. Lardieri informed him that
she checked Ms. Huth’s vagina for a wire the evening of the alleged offense.
(9 RR 34).
Next, the State called Santiago Ortiz, a sergeant with the Comal County
Sheriff’s Office. (9 RR 57). The State admitted conversations recorded by
the Comal County Jail between Ms. Richards and Ms. Richards’ Mother. (9
RR 62).
The State rested and closed its case, as did the defense. (9 RR 82).
After argument from the State and Defense, the jury subsequently found Ms.
Richards guilty on all five counts. (1 CR 279-293).
During punishment, the State admitted irrelevant and prejudicial
photographs of Ms. Richards’ home over the objection of defense counsel.
(10 RR 105). The State also published more recorded jail calls of Ms.
13
Richards. (10 RR 117).
Trial counsel alerted the trial court that he had failed to verify the
application for probation that he had filed on Ms. Richards’ behalf. (11 RR
5). Trial counsel called Dr. Marisa Maura as a mitigation witness. (11 RR
11). Trial counsel alerted the Court that he did not have a way to prove that
Ms. Richards was probation eligible, and the trial court and the State decided
that the application for probation should be admitted into evidence. (11 RR
74-82). During deliberations, the jury sent out a note requesting the
sentences of the other trials, and the trial court responded, “no.” (11 RR
113).
The Jury assessed punishment at fifty (50) years confinement in the
Institutional Division of the Texas Department of Criminal Justice, and a
zero (0) dollar fine on all five counts. (1 CR 279-293). The trial court
certified Ms. Richards’ right to appeal. (1 CR 234). Notice of appeal was
timely filed. (1 CR 236).
Summary of the Argument
The State and the trial court forcing all three codefendants to testify in
Ms. Richards’ trial denied Ms. Richards her due process and presumption of
innocence. This was the equivalent of a modern day Roman Triumph,
parading the codefendants, two of which had been previously found guilty,
14
in front of the jury. The very nature of proceedings like the one at hand, in
which codefendants are forced to testify without immunity orders signed by
the court, and without the benefit of counsel, simply encourages all of the
participants to minimize their conduct and project it on another one of the
accused. Such proceedings are inherently unreliable and are alien to the
American experience and are the precise reason why the Fifth Amendment
exists.
Ms. Richards was denied effective assistance of counsel, as trial
counsel did not seek a continuance or funds to find an essential witness for
the defense, Amanda Chavira. The only definite strategy of trial counsel
that can be gleamed from the record, was to minimize Ms. Richards' conduct
and attempt to paint Ms. Lardeiri as the main aggressor; and there was not a
more effective way to do this than to call Ms. Chavira as a witness for the
defense.
Ms. Richards was also denied effective assistance of counsel by not
having any input in deciding who was to assess her punishment. It is clear
that Ms. Richards was not involved in the punishment election, as the
election paperwork does not contain her signature, her application for
probation was not verified, and trial counsel did not have a way to prove that
Ms. Richards was probation eligible.
15
It was error for the trial court to admit State’s Exhibit Number 70, a
recording of the alleged victim receiving medical treatment at a hospital.
State’s Exhibit Number 70 is inadmissible hearsay, as it does not fall under
the excited utterance hearsay exception. Sate’s Exhibit Number 70 contains
unsettling screams of pain and anguish from the alleged victim as she is
being treated at the hospital, and certainly had the affect of disturbing the
jurors and in turn negatively impacting Ms. Richards’ case.
Lastly, it was error for the trial court to admit irrelevant and highly
prejudicial photographs during the punishment phase. These photographs
only served to inflame the passions of the jury, and to paint Ms. Richards as
an extremely violent person, a sexual deviant, and a horrible mother.
Point of Error One
Rule of Law
Under the Texas Code of Criminal Procedure Article 1.04, “No citizen
of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the
law of the land.” TEX. CODE CRIM. PROC. § 1.04. Ms. Richards would
contend that the State and the trial court compelling all three codefendants to
testify in Ms. Richards’ trial violated her right to due process. Id.
16
Further, under the Texas Code of Criminal Procedure, Article 2.03
(b), it is the duty of the trial court, the attorney representing the accused, the
attorney representing the state and all the peace officers to so conduct
themselves as to insure a fair trial for both the state and the defendant, [and]
not impair the presumption of innocence. TEX. CODE CRIM. PROC. §
2.03. Ms. Richards would contend that both the trial court and the State
breached this duty under Article 2.03, when they compelled all three
codefendants to testify in Ms. Richards’ trial.
Analysis
The trial court and the State compelled all three codefendants to testify
in Ms. Richards’ trial based on Orders Requiring Testimony and Granting
Use immunity. (8 RR 38, 98); (9 RR 16-17). However, the trial court only
actually signed an Order Requiring Testimony and Granting Use Immunity
for one of the codefendants, Ms. Hopkins. (1 CR 210-202). The record
reflects that Mr. Smith and Mr. Lardieri’s Orders were never actually signed
by the trial court, or ruled upon by the trial court, and therefore, Ms.
Richards’ contends that her due process was violated because the two
codefendants testified pursuant to purported orders compelling their
testimony, when in fact no such orders existed. (1 CR 174-188).
It is clear that previously sentenced codefendants, Mr. Smith and Ms.
17
Lardieri, would not have voluntarily testified without such alleged Orders in
place, as demonstrated by the trial court repeatedly admonishing Mr. Smith
outside the presence of the jury, that if he refused to testify he would be held
in contempt. (9 RR 13-15).
The State will likely contend that the trial court’s actions in
admonishing Mr. Smith demonstrates that the trial court’s Order Requiring
Testimony and Granting Use Immunity was in effect, even though it was
never actually signed or urged to be signed or ruled upon by the State. (1
CR 174-188); (9 RR 13-15). However, the Court never admonished Ms.
Lardieri, and only the State made reference to the alleged Orders when
introducing Ms. Lardieri to the jury. (8 RR 100). Therefore, at the very
least, it was error for Ms. Lardieri’s testimony to be compelled, and the
State’s actions violated Ms. Richards’ due process rights and impaired her
presumption of innocence. TEX. CODE CRIM. PROC. § 1.04; TEX.
CODE CRIM. PROC. § 2.03.
Even if the Court were to hold that the trial court’s failure to rule on the
Applications and failure to enter an order on the Applications was not error,
the State’s Applications contained errors that would make the Court’s
reliance on just the Applications infeasible. (1 CR 181, 186). For, the
Application for Ms. Lardieri, requests the trial court to “enter an Order
18
requiring Lardieri to appear and testify at the defendant’s trial in the 207th
Judicial District Court, Cause No CR 2014-090.” (1 CR 181). This
Application states an incorrect Cause Number, as this was the trial court
cause number for Ms. Lardieri’s own trial. (1 CR 307). This same error is
found in the Application for Mr. Smith, asking that he be ordered to appear
and testify in Ms. Lardieri’s trial cause number. (1 CR 186, 307). Without a
ruling or order from the trial court, these incorrect Applications should not
be construed as adequate to compel testimony in Ms. Richards’ trial; Ms.
Richards' asserts that this error affected her due process rights and impaired
her presumption of innocence. TEX. CODE CRIM. PROC. § 1.04; TEX.
CODE CRIM. PROC. § 2.03.
Even if the Court were to find that there is enough in the record to
support the State’s likely position that it can be implied that the trial court
had ordered the testimony of all three codefendants, then Ms. Richards
maintains that this compulsion violated her due process rights and impaired
her presumption of innocence. TEX. CODE CRIM. PROC. § 1.04; TEX.
CODE CRIM. PROC. § 2.03. While Federal and Texas Courts have upheld
Orders Requiring Testimony and Granting Use immunity as passing
constitutional muster in regard to the person who is ordered to provide
testimony, or to a person on trial when a codefendant invokes their
19
constitutional right to remain silent, Federal and Texas Courts have not
analyzed the constitutional impact of Orders Requiring Testimony and
Granting Use immunity on a defendant when multiple codefendants are
compelled to testify in a defendant’s trial, and do testify. Maness v. Meyes,
419 U.S. 449, 462 (1975); Kastigar v. United States, 406 U.S.441 (1972); Ex
Parte Shorthouse, 640 S.W.2d 924 (Tex. Crim. App. 1982); Coffey v. State,
796 S.W.2d 175 (Tex. Crim. App. 1990); Buttefield v. State, 992 S.W.2d
448 (Tex. Crim. App. 1999).
In Ex Parte Shorthouse, the Texas Court of Criminal Appeals
examined the issue of use immunity, and whether it violates a person’s
constitution right to remain silent, and held that it does not. Ex Parte
Shorthouse, 640 S.W.2d 924 (Tex. Crim. App. 1982). However, the Court
in Ex Parte Shorthouse examined the issue of use immunity only in the
context of compelling testimony in a grand jury proceeding, and only under
the context of Texas Penal Code § 71.04, which codifies Testimonial Use
Immunity in the limited context of Engaging in Organized Criminal
Activity. Id.
In Coffey v. State, the Texas Court of Criminal Appeals examined the
issue of use immunity in the context of whether a defendant’s rights were
violated by the State calling a witness before the jury knowing that the
20
witness intended to invoke their Fifth Amendment right to remain silent not-
withstanding a grant of use immunity. Coffey v. State, 796 S.W.2d 175
(Tex. Crim. App. 1990). The Court reasoned that there was not error,
because the witness had been granted use immunity for their testimony, they
did not have a valid basis to refuse to testify. Id. at 179.
In Buttefield v. State, the Texas Court of Criminal Appeals examined
the issue of use immunity in the context of the State prosecuting a witness
for perjury who was compelled to testify with out an order in place.
Buttefield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). The Court
concluded that the compelled statement could be used in a perjury trial. Id.
at 452.
In the case at hand, Ms. Richards is claiming that her due process rights
and her presumption of innocence were directly impacted and affected by
the State and the court compelling the testimony of her three codefendants
during her trial; this issue has never been examined, and Ms. Richards
implores the Honorable Court to consider such. TEX. CODE CRIM. PROC.
§ 1.04; TEX. CODE CRIM. PROC. § 2.03. In the case at hand, the
codefendants were paraded in front of the jury in their jail uniforms, and the
jury was informed that they were currently residing in the Comal County
Jail. (8 RR 99); (9 RR 16). The fact that Ms. Richards’ codefendants were
21
wearing clearly identifiable jail clothes gave a perception that Ms. Richards
was also guilty of the offenses, undermining Ms. Richards’ presumption of
innocence, and violating her due process, since the State heavily relied on
party and conspiracy theories to prove the State’s case. (8 RR 99); (9 RR
16). Furthermore, the jury charge contained instructions regarding party and
accomplice theories, therefore, leaving the jury no option but to find that Ms.
Richards was just as guilty as her cohorts. (11 RR 113). For, the jury was
made fully aware that the other codefendants had been found guilty of the
offenses and were serving sentences for the offense when the State and the
trial court forced the codefendants to testify in their jail uniforms; we know
the jury was aware that other codefendants were previously convicted and
sentenced for the same offenses that Ms. Richards’ was on trial for, because
the jury requested to know the sentences of the codefendants when they
were assessing Ms. Richards' punishment. (11 RR 113). Therefore, it would
be disingenuous for the State to argue that the codefendants being paraded in
front of the jury in their jail clothes did not impair Ms. Richards’
presumption of innocence or her due process rights. The State will likely
argue that the issue of codefendants wearing jail uniforms has already been
analyzed and upheld by the Texas Court of Criminal Appeals in Thompson
v. State. Thompson v. State, 514 S.W.2d 275 (Tex. Crim. App. 1974).
22
However, Thompson can be distinguished form the case at hand, because in
Thompson, the witnesses were determined to be safety threats by the trial
court, and more importantly, the witnesses were not being compelled by the
trial court to testify in that proceeding. Id.
Further impeding Ms. Richards’ presumption of innocence and due
process is the fact that codefendant Smith testified that he had prior felony
convictions for credit card abuse and possession of a controlled substance; if
the trial court had not forced Mr. Smith to testify, the jury would not have
known this information, and in turn linked Ms. Richards with someone with
felony convictions. (9 RR 16).
Moreover, Ms. Richards contends that her presumption of innocence
and right to due process were negatively impacted by the trial court forcing
all three codefendants to testify because it created an atmosphere conducive
to untruthful and self serving testimony. TEX. CODE CRIM. PROC. §
1.04; TEX. CODE CRIM. PROC. § 2.03. A thorough reading of the record
of the compelled testimony of the three defendants illustrates that the
codefendants were eager to shift emphasize from their own guilty and cast
blame on Ms. Richards, and were also untruthful in their testimonies. (8 RR
113-115). For example, Ms. Lardieri consistently was untruthful about
perpetrating aggravated sexual assault against Ms. Huth, and repeatedly
23
denied penetrating or making contact with Ms. Huth’s vagina, even though
Ms. Huth testified that she was in fact penetrated by Ms. Lardieri, Ms.
Hopkins testified that she witnessed Ms. Lardieri penetrated Ms. Huth’s
vagina, and Mr. Smith testified that Ms. Lardieri told Mr. Smith that she
penetrated Ms. Huth’s vagina. (6 RR 52); (8 RR 46, 110); (9 RR 34). The
record reflects that Ms. Lardieri also repeatedly attempted to minimize her
conduct and paint Ms. Richards as the main aggressor, and even added
inflammatory testimony that no other witnesses corroborated, that Ms.
Richards wanted to burn the alleged victim’s body the evening of the
offense. (8 RR 113-115). Additionally, Ms. Hopkins had to be impeached
by the State several times with trial testimony from previous trials. (8 RR
57-59, 91).
Lastly, The Application for Order Requiring Testimony and Granting
Use Immunity claims that all codefendants were “material witnesses,” and
that the codefendants’ “testimony could not be obtained by any manner or
method other than this Court ordering [them] to testify truthfully. (1 CR
174). Further, the language in the Order Granting Use Immunity for Ms.
Hopkins, the only Order that was actually signed by the court, provided that
Ms. Hopkins “is a material witness in the case against Heather Lauren
24
Richards, and the testimony sought by the State may be necessary to the
public interest and so that justice may be served.” (1 CR 187).
The compelled testimony of the codefendants was far from
“necessary” in this case, for the record is seething with evidence for the
State to prove its case against Ms. Richards without forcing the codefendants
to testify; the State had the testimony of the alleged victim, her hospital
records, testimony of law enforcement, testimony of witnesses that were
there the evening of the incident, testimony of the neutral witnesses that
discovered the alleged victim, testimony of a witness who viewed a video of
the alleged offense occurring, and even a video confession from Ms.
Richards, as well as jail recordings from Ms. Richards implicating her guilt.
(6 RR 38, 115, 145, 185, 196); (7 RR 31, 66, 70. 75, 87, 99, 149); (9 RR 57).
As the Texas Court of Criminal Appeals articulated over a century
ago in Paris v. State, “Every citizen, when placed upon trial for his life, is
entitled to a trial according to the due course of the law of the land; and the
rules of evidence in the admission of testimony, and the application of rules
of law to admitted testimony, are as much a part of the law of the land as
trial by jury itself. These rules of law may be termed by some technicalities,
but they accord with a fair and impartial trial, and are founded in the wisdom
of experience; and moreover, some of these constitute the safeguards and
25
bulwarks of human rights, and, whenever and wherever they have been
disregarded or ignored, that era has marked the decadence of human
freedom.” Paris v. State, 35 Tex.Crim. 82, 96 (1885). Ms. Richards asserts
that she suffered a grave injustice when the State and the trial court forced
all three of her codefendants to testify in her trial, and therefore asks the
Court to reverse the convictions below.
Point of Error Two
Rule of Law
A defendant in a criminal case is entitled to effective assistance of
counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).
Furthermore, counsel must act within the range of competence demanded of
counsel in criminal cases. McMann v. Richardson, 397 U.S. 759 (1970).
In Strickland v. Washington, the United States Supreme Court
established the federal constitutional standard for determining whether
counsel rendered reasonably effective assistance. Strickland v. Washington,
466 U.S. 668 (1984). The defendant first must show that counsel’s
performance was deficient; that counsel made errors so serious that he was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Id. at 687. Second, the defendant must show that the deficient
performance prejudiced the defense; that counsel’s errors were so serious as
26
to deprive the defendant of a fair trial with a reliable result. Id. at 692. The
defendant must identify specific acts or omissions of counsel that are alleged
not to have been the result of reasonable professional judgment. Id. at 690.
The reviewing court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the range of
professionally competent assistance. Id. Ultimately, the defendant must
show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
Counsel’s performance is measured against an “objective standard of
reasonableness under prevailing professional norms.” Wiggins v. Smith, 539
U.S. 510, 527 (2003). The prejudice an applicant must show is by less than
a preponderance of the evidence because “[t] he reasonable-probability
standard is not the same as, and should not be confused with, a requirement
that a defendant prove by a preponderance of the evidence that but for error
things would have been different.” United States v. Dominguez Benitez, 542
U.S. 74, 82 n. 9 (2004).
27
While the Appellant must overcome the “strong presumption” that
counsel’s challenged conduct “might be considered sound trial strategy,”
counsel may not insulate challenged conduct from review by claiming it was
“strategic.” Bell v. Cone, 535 U.S. 685, 698 (2000). Whether counsel’s
conduct was strategic is a question of fact, but whether it was objectively
reasonable is a question of law, to which no deference is owed. Collier v.
Turpin, 155 F.3d 1277, 1290 (11th Cir. 1998). As explained in Strickland,
the issue of ineffective assistance of counsel is not a question of “basic,
primary, or historical fact,” and “both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and
fact.” Strickland, 466 U.S. at 698. Moreover, strategic choices are entitled
to deference only to the extent they are based on informed decisions. Id. at
690-691.
This Court is “not required to condone unreasonable decisions
parading under the umbrella of strategy, or to fabricate tactical decisions on
behalf of counsel when it appears on the face of the record that counsel
made no strategic decision at all.” Moore v. Johnson, 194 F.3d 586, 604 (5th
Cir. 1999). See also Hardwick v. Crosby, 320 F.3d 1127, 1186 (11th Cir.
2003) (“The mere incantation of ‘strategy’ does not insulate attorney
behavior from review.”); Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir.
28
1984) (“even deliberate trial tactics may constitute ineffective assistance of
counsel if they fall outside the wide range of professionally competent
assistance”); Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000)
(“the label ‘strategy’ is not a blanket justification for conduct which
otherwise amounts to ineffective assistance of counsel”); Profitt v. Waldron,
831 F.2d 1245, 1248 (5th Cir. 1987) (“This measure of deference [to a claim
of trial strategy] must not be watered down into a disguised form of
acquiescence.”). Lastly, it is possible that a single egregious error of
omission or commission by appellant’s counsel constitutes ineffective
assistance of counsel. Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim.
App. 1985).
Analysis
First, Ms. Richards contends that her trial counsel was ineffective in
not calling Ms. Amanda Chavira as a witness, or seeking a continuance to
obtain Ms. Chavira’s presence. Profitt v. Waldron, 831 F.2d 1245, 1248 (5th
Cir. 1987). Ms. Chavira was available to testify, and Ms. Chavira’s
testimony would have benefited Ms. Richards. Butler v. State, 716 S.W.2d
48, 55 (Tex. Crim. App. 1986). Trial counsel provided an affidavit
addressing this issue, in which he concedes that he did not file a motion for
29
continuance when he could not get Ms. Chavira served. (1 CR 265).
Appellant asserts that there was no possible strategy in failing to ask for a
continuance, or ask the Court for funds to hire an investigator to find Ms.
Chavira. Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987).
Trial counsel’s own Motion for Production of Amanda Chavira’s
Present Physical Address, filed on April 30, 2015, exemplifies this point; for
in trial counsel’s motion, he asserts that Ms. Chavira’s testimony is
absolutely essential to the Defendant’s defense. (1 CR 268-271). Trial
counsel further states in his affidavit that Ms. Chavira contacted him after
Ms. Richards’ trial, therefore, it follows that Ms. Chavira was actually
available to testify in Ms. Richards’ trial, and her favorable testimony could
have been obtained simply by asking for a continuance. (1 CR 265).
Trial counsel further states in his affidavit that he could not
personally find Ms. Chavira, however, he never requested funds for an
investigator to find Ms. Chavira, which Ms. Richards also claims is
ineffective. (1 CR 265). On April 30, 2015, the State gave Ms. Chavira’s
address to trial counsel, pursuant to his motion, and on May 4, 2015 Ms.
Richards’ trial commenced. (1 CR 272). Appellant contends that this is
simply not ample time for an attorney acting without an investigator to
30
locate a necessary witness, especially when he is expected to be preparing
for trial on serious and complicated charges. Id. Further, this several day
period, from when the subpoena was filed for Ms. Chavira, to the start of
trial, was not enough time for an attorney to reasonably presume that an
essential witness will not ever be able to be served because they have not
been served in that time frame. Id.
Mr. Olson attempts to minimize the damage his failure to seek a
continuance caused, by stating in his affidavit that “during trial, I got
Sheena Hopkins to state that Kayla Lardieri cut Dana Huth’s neck, and not
Ms. Richards, which was part of what Ms. Chavira told an interrogating
officer.” (1 CR 265). However, Sheena Hopkins was a codefendant, who
the State argued testified favorably for Ms. Richards in a “last effort to
protect her very best friend,” while Ms. Chavira was an impartial and
unbiased party whose testimony would have been viewed as more credible
by the jury. (10 RR 76).
A thorough reading of the record reveals that trial counsel’s only well-
defined trial strategy was to minimize Ms. Richards’ conduct, and to paint
Ms. Lardieri as the main aggressor, and Ms. Richards contends that direct
testimony from Ms. Chavira would have been the most effective way to
31
employ this strategy. (1 CR 268-271). Bolstering this contention, is the fact
that Ms. Chavira was a State’s witness in the trial against Ms. Lardieri,
precisely because Ms. Chavira’s testimony was so damning against Ms.
Lardieri. (1 CR 268-271). The Appellant formally requested in a Motion to
Supplement the Appellate Record, that Ms. Chavira’s testimony be included
in Ms. Richards’ record for this reason.
Ms. Chavira testified in Ms. Lardieri’s trial that Ms. Lardieri admitted
to Ms. Chavira that Ms. Lardieri put her fingers inside of Ms. Huth “to check
to see if there was something inside of her, like a recording, and then
rammed a screwdriver up her vagina.” (Appellate Cause Number 03-15-
00247-CR 5 RR 71). Ms. Chavira further testified that Ms. Lardieri
admitted that, “she grabbed that bitch’s fucking head, slammed it over here
on her knee. And when she cut it open, that she was going to try to cut her
fucking head off. And when it came out, it looked coagulated and so cool
that she wanted to play with it.” (Appellate Cause Number 03-15-00247-CR
5 RR 73). Ms. Chavira testified that Ms. Lardieri told her that she thought it
was “fucking awesome” when she was tasing Ms. Huth. (Appellate Cause
Number 03-15-00247-CR 5 RR 73). Ms. Chavira described Ms. Lardieri’s
demeanor when she was relaying all of this to Ms. Chavira as, “it was
disgusting, the look in her eyes, like she was smiling, happy, like she was
32
getting off on it. She--every time she would talk about it, I mean, she was
just so happy and just like a kid would talk about, you know, winning some
trophy.” (Appellate Cause Number 03-15-00247-CR 5 RR 74). Ms.
Chavria testified that Ms. Lardieri told her that Trace came in and told them
“it’s time to wrap it up. But no, she said, That bitch--no, she’s not done
with that fucking bitch. That bitch is going to get what she deserves,
something along those lines,” and “at the end of the stabbing when it got
really serious, it was just Kayla.” (Appellate Cause Number 03-15-00247-
CR 5 RR 74). Ms. Chavira testified that Ms. Lardieri relayed to her, that
Ms. Lardieri “thought that bitch was fucking dead” when they put her in the
shed, and that “she thought that bitch got what she deserved.” (Appellate
Cause Number 03-15-00247-CR 5 RR 75). Ms. Chavira lastly testified that
Ms. Lardieri told her that “after the attack, they threw her in there. They
went through her bloody clothes and I think her and Trace had sex…that it
turned her on—not turned her on, but like all the—everything, it turned her
on and made her hot and horny.” (Appellate Cause Number 03-15-00247-
CR 5 RR 76). Clearly, Ms. Chavira’s testimony shows that Ms. Lardieri is a
masochist, who was also the main aggressor in the attack against Ms. Huth,
and this testimony would have allowed for trial counsel’s only defined
33
strategy to be actualized. (Appellate Cause Number 03-15-00247-CR 5 RR
73-76).
Further demonstrating Ms. Richards’ assertions that trial counsel was
ineffective in this vein, is the fact that during the cross-examination of Ms.
Lardieri, trial counsel questioned Ms. Lardieri about whether or not she had
a conversation with Amanda Chavira regarding the alleged offense, and Ms.
Lardieri denied such. (8 RR 149). At the bench, trial counsel indicated to
the court and the State that trial counsel was going to file a motion to have
certain portions of Ms. Chavira’s testimony admitted; however this never
occurred. (8 RR 150). Clearly, there is no possible strategy on trial
counsel’s part, by attempting to cross examine Ms. Lardieri regarding
admissions she made to Ms. Chavira, and then never following through with
any attempts to impeach to Ms. Lardieri regarding this issue. (8 RR 150).
Ms. Lardieri’s denial of making any statements to Ms. Chavira regarding the
offense was yet another opportunity for trial counsel to request a
continuance or funds for an investigator to call Ms. Chavira as an
impeachment witness. (8 RR 150).
The “prejudice” prong of Strickland requires this Court to determine
whether counsel’s objectively deficient conduct highlighted above was
34
sufficient to undermine its confidence in the verdict, that is, whether there is
a reasonable probability that, but for this objectively deficient conduct, the
result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984); Kyles v. Whitley, 514 U.S. 419, 430
(1995). The prejudice the Appellant must show is by less than a
preponderance of the evidence because “[t] he reasonable-probability
standard is not the same as, and should not be confused with, a requirement
that the Appellant prove by a preponderance of the evidence that but for
error things would have been different.” United States v. Dominguez
Benitez, 542 U.S. 74, 82 n. 9 (2004). In assessing prejudice, this Court is
obligated to consider the cumulative effect of the multiplicity of counsel’s
errors demonstrated in the record below. Strickland v. Washington, 466 U.S.
668, 690 (1984).
Ms. Richards contends that there is reasonable probability that if trial
counsel obtained Ms. Chavira as witness, the result of the proceedings would
have been different. Id. For, trial counsel states in his own motion that Ms.
Chavira’s testimony “clearly shows that she [Mrs. Lardieri] was Ms. Huth’s
most violent assailant…and although Ms. Lardieri and Ms. Huff state that
the Defendant cut Ms. Huff’s neck, Mrs. Chavira unequivocally states that
Ms. Lardieri told her that she did, and that inconsistency is clearly
35
exculpatory, mitigating, and/or impeaching for the Defendant. (Appellate
Cause Number 03-15-00247-CR 5 RR 73). Without Ms. Chavira’s
testimony, Ms. Richards was portrayed as the main aggressor, and this
influenced the jurors in there rendering of guilt and punishment. (Appellate
Cause Number 03-15-00247-CR 5 RR 73-76).
Next, Ms. Richards contends that her trial counsel was deficient in
that he did not discuss with her that he filed the punishment election for the
jury to assess her punishment if found guilty. (1 CR 274). Ms. Richards’
punishment election for the jury to assess punishment does not contain her
signature. (1 CR 274). In Mr. Olson’s affidavit he states that at some point
he discussed probation eligibility with Ms. Richards at the jail, and that Ms.
Richards commented on a codefendant going to the Court for punishment;
however, trial counsel refuses to address whether Ms. Richards ultimately
was informed of or involved in the punishment selection ultimately made.
(1 CR 265-266).
Mr. Olson attempts in his affidavit to suggest that Ms. Richards made
the decision to elect the jury for punishment so that she could receive
probation. (1 CR 265-266). However, this is counterintuitive, as trial
counsel did not verify the application for probation before trial commenced
36
and did not have a method of proving probation eligibility to the jury, and
these issues would have been addressed if Ms. Richards was ultimately
involved in making the punishment election for the jury. (11 RR 5, 74).
Correspondingly, Ms. Richards contends that trial counsel was
ineffective in that he did not have a means to prove to the jury that Ms.
Richards was probation eligible. (11 RR 74). Trial counsel states on the
record regarding this, “No. I have nothing, Chari, That’s why it is—that’s
why I’m dead,” and “this has just been one mistake after another, one thing
after another.” (11 RR 74, 75). After much discussion, the State and the
trial court, without any suggestion from the defense, came up with the
solution to just have the application for probation be admitted into evidence.
(11 RR 74-82). Trial counsel then needed to be reminded by the trial court
to publish the document to the jury, after trial counsel had already made his
closing statements, which failed to make any mention that Ms. Richards was
eligible for probation. (11 RR 105). Ms. Richards contends that there is no
better evidence of ineffective assistance of counsel then when the trial court
and the State act on their own on behalf of a defendant without assistance
from defense counsel, as occurred in this case. (11 RR 74-82, 105).
37
There is a reasonable probability that the result of the punishment
would have been different if Ms. Richards had elected for the Court to assess
her punishment, as the trial court had previously granted Ms. Lardieri 30
years in the Texas Department of Criminal Justice, Institutional Division.
Strickland v. Washington, 466 U.S. 668, 690 (1984); (1 CR 341). The
record reflects that Ms. Richards’ conduct and actions the night of the
offense was either less culpable, or at the very least equal to Ms. Lardieri’s;
therefore, it is reasonable that the same trial court would have granted Ms.
Richards the same sentence as Ms. Lardieri, if not a similar sentence. (1 CR
341). There is also a reasonable probability that the jury may have granted
Ms. Richards probation if trial counsel had a manner to prove Ms. Richards’
eligibility and at the very least mentioned this eligibility to the jury during
punishment argument. (11 RR 105).
Lastly, it is important to note for the Court’s consideration of
Appellant’s contention that she was not provided effective assistance of
counsel, that trial counsel could not find his materials multiple times
throughout the course of the trial. (8 RR 21); (8 RR 32-36); (11 RR 70).
There is absolutely no plausible trial strategy behind the Appellant’s trial
counsel not having the file of the case and copies of key evidence at trial,
38
and Appellant asks the Court to take this into consideration when conducting
the Strickland analysis. Id.
Point of Error Three
Rule
Hearsay statements must fall within a recognized exception to be
admissible. TEX R. EVID 802. An excited utterance is a “statement
relating to a startling event or condition made while the declarant was under
the stress or excitement caused by the event or condition” and is such an
exception to the hearsay rule. TEX. R. EVID. 803(2). Under McCarty v.
State, there are three factors to be applied when determining if a statement
falls under this exception: (1) the reaction to the startling event should be
quick enough to avoid the possibility of fabrication; (2) the resulting
statement should be sufficiently “related to” the startling event to ensure the
reliability and trustworthiness of that statement, and (3) the “exciting event”
should be startling enough to evoke a truly spontaneous reaction from the
declarant. McCarty v. State, 257 S.W.3 238, 241 (Tex. Crim. App. 2008).
A trial court’s decision to admit evidence is reviewed under an abuse of
discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App.
2006). A violation of an evidentiary rule that results in the erroneous
39
admission of evidence constitutes nonconstitutional error under TEX.R.APP.
P. 44.2(b), and a reviewing court should reverse if the error affected an
Appellant’s substantial rights. Barshaw v. Sate, 342 S.W.3d 91, 93 (Tex.
Crim. App. 2011). An error affects a substantial right when the error has a
substantial and injurious effect or influence in determining the jury’s verdict.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Furthermore, a
criminal conviction will be reversed for a nonconstitutional error if, after
examining the record, an Appellate Court determines that the error did
influence the jury, opposed to having a slight effect. Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002).
Analysis
It was error for the Trial Court to admit State’s Exhibit 70,
inadmissible hearsay. (6 RR 171). State’s Exhibit 70, is an over fifteen
minute audio recording taken by Detective De Leon of the alleged victim at
the hospital, when the alleged victim is receiving medical treatment. (6 RR
171).
The Appellant contends that the application of the first McCarty
factor, the reaction to the startling event should be quick enough to avoid the
40
possibility of fabrication, weighs in favor of Appellant’s argument that the
audio recording should not have been admitted. Id. The Appellant escaped
the shed where she was left by the defendants, and found shelter inside of a
neighbor’s vehicle at around 3 p.m. the morning after the alleged offense. (6
RR 65). State’s Exhibit 70 was taken at 8:46 a.m. the morning after the
alleged offense. (STATE’S EXHIBIT 70). Therefore, the recording in
question was taken almost six hours after the alleged victim escaped from
the startling event. (6 RR 65).
The State will likely argue that the alleged victim was still under the
stress of the starling event when she was discovered in the neighbor’s
vehicle. However, the record reflects that at 6:00 a.m., the owner of the
vehicle’s husband came outside to go to work, and Ms. Huth did not alert
him to the fact she was inside of his wife’s vehicle, because she “did not
want him to miss work.” (6 RR 68). The record further reflects that Ms.
Huth also did not alert the neighbor the first time she appeared outside on
her porch, but the second time the neighbor came outside. (6 RR 69).
Additionally, Ms. Huth begged the neighbor to not contact law enforcement,
but to contact her friend Clint Barkley. (6 RR 69). These calculated actions
on the part of Ms. Huth demonstrate that she was still not under the stress of
the event during this time frame. (6 RR 68-69).
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The State will most likely contend that Ms. Huth was still in pain and
under the excitement of the event when State’s Exhibit 70 was recorded,
however, Ms. Huth was calm enough and presumably not under excruciating
pain when Ms. Huth intentionally did not alert the neighbors twice when
they appeared outside of their home, and this was several hours prior to the
recording in question. (6 RR 68-69). Ms. Huth was also composed enough
several hours before State’s Exhibit 70 was recorded, when she begged the
neighbor who discovered her to not contact law enforcement but to contact
her friend. (6 RR 68-69). Ms. Richards contends that Ms. Huth’s actions
demonstrate that the time interval between the startling event and the time
when State’s Exhibit 70 was recorded was long enough to permit reflective
thought on Ms. Huth’s behalf, and therefore Sate’s Exhibit 70 should have
not been admitted. Apolinar v. State, 155 S.W.3d 184, 186-187 (Tex. Crim.
App. 2005); (6 RR 69).
The Appellant also asserts that the second McCarty factor, that the
resulting statement should be sufficiently “related to” the startling event to
ensure the reliability and trustworthiness of that statement also weighs
heavily in favor of the Appellant’s argument. Id. The only information on
the recording “related to” the offense or the startling event, is Ms. Huth
naming Ms. Richards and the codefendants as her assailants.” (STATE’S
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EXHIBIT 70). At minute 4:45 into State’s Exhibit 70, the Detective informs
Ms. Huth that law enforcement is “taking off,” however the recording
continues for approximately another eleven minutes. (STATE’S EXHIBT
70). During this period of eleven minutes, Ms. Huth is undergoing medical
treatment, and is screaming, groaning, and crying hysterically in pain.
(STATE’S EXHIBIT 70). The Court attempts to give a curing instruction
regarding hearsay statements in the background regarding medical treatment
of the alleged victim, however this does not remove the taint of the jury
listening to eleven minutes of Ms. Huth’s anguish. (6 RR 179).
The Appellant concedes that the third McCarty factor, that the
“exciting event” should be startling enough to evoke a truly spontaneous
reaction from the declarant, is favorable for the State. However, the first
two McCarty factors weigh heavily in favor of State’s Exhibit Number 70
not falling under the excited utterance exception, and therefore, State’s
Exhibit Number 70 should not have been admitted into evidence. Id.
Ms. Richards asks the Court to reverse the conviction below, because
the error in admitting State’s Exhibit 70 affected Ms. Richard’s substantial
rights, in that the error had a substantial and injurious effect or influence in
determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.
43
Crim. App. 1997). For, It cannot reasonably be argued that after a jury
listened to State’s Exhibit 70, and heard firsthand the great anguish that Ms.
Huth was in at the hospital, that the jury did not consider such in convicting
Ms. Richards. Id. The State even emphasized such in closing statements,
arguing to the jury, “You heard Dana’s voice on a hospital tape.” (10 RR
71).
Point of Error Four
Rule
Under The Texas Rules of Evidence, Article 402, “irrelevant evidence
is not admissible.” TEX. R. EVID. 402. Further, under The Texas Rules of
Evidence, Article 403, the “court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, or needlessly presenting cumulative evidence.” TEX. R.
EVID. 403. The Texas Court of Criminal Appeals under the “Montgomery
Factors” requires reviewing courts to analyze and balance “(1) the probative
value of the evidence; (2) the potential to impress the jury in some irrational,
yet indelible way; (3) the time needed to develop the evidence; [and] (4) the
44
proponent’s need for the evidence. Montgomery v. State, 810 S.W.2d 372
(Tex. Crim. App. 1990).
A trial court’s decision to admit evidence is reviewed under an abuse of
discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App.
2006). A violation of an evidentiary rule that results in the erroneous
admission of evidence constitutes nonconstitutional error under TEX.R.APP.
P. 44.2(b), and a reviewing court should reverse if the error affected an
Appellant’s substantial rights. Barshaw v. Sate, 342 S.W.3d 91, 93 (Tex.
Crim. App. 2011). An error affects a substantial right when the error has a
substantial and injurious effect or influence in determining the jury’s verdict.
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Furthermore, a
criminal conviction will be reversed for a nonconstitutional error if, after
examining the record, an Appellate Court determines that the error did
influence the jury, opposed to having a slight effect. Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002).
Analysis
During the punishment phase below, trial counsel objected to the
admission of certain photographs, and argued that the probative value of the
photographs was outweighed by the prejudicial effect. TEX. R. EVID. 403.
45
Appellant first would contend that these photographs were not relevant
under Texas Rules of Evidence Article 402, as there was no nexus between
the photographs and Ms. Richards, because the Photographs in questions
were taken five days after Ms. Richards’ arrest, when she was no longer
residing at the home where the photographs were taken (10 RR 90).
However, if the Court were to hold that the photographs were relevant,
then Ms. Richards would ask the Court to hold that the probative value of
the photographs was outweighed by their prejudicial effect, and it was error
for State’s Exhibit 289, 291, 294, 295, 296, and 298 to be admitted into
evidence. TEX. R. EVID. 403. State’s Exhibit 289 depicts a baby pacifier
laying on top of bullets; State’s Exhibit 291 depicts a rifle with the
confederate flag in the background; State’s Exhibit 294 depicts a baby
bassinet next to an open chest that contains pornography and a gun; State’s
Exhibit 295 is a close up of State’s Exhibit 294; State’s Exhibit 296 depicts
another gun and a rifle cleaning kit; and State’s Exhibit 298 depicts multiple
shotguns right next to a different baby bassinet. (10 RR 87).
The first Montgomery factor, the probative value of the evidence,
weighs heavily in Ms. Richards’ favor, as Appellant asserts that there was
absolutely no probative value contained in the photographs admitted before
the jury. Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990). The
46
Photographs in questions were taken five days after Ms. Richards’ arrest,
when Ms. Richards was no longer residing at the home, and only her
boyfriend, Mr. Nealon, was. (10 RR 90). The record is void of any
evidence that anything depicted in the photographs actually belonged to Ms.
Richards. Moreover, the record reflects that at the time of trial, Mr. Nealon
was serving time in a federal penitentiary; therefore Ms. Richards contends
that the photographs admitted before the jury was probative only with regard
to Mr. Nealon. (6 RR 126). Moreover, the photographs admitted have no
connection to the instant offense, as there was no gun used by Ms. Richards,
and none of the photographed guns were identified by Ms. Huth as the gun
used by Mr. Smith. (10 RR 87).
The Second Montgomery Factor, the potential to impress the jury in
some irrational, yet indelible way, also weighs heavily in favor of the
photographs being suppressed. Id. Ms. Richards contends that these
photographs were offered by the State for the sole purpose of inflaming the
passions of the jury and to paint the picture that Ms. Richards was a violent
and racist sexual deviant, and more importantly a terrible mother.
(STATE’S EXHIBIT 289, 291, 294, 295, 296, and 298). The photographs
admitted were the bulk of the State’s punishment case, and are quite
disturbing in many different aspects. (STATE’S EXHIBIT 289, 291, 294,
47
295, 296, and 298). Many jurors could have been very offended that Ms.
Richards had the confederate flag hanging in her home, or that there were so
many guns in such close proximity to where infant children were
presumably sleeping, or that there was pornography right next to where
infant children were presumably sleeping, and used this against Ms.
Richards in assessing her punishment. (STATE’S EXHIBIT 289, 291, 294,
295, 296, and 298). For example, when viewing State’s Exhibit 289, the
photograph depicting a pacifier laying on top of bullets, the only thing that
this image conjures is an irrational, yet unforgettable feeling of aversion.
(STATE’S EXHIBIT 289). The State highlighted the injurious effect of the
photographs in question in their closing statements,
“What did we learn about that one woman in punishment? We learned that
she keeps firearms all over her home, next to baby bassinets, and alcohol.
We learned that she has—well, actually that brings me to something. Where
was Heather Richards, the devoted family woman—or where were her
children as all of this was going on? Where were her infant babies? When
she went off and she was angry, where were they? Was she thinking about
them when she left them in that house? The devoted mother who leaves her
house that way.” (11 RR 106-107).
The third Montgomery factor, the time needed to develop the evidence,
also weighs in favor of Ms. Richards’ argument that the photographs should
not have been admitted, as the admission of photographs was the bulk of the
State’s punishment case, and was highlighted in the State’s closing
48
statements. (10 RR 103-117); (11 RR 106-107). The record reflects that the
State’s punishment case consists of approximately 16 pages, 14 pages of
which involve the photographs in question. (10 RR 103-117)
The last Montgomery factor, the proponent’s need for the evidence,
further bolsters Ms. Richards’ contentions that the photographs should not
have been admitted, as we are not dealing with autopsy photographs, or the
like, but photographs of a residence that Ms. Richards was removed from
five days earlier and have no connection to the crimes for which Ms.
Richards was found guilty. Id. As articulated by the Court of Criminal
Appeals in Erazo v. State, “The relevance value of a photograph is to show
appearance…A crime-scene photograph or an autopsy photograph is not
admissible simple to show the death of the individual. These photographs
are admissible despite the fact, and because, they show more than the
testimony. But, that “something more” must be relevant and helpful to the
jury.” Erazo v. State, 144 S.W.3d 487, 493 (Tex. Crim. App. 2004).
Ms. Richards would ask the Court to reverse and remand the case on
the issue of punishment, as the error in admitting these photographs had a
substantial and injurious effect or influence in determining the jury’s
punishment verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Again, the photographs admitted were the bulk of the State’s
49
punishment case, relied upon heavily by the State in closing, and are
disconcerting in many different aspects. (10 RR 103-117); (11 RR 106-
107).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Heather Lauren Richards,
prays this Honorable Court will reverse the judgment below, or in the
alternative remand the case on the issue of punishment.
Respectfully Submitted,
_/s/ Amanda Erwin____________
Amanda Erwin
The Erwin Law Firm, L.L.P.
109 East Hopkins Street, Suite 200
San Marcos, Texas 78666
Telephone: (512) 938-1800
Telecopier: (512) 938-1804
Amanda@TheErwinLawFirm.com
Attorney for Appellant
Heather Lauren Richards
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CERTIFICATE OF SERVICE
Pursuant to TEX. R. APP. P. 9.5, I certify that of December 9, 2015, a
copy of this motion was electronically served, to the following:
Mr. Joshua Presley
Chief Appellate Prosecutor
Comal County Criminal District Attorney’s Office
150 N. Seguin, Suite 307
New Braunfels, Texas 78130
Preslj@co.comal.tx.us
_/s/_Amanda Erwin__________________
Amanda Erwin
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CERTIFICATE OF COMPLIANCE STATING NUMBER OF
WORDS IN BRIEF
Pursuant to Tex. R. App. P. 9.4(i), Appellee certifies that this
Appellate Brief contains only 11,826 words, and is therefore compliant with
the maximum word limitation allowed but the Honorable Court.
/s/ Amanda Erwin
_________________________________
Amanda Erwin
52