Ex parte Andrus
| Decision Date | 19 May 2021 |
| Docket Number | NO. WR-84,438-01,WR-84,438-01 |
| Citation | 622 S.W.3d 892 |
| Parties | EX PARTE Terence Tramaine ANDRUS, Applicant |
| Court | Texas Court of Criminal Appeals |
Cary Marshall Faden, Sugar Land, Gretchen Sims Sween, for Applicant.
Keller, P.J., delivered the opinion of the Court in which Yeary, Keel, Slaughter, and McClure, JJ., Joined.
This case is on remand to us from the Supreme Court of the United States. Regarding one of Applicant's ineffective-assistance claims, the Supreme Court held that Applicant satisfied the deficient-performance prong of Strickland v. Washington,1 but the Court remanded to us for further proceedings because it perceived that we might not have engaged in a prejudice inquiry. In addition, the Supreme Court criticized the concurring opinion in our Court for unduly relying upon Wiggins v. Smith2 in its prejudice analysis. We now reiterate—and to the extent our holding was not clear, clarify—that we decided the issue of prejudice when the case was originally before us. In an abundance of caution, we set forth our reasoning on the issue of prejudice and do so based on an independent review of the circumstances to determine whether there is a reasonable probability that the outcome of Applicant's sentencing proceeding would have been different.3 Although the concurrence did use Wiggins as a guide, that opinion nevertheless made some valid points with respect to the mitigating and aggravating evidence, and our prior order outlined some of the evidence consistent with those points. The mitigating evidence is not particularly compelling, and the aggravating evidence is extensive. Based on our independent review, we reaffirm our earlier conclusion that Applicant has failed to show prejudice, and we deny relief.
In November 2012, Applicant was convicted of capital murder and sentenced to death. On automatic appeal to this Court, his conviction was affirmed.4 He later filed a habeas application in which he claimed, among other things, that counsel was constitutionally ineffective for failing to conduct a reasonable investigation and present available mitigating evidence. This Court rejected that claim, concluding that he "fail[ed] to meet his burden under Strickland v. Washington to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different, but for counsel's deficient performance."5 In a footnote to this holding, we pointed out that the trial court had "misstate[d] the Strickland prejudice standard by omitting the standard's ‘reasonable probability’ language."6 Although the trial court had recommended granting relief on the claim, we disagreed and declined to adopt any of the trial court's findings of fact and conclusions of law regarding the claim.7
In our order, we explained that the current offense involved the attempted carjacking of Avelino Diaz in a Kroger parking lot.8 Applicant shot and killed Diaz, and while fleeing the scene, shot at two occupants of another car—killing the passenger, Kim-Phuong Vu Bui, and wounding Kim's husband, Steve Bui.9 Applicant later confessed to the killings.10
We further outlined Applicant's history of criminal and violent conduct.11 Applicant was adjudicated as a juvenile for felony possession of a controlled substance in a drug-free zone and for criminal solicitation to commit aggravated robbery (involving a firearm).12 He later had to be transferred from Texas Youth Commission (TYC) facilities to adult prison due to his general failure to make progress in TYC's rehabilitation program and his behavior problems, which included aggressive or assaultive behavior towards other youths and staff.13 A month before the current capital offense, Applicant committed an aggravated robbery, during which he kicked and beat his victim and threatened him with a knife.14 While awaiting trial in this case in the Harris County and Fort Bend County jails, Applicant also engaged in behavior that was significantly disruptive, violent, and threatening.15
We also pointed out that Applicant had numerous gang-related tattoos and that he admitted to having been a member of the "59 Bounty Hunter Bloods" street gang.16
We also noted that Applicant testified that he was exposed to drugs as early as age six because his mother sold them, that he rarely had adult supervision at home, and that he started using drugs regularly when he was fifteen.17 He claimed that he had recently given his life to God and no longer acted out.18
A four-judge concurring opinion engaged in a more extensive analysis of Applicant's claim with respect to the issue of prejudice.19 Using the Supreme Court's case of Wiggins v. Smith as a guide,20 the concurrence concluded that Applicant failed to show prejudice.21
In arriving at this conclusion, the concurrence observed that the additional lay witness testimony that Applicant said should have been presented was not particularly strong: it would have shown merely that "Applicant grew up primarily among street hustlers and drug dealers, that Applicant raised his siblings while his mother was dealing drugs out of the house or on the street, and that Applicant lacked a stable, supportive parental figure."22 And much of this information "had already been introduced through the testimony of Applicant, his mother, and his father."23 Also, much of the evidence that Applicant said should have been presented was "double-edged." As an example, the concurring opinion cited Applicant's expert witness's report, which included potentially mitigating evidence but also included potentially extremely aggravating evidence such as Applicant's history of abusing and killing animals.24
The concurrence noted that Applicant had presented multiple mitigating factors to the jury: testimony about his "background and dysfunctional upbringing," testimony from an expert about "the effects that drugs, alcohol, and an unstable family environment can have on adolescent brain development," and testimony from "a professional counselor that Applicant was beginning to show remorse for the murders."25 But Applicant had "an extensive record of violent conduct" that would offset this evidence and his proposed additional mitigating evidence.26 The concurrence also listed much of Applicant's criminal and violent history, similar to what was outlined in this Court's order.27
The concurrence noted that this evidence contrasted with the situation in Wiggins , in which the defendant had no prior convictions and no violent conduct the State could introduce to offset the mitigating evidence.28 The concurrence further noted that the mitigating evidence in Wiggins that counsel had failed to present was "powerful and not double-edged."29 Wiggins had suffered "severe privation and abuse in the first six years of his life while in the custody of his alcoholic absentee mother" as well as "physical torment, sexual molestation and repeated rape during his subsequent years in foster care."30 And the concurrence noted that Wiggins was "homeless at times and had diminished mental capacities."31
The Supreme Court granted certiorari and vacated our decision.32 In its initial summary, the Court concluded, contrary to our holding, that the record demonstrated that counsel's performance was deficient.33 The Court further concluded that we "may have failed properly to engage with the follow-on question whether [Applicant] has shown that counsel's deficient performance prejudiced him."34
Noting the trial court's characterization of the new evidence proffered by Applicant as a "tidal wave of information ... with regard to mitigation,"35 the Supreme Court went on to discuss Applicant's evidence. The Court believed that it "revealed a childhood marked by extreme neglect and privation, a family environment filled with violence and abuse."36 The Court recounted that Applicant was born into a neighborhood "known for its frequent shootings, gang fights, and drug overdoses"37 and that Applicant was one of five children, whose fathers never stayed as part of the family.38 According to the Court, one of the fathers raped Applicant's younger half-sister, other fathers were physically abusive toward Applicant's mother, and all of the fathers were addicted to drugs and had criminal histories.39 The Court stated that Applicant's mother engaged in prostitution and sold drugs and that the drug sales were often from home and in view of Applicant and his siblings.40 The Court also believed that the mother habitually used drugs, being high more often than not.41
According to the Court, the children were often left to fend for themselves, and many times, there was not enough food to eat.42 Applicant, the Court believed, assumed responsibility as head of the household, caring for an older brother with special needs, cleaning the house, putting siblings to bed, cooking meals, getting siblings ready for school, and helping siblings with their homework.43 Applicant was characterized by habeas witnesses as "a protective older brother" and "very caring and very loving," but he was also described as struggling with mental-health issues, and at age ten or eleven, was being diagnosed with affective psychosis.44
The Supreme Court said that Applicant allegedly served as a lookout while he and his friends robbed a woman of her purse.45 The Court then recounted that Applicant was sent to TYC, where he was "prescribed high doses of psychotropic drugs carrying serious adverse side effects" and where he "spent extended periods in isolation, often for purported infractions like reporting that he had heard voices telling him to do bad things."46 The Court also pointed to evidence of multiple instances of self-harm and threats of suicide, including an attempted suicide while awaiting trial in this case.47 The Supreme Court also noted...
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