INTRODUCTION

On June 6, 1996, six-year old Devon Routier, five-year old Damon Routier, and their mother, Darlie Lynn Routier (“Petitioner”), were the victims of a horrible attack while they slept in the family room of the Routiers’ residence at 5801 Eagle Drive, Rowlett, Texas. Devon and Damon were killed in the attack, and Petitioner came within millimeters of losing her life from a vicious cut across the front of her neck. This crime outraged an entire community because the lives of two young children were lost. That outrage, however, did not then, and cannot now, justify the complete subversion of justice that resulted in the capital conviction and sentence of Petitioner for a crime she did not commit.^[1]

The State’s theory of the case was that Petitioner killed her own children to collect on their $5,000 burial insurance policies and then staged the crime scene and inflicted her own near-fatal injuries to cover up what she had done. That case was built entirely upon circumstantial and character evidence; the most compelling of which was an irrelevant and unduly prejudicial videotape of Petitioner at a gravesite birthday celebration to honor the memory of Devon Routier, which the State – though in possession of a surveillance video showing this event was part of a several-hour tearful and solemn family visit to the children’s graves – introduced out of context. In investigating and presenting this case to the jury, the State ignored significant evidentiary leads that not only were inconsistent with its own theory but consistent with the defense’s theory that an intruder committed the attacks, withheld exculpatory and impeachment evidence that it was constitutionally required to turn over to the defense, and violated explicit court rulings precluding the introduction of irrelevant and unduly prejudicial evidence. Through such tactics, the State manufactured a conviction in which this Court should have little confidence.

The State’s misconduct is matched only by the unethical and unconstitutional actions of Petitioner’s own defense counsel, who, even though advised by her prior counsel that the husband was a possible perpetrator, agreed not to implicate Petitioner’s husband in her trial as a condition of being hired by the family to defend her. By completely foreclosing this line of defense, her counsel never learned or presented to the jury evidence that Darin Routier had arranged to have his car stolen in 1994 to collect insurance proceeds and for a period of months before the events on June 6, 1996, had inquired of relatives and associates whether they knew of anyone who would “burglarize” his home so that he could collect the insurance proceeds. That alone rendered defense counsel’s representation unconstitutional yet did not constitute the extent of the deficiencies in defense counsel’s representation. Defense counsel, for example, never retained forensic experts to conduct scientific tests of the physical items removed from the Routier residence at 5801 Eagle Drive, Rowlett, Texas. As a result, the State’s scientific evidence was never challenged at trial. The jury thus was left with a factually erroneous impression of what that evidence showed, when in fact some of the physical evidence not only was inconsistent with a staged crime scene but indicated that Petitioner is innocent.

Thus, from start to finish, the process culminating in Petitioner’s capital murder conviction and death sentence was undermined by misconduct, omissions, and failures – not only by the State but by her own counsel – that deprived Petitioner of her federal and state constitutional guarantees to due process and a fundamentally fair trial. Accordingly, Petitioner respectfully asks this Court to vacate her conviction and sentence and to issue the writ of habeas corpus.

STATEMENT OF FACTS

In the weeks before June 6, 1996, neighbors of the Routiers noticed a strange black car in the back alley behind and across the street from their residence at 5801 Eagle Drive, Rowlett, Texas – just watching the house. C.R.R. Vol. 36, p. 136:5-15; C.R.R. Vol. 41, pp. 84:21-85:24. Because the windows of the car were tinted, no one could identify what the driver looked like or whether any passengers were in the car. These neighbors’ observations took on added significance after June 6, 1996.

In the early morning hours of June 6, 1996, Petitioner and her two older sons, Devon and Damon, were attacked with a knife in the family room, where earlier they had fallen asleep watching television. C.R.R. Vol. 44, p. 4865:10-22. Like most victims of violent crime, Petitioner does not remember many details from that morning. She recalls being awakened by Damon’s hitting her right shoulder and saying “mommie,” and seeing a man walk from the family room couch into the kitchen. C.R.R. Vol. 44, p. 4866:1-4, 8-9. Petitioner believes that whomever she saw that morning killed Devon and Damon and came within millimeters of killing her as well. Physical and circumstantial evidence corroborate Petitioner’s belief.

In the 2:00 a.m. hour on June 6, 1996, a Rowlett woman driving home along a stretch of Dalrock Road that is approximately a ten-minute walk from the Routiers’ neighborhood, observed two suspicious men. See generally Darlene Potter Affidavit (“Potter Aff.”).^[2] As she approached the “S” curve on Dalrock Road, the Rowlett woman slowed down because a trailer was attached to the back of her vehicle. Potter Aff. ¶ 3. She then noticed a man in his late twenties, medium build, shoulder-length disheveled hair, and barefoot walking along the side of the road. Potter Aff. ¶ 3. She was surprised to see someone on the street at that hour. Potter Aff. ¶ 4. As she drove out of the curve, she then noticed for the first time a second man who appeared to be in his late twenties, wearing a baseball cap and white t-shirt. Potter Aff. ¶ 6. The second man stepped from the curve as if to approach her vehicle, but the first man motioned “no” to him. Potter Aff. ¶ 5. When the woman arrived home, she went to bed but did not fall asleep. Potter Aff. ¶ 8. Approximately forty-five minutes later, she noticed a small dark-colored car riding its brakes in the fields next door to her house. Potter Aff. ¶ 8.

A similar car was sighted by one of the Routiers’ neighbors later that afternoon on Eagle Drive, after the Rowlett Police Department had secured the crime scene at the Routiers’ residence. This neighbor informed Police Officer Jimmy Patterson about the peculiar car but neither he nor to his knowledge, anyone else from his department followed up on the information. C.R.R. Vol. 42, pp. 25:15-26:5.

Only a few months before the first sightings of the black car in the Routiers’ neighborhood, Darin Routier devised a fraudulent scheme to have his house “hit” so that he could collect the insurance proceeds from the “burglary.” See Darin Routier Affidavit (“Routier Aff.”) ¶¶ 3-4. The “burglar” was supposed to enter the Routiers’ home, remove items from the home and store them until the insurance proceeds were paid, from which the “burglar” would be compensated. Routier Aff. ¶ 3. In the spring of 1996, Darin Routier asked Petitioner’s step-father, Robbie Kee, whether he knew anyone willing to commit such a burglary. See Robbie Gene Kee (“R. Kee Aff.”) ¶ 2; see also Routier Aff. ¶ 3. “Between March 1996 and May 1996, [Darin Routier] told multiple people of [this] planned insurance scam.” Routier Aff. ¶ 4. On at least two prior occasions, however, once in 1994 (see Routier Aff. ¶ 2) and then again in 1995, Darin Routier in fact executed schemes for his 1982 Jaguar and wallet to be stolen so that he could collect insurance proceeds.

The jury that convicted Petitioner never heard these facts and thus never had the opportunity to piece them to arrive at a more plausible explanation than the flimsy one offered by the State for why the events of June 6, 1996 might have happened – an insurance scam gone wrong. Douglas Parks, Petitioner’s original appointed counsel intended to present this defense to the jury (see Douglas Parks Affidavit (“Parks Aff.”) ¶ 4; Routier Aff. ¶ 4) but, at her family’s urging, Petitioner accepted new defense counsel. Thereafter, defense counsel did not investigate whether someone known to Darin Routier had committed the “hit” on his house; indeed, defense counsel never had any intention to do so because a condition of his retention by Petitioner’s family was that he not implicate Darin Routier in the crimes. See Routier Aff. ¶ 7. By agreeing to that condition – without Petitioner’s consent – defense counsel completely foreclosed that line of defense for her, a defense that offered a more plausible explanation of the crimes, including the near fatal attack on Petitioner.

The jury also never heard exculpatory evidence that the State knowingly did not disclose to the defense – even though constitutionally required to do so – evidence that one of its key witnesses, Charles Linch, had a long history of depression and alcoholism, caused in part by job-related stress from working at crime scenes and testifying at capital trials. The State also never corrected certain misimpressions created by or false statements made in the testimony of Linch, James Cron, and Alan Brantley. Linch falsely testified that at the time he received the kitchen knives from 5801 Eagle Drive, only two had been dusted – neither of which was Knife Number 4 from which he recovered the fiber that he claimed came from the garage window screen. C.R.R. Vol. 37, p. 144:17 – 145:6. Linch now admits that, in fact, all of the knives had been dusted, before he received them for testing. This constitutes further evidence that Knife Number 4 was contaminated in the course of dusting the scene for fingerprints, and thus the fiber is not evidence of a staged crime scene.

Alan Brantley gave the jury the misimpression that he had investigated whether there had been similar crimes in the area. See C.R.R. Vol. 40, pp. 53:24-54:5. In fact, a spree of crimes that started in December 1995 and ended around the time of the attack at the Routiers’ residence was not disclosed to the jury. The assailant’s modus operandi included using implements from the homes of his victim as weapons and using tube socks – like the one found three houses down from the Routier’s home (C.R.R. Vol. 32, p. 71:3-6) – to gag his victims. Brantley misleadingly suggested that criminal offenders never use objects found in victims’ homes as weapons. See C.R.R. Vol. 40, p. 84:5-9.

Implausible Theory Advanced By the State:

The jury also never heard any alternative explanations for critical aspects of the State’s case – even though such explanations were available to the defense. The State’s case against Petitioner was entirely circumstantial, built primarily upon character evidence – some of which the trial court had ruled was inadmissible but the State presented anyway (see, e.g., C.R.R. Vol. 42, pp. 304-06) – that she was a materialistic woman who lived beyond her means and upon the testimony of witnesses Charles Linch, Tom Bevel, and James Cron who were offered as experts. All three of these witnesses testified that the physical evidence at the crime scene indicated that it had been staged.

Fiber on Knife No. 4/Garage Window Screen:

Linch testified that a fiber recovered from Knife Number 4 was consistent with the material from a torn garage window screen:

Q. [] Bottom line, from this comparison of the black rubbery material and the glass rods on the window screen and on this knife, what does that say to you as a trace evidence analyst?

A. I couldn’t tell the difference between this debris and the debris found on the knife and, therefore, this knife could have been used to cause the cut, defect.

C.R.R. Vol. 37, p. 144:17-24.

Blood Spatter on Petitioner’s Victoria’s Secret Nightshirt:

Tom Bevel testified that blood spatter on the back of the Victoria’s Secret nightshirt that Petitioner wore on the morning of June 6, 1996 was consistent with “cast off” stains that would have been deposited when she brought the knife overhead in a stabbing motion:

Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . . And then just simply did a motion such at this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the night of the attack].

C.R.R. Vol. 39, p. 37:10-38:1. He explained the significance of his findings to the jury as:

A. I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.

C.R.R. Vol. 39, p. 38:3-6.

Broken Wine Glass:

Cron testified that a wine glass from a wine rack in the kitchen had been thrown to the floor to suggest a struggle:

Q. [] While you were telling us what a rocket scientist could and couldn’t do, let me just ask you how you decided, that the wine glass was broken?

. . . .

A. When I make my – walking through the kitchen the first time, I had no earthly idea. I thought, well, maybe it was broken during the scuffle with the intruder. After I finished the walk-through and went outside and came back inside, it looked to me like it had been broken there to simulate or stage an offense, a member of the household broke it and planted it there.

. . . .

A. After I made the initial walk-through, where I first went through, I didn’t think anything of it. I thought it was broken maybe in a scuffle.

. . . .

A. After I went back outside the house, finishing all of the inside, going outside then coming back in, I based my opinion . . . that there was – no intruder and I could only conclude that the glass was broken as part of the staging of this offense to make it appear like there had been an intruder.

C.R.R. Vol. 35, pp. 2287:4-2288:4.

Hoover Vacuum Cleaner:

Bevel testified that a Hoover vacuum cleaner that police officers discovered knocked over actually had been rolled through blood, as indicated by wheel marks on the flooring, and was another effort to stage the crime scene:

A. [] It is a motion just simply of the wheel rolling through the bloodstain. However, they are not connected. You then have another area and you would just about have to lift the vacuum cleaner and go over to another area and then proceed to roll again in a different direction from the original location or – and original direction.

Q. Okay. So there were differing directions to these movements; is that right?

A. As well as not being connected, so there has to be some movement up from off of the floor with the vacuum cleaner.

Q. The roll marks that you saw on the floor, sir, were they consistent with the State’s Exhibit No. 93 just simply being dumped over or knocked over in one motion?

A. They would not, no, sir.

C.R.R. Vol. 38, pp. 227:13-228:4.

In its closing arguments, the State explained how this evidence supported its theory that Petitioner had murdered her son Damon:

Well, it doesn’t take Sherlock Holmes to figure out, that this vacuum cleaner was dumped on top of those bloody footprints after it was moved. But why? If the defendant did it, it’s because it’s staging. You need to show some type of struggle occurred, something like that.

But what else didn’t make sense . . . The wine glass. Supposedly . . . this intruder ran into this wine rack somehow and broke a glass. Well, there’s glass on top of the bloody footprints, and the officer said they were careful not to step on blood, and not to step on glass. The trouble is he checked the wine rack and it was real sturdy . . .

That is another indication that something wasn’t adding up . . . with this story . . . .

And when [Linch] tested [] that bread knife, he looked at it under the microscope and what did he find? Glass rods, the same type of rubber material seen on the bread knife. And that same type of rubber debris with the glass meshed in. The same type of stuff that happens when you cut the screen. And it adds up, that bread knife was used to cut that screen, and . . . that tells you they were trying to fake the crime scene.

. . . .

[what is the explanation for the blood stains on the back of the nightshirt,] the most consistent way it could happen is when the stabbing motion comes up and the knife is over the shoulder . . . . That tells you that she was stabbing, and Devon’s blood winds up on her back. It’s not going to wind up there if she is laying on the couch as a man wrestles at her neck.

C.R.R. Vol. 47, pp. 37:25-38.23, Vol. 47, pp. 16-24, Vol. 46 pp. 10-16.

As the State pointed out to the jury, defense counsel presented no scientific evidence to rebut the physical indications of a staged crime scene:

You know, here is the bottom line on Tom Bevel. You know out there at SWIFS there is another expert, Terry Labor. He is the DNA blood spatter expert who went out there on behalf of the defendant also, along with Bart Epstein. And if they want to quarrel with Tom Bevel and tell you that he is wrong, and that he is a witch doctor of some sort, where is Terry Labor then? Where is their blood spatter expert? Don’t you know that if he had any criticism of the opinions rendered by Tom Bevel, that just like Bart Epstein, you would see them right up here, and he would be detailing for you what those criticisms are. But he is not here either, is he? And for a very good reason.

C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4. In fact, in October 1996 defense counsel was aware of contrary evidence. But the jury never heard that evidence either.

Credible Alternative Explanations for the Physical Evidence at the Crime Scene

Through investigation of undersigned counsel, additional facts have surfaced about the physical evidence from 5801 Eagle Drive, Rowlett, Texas – again, none of which the jury heard. A bloody fingerprint lifted from a glass table in the family room where the attacks occurred was described at trial by the State as lacking sufficient ridge details for identification. See C.R.R. Vol. 35, p. 47:7-15. Professor Richard Jantz from the University of Tennessee has since concluded otherwise and since determined that the latent fingerprint belongs to an adult. See Richard Jantz Affidavit (“Jantz Aff.”). The fingerprint has been compared to the fingerprints of Petitioner, Darin, Devon, and Damon Routier and all law enforcement personnel who responded to the scene. None matched. See generally Jantz Aff. To leave a fingerprint before the blood on the family room table had dried, an unknown adult must have been in the Routiers’ home on the morning of June 6, 1996 during or right after the attacks. This evidence supports what Petitioner has maintained all along: She and her sons were attacked by the unidentified man that she saw leave through the kitchen on that morning. See C.R.R. Vol. 44, p. 4866:8-9.

The jury never heard from forensic experts Terry Laber and Barton Epstein, who were retained by Petitioner’s appointed counsel – both of whom were identified by name in the State’s closing arguments as witnesses the defense never called to rebut Linch and Bevel’s testimony. Laber and Epstein had reached conclusions contrary to the State’s experts before trial that could have been presented to the jury in Petitioner’s defense. Substitute defense counsel, who was conflicted because of an agreement not to implicate Darin Routier (see Routier Aff. ¶ 7) , decided not to use the exculpatory evidence or to conduct further scientific tests – at a time when he was not familiar with the facts of the case. At the time they were instructed to stop working on the case, Laber and Epstein had conducted a number of scientific tests on the physical evidence about which Linch and Bevel had testified at trial and had recommended additional testing on other physical evidence. Laber and Epstein’s conclusions in October 1996 were that the physical evidence did not suggest a staged crime scene, which directly contradicted the testimony of Linch and Bevel. See generally Terry L. Laber Affidavit (“Laber Aff.”).

Fiber on Knife No. 4/Garage Window Screen:

The jury never learned that before Linch tested Knife Number 4, the kitchen knives recovered from 5801 Eagle Drive already had been dusted for fingerprints using a fiberglass brush composed of the same material as the fiber removed from that knife. No definitive tests were conducted to determine the source of the fiber. Linch could testify only that the fiber was “consistent” with the garage screen window (See C.R.R. Vol. 37, pp. 144:17-145:6); he had reached a similar conclusion about a hair found in the same garage window screen that he opined was “consistent” with Petitioner’s hair. See C.R.R. Vol. 37 p. 184:8-13. In fact, DNA testing determined that he was wrong (See C.R.R. Vol. 37, pp. 183:22-184:2). Laber and Epstein recommended that definitive testing be conducted on the fiber in October 1996. See Laber Aff. ¶ 6. Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

Blood Spatter on Victoria’s Secret Nightshirt:

Laber and Epstein concluded that Petitioner’s nightshirt indicated only minimal areas of blood spatter and that the critical areas of spatter were never subjected to genetic testing. Bevel explained to the jury that one explanation for the absence of blood spatter was that Damon’s and Devon’s blood was covered by direct hits of Petitioner’s blood from her self-inflicted wounds. In Laber’s expert opinion, that interpretation requires an extremely unlikely sequence of events. Laber and Epstein recommended that the critical areas of blood staining be tested in October 1996. See Laber Aff. ¶ 6. Conflicted defense counsel, however, ignored that advice, and the jury never heard evidence from such testing.

Broken Wine Glass:

Laber and Epstein concluded that the dispersal pattern of the broken wine glass that the jury was told had been dropped to suggest a struggle was not consistent with the State’s staging theory. See Laber Aff. ¶ 11. Broken glass shards discovered on the wine rack indicated that the glass had broken there. See Laber Aff. ¶ 11. Laber and Epstein made that finding in October 1996. See Laber Aff. ¶ 11. Conflicted defense counsel, however, never presented their finding to the jury.

Hoover Vacuum Cleaner:

Laber and Epstein concluded that the blood spatter indicated on the vacuum cleaner occurred after it had been knocked down and therefore was not consistent with Bevel’s theory that the vacuum cleaner had been pushed around by someone who was bleeding. See Laber Aff. ¶ 11. Laber and Epstein made that finding in October 1996. See Laber Aff. ¶ 11. Defense counsel, however, never presented their finding to the jury.^[3]

The jury that convicted Petitioner on February 1, 1997, for the murder of Damon Routier never heard substantial evidence that undermines the State’s circumstantial case against her and supports her claim of innocence. And the jury never heard the most likely explanation for the crimes because her counsel had agreed as a condition of retention by Petitioner’s family to protect a more plausible suspect, at the expense of Petitioner. Petitioner seeks to have her conviction and sentence vacated and a writ of habeas issued because no court can have no confidence in such a tainted verdict.

CLAIMS FOR RELIEF

I. Because Petitioner Is Innocent Of The Crime For Which She Was Convicted, Her Sentence And Conviction Are Unconstitutional Under Schlup v. Delo And Violate The Eighth Amendment And Petitioner’s Federal And State Constitutional Rights To Due Process And A Fundamentally Fair Trial.

Petitioner to this date maintains that she is innocent of the crime for which she was convicted and sentenced to death. It is now well established that “the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution” and the corollary provisions of the Texas Constitution. State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 397 (Tex. Crim. App. 1994); see also U.S. Const. amends. VIII; XIV; TX Const. art. I § 19; Tex. Code of Crim. Proc. art. 1.04[2][3]. Thus, Texas courts recognize “actual innocence” as “an independent ground for relief” in post-conviction applications for the writ of habeas corpus. Ex Parte Elizondo, 947 S.W.2d 202, 204 (Tex. Crim. App. 1996); see also Herrera v. Collins, 506 U.S. 390, 417 (1993) (noting that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional”). “[I]n order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.” Holmes, 885 S.W.2d at 399. Since Holmes, Texas courts have clarified the evidentiary showing a defendant must make to satisfy this standard. See Ex Parte Elizondo, 947 S.W.2d at 209; State v. Nkwocha, 31 S.W.3d 817, 820-21 (Tex. App. 2000). The requisite showing depends on whether the petitioner is advancing a Herrera-type claim or a Schlup-like claim. Compare Herrera, 506 U.S. at 405 (describing petitioner’s claim as “not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place”) with Schlup v. Delo, 513 U.S. 298, 315 (1995) (describing petitioner’s innocence claim as “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits”).^[4]

In Herrera, petitioner challenged his capital conviction and sentence for murder in a second federal habeas petition on grounds that he was “‘actually innocent’ of the murder for which he was sentenced to death, and that the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process of law therefore forbid his execution.” Herrera, 506 U.S. at 393. In support of his second habeas petition, petitioner attached affidavits “tending to show that his now-dead brother, rather than he, had been the perpetrator of the crime.” Id. Herrera claimed that this showing of innocence entitled him to habeas relief. The Court disagreed. “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Id. at 399. Thus, the threshold showing for a claim of innocence “would necessarily be extraordinarily high” and in the Court’s opinion, the showing made by Herrera “falls far short of any such threshold.” Id. at 417; see also id. at 418 (noting that petitioner’s “affidavits themselves contain inconsistencies, and therefore fail to provide a convincing account of what took place on the night Officers Rucker and Carrisalez were killed”). The Court has since explained that “the evidence of innocence would have had to be strong enough to make [petitioner’s] execution ‘constitutionally intolerable’ even if his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316.

In Schlup, after exhausting his state collateral remedies, petitioner challenged his capital conviction and sentence in a federal writ of habeas corpus on grounds that “his trial counsel was ineffective for failing to interview and to call witnesses who could establish Schlup’s innocence.” Id. at 306. Because he was denied relief on that application, Schlup filed a second federal habeas petition claiming that because he was innocent, “his execution would therefore violate the Eighth and Fourteenth Amendments.” Id. at 307. The Court held that because Schlup’s claim of innocence was accompanied by an assertion of constitutional error his “conviction may not be entitled to the same degree of respect as one, such as Herrera’s, that is the product of an error free trial.” Id. at 316. Thus, “Schlup’s evidence of innocence need carry less of a burden.” Id.

The Court explained the difference in burden between a Herrera-type claim and a Schlup-type claim as follows:

If there were no questions about the fairness of the criminal trial, a Herrera-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup’s innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup’s guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error, Schlup’s threshold showing of innocence would justify a review of the merits of the constitutional claims.

Id. at 317. In other words, a petitioner raising a Schlup-like claim must “show that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 327 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U.S. at 327.

Texas courts unquestionably have adopted the Schlup standard for Herrera-type claims and, implicitly, also have adopted that standard for Schlup-like claims. See Ex Parte Elizondo, 947 S.W.2d at 209 (“we adhere to the views of the Supreme Court, as expressed in Schlup, that in the case of a Herrera-type claim, the habeas court must be ‘convinced that [the] new facts unquestionably establish [the applicant’s] innocence”) (applying that standard to Elizondo’s Herrera-type claim); see also Nkwocha, 31 S.W.3d at 820-21 (applying the Schlup standard to Nkwocha’s Herrera-type claim). Because Petitioner’s innocence claim is Schlup-like, she must show only that “it is more likely than not that no reasonable juror would have convicted [her] in the light of the new evidence.” Schlup, 513 U.S. at 327. Petitioner clearly can make that showing.

A. Newly Discovered Evidence Supports The Defense’s Theory At Trial That The June 6, 1996, Crime At 5801 Eagle Drive, Rowlett, Texas Was Committed By An Intruder.

Since her conviction and sentence for the death of Damon Routier, Petitioner has discovered new evidence that supports her claim that she and her sons were attacked by an intruder and thus establishes her innocence of the crime for which she was convicted.

1. A Bloody Fingerprint Lifted From the Glass Table in the Family Room Establishes That an Unknown Adult Was in the Routiers’ Residence on the Morning of June 6, 1996 During or Right After the Attacks.

Retired Rowlett Police Officer James Cron gave the jury the mistaken impression that a bloody fingerprint lifted from the glass table in the family room lacked “sufficient points of identification” to permit identification but was “consistent with having been left by a five or six year old child.” C.R.R. Vol. 35, p. 47:7-48:11. Specifically, Cron testified that:

A. That there is ridge detail, a few points of comparison, but I can’t – couldn’t make any identification.

Q. Okay. Same thing as you had with the other sets that I have just shown you?

A. Yes. These are better prints but still lacked sufficient points of identification.

C.R.R. Vol. 35, p. 47:7-15. The State then invited the witness to speculate as to the source of the latent prints:

Q. Okay. How would you classify the size of these two latents?

A. Small.

Q. Okay. What do you mean by small? What would that be consistent with?

A. A juvenile, it could be. It fits the criteria to be a younger person’s prints.

Q. Okay. What are those criteria?

A. Small ridges.

Q. Let me just ask you: The two prints here, 85-I and J, would they be consistent with having been left by a five or six year old child?

A. It’s possible, yes, sir.

C.R.R. Vol. 35, p. 48:2-11. Based on this testimony, the jury likely dismissed the fingerprint evidence as belonging either to Devon or Damon Routier – a conclusion that subsequent scientific testing indicates was factually erroneous.

Contrary to Cron’s testimony, the latent fingerprint had sufficient points of identification for University of Tennessee Professor Richard Jantz to conduct an anthropological analysis of the fingerprint. This analysis involves comparing the breadth of the ridges and size of the latent fingerprint with reference fingerprint samples of adult males, adult females, and children. See generally Jantz Aff. Based on such comparisons, Jantz concluded that the latent print belongs to an adult not a child. He also compared the latent fingerprint with fingerprint samples from Petitioner, Darin, Damon, and Devon Routier, and all law enforcement personnel who responded to the residence at 5801 Eagle Drive, Rowlett, Texas. See generally Jantz Aff. None of the fingerprints from these individuals matched the latent fingerprint. See generally Jantz Aff. Thus, the bloody fingerprint is evidence that an unknown adult intruder must have been in the Routiers’ residence on June 6, 1996 at the time of the attack or shortly thereafter to leave a fingerprint in blood before it dried.

2. A Rowlett Woman Returning Home in the Early Morning of June 6, 1996 Observed Two Suspicious Men Walking from the Routier Neighborhood One of Whom Matched Petitioner’s Description of the Assailant.

Eyewitness testimony from the morning of June 6, 1996 places two men in the vicinity of 5801 Eagle Drive around the time of the attacks, one of whom matched Petitioner’s description of the assailant. Petitioner called the Police Department’s 911 number at 2:31 a.m. on the morning of June 6, 1996. See C.R.R. Vol. 28, p. 38:18-20. Darlene Potter, a Rowlett resident, was driving home on Dalrock Road in Rowlett, Texas “after 2 o’clock a.m. on June 6, 1996.” See Potter Aff. ¶ 2. Potter was driving North on Dalrock Road, along a stretch this is approximately a ten-minute walk from the Routier’s residence at 5801 Eagle Drive. See Potter Aff. ¶ 9. There, she saw two Caucasian men who were acting suspiciously walking along Dalrock Road in the direction she was traveling. See Potter Aff. ¶¶ 3-5. One of the men approached Potter’s car and “stepped from the side of the road as if he was walking towards [her] vehicle.” See Potter Aff. ¶ 5. The second man turned towards the first man and “sh[ook] his head as if to say ‘no.’” Potter Aff. ¶ 5. Approximately forty-five minutes after she arrived home, Potter saw a small dark car riding its brakes in the fields next to her home. See Potter Aff. ¶ 8. Potter’s recollections place both men near the scene of the attacks at 5801 Eagle Drive. The first man’s physical description matches Petitioner’s description of the intruder. Compare Potter Aff. ¶ 3 with C.R.R. Vol. 41, p. 41:3-12.

3. In the Spring of 1996, Darin Routier Had Intentions to Have His Residence “Hit” to Collect Insurance Proceeds.

Since her conviction and sentence, Petitioner has discovered that her husband, Darin Routier, had intentions to have their residence “hit” to collect insurance proceeds. See Routier Aff. ¶¶ 3-4; R. Kee Aff. ¶ 2. Darin Routier inquired of Petitioner’s step-father in the spring of 1996 “whether [Kee] knew of anybody who would ‘burglarize’ his home so he could make an insurance claim.” R. Kee Aff. ¶ 2; see also Routier Aff. ¶ 3. Darin Routier intended “that he and his family would be gone from the house and that the ‘burglar’ would come to the house with a U-Haul truck and remove ‘gobs’ of stuff from the house and take the items somewhere.” R. Kee Aff. ¶ 2; see also Routier Aff. ¶ 3. After collecting the insurance proceeds, Darin Routier planned to “retrieve the items [stolen]” and “pay the ‘burglar’ out of the insurance proceeds.” R. Kee Aff. ¶ 2; Routier Aff. ¶ 3. Darin Routier has admitted that he had such a conversation with his step-father-in-law “a few days before the murder of his two children and attack on his wife.” Richard Reyna Affidavit (“Reyna Aff.”) ¶ 5; Routier Aff. ¶ 3.

Although Darin Routier claims that he never followed through on this plan (Reyna Aff. ¶ 4), “[b]etween March 1996 and May 1996, [he] told multiple people of [his] planned insurance scam.” See Routier Aff. ¶ 4; see also Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002). Certain of Darin Routier’s associates who knew of those intentions had participated in an insurance scam two years earlier to have his Jaguar stolen from his residence. “In 1994, [Darin Routier] spoke to a person about [his] Jaguar automobile. In that conversation, [he] said ‘it wouldn’t bother me’ if the Jaguar was stolen. That person then stole the Jaguar.” Routier Aff. ¶ 2.

When combined with the numerous sightings of a mysterious black car in the Routier’s neighborhood around the time of the attack, such evidence is compelling evidence that an intruder murdered Petitioner’s two older sons. See, e.g., Testimony of Barbara Jovell, C.R.R. Vol. 36, p. 136:5-15 (“Q. Well, it was the earlier day she was working, whatever day that was? A. Right. But she saw, yes, she did see a black car in a back alley. And she, she – when he passed us by, really fast, or a black car passed us by, she said she saw the black car in the back alley. When she was in the garage, he was like sitting and like waiting for somebody but he was looking into the garage. Q. Like he was watching the house? That’s what your mother told you, wasn’t it? A. Something like that, yes.”); Testimony of Karen Neal, C.R.R. Vol. 41, pp. 84:21-85:24 (“A. I came home from work about 3:00 o’clock in the afternoon, and I saw a small, black car that was stationed right in front of my sidewalk. Q. Okay. And how was that small, black car parked in that area? A. It was against my curb, and the person in the car seemed to be angled towards the Routier home . . . .Q. All right. And you told the jury that he appeared to be focusing on the Routier house? A. Yes, sir. A. Okay. Did that strike you as unusual? Did you say anything to him or do anything or go in the house or – A. When I got out of my car to approach him, he sped off very fastly.”).

B. Preliminary Analyses by Forensic Experts Have Revealed Physical Evidence Inconsistent With The State’s Circumstantial Case.

Despite the State’s refusal to grant access to the physical evidence in the case for testing, forensics experts retained by Petitioner’s appointed counsel and the undersigned counsel have identified demonstrable flaws in the State’s circumstantial case against Petitioner that is further evidence of her innocence.

1. Knife Number 4.

Defense experts have concluded that the State’s presentation of evidence related to Knife Number 4 is inconsistent with the physical evidence. See, e.g., Samuel Palenik Affidavit (“Palenik Aff.”) ¶ 4. Linch testified that the fiber recovered from Knife Number 4 was “consistent” with the material from the garage window screen. This testimony invited the jury to infer erroneously that Petitioner had cut the screen herself to create the false exit for the alleged intruder. Defense experts have concluded that the source of the fiber was fingerprint powder used to dust the knives recovered from the Routiers’ residence. See, e.g., Palenik Aff. ¶ 4.

2. Petitioner’s Nightshirt.

As part of the State’s case, Bevel testified that the reason that Damon and Devon Routier’s blood was not evident on Petitioner’s nightshirt was that it was covered by direct hits of her blood from her allegedly self-inflicted stab wound (an “overlay” theory). C.R.R. Vol. 39, pp. 25:2-26:8. Defense experts have concluded based on their extensive blood-spatter experience that Bevel’s testimony is inconsistent with the likely blood-spatter pattern in such a sequence of events. See Laber Aff. ¶ 11. In addition, defense experts have concluded that the State’s theory that Petitioner allegedly used her right hand to stab her sons is also belied by the physical evidence. The nightshirt evidenced only minimal blood on the back-right shoulder, but if the State’s theory were correct, cast-off blood would have been substantially evident in that area.

3. Vacuum Cleaner.

Contrary to the State’s theory that the vacuum cleaner was pushed around by someone bleeding as part of staged crime scene (C.R.R. Vol. 38, pp. 227:13-228:4), defense experts have concluded that most of the bleeding occurred after the vacuum cleaner had been knocked over onto the floor. See Laber Aff. ¶ 10.

4. Wine Glass.

Contrary to the State’s theory that a wine glass had been removed from the wine rack and thrown onto the floor to make it appear as if a struggle had occurred as part of staged crime scene (C.R.R. Vol. 46, p. 38:7-24), the dispersal pattern of the glass shards is inconsistent with a person smashing or throwing the glass onto the floor. See Laber Aff. ¶ 10.

C. Petitioner Must Be Given Access to Physical Evidence Not Tested at All or Not Adequately Tested by the State or Defense Counsel to Fully Present Her Claims for Relief.^[5]

Defense experts have concluded that scientific testing of physical evidence never done by defense counsel for the State is required for Petitioner’s claims for relief:

· First, genetic testing of the several blood-stained areas of Darin Routier’s blue jeans will determine whether he, an obvious suspect overlooked by defense counsel as a condition of his retention by the family (Routier Aff. ¶ 7), was involved in the attacks on his wife and two sons. See Laber Aff. ¶ 11.

· Second, testing of the brush and powder used to dust the knives recovered from the kitchen will establish that the source of the fiber was fingerprint powder or some other contaminant deposited by the State in the course of securing the crime scene or testing the butcher block. See Palenik Aff. ¶ 4.

· Third, testing of all blood-stained areas of physical evidence recovered from 5801 Eagle Drive, Rowlett, Texas, including the Victoria’s Secret nightshirt, the Hoover vacuum cleaner, and all flooring samples will disclose additional evidence of the unknown adult intruder who left behind a bloody fingerprint on the glass table in the family room. See Laber Aff. ¶ 11; Palenik Aff. ¶¶ 6-10.

· Fourth, physical and visual examination of the garage window screen will refute the State’s suggestion at trial that the bend in the screen was a pre-existing defect caused by Damon and Devon Routier and not damage caused by an adult intruder on June 6, 1996. See Laber Aff. ¶11.

Undersigned counsel hereby renew their request for access to the physical evidence for such testing as it necessary for full presentation of Petitioner’s claims for relief and therefore reserve Petitioner’s right to supplement her Application with additional evidence. See Order of July 5, 2002 (“If the access to certain evidence is necessary to resolve factual issues raised in the application for writ of habeas corpus, the Court will review the request for access to the evidence at that time.”).

II. The Manifestly Defective Reporter’s Record Renders Any Post-Conviction Review Inadequate, Denies Petitioner Her Federal and State Constitutional Rights to Due Process, and Prevents Effective Exercise of Petitioner’s Constitutional and Statutory Rights to Petition This Court for Habeas Corpus Relief.

As the Court is aware, the original reporter’s “record” of the trial in this case was so riddled with errors and deficient that the Court made a finding of fact and issued an order that the entire record, though certified by court reporter Sandra Halsey, had to be replaced.^[6] Halsey’s “record” was functionally no record at all. Accordingly, a new court reporter, who never attended Petitioner’s trial, was appointed by the Court to prepare and certify a replacement record. Working only from unauthenticated and often poor-quality audio tapes and Halsey’s incomplete and inaccurate notes of the proceedings, Susan Simmons created a wholly new reporter’s record that, over defense objections, became the putative reporter’s record in the direct appeal. Tellingly, Simmons was unable to certify the new reporter’s record in its entirety, and even those portions that are certified are manifestly defective and insufficient for any meaningful review on this petition for post-conviction relief. According to Simmons, there are at least 20,000 word changes between the reconstructed record and the original Halsey record. See Affidavit of J. Stephen Cooper (“Cooper Aff.”), Exh. 2 at 3.

In particular, Simmons refused to certify the first fifty-four pages of Volume 10, which contain a translation of Halsey’s stenographic notes from a hearing on October 21, 1996, at which Douglas Mulder was substituted as Petitioner’s trial counsel. Simmons refused to certify that portion of the record because no audio tapes of the hearing existed, and she did not trust Halsey’s stenographic notes. Cooper Aff. Exh. 2 at 4. Simmons included an uncertified English translation of that hearing, based on Halsey’s stenographic notes, because the Court requested it. Cooper Aff. Exh. 2 at 5. However, Simmons does not believe that the transcript of that hearing should be in the record. Cooper Aff. Exh. 2 at 5. Simmons used the certificate that appears on the record because someone from the Court of Criminal Appeals sent it to her. Cooper Aff. Exh. 2 at 7. Simmons, who did not attend Petitioner’s trial, could not certify that any of the parenthetical descriptions of non-verbal acts that appear in the reconstructed record are true and correct and believes those descriptions should be deleted from the record. Cooper Aff. Exh. 2 at 6. Simmons is willing to testify before the Court about these matters. Cooper Aff. at 3.

This Court initially refused to permit Petitioner or her counsel to develop this crucial information and ultimately refused to allow Petitioner to do anything with these facts. In 1988, the Court ordered all counsel in this case not to contact directly or speak with Simmons about her preparation of a new reporter’s record. See Cooper Aff. at 1. Instead, the Court ordered counsel to submit written questions for Simmons to the Court. Cooper Aff. at 1. That order remained in effect until June 30, 2000, when Petitioner’s appellate counsel filed a written Motion to Permit Appellant to Interview Susan Simmons (“Motion to Interview Simmons”). Cooper Aff. at 2-3. Shortly after filing the Motion to Interview Simmons, Petitioner’s appellate counsel was asked to return to Court to withdraw the motion. Cooper Aff. at 2-3. When Petitioner’s appellate counsel arrived in chambers, he was told by the Court that he could interview Simmons, and the file-stamped copy of the Motion to Interview Simmons was handed back to Petitioner’s appellate counsel. Cooper Aff. at 3; see also Cooper Aff. Exh. 1 (original, file-stamped Motion to Permit Appellant to Interview Susan Simmons).

Despite authorizing Petitioner to interview Simmons, the Court ultimately denied Petitioner any opportunity to make use of the information disclosed in that interview, such as in an evidentiary hearing. Petitioner was afforded nothing more than an off-the-record discussion among counsel in chambers. See Cooper Aff. at 3. After that discussion, both the Court and the State agreed that a new hearing was necessary to clarify Simmons’ testimony. Cooper Aff. at 3. A hearing was scheduled for September 7, 2000 but then canceled. Cooper Aff. at 3-4. As the Court’s records reflect, no further evidentiary hearing regarding the reporter’s record was held, and the Court permitted the submission of the reconstructed record to the Court of Criminal Appeals – with all its patent deficiencies.

Such deficiencies have and will continue to prevent any effective appellate or habeas corpus review of Petitioner’s conviction, since meaningful and effective review necessarily requires a genuine record of the testimony, evidence, and arguments in Petitioner’s trial. For example, the October 21, 2001 hearing in Petitioner’s case is critical to this habeas corpus proceeding because defense counsel’s actual conflicts of interest, see Part III.A., infra, is central to this Application. In the absence of a complete, correct, and certified reporter’s record, Petitioner is necessarily denied her constitutional and statutory rights to petition for a writ of habeas corpus and to meaningful review. See Chessman v. Teets, 354 U.S. 156 (1957). Accordingly, Petitioner respectfully requests that the Court, with or without a hearing, enter findings of facts and conclusions of law that the reporter’s record does not permit effective review in violation of her federal and state constitutional rights and grant her a new trial.

III. The Ineffective Assistance of Defense Counsel Deprived Petitioner of Her Federal and State Constitutional Rights to Effective Counsel and a Fundamentally Fair Trial.

Strickland v. Washington, 466 U.S. 668 (1984), establishes the standard for evaluating whether defense counsel’s performance passed constitutional muster. Texas courts have adopted this same standard for making that determination as a matter of Texas constitutional law. See Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Under Strickland, the petitioner must “show that counsel’s performance was deficient.” Strickland, 466 U.S. at 687. In other words, petitioner must demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The petitioner also must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable,” in other words, that defendant was prejudiced by counsel’s deficient conduct. Id. The Texas corollary to the Strickland test requires that petitioner “demonstrate that (1) defense counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Under both Strickland and the corresponding Texas standard, defense counsel’s performance in Petitioner’s case was both deficient and prejudicial.

A. Defense Counsel had an Actual Conflict of Interest Under Mickens v. Taylor Because He Was Concurrently Representing Petitioner’s Husband, Darin Routier and as a Condition of His Retention by the Family Agreed to Petitioner’s Detriment not to Implicate Darin Routier.

In Mickens v. Taylor, the United States Supreme Court stated that, in some situations, prejudice can be presumed where “the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary.” 122 S. Ct. 1237, 1241 (2002). The Court also noted that prejudice may be presumed when counsel “actively represented conflicting interests.” Id. The Court “presume[s] prejudice when counsel labors under an actual conflict of interest . . . And . . . use[s] ‘conflict of interest’ to mean a division of loyalties that affected counsel’s performance.” Id. at 1244 n.5 (citations omitted). “[A] conflict of interest has detrimental effects on representation because of what it tends to prevent the attorney from doing.” Rubin v. Gee, No. 01-6411, 2002 U.S. App. LEXIS 10740, at *24 (4th Cir. June 5, 2002) (citations omitted). That could not be more plain than in Petitioner’s case.

1. Defense Counsel’s Attorney-Client Relationship with Darin Routier and Employment Arrangement with the Routier Family Prevented Defense Counsel From Presenting an Effective Defense for Petitioner and From Effectively Cross-Examining Darin Routier at Trial.

Defense counsel was twice conflicted in this case. First, he represented Darin Routier in a matter substantially related to this case. Although the State had evidence implicating Darin Routier in the crimes with which Petitioner was charged, that concurrent representation of Petitioner’s husband prevented defense counsel from investigating Darin Routier and pursuing a viable defense strategy for Petitioner. Second, Darin Routier “told [defense counsel] that if we hired him, [he] did not want him to ‘go after’ [him]. [Defense counsel] agreed that, if hired to represent [Petitioner], he would not argue as part of the defense that [Darin Routier] was in any way responsible for the death of [his] children.” Routier Aff. ¶ 7. These obvious and irreconcilable conflicts of interest adversely affected his representation of Petitioner throughout her trial.

Failure to pursue an obvious defense strategy or investigation demonstrates adverse effect. Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000) (finding an actual conflict that adversely affected the defendant’s representation from “evidence that ‘some plausible alternative defense strategy or tactic’ could have been pursued, but was not because of the actual conflict impairing counsel’s performance”); Rubin, 2002 U.S. App. LEXIS 10740, at *24 (same). Showing that defense counsel “might plausibly have pursued an alternative defense strategy, and that the alternative strategy was in conflict with, or may not have been pursued because of, [counsel’s] other loyalties or interests” establishes the actual conflict of interest that adversely affected counsel’s performance. United States v. Ramirez-Benitez, 292 F.3d 27, 30 (1st Cir. 2002).

On October 21, 1996, Douglas Mulder became counsel-of-record for Petitioner, replacing her court-appointed attorney, Douglas Parks. C.R.R. Vol. 10, p. 11:24-25. Mulder had represented Petitioner’s husband, Darin Routier, on a matter substantially related to Petitioner’s case before he undertook her representation. C.R.R. Vol. 8, p. 7:15-16. There was an actual conflict between Mulder’s representation of Petitioner and Mulder’s representation of her husband, because Mulder owed a duty of loyalty to Darin Routier at the time that he represented Petitioner. Mulder represented Petitioner’s husband and mother, Darlie Kee, during a show cause hearing on September 20, 1996, where the State alleged that they had violated a gag-order regarding Petitioner’s upcoming trial. C.R.R. Vol. 8, p. 7:3-6, 9-16. Accordingly, when Mulder undertook the representation of Petitioner on October 21, 1996, his previous representation of and on-going duty of loyalty to Darin Routier precluded him from providing her with full and unfettered representation. Moreover, Mulder, as a condition of being retained to represent Petitioner agreed with her husband that her defense strategy would not implicate him. See Routier Aff. ¶ 7 ; Darlie Kee Affidavit (“Kee Aff.”) ¶ 2. Because of his on-going representation of Petitioner’s husband, Mulder was precluded from presenting a viable alternative defense theory on Petitioner’s behalf.

Under the Texas Disciplinary Rules of Professional Conduct, “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or becomes adversely limited by the lawyer’s or law firm’s responsibilities to another client.” Tex. Disciplinary R. Prof’l Conduct 1.06(b)(2). Since Mulder’s professional relationship with Petitioner’s husband precluded defense counsel from implicating him in the crimes, defense counsel’s options for Petitioner’s defense were “adversely limited.” Indeed, by explicit agreement with Petitioner’s husband it was adversely limited. See Routier Aff. ¶ 7 (“I told Mr. Mulder that if we hired him, I did not want him to ‘go after’ me. Mr. Mulder agreed that, if hired to represent my wife, he would not argue as part of the defense that I was in any way responsible for the death of my children.”). Additionally, a lawyer confronted with a Rule 1.06(b)(2) violation must secure knowing waivers from all parties involved, Tex. Disciplinary R. Prof’l Conduct 1.06(c)(2), or promptly withdraw from the representation, Tex. Disciplinary R. Prof’l Conduct Rule 1.06(e). The record does not indicate that Mulder ever “full[y] disclosure[d] . . . the existence, nature, implications, and possible adverse consequences of the common representation” to either Petitioner or her husband. Tex. Disciplinary R. Prof’l Conduct 1.06(c)(2). Nor did Mulder terminate his representation. “Where the prior representation has not unambiguously been terminated . . . there is more likely to be a conflict arising from defense counsel’s representation of the first client.” Perillo v. Johnson, 205 F.3d 775, 798 (5th Cir. 2000).

Mulder knew about his conflict of interest prior to October 24, 1996, yet he took no steps to erase the conflict or withdraw from representing Petitioner. See Douglas Parks Affidavit (“Parks Aff.”) ¶¶ 7-8. On that date, Petitioner’s former counsel-of-record, Douglas Parks, forwarded his files from her case along with a letter to Mulder raising that issue. See Parks Aff. ¶¶ 7-8. Parks expressly informed Mulder of a possible conflict of interest arising from his prior representation of Petitioner’s husband. Parks Aff. ¶ 8.

In addition, on November 12, 1996, the State filed a Notice of Possible Conflict of Interest with the trial court alleging that Mulder’s previous representation of Darin Routier created a conflict of interest that jeopardized Petitioner’s Sixth Amendment right to conflict-free counsel. C.R.R. Vol. 22, p. 2671:17-22. The State filed the Notice to “make real sure” that there was no constitutional violation since the State had found “some new evidence” implicating Petitioner’s husband. C.R.R. Vol. 22, p. 2673:1-3. That Notice stated in relevant part that the “investigation was ongoing with regards to the analysis of physical evidence [and r]ecent analysis of physical evidence suggests that Darin Routier may have participated . . . in the crime.” CR.1A.56. When the trial court addressed Petitioner in open court on November 12 and November 18, 1996 about the State’s Notice, Mulder did not state on the record his opinion about whether a conflict existed. C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24. Because Mulder was the conflicted attorney, he should have addressed the issue with the court. See Holloway v. Arkansas, 435 U.S. 475, 485 (1978) (a defense attorney is in the best position to know if a conflict exists); cf. Perillo v. Johnson, 205 F.3d 775, 800 (5th Cir. 2000) (rejecting defense counsel’s post-trial affidavit that the other client revealed no confidential information prior to testifying against the defendant and establishing that where representation of “prior matters [for one client] are substantially related to the present case [involving another client], the court will irrebuttably presume that relevant confidential information was disclosed during the former period of representation”).

Mulder’s conflicts of interest adversely affected his representation of Petitioner in two ways. First, he could not put forward the best possible defense for Petitioner, without implicating his other client, her husband. See Perillo, 205 F.3d at 781 (counsel failed to pursue a “plausible alternative defense strategy because of dual representation of a witness at defendant’s trial); Ramirez-Benitez, 292 F.3d at 29-30. Second, the attorney-client privilege precluded Mulder from effectively cross-examining Petitioner’s husband at trial.

First, Mulder did not pursue the theory of Darin Routier as a suspect. Parks considered Petitioner’s husband a suspect and planned to introduce evidence against him at trial to create reasonable doubt about Petitioner’s guilt. Parks Aff. ¶ 4. Second, Mulder failed to talk to Robbie Kee, Petitioner’s stepfather, who had earlier informed Parks that he was suspicious of Darin Routier’s involvement in the crimes. Third, Mulder was aware of several significant pieces of evidence implicating Petitioner’s in the crime: (1) his hair on the murder weapon, CR.1A: 58-59, (2) the bloody sock found in the alley contained fibers from his sneakers, RR.38: 3127-8, 3144-5; CR.1A: 58, (3) inconsistent statements about his bloody jeans, HR.6: 488; Def.’s Ex. No. 5 at 3; Def.’s Ex. No. 3 at 3; RR.4: 124, (4) blood on his jockey shorts, Parks Aff. ¶ 4, and (5) his inconsistent statements and suspicious behavior at the crime scene and hospital, App. Br. pp. 17-20, 30. Despite the suspicions expressed by Petitioner’s first attorney, Parks, and the evidence compiled by the State against Petitioner’s husband, Mulder was duty-bound not to pursue, let alone investigate, the possibility that Petitioner’s husband, his client, was a suspect.

Before Mulder was retained to defend Petitioner, he informed Darin Routier and Darlie Kee that Parks intended to implicate Petitioner’s husband in the crimes as part of Petitioner’s defense. Darin Routier Aff. ¶ 7; Kee Aff. ¶ 5. Mulder promised Petitioner’s husband and Kee that if they retained him to represent Petitioner, he would not “go after” her husband as part of his defense strategy. Darin Routier Aff. ¶ 7; Kee Aff. ¶ 5. “Mr. Mulder agreed that, if hired to represent [Petitioner], he would not argue as part of the defense that [Petitioner’s husband] was the person responsible for the death of [the] children.” Darin Routier Aff. ¶ 7. Before he even obtained Parks’s records or the State’s evidence implicating Darin Routier, Mulder closed off this avenue of investigation. The conflict due to Mulder’s representation of Petitioner’s husband and Mulder’s promise not to pursue a defense that implicated Darin Routier explain why.

Mulder summarily dismissed Darin Routier as a suspect weeks before his representation of Petitioner began. Parks Aff. ¶ 7. Mulder did so despite the fact that Petitioner understood and accepted the possibility that her husband could be implicated during her trial. She did not preclude her defense counsel from pursuing a trial strategy that suggested Darin Routier’s guilt and, but for the fact that he could not suggest Darin Routier’s guilt because he also served as Darin Routier’s lawyer, Mulder should at least have contemplated and investigated that trial strategy.

Mulder’s refusal to investigate Darin Routier, coupled with Petitioner’s acquiescence to the best trial strategy available to her, demonstrates that Mulder’s conflict was the but-for cause for Petitioner’s defense team not using evidence implicating Darin Routier to create reasonable doubt. The only evidence that Mulder offered implicating Darin Routier was not introduced until the punishment phase of Petitioner’s trial – when the information could no longer be used to harm Petitioner’s husband because she had been convicted. Compare C.R.R. Vol. 42, pp. 102:18-291:12 (Mulder’s non-adversarial questioning of Petitioner’s husband during the guilt phase of the trial) with C.R.R. Vol. 49, p. 48:10-16 (“You know, it’s curious to me, and I have never for a minute doubted the innocence of Darin Routier. But, you know, he of all people, had the most to gain here. She had a couple of hundred thousand dollars worth of insurance on her.”).

Second, Mulder’s representation of Petitioner also was adversely affected because he was unable to critically question Petitioner’s husband at her trial. See Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200, at *12 (Tex. Ct. App. Dec. 6, 2001) (defense counsel could not critically cross-examine government witness who was a former client). Mulder “would have been required to make a choice between advancing [Petitioner’s] interests and protecting confidential information [that] he [may have] acquired from a former client.” Id. Suggesting at trial that Petitioner’s husband was involved in the murders would have violated the attorney-client privilege owed by Mulder to Petitioner’s husband and the de facto attorney-client relationship they had. See Perillo, 205 F.3d at 775.

To ensure a fair trial and a reliable result, defense counsel must be free to pursue viable defense strategies. Existing evidence against Darin Routier and the State’s contention that there was no intruder made implicating Petitioner’s husband an obvious strategy to create reasonable doubt about Petitioner’s involvement, especially given Petitioner’s wounds. Mulder’s conflict of interest closed off this avenue to Petitioner’s defense, depriving her of her Sixth Amendment right to conflict-free counsel and leading to an unreliable conviction.

2. Petitioner Did Not Waive Her Right to Conflict-Free Representation of Counsel.

The record reflects that neither Mulder, the trial judge, nor any other party responsible for ensuring Petitioner’s rights secured a knowing and intelligent waiver of her Sixth Amendment constitutional right to conflict-free counsel.

“To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights” Glasser v. United States, 315 U.S. 60, 70 (1942). Valid waivers must “be voluntary [and] ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.’” United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). For a valid waiver, the record must demonstrate that the defendant appreciated the conflict and understood that she had a right to retain other counsel. Ex Parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981).

On October 21, 1996, the trial court conducted a conflict/waiver hearing to address the potential conflict between Mulder’s representation of Petitioner and his simultaneous representation of her mother. C.R.R. Vol. 10, pp. 10:22-25, 11:1-10. That hearing did not address the conflict between Mulder’s representation of Petitioner and his representation of her husband, C.R.R. Vol. 10, p. 10:22-24 (trial judge asks “[i]f there is any potential conflict with Mr. Mulder representing [Petitioner] and being a consultant to Ms. Kee”); C.R.R. Vol. 10, p. 11:4-5 (Mulder says that this applies to “any claim to a conflict, in so far as [he] represents [Petitioner’s] mother as a consultant”), as indicated by the State’s filing its Notice of Possible Conflict of Interest, C.R.R. Vol. 22, pp. 2671-73. The State clearly believed that an unresolved and unwaived conflict regarding Petitioner’s husband still existed following the October 21 conflict/waiver hearing as to Mulder’s representation of Petitioner’s mother. See C.R.R. Vol. 22, p. 2673:1-3. The State, acting in good faith, should continue to be concerned about this conflict since there is no evidence that Petitioner knowingly or intelligently waived her rights.

In Garcia, the Fifth Circuit established guidelines for identifying valid waivers. To be valid, it must be “manifest on the face of the record” that the waiver was voluntary and done knowingly. Garcia, 517 F.2d at 278. The November 12 and November 18 colloquies following the State’s Notice of Possible Conflict of Interest do not constitute a waiver under the Garcia standard.

[T]he . . . court should address [the] defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. It is, of course, vital that the waiver be established by ‘clear, unequivocal, and unambiguous language.’

Id. (citation omitted).

First, because there is no certified, official record of the October 21, 1996 hearing on the Motion to Substitute Counsel and the conflict/waiver discussion regarding Mulder’s representation of Petitioner’s mother, there is no certified, official record demonstrating a valid waiver. Even assuming the October 21 hearing addressed Mulder’s conflict arising from his representation of Petitioner’s husband, the transcript from that hearing is uncertified and, therefore, unworthy of this Court’s reliance. For a waiver to be “manifest on the face of the record,” there must be a trustworthy record. See, e.g., Ex parte Smith, 561 S.W.2d 842, 843 (Tex. Crim. App. 1978); Landrum v. State, 356 S.W.2d 673, 674 (Tex. Crim. App. 1962).

Second, even assuming the uncertified record is sufficient for appellate review, the November 12 and November 18 exchanges between Petitioner and the trial court do not demonstrate a valid waiver. See, e.g., United States v. Greig, 967 F.2d 1018 (5th Cir. 1992) (finding a waiver invalid because the trial court did not inquire whether the defendant was aware of the conflict or understood its “potential hazardous effects”); United States v. White, 706 F.2d 506 (5th Cir. 1983) (same); Garcia, 517 F.2d at 272 (remanding a case to determine whether defendants knowingly and intelligently waived their rights and establishing the standard for valid waivers).

From the record, it is evident that the trial court believed that the issue of Mulder’s actual conflict of interest stemming from his representation of Petitioner’s husband had already been resolved and did not require his attention. C.R.R. Vol. 22, pp. 2671:23-25, 2672:1-2. The issue, however, had not been resolved and, as a result of the trial court’s mistaken belief that Mulder’s conflict of interest previously had been waived, the judge did not properly instruct Petitioner that Mulder’s representation of her husband could affect Mulder’s representation of her.^[7] C.R.R. Vol. 22, pp. 2671-73.

The trial court took none of the necessary steps to ensure that Petitioner understood and waived her right to conflict-free representation. “It is vital, of course, that the waiver be established by clear, unequivocal, and unambiguous language.” United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993) (citations omitted). There is no indication in the record that Petitioner understood that she was waiving her Sixth Amendment right to conflict-free counsel. C.R.R. Vol. 10, pp. 10-11 (hearing regarding conflict stemming from Mulder’s representation of Darlie Kee); C.R.R. Vol. 22, pp. 2671-73, 3323-24. The trial court never inquired of or informed Petitioner about the conflict of interest that arose from Mulder’s representation of her husband. C.R.R. Vol. 10, pp. 10-11; C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24. And, the trial court never inquired whether she waived her right to conflict-free counsel with respect to that conflict. C.R.R. Vol. 10, p. 10:22-25 (trial court inquires only whether there are conflicts arising from Mulder’s representation of Petitioner’s mother); C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24.

A waiver cannot be “knowing” if the defendant is unaware of the potential conflict. Petitioner was indeed unaware of the potential conflict. During the October 21, 1996 conflict/waiver hearing, involving Petitioner’s “waiver” of any conflict of interest involving her mother, Petitioner stated there was “no conflict.” C.R.R. Vol. 10, p. 11:6-7. That exchange hardly demonstrated that Petitioner was aware of the adverse consequences of proceeding with conflicted counsel. The trial court failed to satisfy his responsibility under Garcia to ensure that Petitioner understood the potential conflict. See Garcia, 517 F.2d at 278.

There is no evidence in the record that either Mulder or the trial court discussed the issue of Mulder’s conflict of interest with Petitioner, C.R.R. Vol. 22, pp. 2671-73; C.R.R. Vol. 26, pp. 3323-24, as required by Garcia. See Garcia, 517 F.2d at 278; see also United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (describing United States v. White, 706 F.2d 506 (5th Cir. 1983), which held a waiver invalid where “neither the court, the defense attorney, nor the prosecutor informed the defendant of the precise manner in which he might be prejudiced . . . [and] the court placed complete reliance upon counsel’s statement that he had informed his client of the dangers of the conflict of interest”).

Finally, it is questionable whether Petitioner alone could have waived the conflict arising from Mulder’s dual representation of her and her husband. Texas Courts have held that when the conflict stemmed from counsel’s knowledge of a witness’s privileged communications, the court doubted the conflict of interest could have been unilaterally waived by appellant in any event. Brink v. State, No. 14-00-01439-CR, No. 14-00-01440-CR, 2001 Tex. App. LEXIS 8200, at *13-14 (Tex. App. Dec. 6, 2001) (citing Tex. Disciplinary R. Prof’l Conduct 1.05(b)). “The Texas Disciplinary Rules of Professional conduct prohibit the use of ‘confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.’” Id. at 14. In other words, both Petitioner and her husband had to waive the conflict before Mulder’s representation of Petitioner would be permissible. There is no evidence in the record that Petitioner’s husband ever waived the conflict of interest created by Mulder’s concurrent representation of Petitioner. The only exchange between the trial court and Petitioner’s husband followed the gag-order hearing when the trial court inquired if Petitioner had hired Mulder at that time. C.R.R. Vol. 8, pp. 16:14-25, 17:1-11. Petitioner’s husband informed the court that she had not hired Mulder. C.R.R. Vol. 8, pp. 16:18, 16:22, 17:7, 17:11.

From this record, it is abundantly clear that Petitioner did not receive conflict-free representation in this case. Mulder’s concurrent and dual representation of Petitioner and her husband precluded the advancement at trial and even the investigation of a viable defense strategy. Under Holloway v. Arkansas, 435 U.S. 475 (1978), and Mickens v. Taylor, 122 S. Ct. 1237 (2002), that constitutes not only a conflict of interest, but an actual conflict that adversely affected Mulder’s performance. As such, this Court should have no confidence in the process that resulted in her conviction.

B. Defense Counsel Failed to Conduct and/or Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to Petitioner’s Defense.

Petitioner’s federal and state constitutional rights to counsel were violated by defense counsel’s decision to abandon an investigation into scientific evidence to rebut the State’s case which, apart from the assassination of Petitioner’s character, rested primarily upon the expert testimony of forensic experts Charles Linch and Tom Bevel, and his failure to pursue an investigation into whether Darin Routier committed or arranged the June 6, 1996 attack on his wife and children. These failures of defense counsel clearly were unreasonable and unconstitutional under the Strickland standard.

It is well established that “[a]mong counsel’s duties is that of making an independent investigation of the facts of his client’s case.” Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) (citing Ex Parte Ewing, 570 S.W.2d 941, 947 (Tex. Crim. App. 1978)). Clearly “before [counsel] can render reasonably effective assistance of counsel,” he “has a responsibility to seek out and interview potential witnesses.” Butler, 716 S.W.2d at 54. Only “strategic choices made after thorough investigation of law and facts relevant to plausible options” are trustworthy and thus are “virtually unchallengeable.” Id. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. Where as here, defense counsel’s decision not to pursue crucial lines of investigation could not conceivably have been the result of reasonable professional judgment, no deference is due that decision. See id.; see also Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992) (concluding that “defense counsel’s failure to pursue a crucial line of investigation in a capital murder case was not professionally reasonable”). Instead, such failures properly must be regarded as ineffective assistance of counsel. Defense counsel’s investigation in this case was constitutionally deficient in failing to investigate a scientific defense to rebut the State’s evidence and in failing to investigate evidence indicating that Darin Routier was involved in the alleged crime.

1. Defense Counsel Failed to Pursue Critical Expert Testimony to Rebut the State’s Scientific Case Against Petitioner.

Defense counsel’s failure to investigate scientific evidence to refute the State’s only evidence allegedly connecting Petitioner to Damon’s death constituted ineffective assistance of counsel. As a result, this crucial part of the State’s case was not put “to that ‘adversarial testing process’ contemplated by the Strickland standard.” Texas courts have previously found such failures to constitute “deficient performance” under Strickland. For example, in Winn v. State, 871 S.W.2d 756 (1993), defendant was convicted of killing his live-in girlfriend with a single gunshot to the head using a gun that the two of them owned. The State’s case against Winn was entirely circumstantial. The primary evidence allegedly indicating that Winn – and not the decedent – had pulled the trigger was the testimony of a doctor and forensic scientist. The doctor performed the autopsy and testified that “the bullet was fired from a distance greater than two feet and was not self-inflicted.” Id. at 758. The forensic scientist, an expert in blood spatter patterns, testified that “blood type similar to the victim’s was found on appellant’s jacket” including “high-velocity spatters . . . on the chest area of the jacket.” Id. Winn testified in his own defense “that he came home and found [his girlfriend] on the floor [and] thought she had fallen. He picked their gun up off the floor and put it away . . . [only later] when [he] learned from Officer Thompson that [she] had a gun shot wound [did] he realize[] that he had touched the gun.” Id. at 759. Because Winn’s girlfriend “had talked about killing herself through the years,” Winn testified that he “believed [she] may have killed herself because she had kidnapped her son from a foster home, and that was causing problems.” Id. No other evidence was presented to refute the State’s scientific evidence that the gunshot wound was not self-inflicted. See id. (“Counsel did not consult an independent expert regarding the scientific evidence, explaining that he neither had the funds, knew any experts ‘around here,’ nor thought that it was real important to the case.”).

At the evidentiary hearing on Winn’s application for writ of habeas corpus, Winn presented the testimony of a doctor who, after reviewing the trial records, autopsy report, crime reports, and photographs, “opined that [the victim’s] death was more consistent with suicide than homicide.” Id. at 760. This doctor further concluded “that blood spatter on appellant’s jacket may have been the result of aspirated blood from [the victim’s] nose or mouth when appellant picked up her head.” Id. Winn contended that counsel’s failure to seek out witnesses like that doctor “constituted deficient performance by leaving him unprepared to fully develop the defense of suicide.” Id. The Texas Court of Appeals agreed. Although reluctant to conclude that defense “counsel’s failure to locate a witness such as Dr. Stone . . . necessarily constituted deficient performance” given defense counsel’s thirty-seven years of practice and his belief that “it was more important to get people to testify that [the victim] had suicidal tendencies over a period of years,” the court concluded that “[defense counsel] could have developed a better defense had he taken the time to contact other experts and thereby impeach the State’s experts who concluded the death was homicide.” Id. at 761. Indeed, the court had “a difficult time understanding how getting evidence of [the victim’s] alleged suicidal tendencies . . . would be more important than attempting to secure favorable expert testimony regarding physical evidence.” Id. Accordingly, the court concluded that “counsel rendered deficient performance in this regard.” Id.

That same conclusion of deficient performance is compelled by the facts of this case. To this day, Petitioner maintains that she and her sons Devon and Damon were the victims of an attack at the hands of an intruder. See Part I, supra. The State’s case to the contrary was based largely on the testimony of forensic scientists Linch and Bevel who testified that the physical evidence was consistent with a staged crime scene. Linch, an expert from the Southwestern Institute of Forensic Sciences (“SWIFS”), testified that microscopic debris recovered from a bread knife found in the kitchen at the Routiers’ residence was “consistent” with material from the garage window screen and therefore likely was the instrument used to create the “T-shaped defect in it”^[8] (C.R.R. Vol. 37, p. 110:14-18):

Q. . . . Bottom line, from this comparison of the black rubbery material and the glass rods on the window screen and on this knife, what does that say to you as a trace evidence analyst?

A. I couldn’t tell the difference between this debris and the debris found on the knife and, therefore, the knife could have been used to cause the cut, defect.

Q. . . . are you saying that the material that you found on this knife blade is consistent with the material that makes up this screen right here?

A. That’s right.

Q. You couldn’t see any difference?

A. That’s right.

C.R.R. Vol. 37, pp. 144:17 – 145:6. In closing arguments, the State argued the significance of this testimony to the jury as “when [Linch] tested cutting that bread knife, he looked at it under the microscope and what did he find? Glass rods, the same type of rubber material seen on the bread knife. And that same type of rubber debris with the glass meshed in. The same type of stuff that happens when you cut the screen. And it adds up, that the bread knife was used to cut that screen, and Charles Linch found the evidence. And that tells you they were trying to fake the crime scene. You aren’t going to have an intruder somehow get in the house and then take the knife out and then cut the window.” C.R.R. Vol. 45, p. 5226: 13-24.

The other primary physical evidence allegedly inconsistent with the defense’s intruder theory came through the testimony of the State’s blood expert, Bevel. Bevel said he conducted several experiments to determine the type of pattern a bloody knife would leave if, as according to Petitioner, it had been dropped by the intruder when he exited through the garage. When asked to compare photograph of the patterns created in his experiments with photographs of the crime scene, Bevel testified:

Q. . . . Now, looking at State’s Exhibits 38-A through 38-D, Mr. Bevel, do you see any bloodstain pattern in any of these four photographs that correspond to the types of blood patterns that you saw during your test on November 26th, 1996?

A. No, sir.

Q. The blood drops that we see in 38-A through 38-D are they consistent or inconsistent with a bloody knife being dropped or thrown on to the utility room floor on June 6th, 1996.

A. They would be inconsistent.

C.R.R. Vol. 38, p. 214:7-17. After reminding the jury in closing arguments that “defendant’s testimony is that this man ran off with a knife and dropped it in the utility room,” the State argued that Bevel’s experiments demonstrated that “when you drop that knife, it leaves a mark, its leaves cast off. And you don’t see any cast off or any mark left in that utility room . . . [t]hat let’s you know that she is lying about that.” C.R.R. Vol. 45, p. 5228:2-8.

Bevel also said he conducted experiments to determine the type of blood patterns that would be created on the clothing of the attacker. He told the jury that:

Taking a knife that was the same diameter of the knife in question, I just simply, in this case I went down to my knee after placing a clean T-shirt on my body, put blood on the knife, on both sides, again, held it up and allowed it to just simply stop its dripping . . . . And then just simply did a motion such as this, I think on the first time I did it with two swings, if you would, without adding any additional blood, to see if in fact we get the blood that would be on the back that would be consistent in size, direction, location as the blood in question on the T-shirt [worn by Petitioner on the morning of the attack].

C.R.R. Vol. 39, pp. 37:10-38:1. When asked to explain the significance of his findings, Bevel testified:

A. I was able, multiple times, to get bloodstains that were the same size, location, with the long axis up and down in that area and on other areas of the back of the [test] shirt.

C.R.R. Vol. 39, p. 38:2-6. In closing arguments, the State told the jury that these experiments “tell[] you that she was stabbing, and Devon’s blood winds up on her back. It’s not going to wind up there as she is laying on the couch as the man wrestles at her neck.” C.R.R. Vol. 45, p. 5230:11-14.

Defense counsel presented no contrary scientific evidence to refute this testimony or the obvious misimpressions it left with the jury. The State capitalized on every opportunity to reinforce those misimpressions in closing arguments – none as effective as the suggestion that defense counsel presented no contrary scientific evidence because none existed. See C.R.R. Vol. 46, p. 153:7-16 (“if [the defense] want[ed] to quarrel with Tom Bevel and tell you that he is wrong . . . that you would see them right up here, and he would be detailing for you what those criticisms are. But he is not here either, is he? And for a very good reason.”).

Trial counsel was aware that such evidence existed but simply failed to investigate it. At the time that defense counsel became involved in the case, Petitioner had been represented for several months by appointed counsel Douglas Parks and Wayne Huff. Parks and Huff retained forensic scientists Terry Laber and Barton Epstein to consult with the defense on some of the physical evidence in the case. See Laber Aff. ¶5. Laber and Epstein were then given access to Petitioner’s nightshirt, photographs of the blood spatter in the garage and utility room, the garage window screen, and the bread knife from which the fiber was recovered – all of the physical evidence underlying the above-referenced testimony of Linch and Bevel. See Laber Aff. ¶ 5-6. Their preliminary findings were that the numerous pieces of evidence that they viewed were not consistent with a staged crime scene. See Laber Aff. ¶10; see also Affidavit of Barton Epstein in Support of Petitioner Darlie Lynn Routier’s Renewed Request for Access to State’s Evidence and Reply to State’s Opposition (“Epstein Aff.”) ¶7 (“At the time that our work was stopped on the Routier case, our preliminary findings were that at least some of the physical evidence we reviewed was not consistent with a staged crime scene.”) (emphasis added). Despite these findings, Mulder, after he replaced Parks and Huff in October 1996, wholly failed to pursue additional testing by Laber and Epstein, see Laber Aff. ¶10, or to hire any other forensic experts to conduct scientific testing.

Shortly after assuming the responsibilities of defense counsel, Mulder and his investigator had a perfunctory meeting with Laber to discuss the scientific analyses he and Epstein had done to date. See Laber Aff. ¶¶8-10. During the meeting, Laber provided only a general overview of their work. See Laber Aff. ¶9. Mulder and his investigator asked virtually no questions about the work and generally were not interested in the analysis. In total, the meeting lasted less than two hours. See Laber Aff. ¶ 9. Laber, therefore, fully expected that Mulder or someone from his defense team would follow-up with him because “the time in the introductory meeting was not sufficient time to explain in necessary depth what forensic analysis Barton Epstein and I had done or believed was appropriate.” Laber Aff. ¶ 10. Thus, under the circumstances, Mulder’s decision to forego additional scientific analysis was unreasonable. He clearly had not been involved long enough in the case to “have a firm command of the facts of the case as well as the governing law.” Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Thus, it was not possible at that juncture for Mulder to have made an “informed rational decision” not to pursue additional testing by Laber and Epstein, or any other forensic scientist. See id. (“It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision.”).

In closing arguments to the jury, the State highlighted the defense’s failure at trial to call either Laber or Epstein.

. . . [W]e know that back in August of last year, that there was an expert by the name of Bart Epstein, a trace evidence analyst there at SWIFS on behalf of the defendant. And we know that back there in August that Charlie Linch said, “Here, I will show you everything that I am doing out here.” He let him look at the slides, let him examine the evidence. Basically, he looked over Charlie Linch’s shoulder and graded his work out there at SWIFS. And don’t you know, don’t you know, that if Bart Epstein had any disagreement whatsoever with the findings of Charles Linch, that you would have seen him up here on this witness stand? . . .

There is one other thing that we need to ask also. Where are the samples from the T-shirt taken by Terry Labor? Where are they? You remember those first dibs samples that Terry Labor took from the defendant’s T-shirt back in August? Before Tom Bevel even had a chance to look at the T-shirt. Terry Labor, the defendant’s expert, went to Dallas and was given an opportunity to take several samples from that T-shirt. Did you see those samples in this courtroom at any point in this trial? No, you didn’t. Don’t you wonder why? You really don’t have to wonder long about that question. It’s obvious to you.

C.R.R. Vol. 46, pp. 151:17-152:4, 153:3-154:4. Such inflammatory and misleading arguments obviously were intended to and did create doubt in the jury about Petitioner’s intruder testimony. Defense counsel should have anticipated that the State would use his failure to present any scientific case in this way; it was inexcusable and unreasonable that defense counsel did not. Cf. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (“Counsel should [] have anticipated the State’s pointing out to the jury that appellant’s assertion that he was talking to his sister in Wichita Falls near the time of the robbery was uncorroborated by either the sister’s testimony or phone company records.”).

No reasonable defense strategy would have allowed such critical portions of the State’s case to go completely unanswered. Cf. Winn v. State, 871 S.W.2d 756, 761 (Tex. App. 1993) (concluding that defense counsel’s performance was deficient under Strickland where “it appears that [counsel] could have developed a better defense had he taken the time to contact other experts and thereby impeach the State’s experts who concluded the death was homicide”). “Counsel has a duty to bring to bear such skill and knowledge as will render the trial a “reliable adversarial testing process.” Welborn, 785 S.W.2d at 393 (quoting Strickland, 466 U.S. at 688) (emphasis added). Prejudice to the defendant is presumed where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984).

Petitioner clearly was prejudiced by defense counsel’s failure to provide any evidence to counter the State’s scientific evidence. See First Charles Linch Affidavit (“First Linch Aff.”) (“It is my professional opinion, that if Bart Epstein and Terry Laber were released from their retention as expert witnesses for Darlie Routier’s defense, such release constituted a grave error on the part of Darlie Routier’s defense counsel.”) The unanswered scientific evidence of the State was the primary evidence allegedly connecting Petitioner to Damon’s death. Without any contrary evidence, the only explanation the jury was given for the blood stains on the back of the Victoria’s Secret nightshirt Petitioner wore on the evening of the events of June 6, 1996 was that the stains were “cast off” from the knife as she allegedly stabbed Damon. See C.R.R. Vol. 39, p. 38:2-6.

Likewise, the jury was given no evidence regarding a possible alternative source of the fiber Charles Linch said he recovered from Knife Number 4. Linch testified that the fiber was “consistent” with the material from the garage window screen. This testimony invited the jury to infer erroneously that Petitioner had cut the screen herself to create the false exit of the alleged intruder. It was more plausible that the source of the fiber was fingerprint powder used to dust the window screen and then knives found in the kitchen. See Palenik Aff. ¶ 4; Second Linch Aff. ¶ 7 (admitting that Knife Number 4 was dusted with fingerprint powder before he tested it). Defense counsel never pursued available scientific analysis to test Linch’s microscopic examination of the origin of the fiber. Undersigned counsel attempted to have the fiber tested to determine its source and composition in time for this filing, but the State refused counsel access to the sample, and the Court last week held that it lacked jurisdiction over Petitioner’s motion seeking access to that evidence. See Order of July 5, 2002 (“After having reviewed applicant Petitioner’s expedited motion for access to State’s evidence, the State’s response, and applicant’s renewed request for access, as well as having considered the argument of counsel, the court finds that it does not have jurisdiction to consider applicant’s request at this time.”).

If defense counsel had presented evidence demonstrating that the knives had been contaminated by the fingerprint dusting that was done before Linch received the knives for testing, counsel could have eliminated the significance attached to that otherwise dramatic piece of scientific evidence. Defense counsel certainly was aware that more precise testing might deflate Linch’s testimony that the knife fiber was “consistent” with the garage window screen. Linch had given similar testimony with respect to a hair that was found in the torn garage window screen which he testified was “microscopically identical” to Petitioner’s hair, further inviting the inference that Petitioner had cut the screen to stage the crime scene. DNA testing, however, determined that the hair found in the screen belonged to Police Officer Sarah Jones. See Charles Linch Testimony, C.R.R. Vol. 37, pp. 183:22-184:2 (“Q. And so, what that shows is, that your microscopic evaluation, although done with the highest technology and with the greatest expertise, later proved, or it was later proved that that head hair was not in fact Darlie Routier’s? A. That’s right.”). In light of Linch’s erroneous conclusion as to the source of the hair recovered from the screen, reasonable defense counsel would have conducted more reliable testing on the knife fiber. Petitioner’s defense counsel did not.

The jury also was given no other explanation for the “four defects” in the right shoulder of the Victoria’s Secret nightshirt. Linch testified that these cuts were “hesitation” punctures that Petitioner made when she inflicted her own neck injuries. On the contrary, these cuts, because of their location, could not have made by Petitioner. See Laber Aff. ¶ 6. Defense counsel never conducted microscopic examination of the cuts, though Laber and Epstein had recommended such, to determine if a different instrument caused those defects. Undersigned counsel attempted to have the nightshirt tested in time for this filing, but the State refused counsel access to the sample, and the Court last week held it lacked jurisdiction over Petitioner’s motion seeking access to that evidence. See Order of July 5, 2002.

In addition, had defense counsel investigated the physical evidence recovered from the Routiers’ home, he would have discovered other evidence that the crime scene was not staged,^[9] most significant of which was a bloody fingerprint lifted from the glass table in the family room that does not match the fingerprints of Petitioner, Darin, Damon, or Devon Routier or any of the law enforcement personnel who responded to the scene. Retired Rowlett Police Office James Cron gave the jury the glaring misinformation that a bloody fingerprint lifted from the glass table in the family room lacked “sufficient points of identification” to identify but was “consistent with having been left by a five or six year old child.” C.R.R. Vol. 35, p. 47:7-48:11. Specifically, Cron testified:

A. That there is ridge detail, a few points of comparison, but I can’t – couldn’t make any identification.

Q. Okay. Same thing as you had with the other sets that I have just shown you?

A. Yes. These are better prints but still lacked sufficient points of identification.

C.R.R. Vol. 35, p. 47:7-15. The State then invited the witness to speculate as to the source of the latent prints:

Q. Okay. How would you classify the size of these two latents?

A. Small.

Q. Okay. What do you mean by small? What would that be consistent with?

A. A juvenile, it could be. It fits the criteria to be a younger person’s prints.

Q. Okay. What are those criteria?

A. Small ridges.

Q. Let me just ask you: The two prints here, 85-I and J, would they be consistent with having been left by a five or six year old child?

A. It’s possible, yes, sir.

Based on this testimony, the jury likely dismissed the fingerprint evidence as belonging to either Devon or Damon Routier – a conclusion that subsequent scientific testing indicates was erroneous.

Contrary to Cron’s testimony predicated on his abilities, the latent fingerprint had sufficient points of identification for University of Tennessee Professor Richard Jantz to conduct an anthropological analysis of the fingerprint. This analysis involves comparing the breadth of the ridges and size of the latent fingerprint with reference fingerprint samples of adult males, adult females, and children. Based on such comparisons, Jantz concluded that the latent fingerprint belongs to an adult not a child. He also compared the latent fingerprint with fingerprint samples from Petitioner, Darin, Damon, and Devon Routier and all law enforcement personnel who responded to the Routiers’ residence. None of the fingerprints from these individuals matched the latent fingerprint. Thus, the bloody fingerprint is strong evidence that an unknown adult intruder was in the Routiers’ residence during the June 6, 1996 attack.

In addition, defense counsel failed to investigate and introduce evidence that other physical evidence was inconsistent with the prosecution’s theory of a staged crime. In particular, contrary to the notion that Petitioner staged the crime scene, forensic experts Epstein and Laber formed the opinion, and observed, that “numerous pieces of physical evidence were not consistent with a staged crime scene.” Laber Aff. ¶ 11. Contrary to the notion that the vacuum cleaner was pushed around by someone bleeding as part of staged crime scene, they have concluded that most of the bleeding had occurred after the vacuum cleaner had been knocked down. See Laber Aff. ¶ 10. Contrary to the State’s theory that a wine glass had been removed from the wine rack and thrown onto the floor to make it appear as if a struggle had occurred as part of staged crime scene, Laber and Epstein concluded that “the placement of shards of glass below the location of the wine glasses suggested that the wine glass had broken numerous feet away next to the wine glasses in a manner not consistent with a person smashing or throwing the glass onto the floor.” Laber Aff. ¶ 10. None of this evidence was presented to the jury which necessarily undermines confidence in the outcome of Petitioner’s trial.

Thus, defense counsel’s failure in Petitioner’s case to seek out and produce witnesses to refute the State’s physical evidence was clearly deficient and prejudicial to Petitioner and constituted ineffective assistance of counsel in violation of Petitioner’s state and federal constitutional rights to counsel.

2. Defense Counsel Failed to Investigate Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense for Petitioner.

Defense counsel also failed to investigate leads suggesting that Darin Routier had arranged the June 6, 1996 attack on his residence. That failure was unreasonable under Strickland and thus also constituted ineffective assistance of counsel in violation of Petitioner’s federal and state constitutional rights to counsel. See Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992) (concluding that “defense counsel’s failure to pursue a crucial line of investigation in a capital murder case was not professionally reasonable”).

When defense counsel took over for Parks and Huff, Parks specifically advised new counsel of Darin Routier’s possible involvement in the deaths of his sons. By letter of October 24, 1996, Douglas Parks advised Douglas Mulder of a possible conflict because he concurrently represented Darin Routier. See Parks Aff. ¶ 8. Parks explained that “[he] continued to believe that Darin Routier was a possible perpetrator of the offense.” Parks Aff. ¶ 8. Parks further advised defense counsel “that the court had not addressed the possible conflict of interest generated by simultaneous representation of Darlie and Darin Routier.” Parks Aff. ¶ 8.

The physical evidence in the case also suggested Darin Routier’s involvement. In addition to the evidence detailed supra, the blue jeans that he was wearing contained considerable blood staining that was consistent with contact type blood staining. See Laber Aff. ¶ 11. Two areas on the blue jeans also contained blood spatter which suggests that Darin Routier was present at the time of the stabbings. See Laber Aff. ¶ 11.

In light of this evidence and the information conveyed by Parks, reasonable defense counsel at least would have investigated – if not pursued – a defense strategy that implicated Darin Routier or someone known to him. Petitioner’s defense counsel did not.

Undersigned counsel since has learned that in the spring of 1996, Darin Routier was contemplating an insurance scam that involved staging a burglary of his residence. See Routier Aff. ¶ 3; R. Kee Aff. ¶ 2. Darin Routier asked Petitioner’s stepfather whether he “knew anyone who would agree to burglarize [his] home as part of an insurance scam.” Routier Aff. ¶ 3; see also R. Kee Aff. ¶ 2. Darin Routier explained that “he and his family would be gone from the house and that the ‘burglar’ would come to the house with a U-Haul truck and remove ‘gobs’ of stuff from the house” which he would retrieve “after his insurance company paid off.” Id. Darin Routier has admitted that he had this conversation with Robbie Kee only days before the attack on his wife and children. See Affidavit of Richard Reyna ¶ 5. Moreover, two years prior to that attack, Darin Routier arranged to have his Jaguar “stolen” so that he could collect the insurance proceeds. See Routier Aff. ¶ 3; Holly Becka, Routier Defense Theory Is Revealed, Dallas Morning News (June 22, 2002). That “crime” was executed by a person known to Darin Routier. See Routier Aff. ¶ 2 (“In 1994, I spoke to a person about my Jaguar automobile. In that conversation, I said that ‘it wouldn’t bother me’ if the Jaguar was stolen. That person then stole the Jaguar.”)

In light of Darin Routier’s intention in 1996 to stage a burglary at his house, the mysterious black car that numerous witnesses testified they saw in the neighborhood around the time of the attacks at the Routiers’ home is additional exculpatory evidence. See, e.g., Testimony of Barbara Jovell, C.R.R. Vol. 36, p. 136:5-15 (“Q. Well, it was the earlier day she was working, whatever day that was? A. Right. But she saw, yes, she did see a black car in a back alley. And she, she – when he passed us by, really fast, or a black car passed us by, she said she saw the black car in the back alley. When she was in the garage, he was like sitting and like waiting for somebody but he was looking into the garage. Q. Like he was watching the house? That’s what your mother told you, wasn’t it? A. Something like that, yes.”); Testimony of Karen Neal, C.R.R. Vol. 41, pp. 84:21-85:24 (“A. I came home from work about 3:00 o’clock in the afternoon, and I saw a small, black car that was stationed right in front of my sidewalk. Q. Okay. And how was that small, black car parked in that area? A. It was against my curb, and the person in the car seemed to be angled towards the Routier home . . . .Q. All right. And you told the jury that he appeared to be focusing on the Routier house? A. Yes, sir. Q. Okay. Did that strike you as unusual? Did you say anything to him or do anything or go in the house or – A. When I got out of my car to approach him, he sped off very fastly.”).

The same is true of the Rowlett woman who “after 2:00 o’clock a.m. on June 6, 1996” observed two suspicious men – one of whom fit Petitioner’s description of her assailant – walking along a stretch of Darlock Road that was approximately a 10-minute walk from the Routiers’ home. Potter Aff. ¶ 3. None of this information was presented to the jury because defense counsel failed to pursue a line of investigation to uncover such evidence. See Butler, 716 S.W.2d at 56 (expressing “concern[] . . . not with counsel’s failure to present the testimony of these witnesses, but with his decision not to perform the investigation that would have uncovered the testimony”). That failure is not a tactical decision entitled to deference. See id. (concluding that “[c]ounsel made no tactical decision not to present [] evidence” that ‘[h]e didn’t know [] existed”).

These facts are more than sufficient to establish that Petitioner was denied effective assistance of counsel for defense counsel’s failure to investigate this crucial line of defense. “[C]ounsel [] has a responsibility to seek out and interview potential witnesses and failure to do so is . . . ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced.” Ex Parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983). Through counsel’s failure to investigate, no evidence implicating Darin Routier or his associates was placed before the jury. That clearly was prejudicial to Petitioner and necessarily undermines confidence in the jury’s verdict.

Thus, on this alternative ground, Petitioner was deprived of her federal and state constitutional rights to counsel.

C. Defense Counsel Failed to Object to the State Mounting an Unfair Prosecution with Inadmissible Evidence.

“There is . . . no question that propensity would be an ‘improper basis’ for conviction.” Old Chief v. United States, 519 U.S. 195, 182 (1997). Thus, when evidence “is not ‘relevant’ apart from supporting an inference of ‘character conformity,’ it is absolutely inadmissible” and the balancing test required under Rule 403 “is obviated.” Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990).

Yet, from its opening statement, the State made clear its intention to ground improperly its case on “character conformity” attacks: “the real Darlie Routier” was “a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children.” C.R.R. Vol. 28, p. 31 (emphasis added). And, despite the obvious impropriety in proving a person has the sort of character that would permit them to commit capital murder, the defense failed to object as time and again the State fulfilled its promise to use Petitioner’s alleged character as proof of criminal guilt – prosecutorial behavior that was in total contravention of Texas Rules of Criminal Evidence 404 and 405 (hereinafter referred to as “Rules” 404 and 405). Trial counsel also compounded this failure by allowing the State to support its character strategy with a host of other irrelevant and unfairly prejudicial evidence, such as Petitioner’s flat emotional affect in the hospital, to establish, directly or by innuendo, that Petitioner was a cold and materialistic person with a temper who therefore must have acted in accordance with her character and killed her children. As such fundamental violations of the evidentiary rules designed to ensure a fair trial process occurred repeatedly, defense counsel remained silent, allowing the State to convict Petitioner on the basis of wholly inadmissible and non-probative character evidence.

The prosecution had carte blanche to build a prohibited character case against Petitioner that portrayed her to the jury as materialistic woman with a temper who did not care about her children. Trial defense counsel’s complete failure to use the rules of evidence to protect Petitioner from this unfair personal attack was compounded by repeated failures by defense counsel to object to inadmissible “evidence,” much of which was used either to establish inappropriate character allegations or to provide building blocks for the State’s circumstantial case – building blocks that should not have been considered by the jury. In a case built on many small pieces of circumstantial evidence, the failure of the defense counsel to stop the steady stream of unreliable, non-probative and irrelevant character evidence ultimately resulted in a flood of improper and unfairly prejudicial evidence that extinguished any possibility for a fair trial for Petitioner and created a real and palpable danger that she was convicted on the basis of improper and inadmissible evidence.

1. The Prosecution Was Allowed to Build its Case for Guilt Substantially on the Basis of Character Evidence.

a. Propensity Evidence.

The State was allowed to introduce at trial opinion evidence that Petitioner was “materialistic” and had a “temper,” including specific examples of these alleged character traits. The prohibition against this tactic under Rules 404 and 405, however, are clear. Rule 404(a) provides that “Evidence of a person’s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion.” Although Rule 404(a)(1)(A) permits the accused to offer evidence of a “pertinent character trait” and allows the prosecution then to rebut that evidence, the prosecution is not permitted to strike the first blow or to set the stage for a battle on the accused’s character unless, as in this case, defense counsel fails to curb that abuse. Rule 404(a)(1)(A). See generally Jaubert v. State, 2002 Tex. Crim. App. Lex. 82 (Tex. Crim. App. 2002).

Opinion testimony is not admissible under Rule 404(b) to establish something other than character because that rule governs the admissibility of acts not opinions. Thus opinion testimony must be character testimony and when offered to show that an accused was likely to commit a crime is pure propensity evidence prohibited by Rule 404(a). On the other hand when character evidence is admissible under Rule 404(a) (i.e., only after the accused places a particular character trait in issue), Rule 405 provides that such evidence may only be offered in the form of “reputation or . . . opinion” testimony, and that inquiry into specific instances of conduct is only permitted on cross-examination. Rule 405. Accordingly, the admission of both opinion testimony regarding a character trait and specific instances supporting that opinion also violates Rule 405. Clearly, defense counsel had at their disposal rules that should have prevented the prosecution’s misuse of character evidence in this case, but failed to use them.

The prosecutor’s theory of the case that Petitioner was cold enough and materialistic enough to murder her own children is a direct assault on the “fundamental rule of evidence . . . that a defendant’s ‘bad character’ cannot be used to argue that the defendant committed the crime for which he is being tried, or had the propensity to commit that crime.” Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir. 2000); see also Michelson v. United States, 335 U.S. 469, (1948) (stating that improper character evidence “weighs too much with the jury and . . . overpersuades them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge”); Owens v. State, 827 S.W. 2d 911, 914 (Tex. Crim. App. 1992) (stating that extraneous offense evidence and evidence of “bad character” is not admissible to prove a general propensity to commit criminal acts.); United States v. Ring, 513 F.2d 1001, 1004 (6th Cir. 1975) (stating that in jury trials, evidence of a criminal defendant’s bad acts or prior misconduct is inadmissible to show criminal propensity because it “tends to confuse the issue of guilt or innocence of the specific offenses charged and to weigh too heavily with the jury”). In fact, a prosecutor who dwells on a defendant’s alleged bad character in this prohibited manner may be found to have engaged in prosecutorial misconduct. See Hofbauer, 228 F.3d at 699 (6th Cir. 2000).

Indeed, in a related context, the Texas Court of Criminal Appeals has recognized that “[a]n accused is entitled to be tried on the accusation made in the state’s pleading and he should not be tried for some collateral crime nor for being a criminal generally.” Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). This limitation is “imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.” Id. The same arguments apply with even greater force to the rule against convicting a person on character evidence – a rule “rooted in fundamental fairness and due process concerns” and the violation of which “necessitates habeas relief when it results in grievous wrong to a defendant at the hands of the state.” McKinney v. Rees, 993 F.2d 1378, 1385 (9th Cir. 1993) (Amended June 10, 1993 and reported at 1993 U.S. App. LEXIS 9685) (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1713 (1993)). Thus, just as the Texas courts have recognized that uncharged misconduct impermissibly requires an accused to defend against charges of which he has not been notified, the violation of the rule on character evidence, when made an integral part of the prosecution’s case, impermissibly requires an accused to disprove the character traits asserted by the State. That is exactly what happened in this case as the defense repeatedly was forced to have its witnesses deny that Petitioner was materialistic, selfish, and self-centered. See e.g., C.R.R. Vol. 41, p. 18.

b. Admissions of the Prosecution’s Propensity Evidence Violated Petitioner’s Right to Due Process and Demonstrated that Her Defense Counsel was Ineffective.

Because of the lack of a “‘weighty’ case against [Petitioner], and pervasiveness of the erroneously admitted evidence throughout the trial, . . . it [is] “highly probable that the error had substantial and injurious effect or influence in determining the jury’s verdict.” McKinney, 993 F.2d at 1386. Thus, defense counsel’s failure to object to this assault by the prosecution was both deficient and prejudicial as required for relief under Strickland. The record is so replete with inadmissible character evidence or irrelevant evidence intended to buttress this character evidence that it is impossible to be certain that all of it has been cataloged here, but the following list of evidence offered without objection from defense counsel provides ample support to establish that Petitioner’s trial was fundamentally unfair:

Trial defense counsel failed to object when the prosecutor stated in his opening statement, “The evidence will show you that the real Darlie Routier is, in fact, a self-centered woman, a materialistic woman, and a woman cold enough, in fact, to murder her own two children.” C.R.R. Vol. 28, p. 31.
Trial defense counsel failed to object as Barbara Jovell, a long-time acquaintance of Petitioner, was permitted to testify, providing specific examples, on direct examination by the prosecution as to her opinion that Petitioner became more materialistic over the years. C.R.R. Vol. 36, pp. 39-42.
Trial defense counsel failed to object as Jovell was allowed to testify that, in her opinion, Petitioner had a temper and was the dominant personality vis-à-vis her husband. C.R.R. Vol. 36, p. 47. Jovell was then permitted to describe specific examples of Petitioner’s temper in response to the prosecutor’s question asked “what kind of things would get her mad,”^[10] to which Jovell replied “mostly money.” C.R.R. Vol. 36, pp. 47-48. Further compounding the clear prejudice, the prosecution then introduced through this witness character evidence about how good the victims were, which also violated Rule 404. C.R.R. Vol. 36, pp. 79-80.
Trial defense counsel failed to object when the prosecutor intentionally disregarded the motion in limine granted by the judge and asked Darin Routier about the fact that Petitioner had received breast implants. C.R.R. Vol. 42, pp. 304-06.^[11]
Trial defense counsel failed to object as the pastor who presided over the funeral of the slain children was asked irrelevant questions about whether pocketknives and tarot cars were placed in the casket with the boys and that the song Gangster’s Paradise, was played at the funeral. C.R.R. Vol. 40, pp. 248-58.

Ø Trial defense counsel failed to object as the prosecutor asked a neighbor of the Routiers, Karen Neal, wholly irrelevant questions about the lyrics to Gangster’s Paradise. Defense counsel offered no objection to admissions of the irrelevant lyrics to this song through this neighbor. Defense counsel even went so far as to flippantly state in front of the jury, “We have no objection, if he’ll sing it.” C.R.R. Vol. 41, p. 117.

Ø On cross examination of Luann Black, the prosecutor questioned her about the appropriateness of the lyrics to Gangster’s Paradise, the first song played at the children’s funeral. Even though the witness proclaimed not to know what the song was about, the prosecution was allowed to ask, “so you are not aware that it is about violent crimes?” C.R.R. Vol. 41, p. 68. The prosecutor also was allowed to question Petitioner’s parenting when he asked, “You mean that she let her five and six year old children listen to Gangster’s Paradise by Coolio?” C.R.R. Vol. 41, p. 68.

Ø On cross examination of Darin Routier, the prosecution was allowed to go line-by-line through the highly inflammatory and irrelevant lyrics of Gangster’s Paradise. C.R.R. Vol. 43, pp. 83-86.

Trial defense counsel failed to object as the prosecutor asked Darin Routier about the fact that he and Petitioner bought jewelry at pawn shops and even took the children to these pawn shops on occasion. C.R.R. Vol. 43, p. 82. This evidence was then offered in more detail during the punishment phase of the trial, where character was relevant.
Trial defense counsel failed to object as the prosecutor pointed out on Petitioner’s cross-examination that she did not take her children to church regularly. C.R.R. Vol. 44, p. 174.
Trial defense counsel failed to object as the prosecutor inquired into irrelevant conduct in questioning Petitioner about her tradition of going out with her girlfriends on the night before Mother’s Day. C.R.R. Vol. 44, pp. 173-74. This evidence was then offered in more detail during the punishment phase of the trial, where character was relevant.
Trial defense counsel failed to object as the prosecution, in order to establish that the Petitioner was materialistic, repeatedly emphasized the material possessions owned by the Routiers.^[12] See, e.g., C.R.R. Vol. 41, pp. 25-26 (questioning by the prosecutor on cross examination of defense witness regarding the various pieces of property the Routiers owned including a “28 foot boat out there on the lake” and “new, very nice . . . spa in the backyard”).
Trial defense counsel failed to object as witnesses with very limited access to Petitioner were allowed to testify about Petitioner’s apparent cold attitude toward Drake, her infant son, after the crime occurred, without establishing any relevance to the murders. For example, nurses who attended to Petitioner were allowed to testify that she, even though fitted with IV tubes and had wounds to her neck would not hold Drake, her infant son while she was in the hospital. See, e.g., C.R.R. Vol. 31, pp. 201, 266. A paramedic, Brian Korschak, was also permitted to testify that Petitioner did not ask about her infant son while the paramedic attended to her. C.R.R. Vol. 32, p. 311. Such testimony by individuals who were in fact mere passersby, was clearly lacking in any probative value, and was introduced by the prosecution to buttress its effort to portray Petitioner as cold, uncaring, and self-centered.
Trial defense counsel failed to object as Darin Routier was questioned about irrelevant hearsay statements he had made to a radio show host about people getting caught up in materialism and losing sight of what is important, permitting the prosecutor to ask, “That’s right. That is something that you all forgot in ‘96, isn’t it? You and the defendant. You got off the track, you got on the material side of life, and you lost sight of your two children for a while, didn’t you?” C.R.R. Vol. 42, pp. 320-21.
Trial defense counsel failed to object when the prosecutor told the jury in closing arguments that they had

heard from Barbara Jovell, who was this woman’s maid of honor, who has known this woman almost 10 years, who had worked with her every day, there at their work place, their one employee . . . and what did she tell you . . . a few years ago [Petitioner] was a very different person. But their business took off and her attitude started changing. She started thinking about money, and became more self-centered. You know she wears the 10 rings on every finger, all the rings and earrings. She started becoming more self-centered, shopping all the time.

C.R.R. Vol. 46, pp. 49-50.

As to a suicide gesture Petitioner allegedly made in May 1996, the prosecutor was allowed to testify, “You know, I don’t think the defendant was going to kill herself. I think she loves herself too much.” C.R.R. Vol. 46, p. 51. Also, in referring to the tape that was made of Petitioner after the murders at a graveside birthday celebration, the prosecutor disclosed the real reason for offering the video:^[13] “I think it gives you a lot of insight into this woman. You see, this is not a picture of a grieving mother, and I don’t care how many excuses you can come up with, and how many doctors you can bring in here and say this is some type of Christian ceremony, or she was on some Xanax or people were giving her valiums, no. You can see how she is acting. She is enjoying herself out there. She likes the attention. . . . She is enjoying it, and it gives you insight into her true character.” C.R.R. Vol. 46, pp. 51-52 (emphasis added).

Additionally, Petitioner requests relief for the admission of propensity evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

2. The Prosecution Was Allowed to Introduce Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner.

Compounding the onslaught of irrelevant evidence that the prosecution used without opposition to show Petitioner’s “true character” in the findings portion of the case, was the defense counsel’s repeated failure to recognize and/or object to harmful hearsay evidence, much of it directed at supporting the character pillar of the prosecution’s case. Hearsay evidence is a statement made out of court that is offered to prove the truth of the matter asserted. Tex. R. Crim. Evid. 804(d); Guidry v. State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999). Its receipt into evidence in a criminal proceeding allows unreliable evidence to be considered by the finder of fact and violates the Confrontation Clause of the Sixth Amendment to the United Stated Constitution. See Hardy v. Texas, 71 S.W.3d 535, 537 (Tex. Ct. App. 2002) (citing Guidry, 9 S.W.3d at 149). Hearsay statements that do not fall within a deeply-rooted hearsay exception are “presumptively unreliable and inadmissible for Confrontation Clause purposes.” Idaho v. Wright, 497 U.S. 805, 817 (1990). In a highly circumstantial case such as Petitioner’s case, where any piece of evidence could ultimately affect the trial outcome, each piece of inadmissible evidence has the potential to be the one piece that pushes a juror beyond reasonable doubt. Thus, these failings by defense counsel must be considered in the context of their cumulative effect on the fairness of the trial. Because so many pieces of inadmissible evidence were allowed to be admitted without objection, defense counsel’s failure to act “so infused the trial with unfairness as to deny due process of law.” See Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992); id. (“series of events none of which individually violated defendant’s constitutional rights” may violate a defendant’s constitutional rights).

Trial defense counsel failed to object to the prosecutor’s questions to Petitioner’s husband about his conversations with Jamie Johnson, a Child Protective Service (“CPS”) worker, about what Petitioner had said to him in 1995 about being “sick of everything” and having trouble keeping the house clean and about Petitioner being a “cleanaholic.” The prosecutor implied through his question that Darin Routier told this individual, “It’s kind of an obsession. She will clean and clean, but the kids would be right behind her making bigger messes.” C.R.R. Vol. 42, pp. 298-300. Such questions clearly called for hearsay: Although what Petitioner told her husband may have been admissible, what he told the CPS worker (who was never called as a witness) clearly was not. A statement made by a testifying witness is not admissible merely because he said it to someone else. Instead, only certain prior statements of a witness are admissible for substantive purposes. See Tex. R. Evid. 801(d), 801(e)(1). Moreover, such testimony was not relevant and could only be used by the jury to improperly speculate that Petitioner allegedly was motivated to kill her children because she wanted a clean house.

Trial defense counsel’s failure to recognize and challenge the impropriety of this testimony allowed the prosecutor to refer to a number of irrelevant and prejudicial questions about hearsay statements apparently obtained from the CPS worker. For example, the prosecutor was allowed to ask, without a proper objection, a series of irrelevant and prejudicial questions seeking to have Petitioner’s husband verify hearsay statements without satisfying any of the exceptions permitting the admission of a prior statement: That Petitioner told him that she was disappointed Drake was not a girl, C.R.R. Vol. 42, p. 302; that Petitioner’s husband had said “there was no time for me and Mommy to be sexy or run around in the house naked” C.R.R. Vol. 42, p. 305; that in May 1996 “a light went on in my head saying she needs help,” C.R.R. Vol. 42, p. 309. None of these questions was relevant and it is clear the questions were made not for the answer that was expected – the CPS worker never testified. Instead, the questions were designed to introduce at trial to hearsay statements allegedly made by Darin Routier. This series of questions could have been terminated or an error preserved for appeal by an objection. Even if this series of questions did not involve hearsay, it should have been excluded as irrelevant, misleading, and unfairly prejudicial as its only apparent purpose was to support the prosecution’s overt character assassination described above. See Tex. R. Evid. 403. Similarly, the prosecutor was allowed to cross-examine Petitioner’s husband about the murders on the basis of hearsay statements apparently made by this CPS worker and another CPS employee, Corrine Wells, who also did not testify at trial, regarding what Petitioner’s husband told him about the events on the night of the murders. C.R.R. Vol. 43, pp. 69-71.

Further contributing to the harm is the fact that the jury was not instructed (or requested to be instructed) not to consider as evidence questions containing hearsay that were denied, thus the prosecutor was able to expose the jury to alleged statements of Ms. Johnson and Ms. Wells without either of them ever being subject to cross examination.

Another piece of hearsay smuggled into the courtroom was the rumor that a police officer was almost bitten by the Routier’s Lilliputian dog in the home. This hearsay evidence was allowed in twice. First, a neighbor, William Gorush was permitted to testify as to double hearsay when he stated without objections, “what Karen [Neal] said, also was that – a police officer had almost been bitten by the dog at some point. The dog was in the home, and they wanted the dog out. They were afraid to do anything with the dog. And they wanted to know if anybody thought they could get it.” C.R.R. Vol. 28, p. 244. Then again, when Karen Neal was asked by the prosecutor, “Okay, Police officers had been kind of nipped at, I guess, earlier?” To which she replied, “Yes, so they told me. I did not observe that.” C.R.R. Vol. 41, p. 105. Trial defense counsel did nothing to cure the admission of this evidence even though no police officer testified that the tiny lapdog, which was upstairs and too small to even navigate the stairs by himself, bit anyone. See C.R.R. Vol. 41, pp. 105-06. The first officer on the scene, Officer Waddell, did not even mention observing the dog. Lieutenant Walling, who arrived later, only mentioned the dog being upstairs barking. C.R.R. Vol. 29, p. 241. In its closing arguments, the State emphasized the presence of this tiny caricature of a dog as a deterrent to a criminal intruder. C.R.R. Vol. 46, pp. 47, 55.

Hearsay evidence was also allowed to serve as a conduit for critical pieces of information about the crime scene without objection from defense counsel. For example, the prosecutor was permitted to ask Darin Routier whether he had heard that kids were coming in and out of the garage window through which the defense alleged the perpetrator probably entered and left the Routier home. C.R.R. Vol. 42, pp. 336-37. This testimony was critical because it allowed the prosecutor to posit to Petitioner’s husband that the kids caused the bend in the screen. C.R.R. Vol. 42, pp. 336-37. Thus, even though Petitioner’s husband answered he had never seen the kids go through the window, the State was able to use this hearsay to explain away potential exculpatory evidence. In fact, the prosecution felt this piece of evidence was so important that it mentioned it prominently in its closing statement. In his closing argument, the prosecutor stated this testimony in a way to give it even more credence, “You remember the question Mr. Davis asked Petitioner’s husband: ‘Didn’t your children go through that window to get popsicles?’ Well, yeah, my neighbor told me they did that, but I was not aware of it at the time.” C.R.R. Vol. 46, p. 40.

Additionally, Petitioner requests relief for the introduction of unreliable hearsay evidence independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

3. The Prosecution Was Allowed to Introduce, Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner’s Conduct and State of Mind.

Without any objection, medical personnel and a retired police officer, James Cron, were allowed to offer opinions that lacked any reliable foundation and amounted to nothing more than “subjective belief or unsupported speculation” that should have been challenged by defense counsel as “unreliable evidence that is of no assistance to the trier of fact and . . . inadmissible under Rule 702.” See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Moreover, such speculative testimony was not “rationally based on the perception of the witness” nor “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.” Tex. R. Evid. 701.

a. Medical Witnesses.

Much of this evidence was offered by medical support personnel who spent very short periods of time observing Petitioner in the hospital recovering from her wounds. Although these witnesses were permitted to testify that Petitioner’s “flat” emotional affect was inconsistent with that of a grieving mother, none of the witnesses were proffered as experts trained in judging the response of others to tragic circumstances, none of the witnesses knew Petitioner’s ordinary demeanor or how she reacts to trauma, and none claimed to have treated other mothers who were injured at the same time their children were killed. In fact, neither the medical personnel involved nor the jury could do more than speculate about the meaning of Petitioner’s demeanor. Indeed, the first witnesses to testify about Petitioner’s flat affect were attending physicians who acknowledged that nothing could be extrapolated from the flat affect exhibited by Petitioner in the hospital. C.R.R. Vol. 30, p. 280. Yet, witness after witness was allowed to express the conclusory and unfounded opinion that Petitioner’s flat affect made her different from other mothers who had lost their children. The prosecution’s use of this evidence was intended to show that because she did not act in a hysterical manner, Petitioner must have killed her children – a point the prosecutor would ultimately drive home to the jury in closing argument. C.R.R. Vol. 46, pp. 30-34.

In spite of the State’s clear objective to demonize Petitioner, defense counsel made no objection as medical attendants were repeatedly permitted to opine that Petitioner failed to act in a manner that they would have expected from someone in her situation. This is not the sort of “rationally based” perception or “specialized knowledge” permitted to be shared with the jury under Rules 701 and 702. Tex. R. Evid. 701, 702.

This improper use of inflammatory and meaningless testimony was compounded by the fact that Petitioner’s flat affect in the hospital served to further advance the prosecution’s improper assault on Petitioner’s character as a person “cold enough” to kill her children. In the face of the State’s improper attack, the defense had a duty to object to, inter alia, the following inadmissible testimony and argument:

· Santos, one of the attending physicians was permitted to testify that “most of the time mothers” when they are made aware, or told that a child has died, “get hysterical.” C.R.R. Vol. 30, p. 212. He further testified that “they cry” and “usually tell me I am wrong.” C.R.R. Vol. 30, p. 212. He testified that there is a “lot of anger and a lot of pain.” C.R.R. Vol. 30, p. 212. He was allowed to testify that “as far as all the mothers [he had] ever dealt with in this same situation,” he had not seen anyone react with a “flat affect” as Petitioner did. C.R.R. Vol. 30, pp. 214-15. The jury was then left to speculate about what sort of patients Santos had treated, and what to make of the fact that Petitioner had a flat effect, particularly in light of his later acknowledgement that you “can’t make any extrapolation from” the fact that someone has a flat affect and that it may be an indicator of someone who is “deeply depressed and grieving.” C.R.R. Vol. 30, p. 280. Thus, the evidence was irrelevant and wholly devoid of probative value and the jury should not have been exposed to it.

· Christopher Weilgoss, an ICU nurse, was allowed to testify that, while he had expected to be prepared for a “patient that was in an emotional state,” he found instead a “flat affect.” C.R.R. Vol. 31, p. 101. Astoundingly, he was permitted to describe the “type of tears” he saw Petitioner cry. Once again the jury was left to speculate, and in fact invited by the prosecution to find, that this observation meant that Petitioner killed her children.

· Jody Cotner, a nurse supervisor, was permitted to testify that Petitioner “was kind of withdrawn” and “didn’t cry very often,” that she “wasn’t very emotional” and that this was “not the emotions that you usually see with a mother.” C.R.R. Vol. 31, p. 211.

· Dianne Hollon, a nurse supervisor, was permitted to testify that at the hospital “[Petitioner] was calm. She really wasn’t – she didn’t show a whole lot of emotions. Occasionally she would get tearful, as I charted that. But she just, she never did actually burst out crying, sobbing, nothing like that.” Asked “When you say ‘sobbing,’ what do you mean?,” she answered, “Like a loud cry. Loud crying. She never cried.” C.R.R. Vol. 31, p.260.^[14]

· Even though she had written in the medical record that Petitioner was “very tearful,” at trial, Paige Campbell, an ICU nurse, was permitted to testify that, “[Petitioner] was whining. She was saying ‘My babies. My babies.’ And I never saw a tear run down her face. I never saw anything like that. She never asked for a Kleenex. I never felt the need to offer her a Kleenex. She was just whining.” C.R.R. Vol. 31, p. 325.

· Denise Faulk, a nurse who had attended to Petitioner on the night of the 7th of June, was allowed to testify that she had “dealt with people before that have lost loved ones, or close relatives.” In response to the question “Did Darlie Routier’s reaction differ from what you had seen in your experience?” she was allowed to opine that “it was different in that she didn’t portray those characteristics.” Thus, the witness was allowed to share her subjective belief that that Petitioner wasn’t exhibiting the usual reaction of someone who had lost a close family member. C.R.R. Vol. 32, pp. 20-21.

· As a result of the unobjected to admission of this damaging and irrelevant testimony, the prosecutor was allowed to argue:

You remember Dr. Santos told you that, of course, he checked on her. He deals with this situation all the time. People that have been seriously injured, people that lose their relatives, I mean, that is part of his job. He said he was expecting her to go crazy. Mothers, many times when they lose their children, they don’t accept that fact. They want to know where they are. They won’t accept it when you tell them they are dead. But not this woman. She wasn’t of the demeanor he thought she would be. Flat affect is what he called it. Flat affect.

C.R.R. Vol. 46, pp. 30-31.

Jody Cotner, who is the trauma coordinator . . . . She had been there 11 years. One of her jobs is to work with people, to inform people that their loved one has died. She has had to do that hundreds of times. She has had to deal with mothers that lose their children, and what did she tell you? There is nothing like it. The bond between a mother and a child. A grief that is inconsolable. They do it in different ways, but they all show it. And she never saw that reaction from this woman. Never saw the reaction she has always seen before. The same with the other nurses who deal with this stuff every day. They have never seen a reaction like that. It was more of a whining, no real tears, I think you-all know what they are talking about now, now that all of the evidence is in.

C.R.R. Vol. 46, pp. 33-34.

b. James Cron.

As with the medical testimony, Cron’s (referred to at trial as “Lieutenant Cron” although he was retired from the Dallas police department) opinion testimony constituted a significant part of the prosecution’s case that should have been objected to on grounds that it failed to meet the requirements of either Rule 701 or Rule 702. As was the case with the nurses, the prosecutor made Petitioner pay for her counsel’s failure to object by emphasizing Cron’s “opinion” in closing arguments, reminding the jurors that he had testified that intruders do not enter homes as argued by the defense and specifically calling the jury’s attention to the fact that the crime scene did not make sense to Cron. C.R.R. Vol. 46, pp. 36-39. Cron’s wholly subjective and conclusory opinions about the crime scene and what he believed an intruder would have done were offered without any proffer or evaluation of his testimony under Daubert and its Texas progeny, and without objection or testing the foundation for his opinion. This reality is made clear by reviewing the “expert” testimony the jury was allowed to hear from Cron:

· After being proffered as an expert with 39 years of law enforcement training, Cron was permitted to testify that after his initial walk-through of the crime scene, which lasted 25-30 minutes, he had formed a belief that “there had not been an intruder entry through the window.” C.R.R. Vol. 34, pp. 300-01. When asked by the prosecutor why he formed this opinion after his initial walk-through, Cron said only that “It’s sort of a big picture. It’s not any one thing. It was the overall scene which, primarily, is the lack of evidence in many cases. But the entire scene indicated to me there had not been an intruder. There wasn’t any one object or any one situation there.” C.R.R. Vol. 34, pp. 300-01. After cross-examination, Cron was once again asked by the prosecutor, “your opinion about no intruder came into this house, has that opinion changed, sir?” to which Cron replied that it had not. C.R.R. Vol. 35, p. 79. Later when Cron was asked to summarize the factors he used in reaching this opinion, his testimony revealed that what he had testified to was not fit for expert testimony because in his own words, “This is all common sense.” C.R.R. Vol. 35, p. 199.

· Cron was also allowed to speculate as to what he believed a typical intruder would do when asked, “Based on your experience, would you expect that intruder to very carefully straddle or climb through this window in an effort to exit that house,” to which he replied “not at all.” C.R.R. Vol. 35, p. 85. He was then permitted to ask how he “would you expect that intruder to leave,” to which he replied, “He would probably go through there so fast, it didn’t matter if the screen was cut or not.” C.R.R. Vol. 25, pp. 85-86.

· Cron was also allowed to provide his subjective opinion that a glass from the wine rack in the Routier kitchen that was broken at the crime scene was not dislodged by an intruder but instead that, “it looked to me like it had been broken there to simulate or stage an offense, a member of the household broke it and planted it there.” C.R.R. Vol. 25, p. 169. He testified that in his opinion, an intruder couldn’t have dislodged the glass because “with everything else in the scene, it would have been such a large series of coincidences and unusual things and inconsistent things, that I didn’t believe that occurred.” C.R.R. Vol. 25, p. 170.

· Cron was also allowed to testify as an expert as to the fact that he would not expect an intruder to shut the gate to the backyard when fleeing because the Routier’s gate was hard to close. C.R.R. Vol. 25, 197:3-9.^[15]

· At the end of his testimony Cron also was permitted to make several bald and unsupported assertions about the conduct of criminals: “criminals normally are not concerned with their footprints, footprints or heel prints or cloth prints from their clothing” and “are not aware that we can make weave and cloth pattern comparisons,” C.R.R. Vol. 25, p. 199:11-15; “I have never worked an offense where somebody was fighting with a live victim, especially a man against a woman, to where vulgarity was not used, as well as a lot of threats, that was not there,” C.R.R. Vol. 25, p. 200:16-19; “It’s just inconsistent with somebody fleeing a murder with a living witness that is armed . . . . I have never known someone to arm their victim, which is what this would have been equivalent to.” C.R.R. Vol. 25, p. 203:6-8.

· Finally, Cron was allowed to summarize his opinion as follows: “in my opinion, no intruder committed these offenses.” C.R.R. Vol. 25, p. 203:10-11.

· In his closing arguments, the prosecutor made full use of Cron’s subjective evaluation of the crime scene and the mind of an intruder, stating, “Cron tells you, ‘Well, the first thing about that is, that is not how intruders get in homes. They just take the screen off. They cut a little slit and take it off.” C.R.R. Vol. 46, p. 36:9-12. The prosecutor reminded jurors again and again that the crime scene did not make sense to Cron. C.R.R. Vol. 46, pp. 36:9-39:15.

When, as here, “[an] expert witness brings to court little more than his credentials and a subjective opinion this is not evidence that will support a judgment.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 421-22 (5th Cir. 1987)) (emphasis added). Cron’s expert opinion was supported by no empirical studies, was unverifiable and his “methodology” was incapable of being challenged because Cron had none – he testified purely based on his subjective instincts. Such testimony amounted to nothing more than an investigating police officer testifying, “I don’t believe the defendant’s story makes sense” and, accordingly, defense counsel should have objected to that testimony.

Additionally, Petitioner requests relief for the introduction of unreliable and speculative expert testimony independent of any claims for ineffective assistance of counsel on grounds that the introduction of this irrelevant, inadmissible, unfair and highly prejudicial testimony violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

D. Defense Counsel Failed to Challenge the Constitutionality of the Interrogation of a Sedated Petitioner Confined in her Hospital Bed After Surgery.

At 6:00 a.m. on June 6, 1996 – one hour after Petitioner emerged from surgery and only a few hours after her stabbing and the death of her two sons – Detectives Jimmy Ray Patterson and Chris Frosch interviewed Petitioner. C.R.R. Vol. 4, p. 188:10-13. The State introduced the substance of that interview into evidence (albeit through the testimony of nurse Christopher Wielgosz rather than the testimony of the two officers) without objection by defense counsel. C.R.R. Vol. 31, p. 90:12. Defense Counsel’s failure to seek to exclude that evidence constitutes ineffective assistance of counsel under the Sixth Amendment.

The Supreme Court in Mincey v. Arizona, 437 U.S. 385 (1978), in circumstances remarkably similar to the case at bar, held that a statement taken when the defendant is unable to exercise “rational intellect and free will” is involuntary, and introducing such a statement at trial constitutes a denial of due process of law. See id. at 398; see also Muniz v. Johnson, 132 F.3d 214, 219 (5th Cir. 1998) (citing Mincey, 437 U.S. at 398, for the proposition that “[a] confession is voluntary if it is the product of a rational intellect and a free will”). The Mincey Court set aside the conviction despite the fact that the conviction was supported by evidence other than the defendant’s statement. See id.

In Mincey, as in the instant matter, the defendant had been seriously wounded only a few hours earlier. See id. Mincey was in the intensive care unit of the hospital at the time of the police questioning. See id. He was confused and unable to think clearly about the critical events that had transpired several hours earlier. See id. at 398-99. While questioned by police, the defendant was lying on his back on a hospital bed, encumbered by tubes, needles, and a breathing apparatus. See id. at 399. He expressed a wish not to be interrogated. See id. Noting that “[i]t is hard to imagine a situation less conducive to exercise of a rational intellect and a free will,” see id. at 398, the Mincey Court held that Mincey’s statement was involuntary – and his will overborne – because he “was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious” during police questioning. See id. at 401-02.

Petitioner, like Mincey, was “weakened by pain and shock, [and] isolated from family, friends, and legal counsel,” when questioned by Detectives Patterson and Frosch at 6:00 a.m. on the morning of June 6. C.R.R. Vol. 4, p. 188:10-13. Petitioner’s exploratory surgery had ended at 4:49 a.m. C.R.R. Vol. 30, p. 265:4. Her last dose of anesthetic had been given at 5:00 a.m. C.R.R. Vol. 30, p. 265:5. She was lying in an intensive care unit. C.R.R. Vol. 30, p. 200:13. The general anesthetic administered only an hour before police arrived rendered Petitioner susceptible to confusion, disorientation, and temporary memory loss, C.R.R. Vol. 30, p. 268:9-15 – effects likely to continue for up to three hours after it was administered. C.R.R. Vol. 30, pp. 267: 23-268:4. At 6:00 a.m., Petitioner was given a dose of Demerol, C.R.R. Vol. 30, p. 266:23, a drug which causes drowsiness, C.R.R. Vol. 30, p. 267:4-10, and aggravates the effects of a general anesthetic. C.R.R. Vol. 30, p. 267:11-22.

Santos, Petitioner’s treating physician at the time – and a Prosecution witness – acknowledged that any statements made by Petitioner at that time were likely to be unreliable. C.R.R. Vol. 30, p. 268:16-23. Moreover, Petitioner had no friend or advocate in the room at the time of the police questioning. Only the two police officers and nurse Christopher Wielgosz were present. C.R.R. Vol. 31, pp. 88:25-89:14. The cumulative effect of these factors – the medication, lack of sleep, major surgery, traumatic injury to herself and the death of her children only hours before – prevented Petitioner from exercising the rational intellect and free will required to render a statement voluntary, and her statement is therefore inadmissible as a matter of due process.

Failure to raise this issue to the trial court – or on direct appeal – constitutes ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Defense counsel’s performance was deficient under the first prong of Strickland because any use of an involuntary statement in a criminal trial is a denial of due process of law, Mincey, 437 U.S. at 398, and no competent attorney would knowingly engage in a strategy that would violate the due process rights of his own client. Defense counsel’s performance was prejudicial under the second prong of Strickland because use of an involuntary confession requires a conviction to be set aside, even if there is ample other evidence to support it. See id. So grave a violation renders the result of Petitioner ‘s trial fundamentally unfair and unreliable, and therefore constitutes prejudice under the second prong of Strickland. This failure, without more, demonstrates constitutionally ineffective assistance of counsel and requires that Petitioner’s conviction to be set aside.

Additionally, Petitioner requests relief for the admission of evidence from her hospital-room interrogation independent of any claims for ineffective assistance of counsel on grounds that the introduction of evidence from that involuntary and inadmissible interview violated her rights to a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

E. Defense Counsel Failed to Object to the State’s Interfering with the Defense’s Access to Witnesses, Which Deprived Petitioner of Her Federal and State Constitutional Rights to Due Process.

During pretrial proceedings, defense counsel complained to the trial judge that “it is my understanding, your Honor, that this particular witness [Lt. James Cron],^[16] along with the other witnesses about whom I will speak, have either been instructed, or have indicated that they will not talk to the defense, unless a representative of the district attorney’s office is present. Which we consider to be a refusal to speak to us at all. We don’t follow the district attorney around, and we wouldn’t expect him to follow us around.” C.R.R. Vol. 5, pp. 150:21-151:4. The prosecutor admitted this fact to the Court, stating, “The State has made an offer to the defense, on more than one occasion, to make paramedics, police officers and the like available to the defense for interviews, with a stipulation that some employee of the district attorney’s office be present. On each occasion where we have made that offer, that has been refused, and turned down by the defense.” C.R.R. Vol. 5, pp. 151:8-14 (emphasis added). Although defense counsel initially objected to the limitation, defense counsel ultimately agreed to the prosecution’s interview conditions. C.R.R. Vol. 5, p. 163:3-5.

“The equal right of the prosecution and the defense in criminal proceedings to interview witnesses before trial is clearly recognized by the courts.” Kines v. Butterworth, 669 F.2d 6, 9 (1st Cir. 1981) (citing United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975)); United States v. Matlock, 491 F.2d 504, 506 (6th Cir. 1974); Callahan v. United States, 371 F.2d 658, 660 (9th Cir. 1967). “When the free choice of a potential witness to talk to defense counsel is constrained by the prosecution without justification, this constitutes improper interference with a defendant’s right of access to the witness. Justification on the part of the prosecution to interfere with that right can be shown only by the clearest and most compelling considerations. Kines, 669 F.2d at 9 (citing Dennis v. United States, 384 U.S. 855, 873 (1966)).

In 1976, the Texas Court of Criminal Appeals held that Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966) was not authoritative under the facts of that case, a non-capital rape case. See Florio v. State, 532 S.W.2d 614 (Tex. Crim. App. 1976). This case, like Gregory, is a capital murder case and involved not just one witness as in Florio, but numerous witnesses as in Gregory. Accordingly, Gregory should serve as a guidepost for determining whether an accused facing the death penalty may be arbitrarily and capriciously denied access to critical witnesses without the presence of the prosecutor and still receive a fundamentally fair trial. In Gregory, the prosecutor’s instructions to eyewitnesses to the homicide not to talk to defense counsel unless the prosecutor was present were held to constitute a denial of a fair trial in that the prosecutor’s acts were “unquestionably a suppression of the means by which defense could obtain evidence.” Gregory, 369 F.2d 185 at 189. In Petitioner’s trial, there were no eyewitnesses to the crime, but the witnesses to the crime scene and the events that followed the crime were off-limits to the defense unless it was willing to allow the prosecutor to eavesdrop on defense theories and mental processes articulated during witness interviews.

The inherent unfairness of the unequal treatment afforded the defense in Petitioner’s case were revealed at the bond hearing, where the issue arose, and continued to have an impact throughout the trial. While the prosecutor had unfettered access to all the witnesses, including Darin Routier, and used his prior alleged statements during the trial for impeachment, see e.g., C.R.R. Vol. 42 p. 322-26, 24; C.R.R. Vol. 43, p. 37, defense counsel was, as a result of lack of access to the witnesses, unable to make a proffer sufficient to persuade the Court to allow it to call numerous government witnesses who later testified at trial. In response to a defense request to call certain witnesses, the Court stated:

Well, the defense request to call persons that were not called by the State, that apparently were at or near the crime scene at relevant times, at this point in time, this has been declined by the Court.

See C.R.R. Vol. 5, pp. 163:15-19, 149:1-163 (granting the prosecution’s requests to prevent the defense from calling critical government witnesses: Lt. James Cron, Sergeant Matt Walling, Detective Chris Frosch, Paramedic Brian Koschak, and Sergeant David Nabors).

Thus, while on multiple occasions the prosecutor was able to meet and rehearse privately with government employees who would testify against Petitioner in her capital murder trial, the defense counsel was limited to either an oral deposition or a supervised interview in the presence of prosecutors. See C.R.R. Vol. 5, p. 162:7-22. Compare C.R.R. Vol. 32, pp. 252:8-253:24 (prosecutor met with witness four times including rehearsal in the presence of other police officers and paramedics) with C.R.R. Vol. 32, pp. 256:7-257:3 (defense counsel interview termed by prosecutor as a “cross-examin[ation]” that was transcribed and made available to the prosecution). By this practice, the prosecutor was able to listen to any question posed by defense counsel to the government witnesses so as to enable it to anticipate the defense strategy, avoid any surprise at trial, and by its presence, ensure that government employees would be chilled so as not to talk openly about issues that they might have divulged if not under the watchful eye of the district attorney.

The failure of defense counsel steadfastly to object to the prosecution’s restrictions on its witnesses and counsel’s ultimate acquiescence in the State’s demands, necessarily hindered the defense investigation, denied Petitioner equal access to evidence, and arguably failed to preserve for purposes of the direct appeal a glaring deprivation of due process and fundamental fairness.

Additionally, Petitioner requests relief stemming from the State’s denial of access to witnesses independent of any claims for ineffective assistance on grounds that this practice denied her a fundamentally fair trial and resulted in a miscarriage of justice in violation of her state and federal constitutional rights to due process.

F. Defense Counsel Failed to Offer Evidence from a Secretly Taped Police Video That Would Have Negated a Highly Prejudicial Videotape Offered by the State.

Over a defense objection, the State was permitted to introduce a videotape of a local news broadcast of the graveside birthday party that occurred on June 14, 1996, a day that would have been Devon Routier’s seventh birthday. In the videotape, Petitioner is shown singing “Happy Birthday,” shooting Silly String, chewing gum, and laughing. See State’s Exhibit 101. The videotape offered to “give . . . insight into this woman” was admitted into evidence during the testimony of Barbara Jovell, who also had provided what should have been inadmissible character testimony that Petitioner was materialistic and had a temper. See C.R.R. Vol. 36, pp. 22:7-27:7 (objections to the video tape and judge’s ruling), See C.R.R. Vol. 36, pp. 39-42, 47-48 (character testimony given by Barbara Jovell). The prosecution thus sought to have the jury find Petitioner guilty of murder because her conduct at a graveside birthday party did not seem appropriate for someone who had suffered her loss.

Once this prejudicial and irrelevant tape was admitted as allegedly incriminating, the defense was obliged to confront it with evidence that could be deemed exculpatory. But inexplicably, the defense counsel failed to show the jury a four-hour video tape that placed the admitted video (which highlighted few minutes of celebration with the camera focused primarily on Petitioner) into true perspective as part of a day long tribute by family and friends to the murdered children.

That videotape, filmed secretly by the Rowlett Police Department on June 14, 1996, was not introduced by the prosecution allegedly because it violated wiretap statutes. The more likely explanation the complete videotape was not introduced was that it showed a solemn prayer service held earlier in the day that Petitioner attended where she and her family members went through a range of emotions. More importantly, it showed that Petitioner’s family orchestrated the birthday celebration and brought the party favors and balloons to the grave site. The secret police surveillance tape also shows Petitioner as just one of many people engaging in various activities at the grave site, that included not only a very brief birthday celebration with children, family, and friends present, but also in mourning and remembering the children.

Writ of Habeas Corpus

TABLE OF AUTHORITIES

INTRODUCTION

STATEMENT OF FACTS

CLAIMS FOR RELIEF

I. Because Petitioner Is Innocent Of The Crime For Which She Was Convicted, Her Sentence And Conviction Are Unconstitutional Under Schlup v. Delo And Violate The Eighth Amendment And Petitioner’s Federal And State Constitutional Rights To Due Process And A Fundamentally Fair Trial.

A. Newly Discovered Evidence Supports The Defense’s Theory At Trial That The June 6, 1996, Crime At 5801 Eagle Drive, Rowlett, Texas Was Committed By An Intruder.

Since her conviction and sentence for the death of Damon Routier, Petitioner has discovered new evidence that supports her claim that she and her sons were attacked by an intruder and thus establishes her innocence of the crime for which she was convicted.

1. A Bloody Fingerprint Lifted From the Glass Table in the Family Room Establishes That an Unknown Adult Was in the Routiers’ Residence on the Morning of June 6, 1996 During or Right After the Attacks.

2. A Rowlett Woman Returning Home in the Early Morning of June 6, 1996 Observed Two Suspicious Men Walking from the Routier Neighborhood One of Whom Matched Petitioner’s Description of the Assailant.

3. In the Spring of 1996, Darin Routier Had Intentions to Have His Residence “Hit” to Collect Insurance Proceeds.

B. Preliminary Analyses by Forensic Experts Have Revealed Physical Evidence Inconsistent With The State’s Circumstantial Case.

1. Knife Number 4.

2. Petitioner’s Nightshirt.

3. Vacuum Cleaner.

4. Wine Glass.

C. Petitioner Must Be Given Access to Physical Evidence Not Tested at All or Not Adequately Tested by the State or Defense Counsel to Fully Present Her Claims for Relief.^[5]

III. The Ineffective Assistance of Defense Counsel Deprived Petitioner of Her Federal and State Constitutional Rights to Effective Counsel and a Fundamentally Fair Trial.

A. Defense Counsel had an Actual Conflict of Interest Under Mickens v. Taylor Because He Was Concurrently Representing Petitioner’s Husband, Darin Routier and as a Condition of His Retention by the Family Agreed to Petitioner’s Detriment not to Implicate Darin Routier.

1. Defense Counsel’s Attorney-Client Relationship with Darin Routier and Employment Arrangement with the Routier Family Prevented Defense Counsel From Presenting an Effective Defense for Petitioner and From Effectively Cross-Examining Darin Routier at Trial.

2. Petitioner Did Not Waive Her Right to Conflict-Free Representation of Counsel.

B. Defense Counsel Failed to Conduct and/or Unreasonably Abandoned its Investigation Into Facts and Evidence Essential to Petitioner’s Defense.

1. Defense Counsel Failed to Pursue Critical Expert Testimony to Rebut the State’s Scientific Case Against Petitioner.

2. Defense Counsel Failed to Investigate Evidence Implicating Darin Routier and Thus Did Not Present a Proper Defense for Petitioner.

C. Defense Counsel Failed to Object to the State Mounting an Unfair Prosecution with Inadmissible Evidence.

1. The Prosecution Was Allowed to Build its Case for Guilt Substantially on the Basis of Character Evidence.

a. Propensity Evidence.

b. Admissions of the Prosecution’s Propensity Evidence Violated Petitioner’s Right to Due Process and Demonstrated that Her Defense Counsel was Ineffective.

2. The Prosecution Was Allowed to Introduce Inadmissible Hearsay Evidence that Unfairly Prejudiced Petitioner.

3. The Prosecution Was Allowed to Introduce, Under the Guise of Expert Opinion, Irrelevant Speculation About Petitioner’s Conduct and State of Mind.

a. Medical Witnesses.

b. James Cron.

D. Defense Counsel Failed to Challenge the Constitutionality of the Interrogation of a Sedated Petitioner Confined in her Hospital Bed After Surgery.

E. Defense Counsel Failed to Object to the State’s Interfering with the Defense’s Access to Witnesses, Which Deprived Petitioner of Her Federal and State Constitutional Rights to Due Process.

F. Defense Counsel Failed to Offer Evidence from a Secretly Taped Police Video That Would Have Negated a Highly Prejudicial Videotape Offered by the State.