### No. 03

- 15

- 00316

- CR

______________________________________________________ In The Court o f Appeals For The Third Court o f Appeals District Austin, Texas

______________________________________________________ Heather Lauren Richards , Appella nt, v. The State of Texas, Appellee.

______________________________________________________ ON APPEAL FROM THE 207th DISTRICT COURT, COMAL COUNTY, TEXAS TRIAL COURT CAUSE NO. CR20 14

- 091

______________________________________________________ BRIEF FOR AP PE LLANT REQUESTING ORAL ARGUMENT

______________________________________________________ Amanda Erwin State Bar No. 24042939 109 East Hopkins Street , Suite 200 San Marcos, Texas 78666 Telephone: (512) 938

- 1800 Telecopier: (512) 938

- 1804 Amanda@TheErwinLawFi rm.com Counsel for Heather Lauren Richards ACCEPTED 03-15-00316-CR 8155350 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/9/2015 11:28:26 AM JEFFREY D. KYLE

CLERKii Identity of Parties and Counsel Appellant: Heather Lauren Richards Appellate Counsel: Amanda Erwin The Erwin Law Firm, L.L.P

. 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666 Telephone: ( 512) 938

- 1800 Telecopier: (512) 938

- 1804
Trial Counsel: John Olson 20634 Creek River San Antonio, Texas 78259 Telephone: ( 210) 307

- 0336 Wayne Huff P.O. Box 2334 Boerne, Texas 78006 Telephone: (210) 488

- 4440 Appellee : The State of Texas Appellate Counse l: Joshua Presley Chief Appellate Prosecutor Comal Coun ty Criminal District Attorney’s Office 150 N. Seguin, Suite 307 New Braunfels, Texas 78130
Trial Counsel: Chari Kelly and Jacqueline Doyer Comal County Criminal District Attorney’s Office 150 N. Segu in, Suite 307iii New Braunfels, Texas 78130 Trial Judge: Hon. Dibrell W. Waldripiv Table of Contents Page Identity of Parties and Counsel

........... ....................... . ii Table of Contents

... .......... ....................i ii Index of Authori ties

..................... ............i v Statement of Case

..................... ............ 1 Oral Argument Requested

... ..................... ........ . 2 Statement of Facts

..................... ............ 2 Summary of the Argument

..................... ............1 4 Appellant’s Point of Error One

..................... ..........16 App ellant’s Point of Error Two

..................... ..........26 Appellant’s Point of Error Three

..................... ..........38 Appellant’s Point of Error Four

..................... .......... 44 Prayer

..................... .......... 50 Certificate of Service

..................... .......... 51 Certificate of Word Compl i a nce
... ............................ 52v Index of Authorities Page Cases Apolinar v. State , 155 S.W.3d 184 (Tex. Crim. App. 2005) ............42 Barshaw v. Sate , 342 S.W.3d 91 (Tex. Crim. App. 2011) ..............40 Bell v. Cone , 535 U.S. 685 (2000) .............................28 Butler v. State , 716 S.W.2d 48 (Tex . Crim. App. 1986) ................29 Buttefield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) ...........20 Coffe y v. State , 796 S.W.2d 175 (Tex. Crim. App. 1990) ...............20 Collier v. Turpin , 155 F.3d 1277 (11 th Cir. 1998)

........ ................28
Erazo v. State , 144 S.W.3d 487 (Tex. Crim. App. 2004) ...............49 Ex P arte Shorthouse , 640 S.W.2d 924 (T ex. Crim. App. 1982) ....... 20 Hardwick v. Crosby , 320 F.3d 1127 (11 th Cir. 2003) ....................28 Jackson v. State , 766 S.W.2d 504 (Tex. Crim. App. 1985) .........

... .29 Kastigar v. United States , 406 U.S.441 (1972) .....

.................. .. 20 King v. State , 953 S.W.2d 266 (Tex. Crim. App. 1997) .................40 Kyles v. Whitley , 514 U.S. 419 (1995) .............................35 Maness v. Meyes , 419 U.S. 449 (1975)

........................ ..... 20
Martin v. Rose , 744 F.2d 1245 (6 th Cir. 1984) ...........................28 McCarty v. State , 257 S.W.3 238 (Tex. Crim. App. 2008) .............39 McMann v. Richardson , 397 U.S. 759 (1970) ...........................26vi Moore v. Johnson , 194 F.3d 586 (5 th Cir. 1999) .........................28 Montgomery v. State , 810 S.W.2d 372 (Te x. Crim. App. 1990) ......45 Motilla v. State , 78 S.W.3d 352 (Tex. Crim. App. 2002) ...............40
Paris v. State , 35 Tex.Crim. 82 (1885) .............................25 Profitt v. Waldron , 831 F.2d 1245 (5 th Cir. 1987) ........................29 Strickland v. Washington , 466 U.S. 668 (1984) ..........................26 Thompson v. State , 514 S.W.2d 275 (Tex. Crim. App. 1974) ..........22 United States v. Dominguez Benitez , 542 U.S. 74 (2004) ...............27 Wall v. State , 184 S.W.3d 730 (Tex. Crim. App. 2006) ................39 Washington v. Hofbauer , 228 F.3d 689 (6 th Cir. 2000) ..................29 Wiggins v. Smith , 539 U.S. 510 (2003) .............................27 Wilkerson v. State , 726 S.W.2d 542 (Tex. Crim. App. 1986) ..........26

Statutes TEX. CODE CRIM. PROC. § 1.04. ........................16 TEX. CODE CRIM. PROC. § 2.03. ...... ..................17
Rule s T EX. R. APP. P. 9.4

.......................... .9
TEX. R. APP. P. 9.5 ...........................8
TEX. R. EVID. 402 .........................44

TEX. R. EVID. 403

.......................... 44vii TEX R. EVID 802 .........................39
TEX R. EVID 803 .........................391 Statement of the Case
This is an appeal from a criminal proceeding. On February 12, 2014, a Comal County grand jury returned an indictment charging the Appellant, Heather Lauren Richards, with one count of Attempt to Commit Capi tal Murder with the Underlying offense of Kidnapping, one count of Aggra vated Kidnapping, one count of Aggravated Sexual Assault, one count of Aggravated R obbery, and one coun t of Tampering with Physical
E vidence. (1 CR 15 ). On May 5, 2015, after bein g duly selected, a jury was sworn. (6 RR 15). Ms. Richards entered a plea of not guilty to all t he offense s as contained in the indictment

. ( 6 R R 21 ). The jury subsequently found Ms. Richards guilty on all five counts, and further assessed punishment at fifty (50) years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a zero (0) dollar fine on al l five counts. (1 CR 279

- 293). The trial c ourt certified Ms. Richard s ’ right to appeal. ( 1 CR 234 ). Notice of app eal was timely filed

. ( 1 CR 236 ).
Statement of the Issues
Point of Error One : Appellant was denied due process and the presumption of innocence when the trial court compelled the testimony of all three codefendants during2 the Appellant’s trial
Point of Error Two: Appellant was denied the effective assistance of counsel

. Point of Error Three: It was error for the trial c ourt to admit State’s Exhibit 70, inadmissible hearsay.
Point of Error Four:
It was e rror for the trial c ourt to admit irrelevant and inflammatory photographs during the punishment phase of trial

. Oral Argument Requested
The Appellant respectfully requests that oral argument be granted in this case.
Statement of Facts This is an appeal from a criminal proceeding. On Februar y 12, 2014, a Comal County grand jury returned an indictment charging the Appellant, Heather Lauren Richards, with one count of Attempt to Commit Capital Murder with the Underlying offense of Kidnapping, one count of Aggra vated Kidnapping, one count of Agg ravated Sexual Assault, one count of Aggravated Robbery, and one count of Tampering with Physical
E vidence. (1 CR 15 ).3 On May 5, 2015, after being duly selected, a jury was sworn, (6 RR 15). Ms. Richards entered a plea of not guilty to all t he offe nse s as contained in the indictment . ( 6 R R 21 ). The State made an opening

statement , and the Defense did not . (6 RR 22

- 33). The State then called the alleged victim, Ms. Dana Huth. (6 RR 33). Ms. Huth testified that she currently was residing in t he Comal County Jail because she h ad a pending m otion to revoke her felony possession of controlled substance p r obation out of C o mal County. (6 RR 34). Ms. Huth testified that at the time of the alleged offense, she was in a sexual relationship with a Tr avis Nealon. (6 RR 39). Ms. Huth testified that she believed Mr. Nealon and Ms. Richards were just roommates . (6 RR 41).
On December 8 th , 2013, Ms. Huth and her friend Clint went to a Big Mike’s House; Big Mike was also a codefendant but passed awa y in the Comal County Jail awaiting trial. ( 6 RR 42). Trace Smith and Kayla Lardieri, codefendants of Ms. Richards , were at the home when Ms. Huth arrived. (6 RR 44). Sometime later, Ms. Richards and Sheen a Hopkins , another codefendant of Ms. Richards , arrived. (6 RR 44). At some point, Ms. Huth voluntarily went in to a bedroom with all three

woman codefendants . (6 RR 45). Ms. Richards confronted Ms. Huth about having a sexual relationship with her boyfriend, and Ms . Lardieri confronted4 Ms. Hut h about cloning phones. (6 RR 49

- 50). Ms. Richards tased Ms. Huth, and t old her to take her clothes off. (6 RR 51). After Ms. Huth removed her clothing, Ms. Lardieri penetrated Ms. Huth’s vagina to see if she had a wire in side of her vagina. (6 RR 52) . Ms. Richards cut Ms. Huth’s necklace off of Ms. Huth’s neck with a pocketknife. (6 RR 53). Ms. Richards and Ms . Lardieri began stabbing Ms. Huth. (6 RR 54) . Ms. Huth attempted to open the door to t he bedroom, and Mr. Smith pushed her back inside of the room. (6 RR 57). Ms. Huth was then handcuffed, shackled, and gagged. (6 RR 57). At some point during the incident , Ms. Richards cut the back of Ms. Huth’s neck and stated, “ where is your God now?” Also, a t some point during the incident , Ms. Rich ards and Ms. Lardieri repeatedly kicked Ms. Huth in her head. (6 RR 58). Ms. Huth was blindfolded, wrapped in a sheet , and removed from the home and left inside of a toolshed by Mr. Smith. (6 RR 60). Ms. Huth managed to escape the toolshed, and found shelter in a neighbor’s vehicle. (6 RR 62

- 66). Ms. Huth testified that she heard the Appellant’s vehicle come back to Big Mike’s home at some point during the night. (6 RR 67). In the morning, the neighbor appeared on her porch, and Ms. Huth honked t he neighbor’s horn to ge t her attention. (6 RR 69). Ms

. Huth asked the neighbor to not contact the police, but to call her friend Clint5 Barkley. (6 RR 69). The neighbor called law enforcement. (6 RR 69). Ms. Huth was hospitalized due to her injuries, and has scars from the altercation

. (6 RR 70). Next, the State called Mariah Daenman, the women who discovered Ms. Huth in her vehicle and contacted law enforcement. (6 RR 115

- 116). Ms. Daenman testified that Ms. Huth begged her to not call law enfo rcement. (6 RR 121).
Next , the State called William James, who testified that he was over at Big Mike’s the morning after the alleged offense. (6 RR 131). Next the State called Adrianna De Leon, a deputy at the Comal County Sheriff’s Office. (6 RR 1 41). Deputy De Leon responded to the scene where Ms. Huth was discovered in a vehicle. (6 RR 142). Deputy De Leon took photographs of Ms. Huth’s condition, and collected physical evidence. (6 RR 145

- 146). Over the objection of trial counsel, the Court admitted
Sate’s Exhibit 70, an interview of Ms. Huth at the Christus Sana Rosa Hospital , in which Ms. Huth is receiving medical treatment and is i n i mmense pain. (6 RR 172).
Next , the State called Clint B arkley, a friend of Dana Huth, who brought Ms. H uth to Big Mike’s home the night of the incident. (6 RR 185). Mr. Barkley testified that he was currently residing in the Comal County Jail6 waiting to be sent to prison for the offense of aggravated assault. (6 RR 184). Mr. Barkley testified that he th ought that he heard Ms. Huth call out his name when she was in the back bedroom, and also heard a lot of rumbling, and a “stun gun going off at least 12, maybe as many as 20 times.” (6 RR 189). Mr. Barkley further testified that he could have gone into t he bedroom, but he would have had to kill everyone in the house to gain entry. (6 RR 195). The State failed to disclose to trial counsel that Mr. Bark l e y had a prior impeachable conviction for murder. (1 CR 301).
Next , the Stat e called Keith Stanisla wski, a d eputy with t h e Comal County Sheriff’s Office. (6 RR 196). Deputy Stanislawski was also dispatched to the scene where Ms. Huth was discovered. (6 RR 197). Deputy Stanislawski took photographs of the scene. (6 RR 204). Next, the State called Adrienne Pierce, a paramedic with the Canyon Lake Fire EMS. (6 RR 208). Ms. Pierce attended to Ms. Huth and helped load her into an ambulance. (6 RR 213

- 216). Next, the State called Charles Motz, a detective with the Comal County Sheriff’s Office. (7 RR 21). Detective Motz interviewed the alleged victim at the University Hospital , and also took photographs of her. (7 RR 22). The medical records were introduced into evidence through Detective Motz, and Detective Motz testified that the medical reco rds indicate d that the7 allege d victim used amphetamines on a daily basis. (7 RR 31, 52). Next, the State recalled William James, who testified that he viewed a video of the alleged offense. (7 RR 66). Mr. James testified that on the video, he watch ed Ms. Ric hards tackle and hold down Ms. Huth . (7 RR 68). Next, the State called Chris Garza, a detective with the Comal County Sheriff’s Office. (7 RR 70). Detective Garza interviewed the alleged victim when she was released from the hospital. (7 R R 70). Next, the S tate called Ernest Ramirez, an o fficer with the University Hospital Police. (7 RR 73). Officer Ramirez assisted in a photo line up. (7 RR 75). Next the State called Jerry Stoval, a friend of Ms. Lardieri, Mr. Smith, and Big Mike. (7 RR 87

- 88). Mr. Stoval was at Big Mike’s home the night of the alleged offense, and testified that he heard “ griping and yelling ” coming from the bedroom that the women were in. (7 RR 90). Mr. Smith and Mrs. Lardieri were living with Mr. Stoval at t he time of the incident, and they returned to Mr. Stoval’s home the evening of the incident. (7 RR 92). Mr. Stoval further testified that Mr. Smith used one of his burn pits that evening. (7 RR 94). Next, the State c alled Brian Morgan, a s ergeant wit h the Comal Cou n t y Sheriff’s Office. (7 RR 99). Sergeant Morgan obtained a search warrant8 for the residence of Mr. Chapin, or Big Mike, and conducted a search of the property. (7 RR 100

- 101 )

. Sergeant Morgan took photographs and a video during his s earch. (7 RR 1052

- 105). Sergeant Morgan also collected evidence during his search . (7 RR 132). Additionally, Sergeant Morgan also conducted a search of Mr. Stoval’s home, and recovered items from Mr. Stoval’s burn pit (7 RR 138

- 139). Sergeant Morg an further testified that Ms. Huth identified Ms. Richards in a photo lineup. (7 RR 144). Sergeant Morgan interviewed Ms. Richards, and this interview was admitted and published to the jury. (7 RR 149). Next, the State called Sheena Hopkins, a codef endant , to testify pursuant to an order of use immunity. (8 RR 38). The State elicited that Ms. Hopkins was still awaiting trial

. (8 RR 38). Ms. Hopkins testified that on the day of the incident , she went over to Mike Chapin’s home with Ms. Richards, s o that Ms. Richards could talk to Ms. Huth about Ms. Huth sleeping with Ms. Richard s ’ boyfriend . (8 RR 40). Ms. Richards brought a pocketknife and a t aser with her to Mike Chapin’s home. (8 RR 40). Ms. Rich ards, Ms. Hopkins, and Ms. Lard i e ri went in to a bedroom in the home, as did Ms. Huth. (8 RR 42). Ms. Richards confronted Ms. Huth about sleeping with her boyfriend, and Ms. Huth admitted to such and began to talk negatively about Ms. Richards ’ boyfr iend. (8 RR 42). Ms. Richards9 tased Ms. Huth a nd took Ms. Huth’s phone to see if there was any communication b etween Ms. Huth and Ms. Richard s ’ boyfriend located on the phone . (8 RR 43). Ms. Huth was asked to take her clothes off, which she did, and and Ms. Lardieri penetrated Ms. Huth’s vagina wi th her fingers to search for a wire. (8 RR 46). Ms. Huth attempted to get up and leave the room, but Ms. Lardieri and Ms. Richards tackled Ms. Huth to the ground , and Ms. Richards held a knife to Ms. Huth’s throat. (8 RR 47). Ms. Lardieri cut Ms. Huth on the back of her neck, stabbed her in one of her legs, kicked her, stomped on her, tased her several times, and spit on her. (8 RR 48). During this, Ms. Richards was just holding Ms . Huth down. (8 RR 48). Mr. Smith came into the bedroom and instr ucted the women to “wrap it up,” and Ms. Hopkins was instructed to get handcuffs. (8 RR 49). Ms. Huth was then handcuffed, chained up, and wrapped in a blanket. (8 RR 49). Ms. Richards, Mr. Smith, and M s. Lardieri took Ms. Huth to a shed. (8 RR 54). The State impeached Ms. H opkins several times with testimony that the State made clear was from another trial proceeding . (8 RR 57

- 59 ; 91 ). Ms. Hopkins testified that she recorded the incident with Mike Chapin’s cell phone. (8 RR 60). At som e point du ring the encounter, Mr . Smith held a shotgun to Ms. Huth’s face. (8 RR 89).10 Next, the State called Kayla Lardieri, a codefendant, to testify pursuant

to an alleged order of use immunity. (8 RR 98). Ms. Lardieri was dressed in her jail uniform, an d the State elicited that she currently resided in the Comal County Jail. (8 RR 99). The ev ening of the alleged offense, Ms

. Lardieri, Ms. Richards, Ms. Hopkins, and Ms. Huth went into a bedroom in Mike Chapin’s home. (8 RR 105

- 106). Ms. Richards con fronted Ms. Huth about sleeping with her boyfriend, which Ms. Huth eventually admitted to. (8 RR 106). Ms. Huth then began

t o “talk crap” about Ms. Richard s ’ boyfri end, and Ms. Richards punched Ms

. Huth. (8 RR 106). Ms. Lardieri confronted Ms. Huth abo ut cloning her phone, and being a “snitch.” (8 RR 107). Ms. Lardieri testified that Ms. Richards tased Ms. Huth, and Ms. Richards instructed Ms. Huth to remove Ms. Huth’s clothing so that they could search Ms. Huth for a wire. (8 RR 109). Ms. Lardieri testified that she did not ever penetrate Ms. Huth’s vagina, and simply swiped the inside of Ms. Huth’s thigh with Ms. Lardieri’s hand wrapped around a t

- shirt. (8 RR 110). Ms. Richards than tased Ms. Huth again

. (8 RR 112). Ms. Lardieri testified that Ms. Richards then stabbed Ms. Huth

. (8 RR 113). Ms. Lardier i testified that she did stab Ms. Huth one time, and kick Ms. Huth one time, but that Ms. Richards kicked Ms. Huth more th an five times and Ms.11 Richards stabbed Ms. Huth “probably” more tha n ten times . (8 RR 114).
Ms . Huth tried to get a way, but Ms. Richards grabbed Ms . Huth by her hair and pulled her back into the room. (8 RR 114). Ms. Richards then punched, kicked, and stabbed Ms. Huth more times . (8 RR 114). Ms. Richards then cut Ms. Huth’s neck, and “it looked like she was trying to cut her head off.” (8 RR 115). During the altercation, Ms. Lardieri tased Ms. Huth about ten times. (8 RR 116). Ms. Richards stated that they might as well finish it off, and burn Ms

. Huth’s bo dy in Ms. Richard s ’ mother’s fire pit , but Ms. Lardieri talked Ms. Richards out of this idea . (8 RR 117

- 118). Mike Chapin instructed everyone to put Ms. Huth in the shed, and Ms. Huth was handcuffed, and Ms. Richards gagged her. (8 RR 120). Ms. Huth wa s then wrapped in a sheet and carried out to the shed. (8 RR 121). Ms. La rdieri denied having any knowledge of Mr. Smith destroying the evidence of the incident. ( 8 RR
125

- 126).
On cross

- examin ation, trial counsel questioned Ms. Lardieri about wheth er or not she had a conversation with Amanda Chavira regarding the alleged offense, and Ms. Lardieri denied such. (8 RR 149). At the bench, trial counsel indicated to the trial c ourt and the State that trial counsel was going to file a motion to have c ertain portions of Ms. Chavira’s testimony12 admitted, however, this never occurred . (8 RR 150). The trial court recessed the case for the weekend, as trial counsel indicated that he “hadn’t even gotten over to the testimony of the other

– ,” representing t o the tr i a l

court that he intended to continue cross

- examinat ion; however, on Monday , trial counsel simply passed the witness. (8 RR 156

- 157). The State then called Trace Smith, a codefendant, to testify pursuant to

an alleged order of use immunity. (9 RR 16

- 17). Before the jury was brought in, Mr. Smith was repeatedly warned by the trial court that if Mr. Smith refused to testify, that he could face contempt of court. ( 9 RR 13

- 15). Mr. Smith testified in his jail uniform, and testified that he curr ently lived at the Comal County J a i l. (9 RR 16). Mr. Smith testified that he had prior felony convictions for credit card abuse and possession of a controlled substance. (9 RR 16). Mr. Smith testified that Ms. Huth was a local drug dealer and con artis t, and that he believed Ms. Huth was recording conversations of Mr. Smith dealing drugs. (9 RR 18). Mr. Smith testified that he, Ms. Lardieri, Ms. Hopkins, and Ms. Rich a r ds used drugs in the bedroom at Mike Chapin’s home the night of the alleged offens e. (9 RR 25). Mr. Smith went back into the bedroom sometime later to confront Ms. Huth about the recordings, and then went13 back to the bedroom a second time, because he was told by Mr. Chapin to “go shut her the fuck up with a shotgun.” (9 RR 25). Mr. Smith then was informed tha t Ms. Huth was bleeding out. ( 9 RR 29). Mr. Chapin discussed taking Ms . Huth’s body to a pig farm , and then instructed Mr. Smith to put Ms. Huth in the shed. (9 RR 29). Ms. Huth was handcuffed, put in a sheet, and taken to th e shed. (9 RR 30). Mr. Smith testified that he destroyed the evidence of the altercation , and that Ms. Lardieri was aware of this fact . (9
RR 33 , 54 ). Mr. Smith further testified that Ms. Lardieri informed him that she checked Ms . Huth’s vagina for a wire the evening of the alleged offense. (9 RR 34). Next, the State called Santiago Ortiz, a s ergeant with the Comal County Sheriff’s Office. (9 RR 57). The State admitted conversations recorded by the Comal County Jail between Ms. Richards and Ms

. Richard s ’ Mother. (9 RR 62). The S t ate rested and closed its case, as did the defense. (9 RR 82). After argument from the State and Defense, t he jury subsequently found Ms. Richards guilty on all five counts. (1 CR 279

- 293). During punishment, t he State admitted irrelevant and prejudicial photographs of Ms. Richards’ home over the objection of defense counsel. (10 RR 105). The State also published more recorded jail calls of Ms.14 Richards. (10 RR 117). Trial counsel alerted the trial court that he had failed to verify the application for probati on that he had filed on Ms. Richards’ behalf. ( 11 RR 5). Trial co unsel called Dr. Marisa Maura as a m itigation witness. (11 RR 11). Trial counsel alerted the Court that he did not have a way to p rove that Ms. Richards was probation eligible, and the trial court and the State decided that the application for probation should be admitted into evidence. (11 RR
74

- 82). During deliberations, the jury sent out a note requesting the sentences of the ot her trials, and the trial court responded, “no.” ( 11 RR 113).
T he Jury assessed punishment at fifty (50) years confinement in the Institutional Division of the Texas Department of Criminal Justice, and a zero (0) dollar fine on all five counts. (1 CR 2 79

- 293). The trial c ourt certified Ms. Richard s ’ right to appeal. ( 1 CR 234 ). Notice of appeal was timely filed. ( 1 CR 236 ). Summary of the Argument The State and the trial court forcing all three codefendants to testify in Ms. Richards’ trial denied Ms. Richards her due process and presumption of innocence . This was the equivalent of a modern day Roman Triumph , parading the codefendants , two of which had been previously found guilty,15 in front of the jury. The very nature of proceedings like the one at hand, in which codefendants are forced to testify without immunity orders signed by the court, and without the benefit of counsel, simply encourages all of the participants to minimize their conduct and project it on another one of the accused. Such proceedings are inherently unreliable and are alien to the American experience and are the precise reason why the Fifth A mendment exists. Ms. Richards was denied effective assistance of counsel, as trial counsel did not seek a continuance or funds to fin d an essential witness for the defense, Amanda Chavira. The only definite strategy of trial counsel that can be gleamed from the record, was to minimize Ms. Richards' conduct and attempt to paint Ms. Larde iri as the main aggressor; and there was not a

mor e effective way to do this than to call Ms. Chavira as a witness for the defense. Ms. Richards was also denied effective assistance of counsel by not having any input in deciding who was to assess he r punishment. It is clear that Ms. Richards was not inv olved in the punishment election, as the election paperwork does not contain her signature, her application for probation was not verified, and trial counsel did not have a way to prove that Ms. Richards was probation eligible.16 It was error for the tri al court to admit State’s Exhibit Number 70, a recording of the alleged victim receiving medical treatment at a hospital. State’s Exhibit Number 70 is inadmissible hearsay, as it does not fall under the excited utterance hearsay exception. Sate’s Exhibit Number 70 contains unsettling screams of pain and anguish f r o m the alleged victim as she is being treated at the hospital, and certainly had the affect of disturbing the jurors and in turn negatively impacting Ms. Richards’ case

. Lastly, it was error f or the trial court to admit irrelevant and highly prejudicial photographs during the punishment phase. These photographs only served to inflame the passions of the jury, and to paint Ms. Richards as an extremely violent person, a sexual deviant, and a hor rible mother.

Point of Error One
Rule of Law Under the Texas Code of Criminal Procedure Article 1.04, “No citizen of this State shall be deprived of life, liberty, proper ty, privileges or immunities, o r in any manner disfranchised, excep t by the du e c ourse of the law of the land.” TEX. CODE CRIM. PROC. § 1.04. Ms. Richards would contend that the State and the trial court compelling all three codefendants to testify in Ms. Richards’ trial violated her right to due process. Id

.17 Further, under th e Texas Code of Criminal Procedure, Article 2.03 (b), it is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all the peace officers to so conduct themselves as to insure a fair trial for both the s tate and the defendant, [and] not impair the presumption of innocence. TEX. CODE CRIM. PROC. § 2.03. Ms. Richards would contend that both the trial court and the State breached this duty under Article 2.03, when they compelled all three codefendants to t estify in Ms. Richards ’ trial. Analysis The trial court and the State compelled all three codefend ants to testify in Ms. Richards’ trial based on Orders Requiring Testimony and Granting Use immunity. (8 RR 38, 98); (9 RR 16

- 17). However, the trial court only actually signed an Order Requiring Testimony and Granting Use Immunity for one of the codefendants, M s. Hopkins. (1 CR 210

- 202). The record reflects that Mr. Smith and Mr. Lardieri’s Orders were never actually signed by the trial court , or ruled up on by the trial court, and therefore, Ms. Richards’ contends that her due process was violated because the two codefenda n ts testified pursuant to purported order s compelling their testimony , when in fact no such orders existed . (1 CR 174

- 188). It is c lear that previously sentenced codefendants, Mr. Smith and Ms.1 8 Lardieri , would not have voluntarily testified without such alleged Orders in place, as demonstrated by the trial court repeatedly admonishing Mr. Smith outside the presence of the jury , that i f he refused to testify he would be held in contempt. ( 9 RR 13

- 15). The State will likely contend that the trial court’s actions in admonishing Mr. Smith demonstrates that the trial court’s Order Requiring Testimony and Granting Use Immunity was in eff ect, even though it was never actually signed or urged to be signed or ruled upon by the State. (1
CR 174

- 188); ( 9 RR 13

- 15). However, the Court never admonished Ms. Lardieri, and only the State made reference to the alleged O rders when introducing Ms. Lardieri to the jury. (8 RR 100). Therefore, at the very least, it was error for Ms. Lardieri’s testimony to be compelled, and the State’s actions violated Ms. Richards’ due process rights and impaired her presumption of innocence. TEX. CODE CRIM. PROC . § 1.04 ; TEX. CODE CRIM. PROC. § 2.03. Even if the Court were to hold that the trial court’s failure to rule on the Applications and fail ure to enter an order on the Applications was not error, the State’s Applications contained errors that would make the Court’s reliance on just the Applications infeasible. (1 CR 181, 186). For, t he Application for Ms. Lardieri , requests the trial court to “enter an Order19 requiring Lardieri t o appear and testify at the defe ndant’s trial in the 207 th
Judicial District Court, Cause No CR 2014

- 090.” (1 CR 1 81). This Application states an incorrect Cause Number, as this was the trial court cause number for Ms. Lardieri ’s own trial

. (1 CR 307). This same error is found in the Application for Mr. Smith, asking that h e be ordered to appear and testify in Ms. Lardieri’s trial cause number . (1 CR 186 , 307 ). Without a ruling or order from the trial court, these incorrect Applications should not be construed as adequate to compel testimony in Ms . Richards’ trial ; Ms. Ric hards' asserts that this error affected her due process rights and impaired her presumption of innocence. TEX. CODE CRIM. PROC. § 1.04 ; TEX. CODE CRIM. PROC. § 2.03. Even if the Court were to find that there is enough in the record to support the State ’s likely position that it can be implied that the trial court had ordered the testimony of all three codefendants, then Ms. Richards maintains that this compulsion violated her due process rights and impaired her presumption of innocence. TEX. CODE CRIM. PROC. § 1.04 ; TEX. CODE CRIM. PROC. § 2.03. While Federal and Texas Courts have upheld Orders Requiring Testimony and Granting Use immunity as passing

const itution al muster in regard to t he pers on who is ordered to provide testimony, or to a person on t rial when a codefendant invokes their20 constitutional right to remain silent, Federal and Texas Courts have not analyzed the constitutional impact of Orders Requiring Testimony and Granting Use immunity on a defendant when multiple codefenda n ts are compelle d to testify in a defendant’s trial , and do testify

. Maness v. Meyes , 419 U.S. 449, 462 (1975); Kastigar v. United States , 406 U.S.441 (1972); Ex
P arte Shorthouse , 640 S.W.2d 924 (Tex. Crim. App. 1982); Coffe y v. State , 796 S.W.2d 175 (Tex. Crim. App. 199 0); Buttefield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999).
In Ex P arte Shorthouse , t he Texas Court of Criminal A ppe a l s examined the issue of use immunity , and whether it violates a person’s constitution right to remain silent , and held that it doe s not. Ex P arte Shorthouse , 640 S.W.2d 924 (Tex. Crim. App. 1982). However, the Court
in Ex Parte Shorthouse examined the issue of use immunity only in the context of compelling testimony in a grand jury proceeding , and only under the context of Texas Pe nal Code § 71.04, which codifies Testimonial Use Immunity in the limited context of Engaging in Organized Criminal Activity. Id

. In Coffe y v. State , the Texas Court of Criminal Appeals examined the issue of use immunity in the context of whet h e r a defen da n t’s rights were violated by the State calling a witness befor e the jury knowing that the21 wit ness intended to invoke their Fifth Amendment right to remain silent not

withstanding a grant of use immunity. Coffe y v. State , 796 S.W.2d 175 (Tex. Crim. App. 1990). The Court reasoned that there was not error, because the witness had been granted use immunity for their testimony, they did not have a valid basis to refuse to testify. Id

. at 179.
In Buttefield v. State , the Texas Court of Criminal Appeals exam ined the issue of use immunity in the context of the State prosecuting a witness for perjury who was compelled to testify with out an order in place. Buttefield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). The Court concluded that the compelled state ment could be used in a perjury trial. Id

. at 452. In the case at hand, Ms. Richards is claiming that her due process rights and her presumption of innocence w ere directly impacted and affected by the State and the c ourt compelling the testimony of her three codefendants during her trial ; this issue has never been ex amined , and Ms. Richards implores the Honorable C ourt to consider such. TEX. CODE CRIM. PROC. § 1.04 ; TEX. CODE CRIM. PROC. § 2.03. In the case at hand, t he codefendants wer e paraded in fro nt of the jury i n their jail uniforms, and the jury was informed that they were currently residing in the Comal County Jail. (8 RR 99); (9 RR 16). The fact that Ms. Richards’ codefendants were22 wearing clearly identifiable jail clothes gave a perception th at Ms. Richards

was also guilty of the offenses , undermining Ms. Richards’ presumption of innocence , and violat ing her due process , since the State heavily relied on party and conspiracy theor ies to prove the State’s case. (8 RR 99); (9 RR 16). Furthermo re, the jury charge contained instructions regarding party and accomplice theories, therefore, leaving the jury no option but to find that Ms. Richards was just as guilty as her cohorts. (11 RR 113). For, t he jury was made fully aware that the other code fendants had been found guilty of the offenses and were serving sentences for the offense when the State and the trial court forced the codefendants to te stify in their jail uniforms; w e know the jury was aware that other codefendants were previously convi cted and sentenced for the same offenses that Ms. Rich a rds’ was on trial for, because the jury requested to know the sentences of the codefendants when they

were asse ssing Ms. Richards' punishment. (11 RR 113). Therefore, it would be disingenuous for the State to argue that the codefendants being paraded in front of the jury in their jail clothes did not impair Ms. Richards’ presumption of innocence or her due process rights

. The State will likely argue that the issue of codefendants wearing jail unif orm s has already been analyzed and upheld by the Texas Court of Criminal Appeals in Thompson
v. State

. Thompson v. State , 514 S.W.2d 275 (Tex. Crim. App. 1974).23 However, Thompson can be distinguished form the case at hand, because in Thompson , the witnesse s were determined to be safety threat s by the tr i a l court, and more importantly, the witnesses were not being compelled by t he trial court to testify in that proceeding. Id

. Further impeding Ms. Richards ’ presumption of innocence and due process is th e fact that codefendant Smith testified that he had prior felony convictions for credit card abuse and posse ssion of a controlled substance ; if the trial court had not forced Mr. Smith to testify, the jury would not have known this information, and in turn linked Ms. Richards with someone with felony convictions. (9 RR 16).
Moreover , Ms. Richards contends that her presumption of innocence and right to due process were negatively impacted by the trial court forcing all three codefendants t o testify because it created an atmosphere conducive to untruthful and self serving testimony . TEX. CODE CRIM. PROC. §
1.04 ; TEX. CODE CRIM. PROC. § 2.03. A thorough reading of the record of the compelled testimony of the three defendants illustrates that the codefendant s were eager to shift emphasize from their own guilty and cast blame on Ms. Richards , and were also untruthful in their testimonies

. (8 RR
113

- 115). For example, Ms. Lardieri consistently was untruthful about perpetrating aggravated sexual assault ag ains t M s
. Huth, and repeatedly24 denied penetrating or making contact with Ms. Huth’s vagina, even though Ms. Huth testified that she was in fact penetrated by Ms. Lardieri , Ms. Hopkins testified that she witnessed Ms. Lardieri penetrated Ms. Huth ’s vagina , and Mr. Smith testified that Ms. Lardieri told Mr. Smith that she penetrated Ms. Huth ’s vagina

. (6 RR 52); (8 RR 46, 110) ; (9 RR 34). The record reflects that Ms. Lardieri also repeatedly attempted to minimize her conduct and paint Ms. Richards as the main ag gressor, and even added inflammatory testimony that no other witnesses corroborated, that Ms. Richards wanted to burn the alleged victim’s body the evening of the offense. (8 RR 113

- 115). Additionally, Ms. Hopkins had to be impeached by the State sever al times with trial testimony f r o m previous trials. (8 RR
57

- 59, 91). Lastly , The Application for Order Requiring Testimony and Granting Use Immunity claims that all codefendants were “material witnesses,” and that the codefendants’ “testimony could no t be obtained by any manner or method other than this Court ordering [them] to testify truthfully. (1 CR 174). Further, t he language in the Order Granting Use Immunity for Ms. Hopkins, the only Order that was actually signed by the court, provided that
M s. Hopkins “is a material witness in the case against Heather Lauren25 Richards, and the testimony sought by the State may be necessary to the public interest and so that justice may be served.” (1 CR 187). The compelled testimon y of the codefendants was far f r o m “necessary” in this case, for the record is seething with evidence for the State to prove its case against Ms. Richards without forcing the codefendants to testify; t he State had the testimony of the alleged victim, her hospital records, testimony of law enforcement, testimony of witnesses that were there the evening of the incident, testimony of the neutral witnesses that discovered the alleged victim, testimony of a witness who viewed a video of the alleged offense occurring , a nd even a video con fession from Ms. Richards , as well as jail recordings from Ms. Richards implicating her guilt

. ( 6 RR 38, 115, 145, 185, 196); ( 7 RR 31 , 66, 70. 75, 87, 99 , 149 ) ; (9 RR 57). As the Texas Court of Criminal Appeals articulated over a century
ago in Paris v . State , “Every citizen, when placed upon trial for his life, is entitled to a trial according to the du e course of the law of the land ; and the rules of evidence in the admission of testimony, and the application of rules of law to admitted testimony, are as much a part of the law of the land as trial by jury itself. These rules of law may be termed by some technicalities, but they accord with a fair and impartial trial, and are founded in the wisdom of experi ence; and moreover, some of thes e constitute t he safeguard s and26 bulwarks of human rights, and, whenever and wherever they have been disregarded or ignore d , that era has marked the decadence of human freedom.” Paris v. State , 35 Tex.Crim. 82, 96 (18 85). Ms. Richards asserts that she suffered a grave injustice when the State and the trial court forced all three o f her codefenda n ts to testify in her trial, and therefore asks the Court to reverse the convictions below.
Point of Error Two
Rule of Law A defendant in a criminal case is entitled to effec tive assistance of counsel. Wilkerson v. State , 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Furthermore, counsel must act within the range of competence demanded of counsel in criminal cases. McMann v. Richardson , 397 U.S. 759 (1970).

In Strickland v. W ashington , the United States Supreme Court established the federal constitutional standard for determining whether counsel rendered reasonably effective assistance. Strickland v. Washington , 466 U.S. 668 (1984). The defendant first must show that counsel ’s performance was deficient; that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Id . at 687. Second, the defendant must show that the deficient performance prejudiced the defe nse; that counsel’s errors were so serious as27 to deprive the defendant of a fair trial with a reliable result. Id . at 692. The defendant must identify specific acts or omissions of counsel that are alleged not to have been the result of reasonable profes sional judgment. Id . at 690. The reviewing court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. Id . Ultimately, the defendant must show tha t “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id . at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id

.
Co unsel’s performance is measured against an “objective standard of reasonableness under prevailing professional norms.” Wiggins v. Smith , 539 U.S. 510, 527 (2003). The prejudice an applicant must show is by less than a preponderance of the evidence becaus e “[t] he reasonable

- probability standard is not the same as, and should not be confused with, a requirement that a defendant prove by a preponderance of the evidence that but for error things would have been different.” United States v. Dominguez Benitez , 542 U.S. 74, 82 n. 9 (2004).28 While the Appellant must overcome the “strong presumption” that counsel’s challenged conduct “might be considered sound trial strategy,” counsel may not insulate challenged conduct from review by claiming it was “strategic.” Bell v. Cone , 535 U.S. 685, 698 (2000). Whether counsel’s conduct was strategic is a question of fact, but whether it was objectively reasonable is a question of law, to which no deference is owed. Collier v. Turpin , 155 F.3d 1277, 1290 (11 th Cir. 1998). As explained in Strickland , the issue of ineffective assistance of counsel is not a question of “basic, primary, or historical fact,” and “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Strickland , 466 U.S. at 698. Moreover, strategic choices are entitled to deference only to the extent they are based on informed decisions. Id . at 690

- 691.
This Court is “not required to condone unreasonable decisions parading under the umbrella of str ategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.” Moore v. Johnson , 194 F.3d 586, 604 (5 th Cir. 1999). See also Hardwick v. Crosby , 320 F.3d 1127, 118 6 (11 th Cir. 2003) (“The mere incantation of ‘strategy’ does not insulate attorney behavior from review.”); Martin v. Rose , 744 F.2d 1245, 1249 (6 th Cir.29 1984) (“even deliberate trial tactics may constitute ineffective assistance of counsel if they fall ou tside the wide range of professionally competent assistance”); Washington v. Hofbauer , 228 F.3d 689, 704 (6 th Cir. 2000) (“the label ‘strategy’ is not a blanket justification for conduct which otherwise amounts to ineffective assistance of counsel”); Prof itt v. Waldron , 831 F.2d 1245, 1248 (5 th Cir. 1987) (“This measure of deference [to a claim of trial strategy] must not be watered down into a disguised form of acquiescence.”). Lastly, it is possible that a single egregious error of omission or commissio n by appellant’s counsel constitutes ineffective assistance of counsel. Jackson v. State , 766 S.W.2d 504, 508 (Tex. Crim. App. 1985).
Analysis
First, Ms. Richards contends that her trial counsel was ineffective in not calling Ms. Amanda Chavira as a witne ss , or seeking a continuance to obtain Ms. Chavira’s presence. Profitt v. Waldron , 831 F.2d 1245, 1248 (5 th Cir. 1987)

. Ms. Chavira was available to testify, and Ms. Chavira’s testimony would have benefited Ms. Richards. Butler v. State , 716 S.W.2d 48, 55 (Tex

. Crim. App. 1986 ). Trial counsel provided an affidavit addressing this issue, in which he concedes that he did not file a motion for30 continuance when he co uld not get Ms. Chavira served. (1 CR 265). Appellant asserts that there was no possible strategy in failing to ask for a continuance, or ask the Court for funds to hire an investigator to find Ms. Chavira. Profitt v. Waldron , 831 F.2d 1245, 1248 (5 th Cir. 1987)

.
Trial counsel ’s own Motion for Production of Amanda Chavira’s Present Physical Address , filed on April 30, 2015, exemplifies this point; for
i n t rial counsel’s motion, he asserts that Ms. Chavira’s testimony is absolutely essential to the Defendant’s defense. (1 CR 268

- 271). Trial counsel further states in his affidavit that Ms. Chavira contacted him after Ms. Richards’ trial, therefore, it follows that Ms. Chavira was actually available to testify in Ms. Richards’ trial, and her favorable testimony could have been obtained simply by asking for a continuance. (1 CR 265).

Trial counsel further states in his affidavit that he could not personally find Ms. Chavira, however, he never requested funds for an investigator to find Ms. Chavira, which Ms. Richards also claims is ineffective. (1 CR 265). On April 30, 2015 , the State gave Ms. Chavira’s address to tria l counsel, pursuant to his motion , and on May 4, 2015 Ms. Richards’ trial commenced. (1 CR 272). Appellant contends that this is simply not ample t ime for an attorney acting without an investigator to31 locate a necessary witn ess , especially when he is expected to be preparing for trial on serious and complicated charges. Id. Further, this several day period, from when the subpoena was filed for Ms. Chavira, to the start of trial, was not enough time for an attorney to reaso nably presume that an essential witnes s will not ever be able to be served because they have not been served in that time frame. Id

. Mr. Olson attempts to minimize the damage his failure to seek a continuance caused, by stating in his affidavit that “du ring trial, I got Sheena Hopkins to state that Kayla Lardieri cut Dana Huth’s neck, and not Ms. Richards, which was part of what Ms. Chavira told an interrogating officer.” (1 CR 265). However, Sheena Hopkins was a codefendant, who the State argued testi fied favorably for Ms. Richards in a “last effort to protect her very best friend , ” while Ms. Chavira was an impartial and unbiased party whose testimony would have been viewed as more credible by the jury. ( 10 RR 76 )

.
A thorough reading of the record r eveals that trial counsel’s only well

defined trial strategy was to minimize Ms. Richards’ conduct, and to paint
Ms. Lardieri as the main aggressor, and Ms. Richards contends that direct testimony from Ms. Chavira would h ave been the most effective way to32 employ this strategy . (1 CR 268

- 271). Bolstering this contention, is the fact that Ms. Chavira was a State’s witness in the trial against Ms. Lardieri, precisely because Ms. Chavira’s testimony was so damning against Ms. Lardieri. (1 CR 268

- 271). The Appellant formally requested in a Motion to Supplement the Appellate Record, that Ms. Chavir a’s testimony be included
in Ms. Richards’ record for this reason.

Ms. Chavira testified in Ms. Lardi eri’s trial that Ms. Lardieri admitted

to Ms. Chavira that Ms . Lardieri put her fingers inside of Ms. Huth “to check

to see if there was something inside of her, like a recording, and then rammed a screwdriver up her vagina.” ( Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 71). Ms. Ch avira further testified that Ms. L ardieri admitted that, “she grabbed that bitch’s fucking head, slammed it over here on her knee. And when she cut it open, that she was going to try to cut her fucking head off. And when it came out, it looked coagulated and so cool that she wanted to pl ay with it.” ( Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 73). Ms. Chavira testified that Ms. Lardieri told her that she thought it was “fucking awesome” when she was tasing Ms. Huth. ( Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 73). Ms. Chavira describ ed Ms. Lardieri’s demeanor when she was relaying all of this to Ms. Chavira as, “it was disgusting, the look in her eyes, like she was smiling, happy, like she was33 getting off on it. She

-- every time she would talk about it, I mean, she was just so happy a nd just like a kid would talk about, you know, winning some trophy.” (Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 74). Ms. Chavria testified that Ms. Lardieri told her that Trace came in and told them “it’s time to wrap it up. But no, she said, That bitc h

-- no, she’s not done with that fucking bitch. That bitch is going to get what she deserves, something along those lines ,” and “ at the end of the stabbing when it got really serious, it was just Kayla.” ( Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 74). Ms. Chavira testified that Ms. Lardieri relayed to her, that Ms. Lardieri “thought t hat bitch was fucking dead” when they put her in the shed, and that “she thought that bitch got what she deserved.” ( Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 75). Ms. Chavira lastly testified that Ms. Lardieri to ld her that “after the attack, they threw her in there. They went through her bloody clothes and I think her and Trace had sex...that it turned her on

— not turned her on, but like all the

— everything, it turned he r on and made her hot and horny.” (Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 76). Clearly, Ms. Chavira’s testimony shows that Ms. Lardieri is a masochist , who was also the main aggressor in the attack against Ms. Huth , and this testimony would have allo wed for trial counsel’s only defined34 strategy to be actualized

. (Appellate Cause Number 03

- 15

- 00247

- CR 5 RR
73

- 76).

Fur th er demonstrating Ms. Richards’ assertions that trial counsel was ineffective in this vein, i s the fact t hat during the cross

- ex amination of Ms. Lardieri , trial counsel questioned Ms. Lardieri about whether or not she had a conversation with Amanda Chavira regarding the alleged offense, and Ms. Lardieri denied such. (8 RR 149). At the bench, trial counsel indicated to the c ourt and the Stat e that trial counsel was going to file a motion to have certain portions of Ms. Chavira’s testimony admitted; however this never occurred. (8 RR 150). Clearly, there is no possible strategy on trial counsel’s part, by attempting to cross exa mine Ms. Lardieri regarding admissions she made to Ms. Chavira, and then never following through with any attempts to impeach to Ms. Lardieri regarding this issue . (8 RR 150). Ms. Lardieri’s denial of making any statements to Ms. Chavira regarding the of fense was yet another opportunity for trial counsel to request a continuance or funds for an investigator to call Ms. Chavira as an impeachment witness. (8 RR 150).
The “prejudice” prong of Strickland requires this Court to determine whether counsel’s o bjectively deficient conduct highlighted above was35 sufficient to undermine its confidence in the verdict, that is, whether there is a reasonable probability that, but for this objectively deficient conduct, the result of the proceedings would have been dif ferent. Strickland v. Washington , 466 U.S. 668, 694 (1984); Kyles v. Whitley , 514 U.S. 419, 430 (1995). The prejudice the Appellant must show is by less than a preponderance of the evidence because “[t] he reasonable

- probability standard is not the same as, and should not be confused with, a requirement that the Appellant prove by a preponderance of the evidence that but for error things would have been different.” United States v. Dominguez
Benitez , 542 U.S. 74, 82 n. 9 (2004). In assessing prejudice, this Court is obligated to consider the cumulative effect of the multiplicity of counsel’s errors demonstrated in the record below. Strickland v. Washington , 466 U.S. 668, 690 (1984).

Ms. Richards contends that there is reasonable probability that if t ria l

c ounsel obtained Ms. Chavira as witness, the result of the proceedings would have been different. Id . For, trial counsel states in his own motion that Ms. Chavira’s tes timony “clearly shows that she [Mrs. Lardieri] was Ms. Huth’s most violent assailan t...and although Ms. Lardieri and Ms. Huff state that the Defendant cut Ms. Huff’s neck, Mrs. Chavira unequivocally states that Ms. Lardieri told her that she did, and that inconsistency is clearly36 exculpatory, mitigating, and/o r impeaching for the Defendant

. (Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 73). Without Ms. Chavira’s testimony, Ms. Richards was portrayed as the main aggressor, and this influenced the juro rs in there rendering of guilt and punishment. (Appellate Cause Number 03

- 15

- 00247

- CR 5 RR 73

- 76).
Next, Ms. Richards contends that her trial counsel was deficient in that he did not discuss with her that he filed the punishment election for the jury to assess her punishment if found guilty. (1 CR 274). Ms. Richards’ punishment election for t he jury to assess punishment does not contain her signature. (1 CR 274). In Mr. Olson’s affidavit he states that at some point he discussed probation eligibility with Ms. Richards at the jail, and that Ms. Richards commented on a codefendant going to the Court for punishment; however, trial counsel refuses to address whether Ms. Richards ultimately was informed of or involved in the punishment selection ultimately made. (1 CR 265

- 266).
Mr. Olson attempts in his affidavit to suggest that Ms. Richards ma de the decision to elect the jury for punishment so that she could receive probation. (1 CR 265

- 266). However, this is counterintuitive, as trial counsel did not verify the application for probation before trial commenced37 and did not have a method of pro ving probation eligibility to the jury , and these issues would have been addressed if Ms. Richards was ultimately involved in making the punishment election for the jury

. (11 RR 5, 74).

C orrespondingly , Ms. Richards contends that t rial counsel was ineffec tive in that he did not have a means to prove to the jury that Ms. Richards was probation eligible. (11 RR 74). Trial counsel states on the record regarding this, “No. I have nothing, Chari, That’s why it is

— that’s why I’m dead,” and “this has just been one mistake after another, one thing

a fter another.” (11 RR 74, 75). After much discussion, the State and the trial court, without any suggestion from the defense, came up with the solution to just have the application for probation be admitted into evi dence. (11 RR 74

- 82). Trial counsel then needed to be reminded by the trial court to publish the document to the jury, after trial counsel had already made his closing statements, which failed to make any mention that Ms. Richards was eligible for pr obat ion . (11 RR 105). Ms. Richards contends that there is no better evidence of ineffective assistance of counsel then when the trial court and the State act on their own on behalf of a defendant without assistance from defense counsel, as occurred in this c ase. (11 RR 74

- 82, 105).38 There is a reasonable probability that the result of the punishment would have been different if Ms. Richards had elected for the Court to assess her punishment, as the trial c ourt had previously granted Ms. Lardieri 30
years in t he Texas Department of Criminal Justice, Institutional Division

. Strickland v. Washington , 466 U.S. 668, 690 (1984) ; (1 CR 341)

. The record reflects that Ms. Richards’ conduct and actions the night of the offense was either less culpable, or at the very least equal to Ms. Lardieri’s; therefore, it is reasonable that the same t rial court would have granted Ms

. Richards the same sentence as Ms. Lardieri , if not a similar sentence

. (1 CR 341). There is also a reasonable probability that the jury may have granted Ms. Richards probation if trial counsel had a manner to prove Ms. Richards’ eligibility and at the very least mentioned this eligibility to the jury during punishment argument. (11 RR 105).
Lastly, it is important to not e for the Court ’s considera tion of Appellant’s contention that she was not provided effective assistance of counsel , that trial counsel could not find his materials multiple times throughout the course of the trial . (8 RR 21); (8 RR 32

- 36 ) ; (11 RR 70)

. There is absolutely no plau sible trial strategy behind the Appellant’s trial counsel not having the file of the case and copies of key evidence at trial ,39 and Appellant asks the Court to take this into consideration when conducting the Strickland analysis

. Id

.
Point of Error Thr ee

Rule
Hearsay statements must fall within a recognized exception to be

a dmissible. TEX R. EVID 802. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by th e event or condition” and is such an exception to the hearsay rule. TEX. R. EVID. 803(2). Under McCarty v.
State , there are three factors to be applied when determining if a statement falls under this exception: (1) the reaction to the startling event sh ould be quick enough to avoid the possibility of fabrication; (2) the resulting statement should be sufficiently “related to” the startling event to ensure the reliability and trustworthiness of that statement, and (3) the “exciting event” should be startl ing enough to evoke a truly spontaneous reaction from the declarant. McCarty v. State , 257 S.W.3 238, 241 (Tex. Crim. App. 2008).

A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard. Wall v. State , 184 S.W.3d 7 30, 743 (Tex. Crim. App. 2006). A violation of an evidentiary rule that results in the erroneous40 admission of evidence constitutes nonconstitutional error under TEX.R.APP. P. 44.2(b), and a reviewing court should revers e if the error affected an Appellant ’s substantial rights. Barshaw v. Sate , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). An error affects a substantial right when the error has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Furthermore, a criminal conviction will be reversed for a nonconstitutional error if, after examining the record, an Appellate Court determines that the error did influence the jury, opposed to having a slight effect. Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

Analysis
It was error for the Trial Court to admit State’s Exhibit 70, inadmissible hearsay

. (6 RR 171). State’s Exhibit 70 , is an over fifteen minute audio recording taken by Detective De Leon of t he alleged victim at the hospital , when the alleged victim is receiving medical treatment . (6 RR 171).
The Appellant contends that the application of the first McCarty factor, the reaction to the startling event should be quick enough to avoid the41 possib ility of fabrication, weighs in favor of Appellant’s argument that the audio recording should not have been admitted

. Id . The Appellant escaped the shed where she was left by the defendants, and found shelter inside of a neighbor’s vehicle at around 3 p. m. the morning after the alleged offense. ( 6 RR 65). State’s Ex hibit 70 was taken at 8:46 a.m. the morning after the alleged offense. (STATE’S EXHIBIT 70). Therefore, the recording in question was taken almost six hours after the alleged victim escaped from the startling event . (6 RR 65).
The State will likely argue that the alleged victim was still under the stress of the starling event when she was discovered in the neighbor’s vehicle. However, t he record reflects that a t 6:00 a.m., the own er of t he vehicle’s husband came outside to go to work, and Ms. Huth did not alert him to the fact she was inside of his wife’s vehicle, because she “did not want him to miss wo rk.” (6 RR 68). The record further reflects that Ms

. Huth also did not alert the nei ghbor the first time she appeared outside on her porch, bu t the second time the neighbor came outside. (6 RR 69). Additionally, Ms. Huth begged the neighbor to not contact law enforcement, but to contact her friend Clint Barkley. (6 RR 69). These calcu lated actions on the part of Ms. Huth demonstrate that she was still not under the stress of the event during this time frame . (6 RR 68

- 69).42 T he State will most likely contend that Ms. Huth was still in pain and under the excitement of the event when State’s Exhibit 70 was recorded, however, Ms. Huth was calm enough and presumably not under excruciating pain when Ms. Huth intentionally did not alert the neighbors twice when they appeared outside of their home , and this was several hours prior to the

re cording in question

. (6 RR 68

- 69). Ms. Huth was also composed enough several hours before State’s Exhibit 70 was recorded , when she begged the neighbor who discovered her to not contact law enforcement but to contact her friend. (6 RR 68

- 69). Ms. Richa rds contends that Ms. Huth’s actions demonstrate that the time interval between the startling event and the time when S ta t e’s Exhibit 70 was recorded was long enough to permit reflective thought on Ms. Huth’s behalf , and therefore Sate’s Exhibit 70 should have not been admitted

. Apolinar v. State , 155 S.W.3d 18 4, 186

- 187 (Tex. Crim

. App. 2005); ( 6 RR 69).
The Appellant also asserts that the second McCarty factor, that t he resulting statement should be sufficiently “related to” the startling event t o ensure the reliability and trustworthiness of that statement also weighs heavily in favor of the Appellant’s argument. Id

. The only information on the recording “related to” the offense or the startling event, is Ms. Huth naming Ms. Richards and the codefendants as her assailants.” (STATE’S43 EXHIBIT 70). At minute 4:4 5 into State’s Exhibit 70, the D etective informs Ms. Huth that law enforcement is “taking off,” however the recording continues for approximately another eleven minutes. (STATE’S EXHIBT 70). During this period of eleven minutes, Ms. Huth is undergoing medical treatment, and is screaming, groaning, and crying hysterically in pain. (STATE’S EXHIBIT 70). The Court attempts to give a curing instruction regarding hearsay statements in the background regarding medical treatment of the alleged victim , however this does not remove the taint of the jury listening to eleven minutes of Ms. Huth’s anguish . (6 RR 179).
The Appellant concedes that the third McCarty factor , that the “exciting event ” should be startling enough to evoke a truly spontane ous reaction from the declarant, is favorable for the State. However, the first

two McCarty factors weigh heavily in favor of State’s Exhibit Number 70 not falling under the excited utterance exception , and therefore, State’s Exhibit Number 70 should not have been admitted into evidence

. Id

.
Ms. Richards asks the Court to reverse the conviction below , because the error in admitting State’s Exhibit 70 affected M s. Richard’s substantial rights, in that the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex.44 Crim. App. 1997). For , It can not reasonably be argued that after a jury listened to State’s Exhibit 70, and heard f irsthand the great anguish that Ms. Huth was in at the hospital, that the jury did not consider such in convicting Ms. Richards. Id

. The State even emphasized such in closing statements, arguing to the jury, “You heard Dana’s voice on a hospital tape.” (10 RR 71).
Point of Error Four

Rule
Under The Texas Rules of Evidence, Article 402, “irrelevant evidence is not admissible.” T E X. R. EVID. 402. Further, under The Texas Rule s of Evidence, Article 403, the “court may exclude relevant evidence if its
p robative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R.
EVID. 403. The Texas Court of Crimina l Appeals under the “ Montgomery Factors” requires reviewing courts to analyze and balance “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; [a nd] (4) the45 proponent’s need for the evidence. Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1990).

A trial court’s decision to admit evidence is reviewed under an abuse of discretion standard. Wall v. State , 184 S.W.3d 730, 743 (Tex. Crim. A pp. 2006). A violation of an evidentiary rule that results in the erroneous admission of evidence constitutes nonconstitutional error under TEX.R.APP. P. 44.2(b), and a reviewing court should revers e if the error affected an Appellant’s substantial rights. B arshaw v. Sate , 342 S.W.3 d 91, 93 (Tex. Crim. App. 2011). An error affects a substantial right when the error has a substantial and injurious effect or influence in determining the jury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 199 7). Furthermore, a criminal conviction will be reversed for a nonconstitutional error if, after examining the record, an Appellate Court determines that the error did influence the jury, opposed to having a slight effect. Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Analysis
During the punishment phase below , trial counsel objected to the admission of certain photographs, and argued that the probative value of the photographs was outweighed by the prejudicial effect. TEX. R. EVID. 403

.46 Appellant first would contend that these photographs were not relevant under Texas Rules of Evidence Article 402, as there was no nexus between the photographs and Ms. Richar ds, because t he Photographs in questions were taken five days after Ms. Richards ’ arrest, when she was no longer residing at the home where the photographs were taken (10 RR 90). However, if the Court were to hold that the photographs were relevant, then Ms. Richards would ask the Court to hold that the probative value of the phot ographs was outweighed by their prejudicia l effect, and it was error for State’s Exhibit 289, 291, 294, 295, 296, and 298 to be admitted into evidence

. TEX. R. EVID. 403. State’s Exhibit 289 depicts a baby pacifier laying on top of bullets; State’s Exh i b it 291 depicts a rifle with the confederate f l a g in the background; State’s Exhibit 294 depicts a baby bassinet next to an open chest that contains po rnography and a gun ; State’s Exhibit 295 is a close up of State’s Exhibit 294; State’s Exhibit 296 depicts anoth er gun and a rifle cleaning kit; and State’s Exhibit 298 depicts multiple shotgun s right next to a different baby bassinet. (10 RR 87). The first Montgomery factor, the probative value of the evidence , weighs heavily in Ms. Richards’ favor, as A pp ellant asserts that there was absolutely no probative value contained in the photographs admitted before the jury

. Montgomery v. State , 810 S.W.2d 372 (Tex.Crim.App. 1990). The47 Photographs in question s were taken five days after Ms. Richards ’ arrest, whe n Ms. Richards was n o longer residing at the home , and only her boyfriend , Mr. Neal on , was
. (10 RR 90). The record is void of any evidence that anything depicted in the photographs actually belonged to Ms. Richards. Moreover, t he record reflects that at the time of trial, Mr. Nealon was serving time in a federal penitentiary; therefore Ms. Richards contends that the photographs admitted before the jury was probative only with regard to Mr. Nealon

. (6 RR 126). Moreover , t he photographs admitted have no connection to the instant offense, as there was no gun used by Ms. Richards , and none of the photographed guns were identified by Ms

. Huth as the gun used by Mr. Smith

. (10 RR 87).

The Second Montgomery Factor, the potential to impress the jury in

som e irrational, yet indelible way , also weighs heavily in favor of the photographs being suppressed. Id

. Ms. Richards contends that these photographs were offered by the State for the sole purpose of inf lam ing the passions of the jury and to paint the pict ure that Ms. Richar ds was a violent and racist sexual deviant , and more importantly a terrible mother

. ( STATE’S EXHIBIT 289, 291, 294, 295, 296, and 298). The photographs admitted were the bulk of the State’s punishment case, and are quite disturbing in many different aspects. ( STATE’S EXHIBIT 289, 291, 294,48 295, 296, and 298). Many jurors could have been very offended that Ms. Richards had the confederate flag hanging in her home, or that there were so many guns in such close proximity to where infant children were presumably sleeping, or that there was pornography right next to where infant children were presumably sleeping, and used this against Ms. Richards in assessing her punishment. ( STATE’S EXHIBIT 289, 291, 294, 295, 296, and 298). For example , when viewing State’s Exhibit 289, the photograph depicting a pac ifier laying on top of bullets, the only thing that this image conjures is an irrational, yet unforgettable feeling of aversion

. (STATE’S EXHIBIT 289). The State highlighted the injurious effect of the photographs in question in their closing statements,
“What did we learn about that one woman in punishment? We learned that she keeps firearms all over her home, next to baby bassinets, and alcohol. We learned that she has

— well, actually that brings me to something. Where was Heather Richards, the devoted family woman

— or where were her children as all of this was going on? Where were her infant babies? When she went off and she was angry, where were they? Was she thinking about them w hen she left them in that house? The devoted mother who leaves her house that way.” (11 RR 106

- 107). The third Montgomery factor, the time needed to develop the evidence, also weighs in favor of Ms. Richards’ argument that the photographs should not have been admitted, as the admission of photographs was the bulk of the State’s punishment case, and was highlighted in the State’s closing49 statements. (10 RR 103

- 117); (11 RR 106

- 107). The record reflects that the State’s punishment case consists o f approximately 16 pages, 14 pages of which involve the photographs in question. (10 RR 103

- 117) The last Montgomery factor, the proponent’s need for the evidence , further bolsters Ms. Richards’ contentions that the photographs should not have been admitt ed , as we are not dealing with autopsy photographs , or the like, but photographs of a residence that Ms. Richards was removed from five days earlier and have no connection to the crimes for which Ms. Richards was found guilty. Id . As articulated by the C ourt of Criminal Appeals in Erazo v. State , “The relevance value of a photograph is to show appearance...A crime

- scene photograph or an autopsy photograph is not admissible simple to show the death of the individual. These photographs are admissible despite the fact, and because, they show more than the testimony. But , that “something more” must be relevant and helpful to the jury.” Erazo v. State , 144 S.W.3d 487, 493 (Tex. Crim. App. 2004).

Ms. Richards would ask the Court to reverse and remand the case o n the issue of punishment, as the error in admitting these photographs had a substantial and injurious effect or influence in determining the jury’s punishment verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Again, t he photographs adm itted were the bulk of the State’s50 punishment case, relied upon heavily by the State in closing, and are disconcerting in many different aspects. (10 RR 103

- 117); ( 11 RR 106

- 107).

PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Heather Lauren Richards , prays this Honorable Court will reverse the judgment below , or in the alternative r emand the case on the issue of punishment

.

Respectfully Submitted,

_

/s/ Amanda Erwin____________ Amanda Erwin The Erwin Law Firm, L.L.P

. 109 East Hopkins Street, Suite 200 San Marcos, Texas 78666 Telephone: (512) 938

- 1800 Telecopier: (512) 938

- 1804 Amanda@TheErwinLawFirm.com Attorney for Appellant Heather Lauren Richards51 CERTIFICATE OF SERVICE
Pur suant to TEX. R. APP. P. 9.5, I certify that of December 9 , 201 5 , a copy of this motion was electronically served , to the following:
Mr. Joshua Presley Chief Appellate Prosecutor Comal County Criminal District Attorney’s Office 150 N. Seguin, Suite 307 New Braunfels, Texas 78130 Preslj@co.comal.tx.us

_

/s/_Amanda Erwin

__________________ Amanda Erwin52 CERTIFICATE OF COMPLIANCE STATING NUMBER OF WORDS IN BRIEF Pursuant to Tex. R. App. P. 9.4(i), Appell ee certifies that this Appellate Brief contains only 1 1, 826 words, and is therefore compliant with the maximum word limitation allowed but the Honorable Court.

/s/ Amanda Erwin

_________________________________ Amanda Erwin