### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00316- CR

Heather Lauren Richards, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2014 -09 1, H ONO RAB LE DIB WALDRIP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Hea ther L au re n Richards g uilty of attempted capital murder, see Tex. Penal C ode §§ 19.03, 15.01, ag g rava ted ki dnapping , see id. § 20.04 , aggr avated sexual assault, see id. § 22.021, ag g rava ted robber y , see id. § 29.03, and tampering with p h y s i ca l evidenc e, see id. § 37.09. The jury assessed punishment at 50 y ear s’ imprisonment for eac h offe nse

exc ep t t am p ering with phy sical evidenc e, for which the jury assessed punishment at 10 y ear s’ imprisonment, with all the sentenc es to run concur rently

. I n four points of err or, Richards contends that she was denied due proce ss when the trial court compelled three of her codef endants to te stify at her trial, that she was denied eff ective assistance of counsel, and t hat the trial court abused its discretion in admitting c erta in evidence . We w ill af firm the trial court’s judg ments of conviction.BACK GR OUND 1 Richards beca

me convince d that Dana Huth, the victim in this case , was in a sexual rela tionship with Richards’s boy friend, Travis Nea lon ( a ls o k n o wn as T-B one). Richards confr onted Huth about the rela tionship at the home of Mike Chapin (also known as Big Mike or Uncle Mike). Kayla L ardie ri, Sheena Hopkins, Trac e Smit h, and Big Mike wer e also prese nt in the home during the encounte r. Richards, L ardie ri, and Hopkins went to a back room, and Chapin asked Huth to g o speak w ith them.

When Huth enter ed the room, Richards and L ardie ri beg an to question her about her rela tionship with T-B one. When Huth ref used to answe r, Richards struck her in the fac e. Richards and L ardie ri then order ed Huth to take off all of her clothes so that they could chec k for hidden

rec ording device s. L ardie ri wra pped her han d i n a shirt and ins erte d it into Huth’s vagina, but no

rec ording device s wer e f

o u n d

. Ri c h a r d s a n d L ardie ri remove d Huth’s possessions and beg an striking her and stabbing and cutting her with knives, and Richards kicked Huth in the ribs. When Huth tried to flee from the room, she was pulled back inside. Richards also used a stun g un on Huth as many

as twenty times. At one point, Richards cut the back of Huth’s neck and asked her, “Where is y our God now? ” L ardie ri later te stified, “I t looked like [R ichar ds] was try ing to c ut her he ad off .” When Smit h hear d Huth scre aming , he went to the back room, pointed a shotgun in Huth’s fac e, and “told her to shut the fuck up.” Richards and L ardie ri rea liz ed that Huth’s brea thing had slowed, and they informed Smit h that Huth was “blee ding out.” The g roup then tried to decide how to dispose of Huth. Big Mike sug g ested taking her body to a pig far m beca use the pigs would

The fac ts rec ited here in are taken from the testimony and other evidenc e prese nted at trial. 1 2eat her, “bones, ever y thing.” Richards sugg ested burning her body

. I n the end, the gro u p g ag g ed Huth, blindfolded her, handcuf fed her, shackle d her fee t, and hog t i ed h er wi t h her hands behind her back. They then wrapped her i n a s h ee t , ca rr i ed h er outside, and locked her in a shed. I t was Dec ember

and wa s fre ezing outside, a nd Huth was na ked except for the shee t. Once inside the shed, Huth was abl e to fre e her hands and remove the g ag and blindfold. She climbed onto some tables or box es to rea ch a window, her fee t still shackle d toge ther. Huth slid herse lf out the window and landed on her knees on g rave l about six fee t below. Huth then quietly cra

wled acr oss the g rass, attempting not to disturb Big Mike’s dog s. Huth hid in a neig hbor’s vehicle, which was unlocked. During the night, she hear d someone open the shed and hear d a fema le voice say , “Oh, fuck. She’s g one.” I n the morning , Huth signa led to a neig hbor, who called the police. A detec tive later sear ched a burn pit and uncover ed char red rema ins of Huth’s belong ings and of a chain. At trial, i n addition to Huth and other witnesses, L ardie ri, Smit h, and Hopkins testified conce rning Richards’s involvement in the offe nse. The State also prese nted a videotaped confe ssion in which Richards admitted the following :

• Richards a

nd L ardie ri confr onted Huth.

• Richards and L ardie ri forc ed Huth to take off her clothes and lie naked on the bed, and L ardie ri sear ched in be tween H uth’s leg s.

• L ardie ri presse d a knife ag ainst Huth’s back and Richards presse d a k n ife ag ainst Huth’s throat. Richar ds later sa w that Huth was ble eding

.

• Richards punched or slapped Huth at least three or four times and kicked her in the ribs.

3• When Richards and L ardie ri saw that Huth’s b re at h i n g had slowed, they informed Smith. Huth was handc uffe d and wr apped up in a sheet.

Moreve r, the State prese nted a rec ording of Huth take n at the hospital while she was being trea ted

as well as rec ording s of calls Richards made to her mother from jail. The jury found Richards g uilty

.

During the pu

n is h me n t p hase of trial, the State prese nted additional rec orded jail calls in which Richards admitted to her mother that she “beat the shit” out of Huth and g ot “pre tty fucking

r o u g h w it h h e r . ” T h e St a

te a ls o o f f e r e d , a n d th e tr ia l c o u

r t a d mi tt e d o v e r d e f

e n s e c o u n s e l’ s o b je c ti o n s , photogr aphs of Richards’s home taken afte r the offe nse. The jury assessed Richards’s punishment, the trial cour

t rende red judg ment consistent with the jury ’s ver dicts, and this appea l followed.

DISCUSSIO N Codefend ants’ Testim ony

I n her first point of err or, Richards contends that she was “denie d due proce ss and the presumption of innocenc e” beca use the trial court order ed three codef endants to te stify ag ainst her but only signe d an “Or der Requiring Testimony and Gra nting Use I mmunity to Wit ness ” for one of the codef

endants. The State responds that Richards failed to pre s er v e this complaint beca use she did not object to her codef endants’ testimony at t ri al

. T h e S t ate further arg ues that Richards “has fa i l ed to point to any case law that supports her claim that her rig hts wer e violated by the admission of compelled testim o n y fr o m h er codefe ndants under a g rant of use i mmunity .” I n her reply brief, Richards conce des that her “cla ims are not prese rved under the Texas Rule of Appellate Procedur e 33.1(a) ” but arg ues that the “absolute rig hts” alleg edly violated “ar e so fundame ntal that they cannot be waived.”
4Even assuming wi t hout deciding that the t rial court committed constitutional err or

by requiring the three codef endants to testify and that Richards did not waive this err or, we will not

reve rse the tr ial court’s judgme nt if we deter mine bey ond a re asonable doubt that the court’s e rror did not contribute to Richards’s conviction. See Tex. R. Ap p . P

. 4 4 .2(a)

. Her e, Richards herse lf admits in her appellate brief that, even excluding the codef endants’ testimony , “the r e c o rd is seething with evidence for the State to pr ove its case ag ainst Ms. Richards”: [T] he State had the testimony of the alleg ed victim, her hospital rec ords, testimony of law enfor ceme nt, testimony of witnesses that we re there the evening of the incident, testimony of the neutra l wi t n esses that discovere d the alleg ed victim, testimo n y o f a witness who viewed a video of the alleg ed offe nse occur ring , 2 and even a video confe ssion from Ms. Richards, as well as jail rec ording s from Ms. Richards implicating her g uilt.

Given this overw helming evidenc e of Richards’s g uilt, we conclud e bey ond a rea sonable doubt that any err or the trial court may have committ ed i n o rd er i n g her codef endants to testify did not contribute to Richar ds’s conviction. Ac cording ly , we ove rrule he r first point of er ror.

Ineff ect ive Assistance of Counsel I n her second point o f e r

r o r , Ri c h a r d s c o n te n d s th at she rec eived ineffe ctive assistance of counse l. T o preva il on an inef fec tive-assistance -of- counsel c laim, a def endant must prove by

a preponde ranc e of the evidenc e that (1) counsel’s perf ormanc e was defic ient and (2) counsel’s defic ient perf

ormanc e prejudice d the defe ndant. See Ramirez v. State , 301 S.W .3d 410, 415 (Tex.

The video of

the offe nse wa s not presente d at trial. 2 5App.—Austin 2009, no pet.); see also Strickland v. W ashington , 46 6 U. S

. 668 (1984); Ex parte Ramirez , 280 S.W .3d 848, 852 (Tex. Crim. App. 2007).

Richards fir st contends that she wa s denied e ffe ctive assistanc e of c ounsel bec ause her trial attorney did not call Amanda Chavira as a witness or seek a continuance to obtain Chavira’ s prese nce. Richards arg ues that “trial counsel’s only well-defined trial strateg y was to minimi ze Ms. Richards’ conduct, and to paint Ms. L ardie ri as the main ag g ressor, and Ms. Richards contends that direc t t es t i m o n y from Ms. Chavira would have been the most eff ective way to employ this strateg y .” Assuming without de ciding that her tria l counsel’s fa ilure to ca ll Chavira was de ficient perf ormanc e, Richards has not demonstrated prejudice by ex p l aining what Chavira’ s testimony would have been and how it would have benef itted her. Moreve r, Richards cannot show prejudice

3 in light of the overw helming evidenc e of her g uilt discussed above. There fore , her first ineffe ctiveassistance claim fa ils.

Richards also contends “that her trial counsel was defic ient in that he did not discuss with her that he filed the punishment elec tion for the jury to assess her punishment if found g uilty .” Richards points out that the punishment-elec tion form indicating that Richards elec ted for the jury to assess punishment does not bear her signa ture. Howeve r, Richards does not cite any authority for the proposition that her sig nature is nece ssary for a n elec tion of punishment or that the absenc e of her signa ture constitutes defic ient perf ormanc e by her attorney
. Moreove r, her trial counsel aver red 4

I n her br ief, Richar ds ref ers to materia ls in the record of another appea l. She previously 3 f il e d a mo ti o n to s u

p p le me n t th e r e c o r d in th is a

p p e a l, w h ic h th is Co u

r t d e n ie d

. B e c a

u s e th e ma

te r ia ls Richards re fer ence s are not in the rec ord bef ore us, we will not consider them in our ana ly sis. We note that a punishment-elec tion form need not be signe d by a defe ndant to be eff ective. 4 See Sneed v. State , 406 S

. W.3d 638, 641 (Tex. App.—Eastland 2013, no pet.) (holding that 6in an aff

idavit that h e d i s cussed punishment possibili ties with Richards, and Richards cites no evidenc e to the contra

ry . Therefo re , we conclude that the absenc e of Richards’s signa ture on the punishment-elec tion form does not establish that her c ounsel’s per formanc e wa s defe ctive.

Finally , Richards contends that her trial counsel’s assistance was ineffe ctive beca use “he did not have a means to prove to the jury that Ms. Richards was probation elig ible.” More specifi ca l l y , R ichar ds arg ues that her attorney failed to verify cer tain paper

work respe cting her application for probation prior to trial. Howeve r, as Richards herse lf points out in her brief, the trial court, defe nse attorney , and prosec utor “ca me up with the solution” to the lack of verific ation outside the jury ’s prese nce—Richa rds’s counsel would simply have her application for probation admitted into evidenc e. Be cause a solution to this problem, which the trial court char acte rized on the rec ord

as “for m err or” and not “substantive,” was rea ched, Richards cannot demonstrate prejudice from her counsel’s alleg edly defic ient perf ormanc e. Moreove r, g iven the sever ity of the crimes of which the jury found Richar ds g uilty , the likelihood that Richards would have rec eived pr obation is remote.

For these re as o n s , we conclude that Richards has failed to demonstrate that she

rec eived inef

fec tive assistance of counse l, and we ove rrule he r sec ond point of err or.

State’ s Exhi bit 70

I n her third point of err or, Richards contends that the trial court abused its discretion in admitting State’s Exhibi t 70, an audio re cording taken a t the hospital while Huth was re ceiving

punishment-elec tion form signe d by defe ndant’s counsel complied with elec tion re quirements of Tex. Code Crim. Proc. art. 37.07, § 2(b))

. Richards’s attorney di d s i gn t he elec tion form, and Richards did not object to having the jury assess her

punishment. 7trea t m en t
. I n t his rec ording , Huth can be heard speaking with medical personnel and g roaning in

pain. Richards arg

ues that this rec ording contains inadmissible hear say . The State responds that the exhibi t w as admissible be cause it wa s an excited utter ance under Texas Rule of Evidence 803(2). 5

Even if we assume without deciding that the tri al co u rt s h ould have excluded this

ex hibit, we must disreg ard this err or unless it aff ecte d Richards’s substantial rig hts. S ee T ex . R

. App. P. 44.2(b). “A substantial rig ht is aff ecte d when the err or had a substantial and injurious eff ect

or influence in deter

mining the jury ’s verdic t.” S ch mu tz v. State , 440 S.W .3d 29, 39 (Tex. Crim. App. 2014). “Substantial rig hts are not aff ecte d by the err oneous admission of evidenc e if, afte r examining the rec ord as a whole, we have fair assura nce that the err or did not influence the jury , or had but slight eff

ect.” Campbell v. State , 382 S.W .3d 545, 553 (Tex. App.—Austin 2012, no pet.). As discussed above, the evidenc e o f Ri c h a r d s ’s g uilt was overw helming and included

a videotaped confe ssion. There fore , “we have fair assura nce that the err or did not influence the jury , or had but slight eff

ect.” Id. at 553; see Neal v. State , 256 S.W .3d 264, 285 (Tex. Crim. App. 2008) (conc luding that trial court’s err or “wa s harmless i n l i ght of the overw helming evidenc e of g uilt shown by other evidenc e”)

. Be cause we cannot conc l u d e t h at an y err or the trial court may have committed in admitting State’s Ex hibit 7 0 aff ecte d Richards’s substantial rig hts, we overr ule her third point of error

.

We revie w a trial court’s ruling on the admissibili ty of evidenc e for an abuse of discretion. 5 See Jessop v. State , 368 S.W .3d 653, 666 (Tex. App.—Austin 2012, no pet.). “Such ru l i n gs wi ll rar ely be disturbed by an appellate court.” Id. We will uphold t he trial c ourt’s dec ision “unless it lies outside the zone of rea sonable disag ree ment,” and “[i] f the rec o rd s u p p o rt s the trial court’s decision . . . there is no abuse of discr etion.” Id. 8P hotographs I n her fourth point of er ro r, R ichar ds contends that the trial court abused its

discretion in admitting photogr aphs of Richards’s home during the punishment p h as e of trial. These photogr aphs wer e taken afte r Richards was arr ested and s h ow firea rms, ammunition, and pornog raphy in close proxi mity to children’ s items such as a pacif ier and bassinet. Acc ording to Richards, these photogr aphs wer e irrele vant an d an y p robative value they may have had was outweig hed by

their pre judicial eff

ect on the jur

y . Assuming without deciding that the trial court err ed in admitting these photogr aphs,

we must consider whether this err or aff ecte d Richards’s substantial rig hts. S ee T ex . R

. App. P. 44.2(b). Although the photogr aphs may have had some prejudicia l eff ect on the jury because they sug g ested that Richards was a poor mother or that she endang ere d children, other evidenc e befor e the jury demonstrated the sever ity of the crimes she alleg edly committed, including g raphic photogr aphs of Huth’s injuries and descr iptions of the offe nse by Huth and other witnesses. Moreove r, during the punishment phase of trial, the State prese nted jail calls in which Richards told her mother that she “beat the shit” out of Huth and g ot “pre tty fucking roug h with her.” During these calls, R ichar ds exhi bits no remorse for her actions. Given thi s evidenc e, we cannot conclude that the admission of the photogr aphs of Richards’s home “h ad a s u bstantial and injurious eff ect or influence in deter

mining the jury ’s verdic t.” Schmutz , 440 S.W .3d at 39. Acc ording ly , we overr ule Richards’s f

ourth point of err or.

CONCLUSION We affir m the judgme nts of conviction.

9__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Aug ust 11, 2016 Do Not Publish

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