FLORES v. << (2012)

OPINION

A jury convicted applicant of two counts of capital murder for terminating his girlfriend's pregnancy by stepping on her abdomen, causing her twins to be delivered stillborn. His convictions and life-imprisonment sentences were upheld on appeal by both the court of appeals¹ and this Court.² Applicant filed a post-conviction application for a writ of habeas corpus alleging that his trial and appellate attorney provided ineffective assistance of counsel under the Sixth Amendment.³ After holding a hearing and taking additional evidence, the habeas judge⁴ filed findings of fact and conclusions of law recommending that this Court grant relief on two ineffective assistance of counsel claims: (1) failing to present the expert testimony of Drs. Harvey Kliman and Robert Bux at trial, and (2) failing to raise sufficiency of the evidence on direct appeal. However, rather than provide us with findings of fact that resolve the disputed facts, the trial judge made findings that are largely a recitation of the evidence presented at the writ hearing. Because these findings are not helpful to us in resolving the issues for which the case was remanded, we must conduct our own independent review of the evidence. After so doing, we deny relief.

I.

Applicant and his girlfriend, E.B., were both in high school when they began dating. They had been seeing each other for over a year when, in February of 2004, E.B. discovered that she was pregnant with twins. E.B. was sixteen and applicant was eighteen. E.B. eventually moved from her brother's house to applicant's family's home. E.B.'s pregnancy seemed to be a normal one. She visited her obstetrician, Dr. Jerry Johnson, regularly. During her first visit, E.B. was given the approximate due date of September 13th, and told that she was pregnant with twins. The next month, Dr. Johnson noted that there were no complaints and the pregnancy was progressing as expected.⁵ On April 30th, E.B. complained of “spotting, bright red blood,” which Dr. Johnson noted was potentially a cause for concern but not exceedingly uncommon. Dr. Johnson performed an ultrasound whose results indicated that the pregnancy was still a healthy one.⁶ At no point during any of E.B.'s visits did Dr. Johnson or his staff notice any bruising on E.B.

On May 7th, E.B. prematurely delivered two stillborn fetuses; they were between 20 and 21 weeks old. At the time of their premature birth, the twins had been dead in utero for between twenty-four and forty-eight hours. Emergency personnel took E.B. to Lufkin Memorial Hospital where nurses noticed she had “massive bruising” “all the way across” her abdomen, as well as fingerprint-like bruising underneath her right arm. The nurses tried to get E.B. to tell them who or what had caused the bruises, but E.B. refused to give them any information. The nurses reported E.B.'s condition to the Lufkin Police. After speaking to E.B., her doctors, and applicant, police determined that applicant was likely responsible for E.B.'s physical abuse which caused the premature delivery of the twins. Applicant was then arrested and charged with capital murder for causing the deaths of the fetuses.

Causation was a central contested issue at trial; both applicant and the State presented substantial testimony as to what caused the deaths. Three theories of causation were presented: (1) Applicant committed homicide by stepping on E.B.'s abdomen; (2) E.B.'s self-inflicted wounds caused the miscarriage; and (3) the fetuses died from a genetic abnormality. The State's theory was that applicant stepped on E.B.'s stomach, applying enough pressure to cause the twins' death. E.B's obstetrician, Dr. Johnson, arrived at the hospital shortly after E.B. was brought in. He described E.B.'s physical condition:

There was bruising over the right cheek bone. Her lip was cracked. There was blood apparent on both lips. The lips were both swollen, but I did not see any lacerations or any tears in the lips. Both upper arms had bruising which, in my opinion, appeared to be consistent with injuries from a finger grasp around the arm․ Her back and buttocks had no evidence of any trauma. The left breast had an old bruise. There was no new bruising evident on the left breast. Most of her bruising was over the abdomen, and it was around the level of the umbilicus, or the belly button, from ․ side to side going all the way across the abdomen.7

Dr. Johnson explained that it was unlikely that a pregnant woman—given the expanded size of her abdomen—could inflict these abdominal bruises on herself, especially since they were inflicted with enough force to cause a miscarriage.

Post-delivery testing, conducted by Lufkin Memorial Hospital Pathologist Dr. David Todd, revealed that E.B. had recent infarction⁸ in her uterus. Dr. Todd explained that the infarctions were about 24–48 hours old, and likely caused the death of the fetuses in utero.⁹ Dr. Todd concluded that such infarction was consistent with blunt force trauma and not the result of any genetic defect.

Finally, the State called Dr. Tommy J. Brown, who conducted the autopsies of the twin fetuses. Dr. Brown noted that the twins

were markedly macerated. By macerated that means if the fetus had been dead in utero for at least 24 hours or more, then the skin will slough off due to the autolytic of the juice's work on the skin of the baby ․ In other words, the superficial area of the skin is sloughed off and it has a markedly reddened skin. And both babies had that over their entire bodies except for the soles of their feet and their fingers, and that means they've been dead in utero for days.

After conducting the autopsy, Dr. Brown concluded that the cause of death was “intrauterine fetal demise ․ due to blunt force abdominal trauma to the mother.” Dr. Brown also looked at the photographs of E.B.'s abdominal bruises. He determined that the bruising was between three and six days old and consistent with E.B.'s being stepped on by a human foot. He did not notice any signs of genetic defects, but noted that, even if there were a genetic disorder, it would not necessarily have resulted in the twins' deaths. Dr. Brown stated unequivocally, “In this instance the babies died from blunt force trauma to the mother,” which was consistent with being stepped on.

In a series of written and oral statements given both before and after his arrest, applicant admitted to striking E.B. the night before her premature delivery. Applicant also admitted to stepping on E.B.'s stomach after she returned home from the April 30th doctor's appointment where she learned that it was too late for a safe abortion. In his defense, applicant called E.B. who testified that she wanted an abortion and, upon learning that she was too far along in her pregnancy to obtain one, asked applicant for his help.¹⁰ She explained that, at her request, applicant stepped on her stomach twice—once one week before and once two weeks before the premature delivery. E.B. admitted to getting into a fight with applicant the night before the premature delivery, during which he hit her in the face, but she claimed that the bruises did not come from any intentional conduct on his part.¹¹ E.B. also testified to “hit[ting herself] right on the stomach more than ten times,” in the hope of terminating her pregnancy.¹²

The State's theory was that E.B. was “under the spell” of applicant, and that her testimony was calculated to cover up his abusive behavior. In its cross-examination, the State focused on E.B.'s relationship with applicant¹³ and her earlier-expressed desire to carry her pregnancy to term.¹⁴ The State also called a rebuttal witness to testify to various psychological issues, including the seemingly irrational impulse of an abused person to protect the abuser that may arise when someone is in an abusive relationship.

To support his theory that the twins died from a genetic defect, applicant called Dr. Stephen Pustilnik, the Chief Medical Examiner for Galveston County. Dr. Pustilnik was not a treating doctor, but he reviewed hospital records, the autopsy report, and microscopic slides of the twins' tissue and of the placenta. He testified that E.B's pregnancy was not as normal and healthy as the State's experts described, noting the possibility that the premature birth could have been caused by a genetic defect. Dr. Pustilnik noted, “The placenta has evidence of disease in it․ It has evidence of possibly having a significant genetic disease. It has evidence of the placenta coming away from the wall of the uterus[.]”¹⁵ Dr. Pustilnik explained that the “infarction” or dead tissue was more consistent with the cells dying slowly over a period of time rather than suddenly as the State's witnesses had testified.

Dr. Pustilnik could not, however, rule out the possibility that physical trauma caused the deaths. When asked for his conclusion as to the cause of death, he responded:

One possibility is multiple blows to the abdomen [can] cause an abruption of the placenta from the inside of the uterus. A second cause is steady, constant, deep pressure to the abdomen of a pregnant woman can cause abruption of the placenta and peeling away of the placenta from the uterus. And the third thing is we have a placenta that has a natural disease to it that is also waiting to pull itself away and be rejected from the inside of the uterine cavity.

In sum, Dr. Pustilnik believed that it was possible, but not certain, that the twins died due to a genetic defect.

After considering all the evidence, the jury found applicant guilty and sentenced him to life in prison on both counts. On direct appeal, applicant was represented by the same counsel who represented him at trial. Counsel raised ten issues, which were arranged in three groups. The court of appeals affirmed,¹⁶ but because applicant presented novel and important issues of state law, this Court granted his petition for discretionary review. Ultimately we affirmed his conviction.¹⁷

Applicant then filed an application for a writ of habeas corpus raising twelve constitutional claims.¹⁸ We remanded the case to the habeas court for further factual development of two of the ineffective assistance of counsel claims. In response, the habeas judge entered eight pages of findings of facts and conclusions of law, ultimately recommending that relief be granted. We filed and set this case to address applicant's ineffective assistance of counsel issues.

II.

A criminal defendant is guaranteed the right to representation throughout the trial process.¹⁹ This Sixth Amendment right to counsel preserves the fairness, consistency, and reliability of criminal proceedings by ensuring that the process is an adversarial one.²⁰ A petitioner may establish a claim of ineffective assistance of counsel by proving, by a preponderance of the evidence, that counsel's performance fell “below an objective standard of reasonableness” and that such deficient performance actually prejudiced the defendant.²¹

There is a strong presumption that counsel's conduct was reasonable; indeed, strategic decisions “ ‘made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ “²² Counsel's conscious decision not to pursue a defense or to call a witness is not insulated from review,²³ but, unless a defendant overcomes the presumption that counsel's actions were based in sound trial strategy, counsel will generally not be found ineffective.²⁴

Additionally, “[i]t is not enough to show that trial counsel's errors had some conceivable effect on the outcome” of the proceeding.²⁵ Rather, the applicant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.”²⁶ A reasonable probability is one sufficient to undermine confidence in the outcome.²⁷ Both prongs of the Strickland test are judged by the totality of the circumstances as they existed at trial,²⁸ not through 20/20 hindsight.²⁹

In Ake v. Oklahoma,³⁰ the Supreme Court explained that the United States Constitution requires that an indigent defendant be granted access to expert assistance if “the expert can provide assistance which is ‘likely to be a significant factor’ at trial.”³¹ However, a defendant is not entitled to the expert of his choice³² or to a “team of experts” merely because multiple experts testify for the State.³³ Ake and its progeny are concerned with reliability, not equality: Was the expert assistance provided to the defendant so lacking or so meager as to create a “high risk of an inaccurate verdict”?³⁴ If the answer is no, then the State has fulfilled its constitutional obligation because a defendant is guaranteed a fair trial designed to ensure a reliable verdict, not a perfect trial.³⁵

III.

As an introductory matter, we will assume our role as the ultimate fact finder in this case.³⁶ The factual findings entered by the trial judge in this case do not assist us because they fail to resolve the disputed issues—they merely repeat and restate the parties' arguments.³⁷ The habeas judge is “[u]niquely situated to observe the demeanor of witnesses first-hand,”³⁸ and his findings and conclusions are generally accorded great deference, but when the findings are not supported by the record, or—as in this case—do not resolve the necessary factual issues, the rationale for this deference disappears.³⁹ Because the habeas judge's findings do not resolve the disputed fact issues, this Court must exercise its role as the ultimate finder of fact.⁴⁰

A. Applicant's Attorney Was Not Ineffective For Failing to Call Additional or Different Expert Witnesses.

1. Dr. Kliman. Applicant claims that his trial counsel should have retained and called Dr. Harvey Kliman, a leading authority in trophoblastic inclusions, as an expert witness because Dr. Kliman could have proven that applicant's actions “absolutely” did not cause the deaths of the fetuses. Dr. Kliman's testimony, applicant claims, would have been “much more forceful and certain” than Dr. Pustilnik's and, therefore, by not calling Dr. Kliman, trial counsel was constitutionally ineffective.

In support of his claim, applicant attached an affidavit from Dr. Kliman. After examining the slides of E.B.'s placenta, Dr. Kliman stated:

[E.B.'s] fetus' placentas showed definite signs of a genetic abnormality․ [E.B] also had a clinical history of bleeding throughout this pregnancy. When I find such abnormalities in a placenta and the patient has a history of bleeding in both the first and second trimesters, that pregnancy will result in miscarriage virtually one hundred percent of the time. The abnormalities I found in this placenta definitely were the basis of her miscarriage․ Whatever else may have been done to her was irrelevant to the deaths of the twin fetuses.41

At trial, counsel called Dr. Pustilnik, Chief Medical Examiner for Galveston County, and a former student of Dr. Kliman.⁴² Trial counsel testified, at the habeas hearing, that he had used Dr. Pustilnik in the past and found him to be a “very good, knowledgeable expert [who] testifies very well” and was adept at relating complex medical information to a jury. Counsel noted that, while Dr. Kliman was a researcher, Dr. Pustilnik was a “hands-on forensic pathologist” whom he had used before with positive results .⁴³ Moreover, Dr. Pustilnik was a local medical examiner employed by the University of Texas, whereas Dr. Kliman was an “academic” from an elite, east-coast Ivy–League college.

While Dr. Kliman notes in his habeas affidavit that he was available to testify at trial and would have done so without charge, he never informed counsel of his willingness to do so.⁴⁴ Indeed, trial counsel testified that he did not recall speaking with Dr. Kliman at all prior to trial. Counsel was, however, made aware of Dr. Kliman and his expertise in the field of trophoblastic inclusions through conversations with Dr. Pustilnik. Dr. Kliman's name came up a few weeks before trial when Dr. Pustilnik brought up the “alternative theory” of causation that E.B.'s pregnancy was “doomed from the start” because of genetic defects in her uterus. Dr. Pustilnik explained to counsel that he could testify effectively to this theory of causation, and he never mentioned any need for Dr. Kliman's testimony in addition to, or instead of, his own.

Given the state of the habeas record, we cannot say that trial counsel's performance “fell below an objective standard of reasonableness” when he selected Dr. Pustilnik as his expert witness.⁴⁵ Trial counsel's duty does not extend to obtaining the “best” or most highly qualified (but perhaps pompous, bombastic, or incomprehensible) expert in the nation.⁴⁶ Instead, it is to investigate the facts of the case and determine if an expert is necessary to present the defendant's case to the jury and, if so, to obtain competent expert assistance.⁴⁷ As courts in this and other jurisdictions have noted, the proper focus is on counsel's investigation, not counsel's choice of a specific expert.⁴⁸

Applicant was provided exactly what he was constitutionally entitled to. After an investigation into the facts, counsel determined that expert assistance was necessary, so he retained a well-known, highly qualified, local expert with whom he had worked before and who he knew testified well in front of a jury. When asked, Dr. Pustilnik assured counsel that he would be able to testify to the causation issue, leaving counsel with no reason to look elsewhere.⁴⁹ Applicant was entitled to competent expert assistance, and he received it.

Moreover, calling Dr. Kliman could have presented potential pitfalls for the defense. For instance, the Angelina County jurors might not have been especially receptive to an expert traveling halfway across the country—from Yale—to testify in their small-town, East–Texas courthouse. Although neither trial counsel nor the habeas judge have had the opportunity to actually see and hear Dr. Kliman in person, applicant notes the differences in the doctors' presentation styles, with Dr. Kliman being “much more forceful and certain.”⁵⁰ As an experienced local attorney, trial counsel made a strategic decision to choose an expert he thought would be the most appealing to the jury he would be appearing in front of. Such a decision is one to which we will defer.

Applicant has also failed to show how he was prejudiced by his trial attorney's alleged deficient conduct. The only difference between the two doctors' testimony is that Dr. Kliman was more forceful and certain in his conclusion that applicant's actions did not cause the twins' deaths. Applicant argues that, if the jury had heard this more forceful testimony, it would have acquitted him. However, this logic fails to take two factors into account. First, even if the jury had been presented with Dr. Kliman's testimony, it would still be entitled to reject it and convict applicant; nothing about Dr. Kliman's testimony guaranteed an acquittal. Second, as the habeas record shows, if Dr. Kliman had testified, the State would have subjected him to vigorous cross-examination and would have called counter-experts to testify that Dr. Kliman's theories were “junk science.”⁵¹ In short, by calling Dr. Kliman, the defense would have merely escalated the “battle of the experts,” but not changed the ultimate disputed fact that the jury had to decide: what caused the twins' deaths.

2. Dr. Bux. Applicant also claims that trial counsel was ineffective for failing to call Dr. Robert Bux, the Chief Medical Examiner of Colorado Springs, Colorado. Applicant claims that Dr. Brown's conclusions regarding the cause of death “derive more from what the State needed him to say than from his autopsy,” and Dr. Bux's affidavit “points out the failings in Dr. Brown's evidence.”⁵²

In his habeas affidavit, Dr. Bux states, “There is nothing in the autopsy report or in Dr. Brown's testimony to show what caused the deaths of these fetuses․ There is no medical evidence from the autopsy of the fetuses that their deaths were the result of homicide or of any action of Gerardo Flores.” While this testimony does directly contradict that of the State's expert, Dr. Bux's ultimate conclusion was no different from, and provided nothing more than, that of Dr. Pustilnik's.⁵³ Applicant has not explained how, if at all, Dr. Bux's testimony would have affected the outcome of the proceeding.⁵⁴

The habeas judge concluded that had trial counsel called either Dr. Kliman or Dr. Bux, their testimony would have been “of some benefit to the defense by raising a clear refutation of the State's theory.” The habeas judge noted that jurors could have accepted or rejected that testimony, but, because it was not offered, the jurors did not have that opportunity, and therefore applicant was prejudiced. But “some benefit” is not the correct prejudice standard under Strickland. The correct standard is that the evidence establishes a reasonable probability that the result would have been different, and a reasonable probability is one “sufficient to undermine confidence in the outcome.”⁵⁵ Prejudice is not established merely by a showing that calling additional experts would have provided “an opportunity” for additional, albeit hotly contested and disputed, expert testimony.

In sum, applicant has failed to prove, by a preponderance of the evidence, that trial counsel's performance was constitutionally deficient or that, had the defense called Drs. Kliman or Bux, the outcome of the trial would have been reasonably likely to end in a different result.⁵⁶

B. Applicant's Counsel Was Not Ineffective For Failing To Challenge Sufficiency of the Evidence on Direct Appeal.

Applicant claims that he is entitled to a new trial because his appellate attorney failed to raise a claim regarding insufficient evidence.⁵⁷ Applicant correctly notes that there were three possible causes of death presented at trial and no expert could definitively state which of the three possible causes was the actual cause of death. Because of this, applicant claims that counsel was ineffective for failing to challenge sufficiency of the evidence on appeal.

To obtain relief in the form of a new direct appeal on a claim of ineffective assistance of appellate counsel, applicant must show that “(1) counsel's decision not to raise a particular point of error was objectively unreasonable, and (2) there is a reasonable probability that, but for counsel's failure to raise that particular issue, he would have prevailed on appeal.”⁵⁸ An attorney “need not advance every argument, regardless of merit, urged by the appellant,”⁵⁹ but if “appellate counsel fails to raise a claim that has indisputable merit under well-settled law and would necessarily result in reversible error, appellate counsel is ineffective for failing to raise it.”⁶⁰

In this habeas proceeding, appellate counsel admitted that causation was a hotly contested issue at trial and nothing prevented him from raising it on appeal. However, counsel also testified that he “was really focused on the constitutional issues,” and “didn't think [we] had a chance on the sufficiency of the evidence” issue. His strategy instead was to “limit [the appeal] as much as possible for the Court of Appeals” because he wanted to “make it as clear as possible.” In so doing, counsel raised ten claims, grouped into three main areas: the constitutionality of the statute; the admission of evidence of an extraneous offense; and an improper/inadequate jury charge.⁶¹

Counsel was reasonable in his determination that a challenge to legal sufficiency was not likely to be fruitful. Applicant admitted that E.B. repeatedly asked him to help her abort the fetuses. He also admitted to acceding to her requests and described, in detail, how he went about it. E.B. had bruises consistent with applicant's admissions.

Dr. Todd examined the placenta after E.B.'s miscarriage and noted that there were several possible causes of death, but that the damage to the placenta was most consistent with trauma.⁶² Dr. Brown's testimony was based on the autopsies he conducted of the twins. He explained that the cause of death was blunt force trauma and was consistent with being stepped on.⁶³ Dr. Johnson, E.B.'s obstetrician, was at the hospital the day E.B. was admitted and saw her bruises first-hand. He testified that some of the bruises looked as though they had been made by a foot. He explained that he could not be positive as to the cause of death; it could have been caused by E.B.'s hitting herself or by someone's standing on her stomach. Finally, Dr. Pustilnik explained that he found trophoblastic inclusions in E.B.'s placenta which can indicate genetic abnormality and may result in spontaneous abortion.⁶⁴

It is true that none of the experts was positive that applicant's actions were what caused the deaths. However, several experts testified that his actions could have been the cause. Other experts claimed that it was impossible to tell exactly what the cause of death was. It was the province of the jury to “ ‘fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”⁶⁵ When the evidence supports “reasonably equal competing theories of causation,” it is the jury's duty to determine which theory is the true one, and their decision will be upheld on review.⁶⁶ Appellate courts are not to disturb a jury's findings on these matters unless no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁶⁷ Here, given the evidence presented at trial, and “considering all the evidence in the light most favorable to the verdict,” it is difficult to see how a claim of insufficient evidence could have been successful.⁶⁸ At a minimum, it is not a “clearly stronger” issue than those that applicant's counsel did bring on appeal.⁶⁹

In support of his claim, applicant relies on Grotti v. State,⁷⁰ a prosecution for criminally negligent homicide by a physician for blocking the breathing tube of a dying patient. Applicant's reliance on Grotti is misplaced for several reasons. First, Grotti was reversed for factual insufficiency under Clewis,⁷¹ not legal insufficiency under Jackson.⁷² It applied a different standard of review that we did away with in Brooks.⁷³ Second, in Grotti, there was considerably more testimony suggesting that the victim had died prior to the actions of the defendant.⁷⁴ While the issue in both Grotti and this case is the same—whether the victim had died prior to the defendant's conduct—the two cases are factually distinct. In Grotti, it was uncontested that the deceased would have died had Dr. Grotti never acted: she had terminal cancer; her heart had stopped beating; she was not breathing. In the present case, there was no documented history of genetic disease, and no uncontested evidence that the fetuses would have self-aborted absent applicant's actions. Thus, for both legal and factual reasons, applicant's reliance on Grotti is misplaced.

In sum, applicant has failed to show that there is a reasonable probability that he would have prevailed if he had raised a sufficiency of evidence claim on appeal.⁷⁵ Therefore, applicant has failed to prove his entitlement to a new direct appeal based on his claim of ineffective assistance of appellate counsel.

IV.

In addition to the above ineffective-assistance claims, applicant raised several other claims in his petition. Our remand order did not request further factual development of these claims, but the trial judge concluded that they were without merit. Based upon our independent review of the pertinent facts and applicable law, we agree with the trial judge that relief is not warranted on any of those additional claims. Because applicant has not established any of his constitutional claims, we deny relief.

In Ex parte Reed, we held that, when a trial court makes findings of fact that are “not supported by the record,” we may make our own findings of fact.¹ The Court now goes a step beyond Reed and holds that when a trial court's findings “do not resolve the necessary factual issues” we must exercise our role as the ultimate finder of fact. But if the problem is just that the findings that the trial court has made are “not helpful” and do not adequately address the issues to be resolved, it seems that the proper course of action should be to remand the case to the trial court to make findings that do address the issues to be resolved. We do it all the time. If inadequacy of the findings were the real problem in this case, I would do the same here.

In this case, however, we need not remand the case to the trial court because it really does not matter what the trial court's findings are. The evidence presented in this case supports only one legal conclusion: that appellant was not deprived of the effective assistance of counsel.

As the Court points out, trial counsel presented the testimony of a well-qualified expert, Dr. Pustilnik, a medical examiner from a nearby county in Texas. Dr. Pustilnik's testimony was, in general, favorable to applicant. Dr. Kliman was also well qualified, but he was a researcher rather than a “hands on” expert, and he was from out of state. As a matter of law, the decision to call a well-qualified, local, hands-on expert instead of a well-qualified, out-of-state, research expert does not constitute deficient performance. Even if the trial court did not believe trial counsel's explanation for his decision regarding Dr. Kliman, that decision does not meet the first prong of Strickland. And counsel cannot be faulted for failing to call Dr. Bux, whose testimony would have been cumulative of that presented through Dr. Pustilnik.

With respect to the prejudice inquiry, our task is not to determine whether Dr. Kliman rather than Dr. Pustilnik should be believed.² Instead, our task is to determine whether there is a reasonable probability that Dr. Kliman's testimony would have impacted the jury in such a way as to change the outcome of the case. As the Court points out, the State could have called experts to attack Dr. Kliman's theories, so calling Dr. Kliman would merely have escalated the battle of experts without appreciably changing the relative weight of the defense evidence versus that presented by the State. And the cumulative nature of Dr. Bux's testimony means that there is no reasonable probability that it would have affected the outcome of the case.

Finally, with respect to applicant's claim that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence, the Court's analysis shows that the evidence was in fact sufficient to support applicant's conviction, so he suffered no prejudice. Moreover, given that appellate counsel presented issues that were weighty enough for this Court to grant discretionary review of them,³ counsel cannot be found to be deficient for failing to present an unmeritorious sufficiency-of-the-evidence claim.

With these comments, I concur in the Court's judgment.

COCHRAN, J., delivered the opinion of the Court in which WOMACK, JOHNSON, KEASLER, and ALCALA, JJ., joined.

KELLER, P.J., filed a concurring opinion in which HERVEY, J., joined. PRICE, J., concurred. MEYERS, J., did not participate.