Ex parte Flores

• Decision Date: 16 January 2013
• Docket Number: No. AP–76,862.,AP–76,862.
• Citation: 387 S.W.3d 626
• Parties: Ex parte Gerardo FLORES, Applicant.
• Court: Texas Court of Criminal Appeals

387 S.W.3d 626

Ex parte Gerardo FLORES, Applicant.

No. AP–76,862.

Court of Criminal Appeals of Texas.

Dec. 5, 2012.

Rehearing Denied Jan. 16, 2013.

James W. Volberding, Tyler, for appellant.

Art Bauereiss, Asst. District Atty., Lufkin, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which WOMACK, JOHNSON, KEASLER, and ALCALA, JJ., joined.

A jury convicted applicant of two counts of capital murder for terminating his girlfriend's pregnancy by stepping on her abdomen, causing her twins to be delivered stillborn. His convictions and life-imprisonment sentences were upheld on appeal by both the court of appeals ¹ and this Court.² Applicant filed a post-conviction application for a writ of habeas corpus alleging that his trial and appellate attorney provided ineffective assistance of counsel under the Sixth Amendment.³ After holding a hearing and taking additional evidence, the habeas judge ⁴ filed findings of fact and conclusions of law recommending that this Court grant relief on two ineffective assistance of counsel claims: (1) failing to present the expert testimony of Drs. Harvey Kliman and Robert Bux at trial, and (2) failing to raise sufficiency of the evidence on direct appeal. However, rather than provide us with findings of fact that resolve the disputed facts, the trial judge made findings that are largely a recitation of the evidence presented at the writ hearing. Because these findings are not helpful to us in resolving the issues for which the case was remanded, we must conduct our own independent review of the evidence. After so doing, we deny relief.

I.

Applicant and his girlfriend, E.B., were both in high school when they began dating. They had been seeing each other for over a year when, in February of 2004, E.B. discovered that she was pregnant with twins. E.B. was sixteen and applicant was eighteen. E.B. eventually moved from her brother's house to applicant's family's home. E.B.'s pregnancy seemed to be a normal one. She visited her obstetrician, Dr. Jerry Johnson, regularly. During her first visit, E.B. was given the approximate due date of September 13th, and told that she was pregnant with twins. The next month, Dr. Johnson noted that there were no complaints and the pregnancy was progressing as expected.⁵ On April 30th, E.B. complained of “spotting, bright red blood,” which Dr. Johnson noted was potentially a cause for concern but not exceedingly uncommon. Dr. Johnson performed an ultrasound whose results indicated that the pregnancy was still a healthy one.⁶ At no point during any of E.B.'s visits did Dr. Johnson or his staff notice any bruising on E.B.

On May 7th, E.B. prematurely delivered two stillborn fetuses; they were between 20 and 21 weeks old. At the time of their premature birth, the twins had been dead in utero for between twenty-four and forty-eight hours. Emergency personnel took E.B. to Lufkin Memorial Hospital where nurses noticed she had “massive bruising” “all the way across” her abdomen, as well as fingerprint-like bruising underneath her right arm. The nurses tried to get E.B. to tell them who or what had caused the bruises, but E.B. refused to give them any information. The nurses reported E.B.'s condition to the Lufkin Police. After speaking to E.B., her doctors, and applicant, police determined that applicant was likely responsible for E.B.'s physical abuse which caused the premature delivery of the twins. Applicant was then arrested and charged with capital murder for causing the deaths of the fetuses.

Causation was a central contested issue at trial; both applicant and the State presented substantial testimony as to what caused the deaths. Three theories of causation were presented: (1) Applicant committed homicide by stepping on E.B.'s abdomen; (2) E.B.'s self-inflicted wounds caused the miscarriage; and (3) the fetuses died from a genetic abnormality.

The State's theory was that applicant stepped on E.B.'s stomach, applying enough pressure to cause the twins' death. E.B.'s obstetrician, Dr. Johnson, arrived at the hospital shortly after E.B. was brought in. He described E.B.'s physical condition:

There was bruising over the right cheek bone. Her lip was cracked. There was blood apparent on both lips. The lips were both swollen, but I did not see any lacerations or any tears in the lips. Both upper arms had bruising which, in my opinion, appeared to be consistent with injuries from a finger grasp around the arm.... Her back and buttocks had no evidence of any trauma. The left breast had an old bruise. There was no new bruising evident on the left breast. Most of her bruising was over the abdomen, and it was around the level of the umbilicus, or the belly button, from ... side to side going all the way across the abdomen.⁷

Dr. Johnson explained that it was unlikely that a pregnant woman—given the expanded size of her abdomen—could inflict these abdominal bruises on herself, especially since they were inflicted with enough force to cause a miscarriage.

Post-delivery testing, conducted by Lufkin Memorial Hospital Pathologist Dr. David Todd, revealed that E.B. had recent infarction ⁸ in her uterus. Dr. Todd explainedthat the infarctions were about 24–48 hours old, and likely caused the death of the fetuses in utero.⁹ Dr. Todd concluded that such infarction was consistent with blunt force trauma and not the result of any genetic defect.

Finally, the State called Dr. Tommy J. Brown, who conducted the autopsies of the twin fetuses. Dr. Brown noted that the twins

were markedly macerated. By macerated that means if the fetus had been dead in utero for at least 24 hours or more, then the skin will slough off due to the autolytic of the juice's work on the skin of the baby .... In other words, the superficial area of the skin is sloughed off and it has a markedly reddened skin. And both babies had that over their entire bodies except for the soles of their feet and their fingers, and that means they've been dead in utero for days.

After conducting the autopsy, Dr. Brown concluded that the cause of death was “intrauterine fetal demise ... due to blunt force abdominal trauma to the mother.” Dr. Brown also looked at the photographs of E.B.'s abdominal bruises. He determined that the bruising was between three and six days old and consistent with E.B.'s being stepped on by a human foot. He did not notice any signs of genetic defects, but noted that, even if there were a genetic disorder, it would not necessarily have resulted in the twins' deaths. Dr. Brown stated unequivocally, “In this instance the babies died from blunt force trauma to the mother,” which was consistent with being stepped on.

In a series of written and oral statements given both before and after his arrest, applicant admitted to striking E.B. the night before her premature delivery. Applicant also admitted to stepping on E.B.'s stomach after she returned home from the April 30th doctor's appointment where she learned that it was too late for a safe abortion. In his defense, applicant called E.B. who testified that she wanted an abortion and, upon learning that she was too far along in her pregnancy to obtain one, asked applicant for his help.¹⁰ She explained that, at her request, applicant stepped on her stomach twice—once one week before and once two weeks before the premature delivery. E.B. admitted to getting into a fight with applicant the night before the premature delivery, during which he hit her in the face, but she claimed that the bruises did not come from any intentional conduct on his part. ¹¹ E.B. also testified to “hit[ting herself] right on the stomach more than ten times,” in the hope of terminating her pregnancy.¹²

The State's theory was that E.B. was “under the spell” of applicant, and that her testimony was calculated to cover up his abusive behavior. In its cross-examination, the State focused on E.B.'s relationship with applicant ¹³ and her earlier-expresseddesire to carry her pregnancy to term. ¹⁴ The State also called a rebuttal witness to testify to various psychological issues, including the seemingly irrational impulse of an abused person to protect the abuser that may arise when someone is in an abusive relationship.

To support his theory that the twins died from a genetic defect, applicant called Dr. Stephen Pustilnik, the Chief Medical Examiner for Galveston County. Dr. Pustilnik was not a treating doctor, but he reviewed hospital records, the autopsy report, and microscopic slides of the twins' tissue and of the placenta. He testified that E.B's pregnancy was not as normal and healthy as the State's experts described, noting the possibility that the premature birth could have been caused by a genetic defect. Dr. Pustilnik noted, “The placenta has evidence of disease in it.... It has evidence of possibly having a significant genetic disease. It has evidence of the placenta coming away from the wall of the uterus[.]” ¹⁵ Dr. Pustilnik explained that the “infarction” or dead tissue was more consistent with the cells dying slowly over a period of time rather than suddenly as the State's witnesses had testified.

Dr. Pustilnik could not, however, rule out the possibility that physical trauma caused the deaths. When asked for his conclusion as to the cause of death, he responded:

One possibility is multiple blows to the abdomen [can] cause an abruption of the placenta from the inside of the uterus. A second cause is steady, constant, deep pressure to the abdomen of a pregnant woman can cause abruption of the placenta and peeling away of the placenta from the uterus. And the third thing is we have a placenta that has a natural disease to it that is also waiting to pull itself away and be rejected from the inside of the uterine cavity.

In sum, Dr. Pustilnik believed that it was possible, but not certain, that the twins died due to a genetic defect.

After considering all the evidence, the jury found applicant...