Flores, Ex Parte Gerardo
2012 Tex. Crim. App. LEXIS 1603
| Tex. Crim. App. | 2012Background
- Applicant was convicted by a jury of two counts of capital murder for causing the stillbirths of twins by stepping on E.B.'s abdomen.
- E.B. was a sixteen-year-old; applicant was eighteen; the relationship began in high school and they lived together during the pregnancy.
- At trial there were three contested causation theories: homicide by stepping on the abdomen, self-inflicted trauma by E.B., or a genetic abnormality.
- Medical testimony linked abdominal bruising and uterine infarctions to blunt force trauma; autopsy concluded fetal death due to blunt abdominal trauma.
- Applicant admitted to striking E.B. and stepping on her stomach; E.B. testified she asked for an abortion and that applicant complied.
- The habeas court recommended relief on two ineffective-assistance claims (failure to present Kliman and failure to raise sufficiency on appeal), but the Court conducted its own independent review and denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial/hibaeas counsel's failure to call Kliman ineffective? | Flores asserts Kliman would refute State causation. | Flores argues Kliman was available and would have helped; defense chose Pustilnik strategically. | Not ineffective; strategic choice to use local expert sufficed. |
| Was trial counsel ineffective for not calling Bux? | Bux would contradict Brown and support a theory favorable to Flores. | Bux's testimony would be cumulative and not alter outcome. | Not ineffective; cumulative testimony cannot prove prejudice. |
| Did appellate counsel render ineffective assistance by not challenging sufficiency of the evidence on direct appeal? | Causation was contested; insufficiency claim would likely succeed. | Counsel strategically limited issues; sufficient evidence supported conviction. | Not ineffective; substantial evidence supported the verdict; no reasonable probability of acquittal on appeal. |
Key Cases Cited
- Flores v. State, 215 S.W.3d 520 (Tex.App.-Beaumont 2007) (direct-appellate review of ineffective-assistance claims; independent fact-finder deference)
- Flores v. State, 245 S.W.3d 432 (Tex.Crim.App.2008) (panel decision on habeas review and IAC; affirmations on lack of prejudice)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes performance and prejudice prongs for ineffective assistance)
- Ake v. Oklahoma, 470 U.S. 68 (1985) (right to expert assistance when likely to be a significant factor at trial)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- Wiggins v. Smith, 539 U.S. 510 (2003) (requires defining reasonable investigations as part of performance)
- Ex parte Reed, 271 S.W.3d 698 (Tex.Crim.App.2008) (independent-factfinding when trial findings are inadequate)
- Ex parte Jimenez, 364 S.W.3d 866 (Tex.Crim.App.2012) (authoritative discussion of habeas-factfinding scope)
- Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) (standard for sufficiency review and appellate strategy)
- Grotti v. State, 273 S.W.3d 273 (Tex.Crim.App.2008) (fact-specific sufficiency in causation contexts)
- Martinez v. State, 195 S.W.3d 713 (Tex.Crim.App.2006) (considerations for defense-investigation reasonableness)
- Ex parte Miller, 330 S.W.3d 610 (Tex.Crim.App.2009) (standard for when ineffective assistance would yield new direct appeal)