EX PARTE PREVOST v. << (2025)

CONCURRING OPINION

Applicant was sentenced to death in 2014 for the 2011 double homicide of his girlfriend, Sherry White, and her twenty-year-old son, Kyle Lavergne, during the same criminal transaction. He obtained Sherry's gun and ambushed and killed Kyle. Then, he shot Sherry while she was in the bathroom. When Sherry did not die, Applicant stabbed her multiple times with different knives he retrieved separately from the kitchen as she begged for her life. Sherry's autopsy revealed twenty-one sharp force injuries: eleven stab wounds and ten incised wounds. Although Applicant first denied involvement, he eventually confessed. Applicant pleaded guilty, and in accordance with the jury's answers to the Article 37.071, Sections 2(b) and 2(e), special issues, the trial judge sentenced him to death.

In his Article 11.071 habeas application, Applicant argues that his trial counsel was ineffective by failing to conduct a reasonable mitigation investigation. I agree with the Court's decision today to deny Applicant postconviction habeas relief. In light of the brutal nature of the offense and the severe and extensive aggravating evidence, Applicant fails to make the necessary prejudice showing under Strickland v. Washington.¹ For the foregoing reasons, I join the Court's order.

I. Applicable Law

An ineffective assistance of counsel claim has two elements: deficient performance and prejudice. State v. Hradek, 707 S.W.3d 384, 391 (Tex. Crim. App. 2024) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “The prejudice element is fulfilled by a reasonable probability of a better outcome but for the deficient performance.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When assessing prejudice in a failure-to-discover-and-present mitigating evidence claim, a reviewing court will “reweigh the evidence in aggravation against the totality of available mitigating evidence.” See Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Prejudice is met when “there is a reasonable probability that [the jury] would have returned with a different sentence.” Id. at 536, 123 S.Ct. 2527. Thus, the question in this case is whether but for trial counsel's deficient performance, there is a reasonable probability that Applicant would not have been sentenced to death.

II. Analysis

Applicant fails to establish the second prong of Strickland—prejudice—because there is not a “reasonable probability” that the jury, even if it had been presented with Applicant's additional mitigation evidence, would have returned a non-unanimous finding in the State's favor on the statutory mitigation issue. Id.; Tex. Code Crim. Proc. art. 37.071, § 2(g).

a. Trial Evidence

The State's trial evidence was compelling. Applicant was charged with and convicted of causing the deaths of Sherry and Kyle in the same criminal transaction. Applicant confessed to the brutal double murder. In that confession, he stated:

I was talking to my friend Sherry man and uh we were on the phone and um she kept telling me some stuff about what she was doing, where she had been, and at the latter part of it we were getting ready to end the call, and uh, I guess she thought she had hung the phone up, but the phone didn't hang up and uh there was a conversation going on with her and another individual.

When asked if that individual was another guy, Applicant nodded. He then stated:

It kind of messed with me a little bit but uh, like I said, I heard the conversation and when I brought it to her attention; I guess she was trying to protect herself then or whatever it was. I know she couldn't tell me the truth about it and she lied to me, so in that instance, uh I was a little upset about it and I wanted to get to her then, but I couldn't․

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I thought that at that time I could get over whatever it was that we was going through and she can get over it and I really thought that uh she was okay with the situation because she never once said I'm ready to take you home.

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[B]ut the whole time in the back of my mind you know I was like I thought I had been wronged or once again rejected or․ I felt like I, I had been hurt. You know I had been hurt before and I just didn't want that feeling again. So․ I knew the gun was there man, because I came across it when I was cleaning up and uh I really didn't think much about it but right then I knew uh the relationship was getting kind of stressful for her and for me and because the love I had for her was pretty overwhelming and I really knew that this was a good woman. I didn't want to lose her. So, I fought with it Sunday, Monday, Tuesday, Wednesday․ of hurting her. I fought with that for four days.

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[Later] she kept talking to me, you know, and she never once said that you know she wanted out of the relationship; she just was like we need to work on some things and you know, at times I know it was stressful for her because I guess I was crowding her, she couldn't breathe or, you know how it is when you're not used to someone just being there[.]

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I contemplated what it was that I was doing or what I wanted to do. So uh, during the course of that morning when we were laying there, she fell asleep, I went and got the gun and put it on; my side of the bed. And I still had a way out, didn't have to do it. It went on and it went on till, (clears throat) like I said my niece called and uh said that she needed the car. So, that prompted her to get up and get ready for work and at that time is when I honestly did not know Kyle was home. I did not know, because like I said when I come in his door was closed and it was like 6:30 but he normally goes to school at 7:30.

So he really was not a part of that factor until that telephone call. When I got that call; Sherry went inside the bathroom and uh that's when I knew Kyle was home because I heard the movement. So, I grabbed the gun and I went into his room and I shot one time. I don't know if I did anything then to him because, I just pointed the gun and shot and I immediately ran back to the bathroom because I know after the shot Sherry, well she heard it she was going to want to know what was going on. So, when I went back in, um․ I told her to just calm down, be quiet and stay in the bathroom and that's when I seen Kyle come out of his bedroom and run down the hallway. He made it to the door and I shot him. I shot at him in the hallway. I didn't know if I had hit him then, but he made it to the front door and when I made it to him, I shot him. And then I went back to the bathroom and talked to Sherry some more about why it was going down like it was and why I was so upset about everything. And then she pleaded with me. We․ I mean, I stood there and talked to her for maybe ten minutes about all the stuff that was going on and why she lied to me and lied to me about some other things, but after it was all said and done․ she never once lied to me man. You know, I brought up some things and each and every time she brought it back it was true to what she was saying. You know, uh, after I had got tired of listening to whatever it was she was saying, I shot Sherry. And uh, she fell over in the bathtub and all of a sudden she got up. When I seen it I was․ I was shocked to say the least, but I understood then that this was a very strong woman. Her will to live was strong. Here she was shot twice. Once in the head and I don't even know where the other shot went. And she was talking to me like I'm talking to you, like she never was shot. This was at close range and she raised herself up and she got a towel and she told that she loved me. And at that time man I was like, I done killed this woman's son for nothing. I done shot her for nothing. And she didn't die. And she asked me Jeffery just help me. I need to go to the hospital. I said but if we do that, you're going to tell someone that I done it. She said don't even worry about it, she said because I'm dying. She say I just want some help. So, I went to the kitchen and I got a knife, and I stabbed her. And she took the knife out and handed it to me. She told me she loved me again. I was like, is this out of fear or because you want to save your life or․ She say no man I really do love you. I don't think that she was lying about that, it's just that I couldn't see it man. I was so caught up with all kind of other shit that I never even noticed that the woman genuinely loved me for whatever it was I'd done or whatever impression that I made she loved me for me because I didn't have nothing and she still didn't die, so I went to the kitchen again and got another knife and I stabbed her again and she still didn't, and all she can tell me was “I'm through.” And she still got up and she sat herself on the toilet and she sit here and she sit there and she talked to me and at that moment I knew man the mistake that you're talking about. It's just wasted life man. And honestly I don't think I really knew what I was doing with this woman because in actuality she didn't need me. So, when she stepped out with me it's because of me, it wasn't because of no conversation, it wasn't because she was desperate, because she's not, I guess because of the private time that we had spent together just dating or doing what we do. She, she really enjoyed it because I didn't uh make it difficult for her to see where I was coming from. I laid all my cards out on the table, I didn't, you know what I had and what I didn't have and what I could offer and what I couldn't offer and she accepted that just for what it was. So, when you said that she was a good woman, and people respected her and everybody loved her and you just now knowing it from them saying it. It's true. But me like I said man, I just never had a chance. I didn't give myself a chance. You know this really truly after the night when you go home and I mean all this is wrapped up you know and whatever it is that you did to get it wrapped up or whatever you didn't have to do to get it wrapped up, urn, the facts still remain that I took someone's life man, is something that I've never done before and I was trying to figure out last night what motivated that and I wasn't on no drugs because like I said it was six o'clock in the morning. I hadn't been drinking.

Applicant believed Sherry was cheating on him, and he thought long and hard about what he was going to do about it—by his own admission, he “fought” internally about hurting her for several days. Then, he decided what to do.

He shot and killed Sherry's son. He shot Sherry twice. When she did not die, Applicant went downstairs to the kitchen, grabbed a knife, and stabbed her. When she still did not die, Sherry removed the knife from her body and handed it back to Applicant. Applicant then went back to the kitchen for a second knife and stabbed her again.

Later, in the same confession, Applicant stated:

[T]o do that, at that time was cold blooded murder because there was no motive. I didn't take no money, the camera wasn't about nothing, the gun was only because I wanted to get rid of the evidence which when I did what I did, and said what I said to the people that I said it to knowing better was almost like I wanted someone to know I done it.

As Applicant himself admitted, it “was cold blooded murder.” Applicant even texted another person after the crime pretending to be Sherry and told that person that “she” could not answer right now so that the person would think Sherry was okay. Applicant admitted that he “made some moves that would ensure that somebody knew that [he] was involved with that before [he] came back on the scene.” He took the gun from the house and later tried to sell it.

But Applicant's confession alone did not paint the entire picture of the crime. Louisa Florez, the Harris County Medical Examiner who testified at trial, performed the autopsies of both Kyle and Sherry on May 22, 2011. Kyle suffered a gunshot wound to his head and another to his left arm. The non-fatal gunshot wound to his arm fractured the bone, and the path of the bullet was consistent with the shooter being above Kyle. The fatal gunshot wound to his head was a close contact wound consistent with the gun being one to two inches to one to two feet from Kyle's head with the bullet moving from back to the front. Florez testified that Kyle was shot first in the arm and then in the head.

Like Kyle, Sherry was shot twice—once to her back and once to her left temple. The gunshot wound to the head was from close range, anywhere from a few inches to a few feet. Florez testified that Sherry did not immediately die from that gunshot wound. Sherry's body was covered with twenty-one sharp force injuries, consisting of eleven stab wounds and ten incised wounds. The causes of death for both Kyle and Sherry were their combined injuries.

In sum, Applicant confessed to a “cold blooded murder” where both Kyle and Sherry died for no reason. As Applicant admitted, Kyle “didn't have to die.” Applicant ruminated for several days as to what he was going to do after he discovered that Sherry may have been cheating on him. When he heard noise from Kyle's room, he entered and shot once. Applicant then ran back to Sherry's bedroom, told Sherry to stay there, and chased after Kyle, who had run to the front door. Applicant then shot Kyle a second time. After killing her son, Applicant returned to Sherry, and she pleaded for her life. Once Applicant got “tired of listening to whatever she was saying,” he shot her. When she stood back up, he shot her again. When Sherry asked for his help, Applicant went downstairs to the kitchen, got a knife, returned, and stabbed her. When two gunshot wounds and a stabbing did not kill Sherry, Applicant retrieved another knife and stabbed her again. As Applicant walked out of the bathroom, he heard Sherry's head hit the back of the toilet. So, he returned to the bathroom and stabbed her nineteen more times.

b. Additional Aggravating Evidence

The evidence of the crime, horrific as it was, was not the end of the aggravating evidence presented at trial. To start, the State introduced Applicant's criminal history:

• Convicted of larceny and possession of stolen property in North Carolina and sentenced to 60 days in county jail on November 3, 1980;

• Convicted of criminal trespass in the 263rd District Court in Harris County in cause no. 351037 and sentenced to 120 days in jail on March 1, 1982;

• Convicted of unlawfully carrying a weapon, a handgun, in Jefferson County in cause no. 111831 and sentenced to eight days in jail on May 7, 1984;

• Convicted of assault, causing bodily injury to Jacqueline Latrice Buchanan, by throwing her against a wall, in cause no. 118016 In Jefferson County and sentenced to thirty days in jail on April 6, 1987;

• Convicted of theft in cause no. 47703 in Jefferson County and sentenced to three years in the Texas Department of Corrections on September 8, 1987;

• Sentenced to five years in TDCJ in cause no. 50684 in Jefferson County on August 29, 1988;

• Convicted of criminal trespass, entering and remaining in Noelle Daigle's habitation, in cause no. 144035 in Jefferson County and sentenced to fifteen days in jail on August 31, 1989;

• Convicted of assault family violence, causing bodily injury to Theressal Prevost by hitting her with his hand, in cause no. 251852 in Jefferson County and sentenced to thirty days in jail on July 25, 2005;

• Convicted of preventing and interfering with the ability of Theressal Prevost to place an emergency call to a law enforcement agency whose purpose is to provide for the safety of individuals in cause no. 251853 in Jefferson County and sentenced to thirty days in jail on July 25, 2005;

• Convicted of aggravated assault, repeat offense, committed on September 1, 1989, in cause no. 53301 in Jefferson County and sentenced to twenty years in TDCJ on April 9, 1990.

Applicant's criminal history shows a repeated pattern of crime with increasing violence. After graduating from larceny and criminal trespass, Applicant was convicted several times of assaulting the women in his life, which culminated in a twenty-year prison sentence for aggravated assault. Applicant spent a few weeks on parole for that aggravated assault offense before committing capital murder.

The State also introduced Applicant's parole records, which showed that Applicant:

• Convicted of theft in December 1987, sentenced to three years and paroled in February 1988;

• Violated parole after one year, convicted of burglary of a building in December 1988, and sentenced to five years;

• Paroled again on March 21, 1989;

• Violated parole after one year and two months, parole revoked in October 1989, convicted of aggravated assault and sentenced to twenty years in TDCJ;

• Paroled on twenty-year sentence in November 2001;

• Convicted of theft in December 1987, sentenced to three years and paroled in February 1988;

• Violated parole after one year, convicted of burglary of a building in December 1988, and sentenced to five years;

• Paroled again on March 21, 1989;

• Violated parole after one year and two months, parole revoked in October 1989, convicted of aggravated assault and sentenced to twenty years in TDCJ;

• Paroled on twenty-year sentence in November 2001;

• Violated parole and returned to prison in January 2003 for failure to report, arrest for terroristic threat and positive test for cocaine;

• Paroled again In November 2004, confined to intermediate sanctioned facility (ISF) in December for use of cocaine and failure to comply with his schedule;

• Placed on electronic monitor when released from ISF in March 2005, taken off monitor in June, 2005;

• Arrested on June 27, 2005, for family violence assault and interfering with an emergency phone call;

• Parole revoked again on September 1, 2005, returned to prison for his twenty-year sentence for aggravated assault;

• Paroled again on July 12, 2010, sent to Beaumont Center halfway house, where he remained for three months until sentence was discharged and no longer under supervision.

And according to Applicant's case summary: “He should be considered a threat to society due to his assaultive potential, which is further evidenced due to a misdemeanor charge for unlawfully carrying a Weapon and 2 misdemeanor assault convictions.”

Before embarking on his life of crime, Applicant served in the United States military. Testimony during Applicant's trial revealed that Applicant had served nine years in military service. Applicant's military records showed a significant number of AWOLs, including two desertion charges that were reduced to AWOLs. One AWOL was for a term of longer than a year. The other was simply labeled “desertion.” Testimony showed that he was absent from service “in the neighborhood of 900 days”—approximately three years. Applicant was court martialed, charged with nine different specifications, and found guilty of (1) attempted forgery of a check; (2) desertion for more than a year; (3) a second desertion; (4) disrespecting an officer; and (5) disobeying a noncommissioned officer. Applicant received 180 days confinement, changed to 126 days on appeal, and a bad conduct discharge.

The State called a laundry list of witnesses to testify about Applicant's violent past:

• Gloria Prevost Freeman, Applicant's ex-wife, testified that she met Applicant in high school. The couple got pregnant when Freeman was sixteen and got married when she was seventeen and he was nineteen. Applicant enlisted in the Marines and lived at Camp LeJeune in North Carolina. There, Applicant became abusive and would push her, strike her, and put his hands around her neck. Freeman later escaped the abuse. Applicant and Freeman had a baby girl—named LaDonna—who was born with health issues and died at eighteen months old. Prior to LaDonna's death, Applicant came to Freeman's apartment and held Freeman by the neck, saying she was not going anywhere. Applicant had anger issues when they were together and they divorced in 2000.

• Victoria Lewis testified that about four weeks before the murders, Applicant choked her with two hands, lifted her off the ground, and threatened to kill her after she asked him not to touch her daughter when they were living at Vicki Alexander's apartment. Ramona Collins witnessed Applicant choking Lewis. Collins begged Applicant to stop and tried to get him off Lewis.

• Lauralee Simmons testified that she met Applicant at a club when she was twenty or twenty-one years old in 1980 when Applicant was at Camp LeJeune. Applicant asked her to give him a ride down the street. In the vehicle, Applicant tried to kiss Simmons and touch her breasts. When Simmons stopped Applicant's attempts, Applicant got forceful and put his hands on her neck.

• Michael Magby testified that he hired Applicant as a general maintenance worker at the Park Inn in Groves, Texas. After Magby's 1986 Isuzu pickup was reported missing, Applicant was seen in the vehicle at some apartments, wearing Magby's gold ring. The ring was later found at a pawn shop.

• Dawn Stephanson Windon testified that she dated Applicant for two or three months in the early 1980s. She told the jury that Applicant hit her in the mouth when she asked him to slow down while driving home from the zoo with her children. When the couple arrived home, Applicant swung a hammer at Windon's head and fled when Windon's brother came inside. About two weeks later, Applicant approached Windon, who was sitting in a truck at a gas station, and began kicking the doors of the truck. After Windon left the gas station, her friend Claude picked her up and took her to his house where Applicant attacked Claude while Windon locked herself in the car. Applicant broke the car window with his fist, unlocked the door, grabbed Windon by her hair and forced her out of the car and around the corner inside an abandoned house. Applicant kept Windon prisoner inside the abandoned house for two days where he kicked her in the face and stomach, hit her with his fist, hit her ankle with a hammer, and tied her legs with a rope that he also tied to his belt. When the owner of the abandoned house showed up, Applicant told Windon to tell him that she had been in a car wreck, or he would kill her. However, Windon managed to tell the homeowner what really happened while he was taking Applicant and Windon to Applicant's mother's house. Subsequently, Applicant held a box cutter against Windon's wrist while Applicant's mother talked to the police at the door. Eventually, Windon and Applicant ended up at Windon's uncle's house where Applicant fled. Windon was taken to the hospital where she had her right ovary removed and her leg injuries treated. Applicant continued to watch Windon after the attack and would show up at her job at Popeye's and “talk crazy” to her. Sometime in 2002 or 2004, Windon saw Applicant while she was walking to a store around dark, so she broke a beer bottle, covered it with a towel, and had a man at the store take her to her father's house.

• Bell testified that Windon told her about the abandoned house incident but did not realize that the man in Windon's incident was the same man that she had met on September 1, 1989. Applicant came to Bell's house and told her that he liked her and wanted to hook up with her. Bell refused Applicant's advances, and he tried again later at a club, Bell again said no. After twice refusing Applicant, Bell realized someone was going through her mail and looking through her window. Years later, on September 1, 2009, Bell was returning from walking her daughter to school when Applicant ran up behind her and asked for a glass of water. After stopping at a friend's house for some water, Applicant continued to walk with Bell and asked for another glass of water when they arrived at her house. When Bell went into the kitchen, Applicant came up behind her and started choking her with a belt, saying “You're a strong bitch, but you're not going to get away with it.” Bell could not breathe and momentarily passed out. Bell's boyfriend came in and Bell passed out again and came to in the hospital. Bell suffered vision problems, trouble swallowing, red spots in her eyes, and scratch marks around her neck. This factual background was the basis for Applicant's aggravated assault conviction and twenty-year prison sentence.

• Vicki Alexander testified that she received a letter from Applicant while he was incarcerated for the capital murders. In the letter, Applicant stated he was all right with the State seeking the death penalty. Applicant also stated he made peace with God and that he could not explain why the crime happened. Applicant also asked Alexander for “help with some funds.” Alexander testified that Applicant was a manipulator.

Even before Applicant's trial attorneys started their mitigation case, the jury saw a mountain of aggravating evidence. Applicant committed a brutal double murder a few weeks after paroling out of prison from a twenty-year sentence for aggravated assault. He had been to prison twice beforehand. He had been convicted of desertion and given a bad conduct discharge from the military. And he had a rich history of violence.

c. Mitigating Evidence

Nevertheless, Applicant's trial attorneys presented a lengthy mitigation case during punishment. Applicant introduced the following evidence:

• Thomesa Lewis Hollins, Applicant's younger sister, testified that she and Applicant grew up living with their grandparents because Applicant's father died at an early age and Applicant's mother suffered from chronic depression and was often hospitalized. Hollins suffered from chronic asthma and lung failure as a child and Applicant was often nurturing to her. Hollins testified that when Applicant got out of prison, she went to church with him. She knew of Applicant's history of problems with drugs and alcohol and testified that Applicant needed more rehabilitation to adjust to life in society after prison. Hollins further testified that Applicant's mother, brother, and wife died while he was in prison for the aggravated assault charge, and he was not able to attend the funerals and was sorry that he was not able to be there to support his wife's son. She further testified that Applicant cried and was remorseful when Hollins visited him in jail after his capital murder arrest and that she forgave him.

• Dinisha Joseph, Applicant's older sister, testified that she and her siblings were raised by her mother and grandmother; that their grandmother was always there for them; and that they were always loved and never wanted for anything. She testified that Applicant was always there for them and was like a father. Joseph testified that the death of LaDonna, Applicant's child, really hurt him.

• Kevin Jones, Applicant's older brother, testified that Applicant was like a father to him during his childhood. Jones also testified that their mother loved them and did what she could to make sure that they had what they needed, but she could be tough and sometimes scolded them and sometimes whipped them with a belt or switch. Jones also testified that he and Applicant would sometimes fight about the men their mother brought home and that their mother once shot a pistol at Applicant to break up one such fight.

• Daniel Provost,2 Applicant's cousin, testified that Applicant had a good relationship with his mother and his stepfather and that they were just a normal family. Provost described the death of Applicant's younger sister, Starklyn, who died at the age of eight years old when she swallowed a lipstick cap. Provost testified that Applicant was close to Starklyn and was hurt by her death. Provost also testified that is was hard on Applicant when his own daughter LaDonna died.

• Alesia Bean testified that she met Applicant in 1982 and began a romantic relationship with him after she was pregnant with another man's child. Applicant stayed with Bean at the hospital the night Bean had her baby, and she named the baby Jeffery. Bean testified that after she had her son, she and Applicant began a relationship, and she became pregnant with their daughter Zenobia within a few months. She testified that Applicant was a good provider and took care of her children, even the two children that were not his. She also testified that Applicant would get emotional when he talked about LaDonna after her death. Bean testified that even after they stopped dating (and after Applicant got out of prison), Applicant continued to be a good father, love and treat his daughter well, and treat Bean as if she was special.

• Zenobia Bean Green, Applicant's daughter with Alesia Bean, testified that Applicant would take her to the park when she was young and was very kind to her. Green also testified that Applicant treated her well as a father. After Applicant was arrested for the capital murders, Green testified that she visited him in jail and he cried because he missed her and her children.

• Starklyn Prevost Logan testified that she was Applicant's and Gloria Prevost Freeman's daughter and first saw Applicant when she visited him in prison when she was eighteen years old. Years later, Applicant came to Virginia and got her because she did not want to be with her husband anymore. She testified that Applicant treated her and her children well and helped her with her children. She also testified that when she visited Applicant in jail, he was crying, and that she loved Applicant.

• Rynisha Jones testified that she was Applicant's niece and met Applicant at her grandmother's house when she was about twelve or thirteen years old. She testified that Applicant's mother was loving, caring, outgoing, and did not seem to have any mental issues. Jones also testified that Applicant was always loving and caring to her.

• Hershelle Prevost testified that she was Applicant's cousin and has the same grandmother. Prevost testified Applicant took care of Starklyn's disabled children and was very attentive to them.

• Reverend Clarence Callahan testified that he met Applicant about ten to fifteen years before Applicant's trial when Applicant and Theressal were church members. Callahan testified that Applicant participated in services at church. Callahan also testified that he wrote a letter to the parole board on Applicant's behalf, and, after Applicant was paroled, Callahan met Applicant with Sherry White in church. Applicant cried during the service.

• Trisha Rubero testified that she used to work at the Spindletop Center when, on December 28, 2010, Applicant had an initial appointment for a diagnosis of major depression. Applicant also saw a counselor on January 12, 2011. Rubero testified that Applicant was respectful and friendly to her.

• Jeffery Demuth testified that he met with Applicant at Spindletop on January 12, 2011, as an intake therapist. Applicant reported that he attempted suicide in the early 1980s; that he had a past diagnosis of major depression; that he was prescribed Doxepin; that he was hospitalized at Skyview Unit in 2003; and that he stopped taking his medications in 2005. Demuth testified that Applicant reported that he was trying to cope since he got out of prison two weeks earlier and that he was going to be discharged from Beaumont Center in 49 days. Applicant also told Demuth that his wife died about nine months earlier and his mother died about a year before that. Applicant, who was having problems coping, had also been diagnosed with adjustment disorder. Demuth gave Applicant a diagnosis of bereavement and a referral for counseling, but Demuth did not think that Applicant should be referred to a psychiatrist. Demuth testified that Applicant was courteous and polite to him.

Some of Applicant's mitigation evidence was challenged or, in some instances, “double-edged.” For example:

• Thomesa Hollins, Applicant's younger sister, had a 2006 theft conviction in Harris County. She was also diagnosed with depression, hospitalized in 1995, and received medication.

• Dinisha Joseph, Applicant's older sister, had been previously convicted of manufacture and delivery of a controlled substance in 2010, and twice previously convicted for possession of a controlled substance in 2008. She, too, was diagnosed with depression and was taking Prozac and Trazodone.

• Kevin Jones, Applicant's older brother, was in jail in Nashville for auto theft, reduced to joyriding, at the time of his testimony during Applicant's trial. He had previously served six years in prison in Texas for robbery and had been Applicant's cellmate for four or five months at the Ferguson Unit. After both were released from prison, he hired Applicant to work for his construction business, but Applicant soon returned to dealing drugs.

• Alesia Bean testified she and Applicant would argue and that she would provoke Applicant who would slap her to get her off him. She also testified that Applicant had issues being possessive and controlling.

• Zenobia Bean Green, Applicant's daughter, had been previously convicted of: (1) theft under $1,500 in 2013 and sentenced to six months jail; (2) theft between $500 and $1,500 in 2011 and was sentenced to 20 days in jail; and (3) another theft in 2011 that was concurrent. She also had a theft-by-check case in 2009 that was dismissed. Green also received five years’ probation in Jefferson County for unauthorized use of a motor vehicle and felony theft in 2010; her probations were revoked, and she was sentenced to 180 days in jail. In 2003, she was convicted of Class B theft. And she had an outstanding warrant for her arrest in Harris County for theft by check.

• Starklyn Prevost Logan, Applicant's daughter, admitted that she had two prior theft convictions in Harris County and was currently on probation in Virginia for embezzlement.

Testimony about Applicant's conduct in prison also cut both ways. Lane Herklotz, a retired state prison classification committee member, testified about Applicant's prison records. Herklotz testified that Applicant's records showed no disciplinary issues during his first and second prison trips. However, Applicant's prison records did show numerous infractions during his third trip to prison on his twenty-year sentence for aggravated assault:

• July 3, 1990: violation of posted unit rule, did not turn in pair of underwear and socks, received commissary restriction and reprimand;

• August 13, 1990: failed to obey order to return to his cell, lost time in class and received 30-days commissary restriction and 15-days cell restriction;

• August 16, 1990: out-of-place violation and lying to officer, received 10-days commissary restriction;

• April 6, 1991: received 4 extra duty hours for a violation that was not serious;

• May 11, 1991: possessed contraband radio without proper paperwork;

• May 21, 1991: possessed contraband, thermal shirt, and colored construction paper, received 15-days commissary restriction;

• August 31, 1991: out of place in violation of rule against going in someone else's cell, received a reprimand;

• January 16, 1995: made unauthorized commodity exchange, received 15-days commissary restriction;

• January 18, 1995: failure to obey an order to be quiet in the main hallway and use of the F-word;

• April 3, 1995: failure to obey order to stop using profanity, received 30-days commissary restriction;

• May 13, 1995: exposed his penis to correctional officer, received 45-days commissary restriction and 45-days cell restriction;

• May 31, 1995: pleaded guilty to possessing contraband tobacco, received 30-days cell restriction;

• January 3, 1996: possessed contraband rolling papers, canned goods, envelopes, hygiene items, and pair of gloves, received 30-days commissary restriction;

• July 7, 1996: violated written or posted unit rule, received reprimand.

And while Herklotz testified that he would classify Applicant's record as fairly good conduct, Applicant's conduct was becoming increasingly worse. Unlike his first two incarcerations, Applicant had begun violating prison rules and procedures during his third incarceration. This evidence demonstrated an escalating trend of violence.

Sergeant Gilbert Vilano, a TDCJ correctional officer, testified that Applicant was assigned to work for Vilano in 2008 in the prison kennel. Sergeant Vilano testified that Applicant followed orders and performed his work, but Applicant did get into a verbal argument with another inmate, which required them to be separated. Applicant never tried to escape when doing tracking exercises for Sergeant Vilano. Luis Lopez, a TDCJ correctional officer, testified that he knew Applicant for about a year when Lopez was the relief officer in the kennel department, and that he never had a problem with Applicant.

Applicant's trial attorneys also called two mental health professionals to testify during punishment. Erica Trevino, a psychotherapist for prison inmates, testified that Applicant was referred to her due to being depressed, withdrawn, or having crying spells in February 2010. Trevino and Applicant met alone, in a minimum-security unit, and Trevino had no problems with Applicant, who was respectful and courteous. Trevino concluded that Applicant did not meet the criteria for mental health services and treatment.

Gilda Kessner, a clinical psychologist, testified that she interviewed Applicant, reviewed Applicant's records, and spoke to other witnesses related to Applicant. Kessner never testified about any prenatal issues, noting only that Applicant's grandmother and aunt both owned clubs, so there was a lot of drinking. Kessner testified that Applicant's mother dressed him in girl's clothing if he cried as a child to shame him. When Starklyn died, Applicant—who was about thirteen years old—was not asked how he felt about the death or if he needed help or counseling, and felt like he was carrying the death on his own. When his mother was hospitalized after Starklyn's death, Applicant stepped into the role of caretake for his younger siblings, even though he had no training as to how to be a big brother or surrogate parent.

Kessner testified that, while in high school, Applicant tried to intervene with a man who was hitting his mother. Applicant's grandmother also gave him black mollies, a type of speed. He joined the Marines at the age of seventeen and was stationed in North Carolina. The drinking age where Applicant was stationed was eighteen, so there was a lot of drinking that led to lapses in Applicant's judgment. Applicant became surly and agitated, talked back to his superiors, and failed his military occupational specialty, so he returned to the regular infantry. Gloria returned to Texas to finish high school when she was then in a car accident. Applicant went AWOL to pick up the insurance check in Texas. While still AWOL, LaDonna was born with severe birth defects. She later died, and Applicant was devastated that she had died alone because the doctor had told them she was stable and to go home. According to Applicant, LaDonna's death sent him into depths and was one of the lowest periods of his life. He turned himself in to the military, but the military was slow in processing him, so he became involved in criminal activity again. Applicant started to take drugs again, including acid, and briefly experimented with heroin, before returning to cocaine.

Kessner testified that by the time Applicant was sentenced to twenty years for aggravated assault, he had extreme anger issues because of rejection and humiliation that related to his shaming in early childhood. According to Kessner, Applicant could not control his anger when he was in relationships with women or where there was the potential for a relationship. Applicant had a neediness and dependency that caused women to become alarmed and drove them away, resulting in Applicant getting angrier and more frustrated. Applicant's drug addiction made things worse.

Lastly, Applicant's trial counsel introduced evidence in the form of TDCJ records showing that Applicant agreed to wear a body wire in a bribery case involving a correctional officer.

d. New Mitigating Evidence

Applicant's habeas application alleges that had trial counsel undertaken a proper investigation, trial counsel would have discovered and presented substantial mitigating evidence regarding Applicant's mental health and neuropsychological deficits to explain why he was not “wired right.” The Court denies Applicant relief on this ground and disagrees with the habeas court's findings that trial counsel failed to: (1) investigate whether Applicant's mother abused alcohol while she was pregnant; (2) investigate whether Applicant suffered from brain deficiencies; and (3) discover that Applicant suffers from organic brain impairment, executive dysfunction, and cognitive deficits. The Court correctly concludes that Applicant fails to demonstrate prejudice for two reasons.

First, some of the mitigating evidence that trial counsel failed to discover relates to Applicant's new diagnosis of “possible fetal alcohol syndrome,”³ which is not a diagnosis of anything. Dr. Diana Mosnik, a clinical neuropsychologist and forensic psychologist, testified during the habeas hearings. She reviewed prior reports, TDCJ metal health records, competency and insanity evaluations, habeas affidavits, and conducted a neuropsychological examination of Applicant. Other than diagnosing Applicant with “major depressive disorder,” Dr. Mosnik testified to “a possible diagnosis of fetal alcohol spectrum disorders.” When asked to clarify whether she had made a diagnosis of fetal alcohol syndrome, Dr. Mosnik again clarified that it was a “possible fetal alcohol syndrome” diagnosis. The exchange that followed provides even more context:

Q: But you also understand that there's – the only evidence of that in the record is just in one affidavit from his stepfather, right?

A: Absolutely. In the records that I reviewed, right. So it's a possible diagnosis. Because of that report, I did not — you know, he's not as far as I'm aware, the records that I reviewed had a medical diagnosis of fetal alcohol. That's correct. That's why it's a possible fetal alcohol spectrum. That's correct.

Q: Just to be clear, when you say he possibly had something, obviously, you're not saying that he actually has that thing, right?

A: I'm saying there's some indication in the records that there prenatal exposure to alcohol and that this profile, in addition to the ACEs, could be consistent with that. That's a possible to diagnosis I'm saying.

The habeas record is devoid of an actual diagnosis of a fetal alcohol spectrum disorder. In making her possible fetal alcohol syndrome diagnosis, Dr. Mosnik relied upon a single habeas affidavit—from Applicant's stepfather—and the adverse childhood experiences that Applicant suffered.

The habeas court faulted trial counsel for not “adequately investigat[ing] whether Applicant's mother drank heavily while pregnant with him,” because such an investigation would have revealed that he suffers from “possible fetal alcohol spectrum disorder.” Dr. Mosnik used the phrases “possible diagnosis of fetal alcohol spectrum disorders,” diagnosis of “possible fetal alcohol syndrome,” and diagnosis of “possible fetal alcohol spectrum” throughout the habeas hearing to refer to the diagnosis she made. Yet Dr. Mosnik never testified about whether this possible diagnosis is a medically accepted diagnosis of anything. Thus, the habeas court faulted trial counsel for failing to discover something that possibly could have led to a diagnosis of nothing. The Court today correctly concludes that trial counsel was not deficient for failing to discover a diagnosis of nothing.

Juxtapose this with the habeas court's findings. The habeas court found:

The court finds that trial counsel unreasonably failed to investigate whether Applicant's mother drank while pregnant with him, and that this may have been related to trial counsel's unreasonable delay in starting the mitigation investigation.

The court finds that trial counsel unreasonably failed to investigate whether Applicant suffered from brain deficiencies.

As a result of trial counsel's unreasonable failure to investigate Applicant's cognitive abilities, the court finds that the jury was left without information that Applicant had “genuine brain impairments” that affected his behavior.

None of these findings are supported by the habeas evidence. The jury was not “left without information that Applicant had ‘genuine brain impairments’ that affected his behavior.” The jury was presented with testimony from psychiatrists that had evaluated Applicant and had diagnosed him with depression. There were no other “genuine brain impairments” that existed that could have been presented to the jury.⁴

Second, even if we assume that trial counsel was deficient for failing to discover the evidence, Applicant did not suffer prejudice. Prejudice is shown when there is a reasonable probability that but for trial counsel's failure to discover the mitigating evidence, Applicant would not have been sentenced to death. Wiggins, 539 U.S. at 536, 123 S.Ct. 2527. In determining whether prejudice is met, we consider the totality of the evidence, “both that adduced at trial, and the evidence adduced in the habeas proceedings.” Ex parte Gonzales, 204 S.W.3d 391, 398 (Tex. Crim. App. 2006) (quoting Wiggins, 539 U.S. at 536, 123 S.Ct. 2527).

The horrific nature of the crime, coupled with the extensive aggravating evidence presented in the form of Applicant's prior criminal history and instances of violence far outweighed any notion of mitigation that would come from introducing evidence that Applicant suffers from a possible fetal alcohol syndrome diagnosis and organic brain impairment, executive dysfunction, and cognitive deficits. Applicant admitted that after he discovered that Sherry may have cheated on him, he fought with the thought of hurting her from Sunday through Wednesday. So, Applicant killed Sherry after thinking about hurting her for four days straight, obtaining her gun, and placing it on his side of the bed, all of which demonstrate that his decision to kill was the culmination of four days of continuous contemplation. A juror would need to overlook that evidence, Applicant's confession, the circumstances and brutal nature of the double-murder, and Applicant's violent criminal history. Even factoring in Applicant's newly alleged mitigating evidence, the aggravating evidence produced at trial greatly outweighs the mitigation evidence, such that there is no reasonable probability of a different result.

While Applicant's alleged brain injuries, including his possible fetal alcohol syndrome diagnosis, would contextualize why he engaged in a pattern of violence, specifically toward women, it would also present “a significant double-edged problem.” See Trevino v. Davis, 861 F.3d 545, 551 (5th Cir. 2017); cf. Martinez v. Dretke, 404 F.3d 878, 889 (5th Cir. 2005) (“As we have held, evidence of organic brain injury presents a ‘double-edged’ sword, and deference is accorded to counsel's informed decision to avert harm that may befall the defendant by not submitting evidence of this nature.”). The evidence that would have been introduced about Applicant's brain damage would have shown Applicant's inability to adapt behavioral responses and to understand others’ emotional expressions, and that Applicant's brain damage caused his violent behavior. That evidence, in turn, “would have substantiated the state's evidence and increased the likelihood of a future dangerousness finding.” Martinez, 404 F.3d at 890. Applicant's trial attorneys testified to that very conclusion in the habeas hearings. Moreover, trial counsel's mitigation strategy focused on remorse and rehabilitation. Applicant's organic brain impairment would have undercut those themes. Applicant's remorsefulness was demonstrated by him accepting responsibility for the murders, pleading guilty, and not challenging the voluntariness of his confession. Yet this new evidence demonstrates that he lacks control over his impulses, which undermines his ability to accept responsibility for murdering Sherry and Kyle. If Applicant could not stop himself from murdering Sherry and Kyle, then he cannot simultaneously accept responsibility for murdering them. Likewise, evidence of organic brain damage contradicts the notion that Applicant can be rehabilitated. It is impossible to say that the neuropsychological evidence presented by Applicant—which is hardly mitigatory—is material.

III. Conclusion

The Court today correctly denies relief. I join the Court's order doing so.

FOOTNOTES

1.   466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

2.   Provost testified that he and his father spelled their last name differently than Applicant.

3.   Whatever that means.

4.   To the extent that the habeas court found that “trial counsel unreasonably failed to investigate whether Applicant's mother drank while pregnant with him,” this argument, too, fails. There was no evidence at trial of this fact—even though several witnesses testified about the presence of alcohol in clubs that Applicant's family owned, and Applicant's mother frequented—and there was only a single habeas affidavit that supported the assertion that Applicant's mother consumed alcohol while pregnant.

Finley, J., filed a concurring opinion in which Parker, J., joined.