Andrus v. Texas - 140 S. Ct. 1875 (2020)

Rule:

Prejudice exists if there is a reasonable probability that, but for his counsel’s ineffectiveness, the jury would have made a different judgment about whether a defendant deserved the death penalty as opposed to a lesser sentence. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e)(1). In assessing whether the defendant has made that showing, the reviewing court must consider the totality of the available mitigation evidence, both that adduced at trial, and the evidence adduced in the habeas proceeding, and reweigh it against the evidence in aggravation. And if a defendant's death sentence required a unanimous jury recommendation, Tex. Code Crim. Proc. Ann. art. 37.071, prejudice requires only a reasonable probability that at least one juror would have struck a different balance regarding defendant's moral culpability, Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e)(1).

Facts:

In 2008, 20-year-old Terence Andrus unsuccessfully attempted a carjacking in a grocery-store parking lot while under the influence of PCP-laced marijuana. During the bungled attempt, Andrus fired multiple shots, killing car owner Avelino Diaz and bystander Kim-Phuong Vu Bui. The State charged Andrus with capital murder. At the guilt phase of trial, Andrus’ defense counsel declined to present an opening statement. After the State rested its case, the defense immediately rested as well. In his closing argument, defense counsel conceded Andrus’ guilt and informed the jury that the trial would “boil down to the punishment phase,” emphasizing that “that’s where we are going to be fighting.” The jury found Andrus guilty of capital murder. Trial then turned to the punishment phase. Once again, Andrus’ counsel presented no opening statement. In its 3-day case in aggravation, the State put forth evidence that Andrus had displayed aggressive and hostile behavior while confined in a juvenile detention center; that Andrus had tattoos indicating gang affiliations; and that Andrus had hit, kicked, and thrown excrement at prison officials while awaiting trial. The State also presented evidence tying Andrus to an aggravated robbery of a dry-cleaning business. Counsel raised no material objections to the State’s evidence and cross-examined the State’s witnesses only briefly. When it came to the defense’s case in mitigation, counsel first called Andrus’ mother to testify. The direct examination focused on Andrus’ basic biographical information and did not reveal any difficult circumstances in Andrus’ childhood. Once Davis stepped down, Andrus’ counsel informed the court that the defense rested its case and did not intend to call any more witnesses. After the court questioned counsel about this choice during a sidebar discussion, however, counsel changed his mind and decided to call additional witnesses. Andrus’ counsel called Dr. John Roache to testify on general effects of drug use on developing adolescent brains. Counsel also called James Martins, a prison counselor who had worked with Andrus and testified that Andrus “started having remorse” in the past two months and was “making progress.” Finally, Andrus himself testified. Contrary to his mother’s depiction of his upbringing, he stated that his mother had started selling drugs when he was around six years old, and that he and his siblings were often home alone when they were growing up. He also explained that he first started using drugs regularly around the time he was 15. All told, counsel’s questioning about Andrus’ childhood comprised four pages of the trial transcript. The State on cross declared, “I have not heard one mitigating circumstance in your life.” The jury sentenced Andrus to death.

After an unsuccessful direct appeal, Andrus filed a state habeas application, principally alleging that his trial counsel was ineffective for failing to investigate or present available mitigation evidence. During an 8-day evidentiary hearing, Andrus presented what the Texas trial court characterized as a “tidal wave of information . . . with regard to mitigation.” After considering all the evidence at the hearing, the Texas trial court concluded that Andrus’ counsel had been ineffective for “failing to investigate and present mitigating evidence regarding [Andrus’] abusive and neglectful childhood.” The court observed that the reason Andrus’ jury did not hear “relevant, available, and persuasive mitigating evidence” was that trial counsel had “fail[ed] to investigate and present all other mitigating evidence.” The court explained that “there [is] ample mitigating evidence which could have, and should have, been presented at the punishment phase of [Andrus’] trial.” For that reason, the court concluded that counsel had been constitutionally ineffective, and that habeas relief, in the form of a new punishment trial, was warranted. The Texas Court of Criminal Appeals rejected the trial court’s recommendation to grant habeas relief. In an unpublished per curiam order, the Court of Criminal Appeals concluded without elaboration that Andrus had “fail[ed] to meet his burden under Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel’s deficient performance.”

Issue:

Did Andrus’ counsel’s deficient performance prejudice Andrus?

Answer:

Yes.

Conclusion:

It is unclear whether the Court of Criminal Appeals considered Strickland prejudice at all. Its one-sentence denial of Andrus’ Strickland claim does not conclusively reveal whether it determined that Andrus had failed to demonstrate deficient performance under Strickland’s first prong, that Andrus had failed to demonstrate prejudice under Strickland’s second prong, or that Andrus had failed to satisfy both prongs of Strickland. Unlike the concurring opinion, however, the brief order of the Court of Criminal Appeals did not analyze Strickland prejudice or engage with the effect the additional mitigating evidence highlighted by Andrus would have had on the jury. What little is evident from the proceeding below is that the concurring opinion’s analysis of or conclusion regarding prejudice did not garner a majority of the Court of Criminal Appeals. Given that, the court may have concluded simply that Andrus failed to demonstrate deficient performance under the first prong of Strickland (without even reaching the second prong). For the reasons explained above, any such conclusion is erroneous as a matter of law. The record before us raises a significant question whether the apparent “tidal wave,” 7 Habeas Tr. 101, of “available mitigating evidence taken as a whole” might have sufficiently “‘influenced the jury’s appraisal’ of [Andrus’] moral culpability” as to establish Strickland prejudice. That prejudice inquiry “necessarily require[s] a court to ‘speculate’ as to the effect of the new evidence” on the trial evidence, “regardless of how much or little mitigation evidence was presented during the initial penalty phase.”