Heather Lauren Richards v. State

Opinion

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

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New Braunfels, Texas 78130

Trial Judge: Hon. Dibrell W. Waldrip

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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

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

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

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

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

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

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

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

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).

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.

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

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

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.

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,

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.

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.

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.

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

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.

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

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

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

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).

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

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

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

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

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

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).

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.

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).

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

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

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

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

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

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

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

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

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).

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,

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

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).

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

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).

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

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.

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

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

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

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.

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

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,

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

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

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

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

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