Melissa Lucio v. Lorie Davis, Director ( 2019 )


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  •      Case: 16-70027      Document: 00515053851         Page: 1    Date Filed: 07/29/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 16-70027                          July 29, 2019
    Lyle W. Cayce
    MELISSA ELIZABETH LUCIO,                                                        Clerk
    Petitioner - Appellant
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent - Appellee
    Appeal from the United States District Court
    for the Southern District Court
    USDC No. 1:13-CV-125
    Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Melissa Lucio was convicted of murdering her two-year-old daughter
    Mariah and sentenced to death. See Lucio v. State, 
    351 S.W.3d 878
    , 880 (Tex.
    Crim. App. 2011). Her daughter’s body had been badly bruised, but the State’s
    examiner concluded that she died from a final blow to the head. The State’s
    case against Lucio was built primarily on a videotaped interrogation of Lucio,
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    filmed in the midnight hours just after Lucio’s daughter was declared dead.
    After about five hours of interrogation, Lucio admitted to, in her words,
    spanking her daughter. The State used those statements to argue to the jury
    that she confessed to abusing Mariah and that, by inference, she must have
    killed her. Lucio tried to rebut the impact of the interrogation by putting on
    an expert witness to explain why she would admit to facts that were not true.
    But the state trial court would not allow the expert to testify because it
    concluded such testimony was “irrelevant,” depriving Lucio of her most
    compelling challenge to the statements.
    Lucio has now sought federal relief under 28 U.S.C. § 2254, arguing she
    was deprived of her constitutional right to meaningfully present a complete
    defense. She raised that issue first in the state court, but no state court ever
    adjudicated the claim. We thus review her claims under a de novo standard of
    review. Under that standard, we conclude that the state trial court deprived
    Lucio of her constitutional right to present a meaningful defense. We thus
    REVERSE the district court’s order denying her claim and REMAND for the
    district court to grant Lucio relief.
    I.     Background
    Before her daughter’s death in 2007, Lucio lived with nine of her children
    and her husband. On a February evening that year, paramedics were called
    to Lucio’s home. When they entered the apartment, they found two-year-old
    Mariah “unattended and lying on her back in the middle of the floor not
    breathing and with no pulse.” Lucio told the paramedics that Mariah had
    “fallen down some stairs.” The paramedics took Mariah to an emergency room,
    where doctors declared her dead.
    Doctors at the hospital noticed that Mariah’s body had been “severely
    abused”; in addition to bruises “covering her body, there were bite marks on
    her back, one of her arms had been broken probably about two to seven weeks
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    before her death, and she was missing portions of her hair where it had been
    pulled out by the roots.”
    That same night, several investigators questioned Lucio. The interview
    began just before 10:00 p.m. Lucio told the police that Mariah had fallen down
    some stairs outside of her apartment on Thursday night. Though she admitted
    that she sometimes spanked her daughters “on the butt,” she repeatedly denied
    hitting or abusing Mariah. Over about three hours, her story remained the
    same: Her kids were rough with Mariah but she did not know who caused
    Mariah’s specific injuries.   She also described Mariah’s physical condition
    leading up to her death. Mariah was “sick” on the Saturday that she died and
    the Friday before, but Lucio did not take Mariah to the doctor. Mariah would
    not eat, and her breathing was heavy. She slept all day Saturday, and she
    would lock her teeth together when Lucio would try to feed her.              The
    interrogation went on for more than three hours.
    Then, after 1:00 a.m., Texas Ranger Victor Escalon entered the room and
    told Lucio—in a long, mostly one-person exchange—that they needed her story
    and that everyone would understand. At that point, Lucio told Escalon she
    wanted a cigarette and to talk to her husband. Escalon told her she could do
    those things after she gave her statement.          Escalon then asked Lucio
    repeatedly to tell him “everything.”
    Lucio eventually told him that she “would spank [Mariah], but [Lucio]
    didn’t think [she] would spank her, to where . . . to where it got to this point.”
    (ellipsis in transcript). At Escalon’s suggestion, Lucio said that the spanking
    was “all over [Mariah’s] body.”     Escalon prompted her for more, but she
    responded, “I don’t know what you want me to say. I’m responsible for it.” She
    maintained that she was not angry at Mariah but was “frustrated” by the other
    kids who were “very hyper,” making it difficult to take care of them all. She
    also stated that she bit Mariah one day while tickling her; she did not know
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    why she did it. While making these statements, Lucio continued to maintain
    that she had not hit Mariah in the head and only spanked her. She also stated
    that no one else was responsible for Mariah’s injuries and that she was the
    only one who spanked her.
    As the interrogation progressed, Escalon identified specific bruising on
    Mariah and asked Lucio to tell him how it happened. Lucio usually responded
    that she did not know how the bruises occurred and often said she did not hit
    her in particular spots. When Escalon insisted she was responsible for specific
    bruises, Lucio responded, “I guess I did it. I guess I did it.” She suggested that
    some of the other injuries, like scratches, could have been caused by her other
    daughters. For some of the bruises, Lucio said she was the one who caused
    them, and said she would sometimes spank Mariah when she woke up other
    kids.
    Escalon then had Lucio take a break at 1:22 a.m. After the break, officers
    took DNA samples from Lucio, then took another break.
    At 3:00 a.m., Escalon resumed the interrogation. He brought in a doll to
    have Lucio show him how she bit and spanked Mariah. When showing him
    how she bit Mariah, Escalon asked if she was angry at Mariah. She said no,
    explained she was frustrated with the other kids, and described how she bit
    Mariah after she finished brushing her hair. Escalon then asked Lucio to show
    how she spanked Mariah. When she demonstrated, Escalon told her, “Well do
    it real hard like . . . like you would do it.” (ellipsis in transcript). When she
    said that was how hard she spanked her, Escalon performed what he thought
    was a hard spank and had Lucio demonstrate again. He identified several sets
    of bruises and had her spank the doll in those areas to demonstrate how she
    would have spanked Mariah.
    Lucio was charged with “intentionally and knowingly” causing Mariah’s
    death “by striking, shaking or throwing Maria[h] . . . with [her] hand, or foot,
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    or other object,” which constituted a capital murder charge. See TEX. PENAL
    CODE §§ 19.02(b)(1), 19.03(a). The issue then was not simply whether Lucio
    inhumanely neglected Mariah—virtually a given on this record—but whether
    she intentionally or knowingly killed Mariah and did so by striking her. See
    Louis v. State, 
    393 S.W.3d 246
    , 251 (Tex. Crim. App. 2012) (“Capital murder is
    a result-of-conduct offense; the crime is defined in terms of one’s objective to
    produce, or a substantial certainty of producing, a specified result, i.e. the
    death of the named decedent.” (quoting Roberts v. State, 
    273 S.W.3d 322
    , 329
    (Tex. Crim. App. 2008))).
    The State’s theory of the case depended on two critical points. First, it
    sought to prove that Mariah’s death was caused by a fatal blow to the head and
    that the fatal blow could not have been from Mariah falling down the stairs.
    The State presented testimony from the chief forensic pathologist for Cameron
    and Hidalgo Counties, who conducted Mariah’s autopsy. She testified that
    Mariah’s cause of death was “blunt force trauma.” The pathologist defined this
    as being “beat[en] about the head with something—an object, a hand, a fist, or
    slammed.” According to her, the trauma would have occurred within a day
    before Mariah’s death. It would have been immediately apparent that Mariah
    needed medical attention, as symptoms like vomiting or lethargy would have
    appeared “fairly quickly” after the trauma. The pathologist also explained that
    a fall down the stairs would not have caused all of Mariah’s injuries. Even
    considering just the bruises on her head, the pathologist concluded that a
    single fall down the stairs could not have caused all of them. She also testified
    that this was the most severe case of child abuse she had ever seen in her
    fourteen-year practice. Mariah had more bruises, of varying color and age,
    than she had ever seen on one child.
    Second, the State used Lucio’s “confession” to try to establish that she
    abused Mariah and, in turn, caused her death. The State admitted the videos
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    of Lucio’s interrogation during the first day of trial and immediately played
    them for the jury. It later put Escalon on the stand, and he testified about
    Lucio’s demeanor during the interrogation. During its closing argument, the
    State characterized Lucio’s admission as a “confession,” which proved beyond
    a “reasonable doubt that [Lucio] killed that little girl.” It emphasized that
    Lucio “did make the statement and the statement that she made was the true
    and correct statement at the end. She admitted it. She admitted that she
    caused all of the injuries to that child, ladies and gentlemen.” The State also
    highlighted Lucio’s demeanor during the interrogation, rhetorically asking
    why she would look or act a certain way if all she did “was physically beat the
    child, but didn’t cause the death.” It also referenced Escalon’s testimony that
    Lucio’s demeanor indicated she was “hiding the truth.”
    Lucio tried to defend against both points. First, she tried to present
    evidence that it was possible that Mariah’s head trauma was caused by a fall
    down the stairs. She called a neurosurgeon who testified that the blunt force
    trauma causing Mariah’s death could have resulted from falling down stairs.
    During closing arguments, Lucio’s counsel argued that the State failed to
    overcome reasonable doubt because evidence indicated that Mariah’s fatal
    injury could have resulted from falling down stairs.
    Second, Lucio wanted to present two expert witnesses to testify that her
    interrogation statements were not trustworthy, but the state trial court did not
    let them testify.    The first expert was Norma Villanueva, a licensed social
    worker with graduate-level education. She was presented to explain “why
    [Lucio] would have given police [officers] information . . . that was not correct”
    to show that Lucio “admits to things that she didn’t do.” Villanueva’s training
    included courses on how to understand what people “are trying to convey by
    the way they act, by the way they hold their body, by the way they move their
    arms and hands.” Her claimed expertise was based on over twenty years of
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    “clinical training and clinical experience [and] a combination of knowing life
    span development theories . . . and human behavior social environment
    interaction theories.” The state trial court would not permit Villanueva to
    testify over doubts that she was qualified to testify on body language
    interpretation and concerns that she could not testify about “why [a] statement
    is or is not true.”
    The second expert that Lucio wanted to present was Dr. John
    Pinkerman, a psychologist who would have testified that Lucio was a “battered
    woman” who “takes blame for everything that goes on in the family.” He
    formed his opinion after reviewing the interrogation tapes, meeting with Lucio
    on four occasions, reviewing her history, and administering various
    psychological tests to her. The state trial court prevented Pinkerman from
    testifying; it considered his testimony irrelevant because Lucio “denied ever
    having anything to do with the killing of the child.”
    Beyond her medical expert and the two excluded experts, Lucio called
    one new witness and recalled one of the State’s witnesses. The new witness
    was Lucio’s sister, Sonia Chavez, who testified that Lucio “never disciplined
    her children.” The recalled witness was Joanne Estrada, a child protective
    services worker.      Estrada was asked about whether she had reviewed
    documents that showed that Mariah had tantrums while in foster care and had
    hit her head on the floor. Estrada testified that she had not come across
    anything in Lucio’s file that showed she was “physically abusive to any of the
    children.” Lucio presented no other witnesses.
    Ultimately, Lucio was convicted and sentenced to death. Lucio appealed
    her conviction, but the Texas Court of Criminal Appeals affirmed. 
    Lucio, 351 S.W.3d at 910
    . The State’s argument on appeal continued to rely on Lucio’s
    interrogation. In responding to Lucio’s sufficiency of the evidence challenge,
    the State argued that a “jury could have reasonably concluded that [Lucio] was
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    responsible for delivering the fatal blow to Mariah’s head, as she had the
    opportunity to do so, and she had admitted to a pattern of abuse that had
    continued for some two months.” 
    Id. at 894–95
    (emphasis added). The Texas
    Court of Criminal Appeals accepted that argument. 
    Id. at 895.
          Lucio also appealed the district court’s decision to bar her experts,
    Villanueva and Pinkerman, from testifying. 
    Id. at 897–902.
    She argued that
    she should have been permitted to present Villanueva’s and Pinkerman’s
    testimonies to help prove her “confession” was involuntary. Lucio contended
    that the jury could have “used it to decide whether the battered woman
    voluntarily gave the statement at the station to the police” and to show that
    she “would have and did tell the police whatever they wanted her to say.” 
    Id. at 898.
          The Texas Court of Criminal Appeals rejected Lucio’s arguments for
    primarily procedural reasons. It concluded that what she argued on appeal did
    “not comport” with the experts’ “proffered testimony at trial.” 
    Id. at 900,
    902.
    She thus was found to have failed to preserve her arguments for appeal. 
    Id. The court
    alternatively noted that Villanueva’s and Pinkerman’s testimonies
    were only marginally relevant to the issue of whether Lucio’s alleged
    confession was voluntary under state law. See 
    id. at 900–02.
    Finally, it
    footnoted that excluding Villanueva’s testimony would have been harmless “in
    light of appellant’s subsequent admission during her recorded statement that
    she abused Mariah, followed by her demonstrating such abuse with the doll.”
    
    Id. at 901
    n.25.     It did not appear to make that same conclusion about
    Pinkerman’s testimony.
    After Lucio lost her appeal, she sought state habeas relief. As with her
    direct appeal, she argued that Villanueva’s and Pinkerman’s testimony should
    have been admitted. This time, though, she distinguished her argument as
    going “to the core of the case—whether [Lucio] was likely to have engaged in
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    ongoing abuse of Mariah.” She stated that the issue was the deprivation of
    “the constitutional right to present a complete defense,” and cited a state law
    case that relied on the Federal Constitution for that right. This issue is the
    only one on which a COA was granted and, using the terminology from that
    order, we refer to this as the “complete defense” claim.
    The state habeas court rejected her argument. It concluded that her
    claim was “nearly identical to [the issues] raised on direct appeal,” and she had
    not presented any additional evidence in support of the claim. Her claim thus
    failed. The state habeas court also concluded that the “district court did not
    abuse its discretion in excluding” the expert testimony. It concluded that
    Villanueva was not an expert in “interpreting body language and patterns of
    behavior during police interviews.” It separately concluded that Pinkerman’s
    testimony “had no relevance to the question of [Lucio’s] guilt or innocence.”
    Lucio appealed the state habeas court’s decision. The Texas Court of
    Criminal Appeals adopted the habeas court’s findings of fact and conclusions
    of law. It noted that some of the issues Lucio raised were procedurally barred,
    but her “complete defense” claim was not among those found barred.
    Lucio later filed an application for federal habeas relief pursuant to 28
    U.S.C. § 2254 in federal district court, again asserting her “complete defense”
    claim. The district court rejected the claim. It concluded that she had not
    shown that the state trial court’s “exclusion of Villanueva’s testimony on the
    basis of Villanueva’s lack of expert qualifications was incorrect” and there were
    no indications of “police misconduct, or any police action that rendered Lucio’s
    statements involuntary.” The district court considered Pinkerman’s testimony
    to be “only tangentially related to the question of Lucio’s guilt or innocence.”
    It also noted that the “evidence that anyone but Lucio inflicted the fatal
    injuries is tenuous at best.”
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    Lucio filed a timely notice of appeal and this court granted her a COA on
    “the question of whether the exclusion of Lucio’s proffered experts on the
    credibility of her alleged confession violated her constitutional right to present
    a complete defense.”
    II.   Discussion
    Lucio asserts that she was deprived of her due process right to present a
    complete defense when the district court excluded the testimony of Villanueva
    and Pinkerman. To prevail, she must satisfy the statutory requirements of
    AEDPA. She and the State dispute whether AEDPA’s typical standard of
    review—whether the state court’s adjudication was “contrary to, or involved
    an unreasonable application of, clearly established Federal law, as determined
    by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1)—applies
    here. Lucio asserts her claim should be reviewed de novo instead of under §
    2254(d)’s stringent standard, because the claim was not “adjudicated on the
    merits,” as that provision requires.         The State argues the claim was
    adjudicated on the merits or, if it was not adjudicated, it is because Lucio failed
    to present the claim to the state court. Both parties assert they win on the
    merits of Lucio’s claim regardless of the standard of review. We begin by
    addressing the procedural questions and then turn to the merits.
    A. Exhaustion and Standard of Review
    The State argues that Lucio did not exhaust her claim or, alternatively,
    that her claim is subject to the strict standards of review under § 2254(d)(1).
    We reject those arguments. Lucio exhausted her “complete defense claim,” and
    the state court did not adjudicate that claim.
    We begin with exhaustion. A petitioner seeking federal relief under
    § 2254 must first exhaust her state remedies. See 28 U.S.C § 2254(b)(1)(A).
    The State argues that Lucio did not exhaust her claim because she argued a
    state law claim in state court, not a federal constitutional claim. To exhaust a
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    claim, a “prisoner must ‘fairly present’ [her] claim in each appropriate state
    court (including a state supreme court with powers of discretionary review),
    thereby alerting that court to the federal nature of the claim.” Baldwin v.
    Reese, 
    541 U.S. 27
    , 29 (2004).
    Lucio fairly presented her claim in state court. A prisoner can exhaust
    a claim in state court by raising it through post-conviction proceedings, even if
    she did not raise it in her direct appeal. See Orman v. Cain, 
    228 F.3d 616
    , 620
    & n.6 (5th Cir. 2000). Lucio’s argument to the state habeas court flagged her
    “complete defense” argument as a “constitutional” issue and cited a Texas case
    that relied exclusively on the Federal Constitution. See Wiley v. State, 
    74 S.W.3d 399
    , 405–07 (Tex. Crim. App. 2002)); Wiley v. State, No. 03-99-00047-
    CR, 
    2000 WL 1124975
    , at *1 (Tex. App. Aug. 10, 2000) (discussing exclusively
    the Federal Constitution).       Texas does not appear to have recognized (or
    rejected) a “complete defense” right under its own constitution, and Lucio did
    not mention state evidentiary rules or standards in her state filings. So her
    argument could not easily be mistaken for raising an exclusively state law
    claim. After the state habeas court rejected her claim, Lucio sought review
    from the Texas Court of Criminal Appeals, which also rejected her claim. She
    has thus exhausted the claim.
    We need not decide whether Lucio’s claim was procedurally defaulted in
    state court and thus provided an adequate and independent state ground to
    support the state court’s judgment. Default on state law grounds is a separate
    doctrine related to the exhaustion requirement. See Davila v. Davis, 
    137 S. Ct. 2058
    , 2064 (2017). The State has not argued, either below or on appeal, that
    Lucio defaulted her complete defense claim on state law grounds. We are not
    required to raise the issue sua sponte, though we retain discretion to do so. See
    Trest v. Cain, 
    522 U.S. 87
    , 89 (1997); Magouirk v. Phillips, 
    144 F.3d 348
    , 357–
    58 (5th Cir. 1998); Smith v. Johnson, 
    216 F.3d 521
    , 524 (5th Cir. 2000) (per
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    curiam); Moreno v. Dretke, 
    450 F.3d 158
    , 165 n.3 (5th Cir. 2006). We decline
    to do so. Before we could conclude that an adequate state law ground existed,
    we would have to determine that the state rule barring consideration was
    “firmly established and regularly followed.” Walker v. Martin, 
    562 U.S. 307
    ,
    316 (2011) (internal quotation marks omitted). We have found no Texas case
    law regarding the appropriate time to raise a “complete defense” claim. Then,
    even if we concluded there was an adequate and independent state law ground,
    we would have to determine whether there was “cause” that would excuse
    Lucio’s state default. See 
    Davila, 137 S. Ct. at 2064
    –65. These hurdles are
    likely why the State forfeited any argument that Lucio defaulted her claim on
    state law grounds. We thus decline to raise the issue sua sponte.
    The parties do dispute whether Lucio’s “complete defense” claim was
    adjudicated on the merits. A claim is adjudicated on the merits if a state court
    issues an opinion rejecting the claim, and state courts are presumed to have
    rejected a claim on the merits if a written order is silent regarding a claim. See
    Johnson v. Williams, 
    568 U.S. 289
    , 300–01 (2013). That presumption may be
    rebutted by some “indication” or “state-law procedural principles to the
    contrary.” 
    Id. at 298
    (quoting Harrington v. Richter, 
    562 U.S. 86
    , 99 (2011)).
    The Supreme Court provided rhetorical examples of indications that the
    presumption should not apply, including:
    • If the state standard, “in at least some circumstances[,] . . . is less
    protective” than the federal standard, 
    Id. at 301;
             • If the state and federal standards are “quite different” and a party
    makes “no effort to develop” the alternative standard, id.; or
    • If a party only passingly cites the relevant standard, 
    id. Thus, “while
    the . . . presumption is a strong one that may be rebutted only in
    unusual circumstances, it is not irrebuttable.” 
    Id. at 302.
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    The state court did not expressly adjudicate Lucio’s claim. The State
    argues that the state habeas court adjudicated the claim in paragraphs thirty-
    nine and forty of its findings of fact and conclusions of law. Those paragraphs
    address state evidentiary standards and assert that Lucio’s claim was
    redundant of her direct appeal argument. But Lucio explicitly framed her
    argument as a constitutional claim distinct from what she argued on direct
    appeal. The state habeas court’s order thus did not adjudicate the claim that
    Lucio made.
    Lucio has rebutted the presumption of adjudication. Lucio has identified
    aspects of her case that are like those that the Supreme Court suggested could
    rebut the presumption of adjudication. Instead of adjudicating her actual
    claim, the state habeas court adjudicated a similar state claim. It likely did so
    because the State responded to Lucio’s argument as though it should be
    adjudicated on state evidentiary standards. But the standards for Lucio’s
    constitutional claim and state evidentiary rules are “quite different” from each
    other. 
    Williams, 568 U.S. at 301
    . Indeed, the whole point of Lucio’s “complete
    defense” claim is that, even if state evidentiary laws were correctly followed,
    she was deprived of a constitutional right.      The state habeas court thus
    adjudicated a separate issue without addressing the heart of Lucio’s claim
    under the appropriate standards. This case thus fits one of the examples the
    Supreme Court recognized as rebutting the presumption of adjudication on the
    merits. See 
    id. The state
    habeas court did not adjudicate Lucio’s “complete
    defense” claim.
    Consequently, Lucio’s claim is subject to de novo review in federal
    district court and on appeal. See 
    id. at 301–02;
    Lewis v. Thaler, 
    701 F.3d 783
    ,
    787 (5th Cir. 2012).
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    B. “Complete Defense” Claim
    Lucio argues she was deprived of the right to present a complete defense.
    She argues that by excluding Villanueva’s and Pinkerman’s testimony, the
    trial court made it impossible for her to meaningfully dispute the importance
    and meaning of the videotaped interview.                     We agree that excluding
    Pinkerman’s testimony deprived her of the right to present a complete defense;
    because we do, we do not need to examine whether excluding Villanueva’s
    testimony was also a violation of her constitutional rights. 1
    The Supreme Court has recognized that the Constitution guarantees
    criminal defendants a “meaningful opportunity to present a complete defense.”
    United States v. Scheffer, 
    523 U.S. 303
    , 329 (1998) (quoting Crane v. Kentucky,
    
    476 U.S. 683
    , 690 (1986)). In a series of cases, it held that the applications of
    various state evidentiary rules infringed that right. 2 Though the Supreme
    Court’s case law has “typically focus[ed] on categorical prohibitions of certain
    evidence,” Caldwell v. Davis, 757 F. App’x 336, 339 (5th Cir. 2018) (per curiam),
    we have at least once held that a state court’s application of a discretionary
    1 At the very least, the exclusion of Villanueva’s testimony raises concerns about the
    fairness of the trial. The State asked Ranger Escalon to describe Lucio’s demeanor during
    her interrogation; he responded that it indicated that she was saying, “I did it.” The State
    then asked him to detail his experience interviewing people and to contrast Lucio’s demeanor
    with others’ demeanor. Escalon did not indicate he had any formal training on reading body
    language. By contrast, Villanueva did have such training and was not allowed to testify on
    that subject.
    2 See 
    Crane, 476 U.S. at 684
    , 691 (holding that the state court’s exclusion of evidence
    probative of the credibility of the defendant’s confession because the proffered evidence was
    relevant to voluntariness, an issue the court had already ruled on, violated the defendant’s
    right to a fair trial under the Sixth and Fourteenth Amendments); Washington v. Texas, 
    388 U.S. 14
    , 15, 23 (1967) (holding that a state statute barring the defendant from calling a
    “principal[], accomplice, or accessor[y] in the same crime” as a witness in his defense violated
    the defendant’s rights to call witnesses in his own defense and to compulsory process for
    obtaining such witnesses); Chambers v. Mississippi, 
    410 U.S. 284
    , 297–98, 302–03 (1973)
    (holding that the Mississippi voucher and hearsay rules were unconstitutional as applied to
    the extent that they prevented the defendant from: (1) putting on evidence of a third party’s
    confession to the crime with which the defendant was charged and (2) challenging that
    witness’s subsequent retraction).
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    No. 16-70027
    evidentiary rule violated a defendant’s right to present a complete defense. See
    Kittelson v. Dretke, 
    426 F.3d 306
    , 321 (5th Cir. 2005) (per curiam).
    But the right to present a complete defense is not unfettered.           The
    Supreme Court has “found the exclusion of evidence to be unconstitutionally
    arbitrary or disproportionate only where it has infringed upon a weighty
    interest of the accused.” 
    Scheffer, 523 U.S. at 308
    . “[T]he Constitution leaves
    to the judges who must make [evidentiary] decisions ‘wide latitude’ to exclude
    evidence that is ‘repetitive . . . , only marginally relevant’ or poses an undue
    risk of ‘harassment, prejudice, [or] confusion of the issues.’” 
    Crane, 476 U.S. at 689
    –90 (ellipsis and third set of brackets in the original) (quoting Delaware
    v. Van Arsdall, 
    475 U.S. 673
    , 679 (1986)); see also Patterson v. Cockrell, No. 01-
    11170, 
    2002 WL 432402
    , at *2 (5th Cir. 2002) (unpublished) (per curiam)
    (“Crane cannot be interpreted to convert every arguable misapplication of state
    evidentiary rules into an unconstitutional denial of a fair trial.”).
    The trial court’s decision to exclude Pinkerman’s testimony “infringed
    upon a weighty interest of the accused” so as to be “unconstitutionally
    arbitrary.”   
    Scheffer, 523 U.S. at 308
    .      Lucio’s counsel made clear that
    Pinkerman would present expert evidence that, as a result of her psychological
    profile, Lucio “takes blame for everything that goes on in the family. . . . She
    takes blame for everything that goes on in the house,” even for acts that she
    did not commit. The state trial court concluded that Lucio “admitted actions
    that she took that could have resulted in the death. But she denied ever having
    anything to do with the killing of the child.” It thus had “a hard time figuring
    out how it goes to the guilt or innocence” and denied Lucio the opportunity to
    present Pinkerman’s testimony.
    The trial court’s conclusion was inconsistent with the reality of this trial.
    Lucio’s admissions of abuse within her interrogation statement were the most
    significant evidence in the case. See, e.g., Arizona v. Fulminante, 
    499 U.S. 279
    ,
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    No. 16-70027
    297 (1991) (“Absent the confessions, it is unlikely that [the defendant] would
    have been prosecuted at all, because the physical evidence from the scene and
    other circumstantial evidence would have been insufficient to convict.”);
    Bruton v. United States, 
    391 U.S. 123
    , 139 (1968) (“[T]he defendant’s own
    confession is probably the most probative and damaging evidence that can be
    admitted against him.”). The State presented no physical evidence or witness
    testimony directly establishing that Lucio abused Mariah or any of her
    children, let alone killed Mariah. Instead, it presented Lucio’s interrogation
    statement—admitted and played during the testimony of its first witness—as
    its crucial source of proving she committed the act. The State’s theory was that
    Lucio’s interrogation admissions were true, that she was responsible for a
    pattern of brutal abuse of Mariah, and that, from these admissions, the jury
    could infer beyond a reasonable doubt that Lucio also struck the fatal blow to
    the head that killed the child. In closing argument, the State summarized its
    case by contending that Lucio must have killed Mariah because she abused
    her. The only evidence it cited in closing to establish that Lucio abused her
    was Lucio’s “confession.”        On appeal, when it argued the evidence was
    sufficient to convict Lucio, it again relied on the assertion that Lucio “admitted
    to a pattern of abuse.” See 
    Lucio, 351 S.W.3d at 894
    –95 (internal quotation
    mark omitted). Contrary to the state trial court’s conclusion, the interrogation
    statement played a pivotal role in the State’s case as to guilt or innocence.
    If the interrogation statement is taken away—or its validity is
    undermined—then the State’s case becomes much more tenuous. A reasonable
    juror would have much less reason to infer that Lucio—rather than her
    husband, other children, or Mariah herself 3—caused Mariah’s injuries, much
    3  Lucio’s counsel introduced evidence about records that reported that Mariah would
    hit her head against the ground when throwing a tantrum.
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    less her fatal head injury. To the extent that there was evidence beyond Lucio’s
    statement that implicated her—such as opportunity as Mariah’s primary
    caretaker—it pales in comparison to the force of an apparent confession of
    abuse.
    As critical as that evidence was to the State, explaining why it could not
    be trusted was as critical to Lucio’s defense. To paraphrase the Supreme
    Court, why Lucio would confess to abusing her daughter if she did not actually
    abuse her was a “question every rational juror need[ed] answered” before
    acquitting. 
    Crane, 476 U.S. at 689
    . Lucio attempted to explain the alleged
    confession with Pinkerman’s testimony. Neither the State nor the state trial
    court questioned Pinkerman’s expert credentials. Pinkerman’s opinion was
    that Lucio was susceptible to taking blame for something that was not her fault
    and that this behavior was manifested in the interrogation video. It thus cast
    doubt on the State’s key evidence and was paramount to Lucio’s defense. The
    state trial court’s exclusion of Pinkerman’s testimony impinged on Lucio’s
    “weighty interest” in explaining why her “confession” to abuse did not support
    an inference of guilt beyond a reasonable doubt. 
    Scheffer, 523 U.S. at 308
    .
    The exclusion bears the hallmark sign of arbitrariness: complete
    irrationality.   The state trial court asserted that Pinkerman’s testimony’s
    casting doubt on the veracity of the interrogation statement was not relevant
    because Lucio did not admit she struck the fatal blow.         But the State’s
    argument that Lucio struck the fatal blow relied on an inference from the
    statements that she abused Mariah. To undercut the State’s premise (i.e.,
    Lucio abused Mariah) is to undercut its conclusion (i.e., Lucio killed Mariah).
    “In the absence of any valid state justification, exclusion of this kind of
    exculpatory evidence deprives a defendant of the basic right to have the
    prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial
    testing.’” 
    Crane, 476 U.S. at 690
    –91 (quoting United States v. Cronic, 
    466 U.S. 17
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    No. 16-70027
    648, 656 (1984)). 4 We thus conclude that the state court’s ruling was “of such
    a magnitude or so egregious that [it] render[ed] the trial fundamentally
    unfair.” Gonzalez v. Thaler, 
    643 F.3d 425
    , 430 (5th Cir. 2011).
    Our conclusion bears strong resemblance to our previous conclusion in
    Kittelson v. Dretke, where we concluded that a state trial court deprived a
    defendant of the right to present a complete defense. 
    See 426 F.3d at 321
    .
    There, a state court prohibited a defendant accused of sexually assaulting a
    young girl from “mention[ing] or allud[ing] to” the fact that one of the girl’s
    friends had also accused him of sexual assault, only to later recant. 
    Id. at 309–
    12, 321. But the State was permitted to present evidence that the friend was
    present and questioned about the abuse. 
    Id. Like here,
    the state trial court in
    Kittelson was not “concerned about the prejudicial effect of the jury hearing”
    the excluded testimony. 
    Id. at 321.
    Like here, the other evidence that the
    defendant was permitted to present did not go “directly” to the “critical”
    evidence that the State presented. 
    Id. The same
    type of unfair, arbitrary
    consequences present in Kittelson are present in Lucio’s case.
    The State primarily contends that the state trial court’s decision was not
    arbitrary based on a rationale that the state trial court never considered. It
    argues that Pinkerman’s testimony would have been “tantamount to a direct
    4 But even assuming the state trial court were right that the only issue was whether
    she struck the fatal blow and that evidence undermining the interrogation statement was
    not relevant, its ruling would still be arbitrary. Based on those assumptions, the state trial
    court should not have admitted the interrogation in the first place. As the state trial court
    said, Lucio does not admit to striking the fatal blow, so it would not (on the assumptions it
    made) go to her guilt or innocence. Worse yet, admitting such an irrelevant video would be
    far more prejudicial to Lucio than admitting Pinkerman’s testimony would be to the State.
    So even if the state trial court’s theory were right, the decision to permit the State’s
    irrelevant, prejudicial evidence but exclude Lucio’s irrelevant, non-prejudicial evidence is
    arbitrary. Favoring the State over Lucio on such a critical issue also approaches irrationality.
    See Kubsch v. Neal, 
    838 F.3d 845
    , 858 (7th Cir. 2016) (“Arbitrariness might be shown by a
    lack of parity between the prosecution and defense; the state cannot regard evidence as
    reliable enough for the prosecution, but not for the defense.”).
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    opinion on truthfulness” and was therefore inadmissible under other state
    evidentiary rules. That argument suffers two problems. First, it relies on state
    evidentiary rules that address bolstering a witness’s trial testimony. See Yount
    v. State, 
    872 S.W.2d 706
    (Tex. Crim. App. 1993); Duckett v. State, 
    797 S.W.2d 906
    (Tex. Crim. App. 1990), disapproved of by Cohn v. State, 
    849 S.W.2d 817
    (Tex. Crim. App. 1993). Setting aside the fact the State’s brief ignores the
    nuance in those rules, the State’s argument lacks any force because Lucio was
    not a witness at trial and because Pinkerman was not there to bolster her
    credibility. Second, the State does not explain why excluding Pinkerman’s
    testimony under those state evidentiary rules would not have denied her the
    right to present a meaningful defense any more than excluding it under
    relevance rules would. 5
    The exclusion of Pinkerman’s testimony prejudiced Lucio. “Complete
    defense” claims are subject to harmless error analysis. See United States v.
    Skelton, 
    514 F.3d 433
    , 438 (5th Cir. 2008).                  As discussed above, Lucio’s
    interrogation statement was the most significant evidence in the case, on
    which the State repeatedly relied. None of the alternative evidence the State
    points to as making the exclusion harmless comes close to the impact of the
    interrogation statement. 6 So this is not a situation where the evidence is so
    5 In passing, the State argues that the state trial court’s decision was proper because
    Pinkerman’s bill of particulars—the procedural mechanism used to capture what an excluded
    witness would have testified about—did not specifically mention battered wife syndrome.
    But the bill of particulars tracks the same type of evidence that Lucio’s counsel argued
    Pinkerman would present, even if they do not use the same terms. Moreover, the state trial
    court excluded Pinkerman’s testimony before he offered his bill of particulars, so Pinkerman’s
    subsequent summary is of little value in deciding whether the state trial court’s actions were
    arbitrary.
    6 The State’s best alternative evidence is a statement from a police officer that, after
    Lucio’s arrest and while driving, Lucio used the phone to call a sister. According to the officer,
    Lucio told her sister, “Don’t blame, Robert [i.e., her husband]. This was me. I did it. So don’t
    blame Robert.” Though this is evidence in the State’s favor, it pales in comparison to the
    power of Lucio’s videotaped “confession,” which went unchecked. It was a hearsay statement
    19
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    No. 16-70027
    overwhelming that Lucio would have been convicted regardless.                       Without
    Pinkerman’s testimony, Lucio’s only evidence left to rebut the notion she
    abused her children was her sister’s testimony. The arbitrary exclusion of
    Pinkerman’s testimony prejudiced her.
    Preventing Pinkerman from testifying infringed Lucio’s right to
    meaningfully present a complete defense and it was not harmless error.
    III.    Conclusion
    Consequently, we REVERSE the district court’s order and REMAND for
    the district court to grant Lucio relief.
    without the context of what was being said on the other end of the phone. Additionally, the
    credibility of the officer’s testimony is subject to attack. He did not create a log of Lucio’s
    alleged statements until nearly sixteen months after he interacted with Lucio—the month
    before trial.
    20