Overton, Hannah Ruth ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-75,804-02
Ex parte HANNAH RUTH OVERTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 06-CR-3624-F IN THE 214 TH DISTRICT COURT
FROM NUECES COUNTY
K ELLER, P.J., filed a dissenting opinion in which K EASLER, J., joined.
During applicant’s trial, Dr. Michael Moritz’s deposition was taken and videorecorded. The
defense attorneys chose not to seek the admission of the deposition at trial. The Court says that this
decision was not based upon any reasonable trial strategy. I disagree, because the habeas judge
found and the deposition shows that there was a risk that the deposition would have opened the door
to evidence that would have been profoundly damaging to the defense.
The State had two theories of criminal liability at trial: (1) that applicant poisoned the child
A.B. with salt, and (2) that applicant failed to timely seek appropriate medical attention. Both
theories were based on evidence that A.B. had ingested Zatarain’s, which is a spicy seasoning mix
with a high salt content. Applicant had an expert witness at trial who testified in response to these
theories: Dr. Judy Melinek. Dr. Melinek testified for the defense regarding the possibility that A.B.
consumed salt on his own due to a mental or emotional disorder, and she gave opinions regarding
OVERTON DISSENT — 2
the physical evidence that supported the defense theory that the death was not the result of abuse.
Dr. Melinek also testified that the evidence did not show an undue delay in bringing the child to the
hospital because the child’s initial symptoms of stumbling, feeling cold, and vomiting were not
necessarily sufficient to place a reasonable parent on notice that the child needed to go to the hospital
and because the child’s body temperature upon arrival at the hospital was fairly warm at 96.2
degrees.
Because applicant had the benefit of Dr. Melinek’s testimony, Dr. Moritz’s testimony was
not essential to advancing a viable defensive case. Furthermore, much of Dr. Moritz’s deposition
testimony involved matters that were discussed at trial by Dr. Melinek. The Court’s Strickland
analysis entirely fails to take into account Dr. Melinek’s testimony, neglecting to even mention that
the defense had an expert witness at trial. Contrary to a proper Strickland analysis, the Court’s
opinion fails to take into account most of the State’s evidence at trial, viewing Dr. Moritz’s
deposition only as it compared to Dr. Rotta’s testimony instead of in the context of all of the
evidence.
There is a part of Dr. Moritz’s testimony that would have supplied an additional defensive
theory for the jury to consider: the possibility that regardless of how the sodium was ingested, A.B.’s
life could not have been saved by taking him to the hospital more quickly. But the defense could
reasonably decide not to avail itself of this additional defensive theory if doing so would risk opening
the door to evidence that was seriously damaging to the defense.
The habeas judge, who was also the judge at trial, cited this concern about opening the door
to damaging evidence in support of his finding that the defense attorneys’ conduct was not deficient.
The habeas judge found credible Chris Pinedo’s testimony that he was effective, but, instead of
OVERTON DISSENT — 3
focusing on Pinedo’s articulated reasons for his conduct, the habeas judge focused on portions of the
deposition. The habeas judge cited to a part of the State’s cross-examination, where it became clear
that Dr. Moritz did not review statements made by applicant’s husband and children and where Dr.
Moritz admitted that he would feel misled if there was a witness not provided to him who would
testify that the child was punished by being forced to ingest salt. Based on this evidence, the court
found that Pinedo was faced with the possibility that admission of the deposition would open the
door to testimony that was harmful to the defense.
The State has supplied excerpts from interviews of two of applicant’s children that show the
basis for the State’s questions at the deposition. One of the children stated: “Well, if I lie, I get
pepper.” When asked what that meant, the child responded, “Well, it’s spicy stuff. It’s spicy and
it hurts your mouth, and you have to eat it and it hurts your mouth.”1 The other child stated that A.B.
was punished with “pepper”:
Q. Well, what happens to [A.B.] when he gets in trouble.
A. He gets pepper.
Q. Pepper? What happens with the pepper?
A. It was — His mouth will get hot.
Q. His mouth will get hot?
A. Yeah.
Q. Okay. Who gives him pepper?
A. My mom.
1
When asked how much was administered for punishment, the child responded, “Like two
peppers, like sprinkles.”
OVERTON DISSENT — 4
The defense attorneys exerted significant efforts to keep out this evidence, and they were
successful in doing so. This evidence was excluded at trial as hearsay, but it might have been
admissible to rebut Dr. Moritz’s opinions or at least for the purpose of questioning Dr. Moritz (as
the State did at the deposition) about whether his opinion would change in light of this information.2
Dr. Moritz admitted in the deposition that he had not seen any statements from the children and that
eyewitness testimony that salt was used as punishment could change his opinion.3 Eyewitness
evidence from applicant’s own children that “spicy stuff” was used as punishment could have
devastated applicant’s case in the eyes of the jury.
Evidence that applicant punished her children in this manner would have been relevant not
only to the “commission” theory—that applicant was responsible for the salt poisoning in the first
place, but also to the “omission” theory. Dr. Moritz’s testimony that the child probably could not
have been saved was based on his timeline estimating how long it would take a person to recognize
how ill the child was and get him to the hospital and how long it would take the hospital to test and
retest the blood before finding out why he was sick and beginning treatment. If the jury had been
provided with evidence that applicant forced salty seasoning into the child’s mouth, Dr. Moritz’s
timeline would have been undermined at both the front and the back ends: applicant would have
recognized earlier what was causing A.B.’s symptoms, and she could have told the hospital
immediately so that appropriate treatment could have begun right away.
2
See Wheeler v. State, 67 S.W.3d 879, 884-85 & ns. 10-11 (Tex. Crim. App. 2002) (Keller,
P.J., concurring); Moranza v. State, 913 S.W.2d 718, 727-28 (Tex. App.–Waco 1995).
3
There was also testimony at trial that A.B. was covered in scratches and had sores from
being forced to sleep on bare commercial-grade plywood. Dr. Moritz admitted that he had not been
informed of this and that such evidence would be evidence of poor parenting and perhaps child
abuse.
OVERTON DISSENT — 5
It is true that defense counsel did not articulate as a trial strategy the danger of opening the
door. As the Court explains, Pinedo described the choice not to present the deposition as a product
of the difficulty in editing the deposition around what he thought were the prosecutor’s improper
comments. Pinedo said that the deposition was “personally so messed up it could not be done” and
“that the activity of the prosecution during the deposition of Dr. Moritz in my opinion rendered it
useless.” Pinedo claimed that the deposition was filled with interruptions, invalid objections, and
dialogues that would render a transcript useless. He further stated that it appeared to him that the
prosecutor was “purposefully trying to interrupt the deposition, in violation of ethical obligations.”
I have watched the deposition video. The number of interruptions does not appear to be
excessive—certainly not enough to impair the ability to present Dr. Moritz’s opinions to a jury. And
I find the claim that the prosecutor was somehow violating her ethical obligations to be baseless.
Although Pinedo’s articulated justifications for his conduct lack substance, the danger that Dr.
Moritz’s testimony would open the door to extremely damaging evidence was very real, and one that
any reasonable attorney would have recognized. Given the efforts of the defense team to keep out
this damaging evidence at trial, the habeas judge was within his discretion to believe that Pinedo was
such a reasonable attorney and did not perform deficiently.
I respectfully dissent.
Filed: September 17, 2014
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