Free Hannah Overton

National News

Nos. WR-75,804-01

WR-75,804-02

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                            EX PARTE  § (CAUSE NO. 06-CR-3624-F

  HANNAH RUTH OVERTON § IN THE 214th JUDICIAL

TDCJ-ID #01478117 § DISTRICT COURT

                               § NUECES COUNTY,

                                           § CORPUS CHRISTI, TEXAS)

APPLICANT’S OBJECTIONS TO FINDINGS OF FACT AND CONCLUSIONS OF LAW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS, AUSTIN, TEXAS:

Judge Jose Longoria issued his Findings of Fact and Conclusions of Law attached as Exhibit 1 hereto. Exhibit 1 to Obj.Judge Longoria's FOFCOL.pdf. Hannah Overton objects that they are not supported by the record and asks this Court to reverse and render her conviction based on the clear and convincing evidence that both firmly establishes her actual innocence and that the scientific evidence at her trial was not competent evidence.1

INTRODUCTION These objections are formatted to provide this Court with an executive summary followed by Hannah Overton’s objections to each of the trial Court’s Findings of Fact and Conclusions of Law. In the electronic form of this document, a click on the record reference will take this Court, and its attorneys, to the hyper-linked and highlighted page(s) in the record that substantiate each objection.

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1She sought exclusion of this evidence pretrial and complained of its admission, in error, also on appeal.

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SUMMARY At trial, the State withheld and obscured the sodium level test results of victim Andrew Burd’s [“AB”] first vomit which the uncontroverted testimony acknowledged was “critical” to a determination of the cause of death and Hannah Overton’s innocence. The testimony of the world’s leading expert on sodium intoxication was neither viewed nor presented by trial counsel. As a consequence no expert on the very medical condition that killed AB was presented to the jury.

Moreover, the State withheld photographs of the State’s sodium level testing, which revealed that AB had a gastric sodium level of 250 meq/l, in his first vomit not the “low sodium level” of 48, represented to the defense. This withheld fact, now verifies that it was self-ingestion of earlier sodium that led to the child’s fatal sodium intoxication. This withheld fact establishes that the child was not force-fed a hyper-acute amount of Zatarain’s and water as the State charged, argued and insists to this day. Instead, the sodium content of his first vomit matches that of Wendy’s chili with a sprinkle of Zatarain’s, precisely what Hannah Overton had repeatedly told hospital personnel and police at the time and testified to later at trial.

This science, coupled with the physical evidence, Hannah Overton’s statements and her testimony establish her actual innocence. Had the withheld evidence been available and presented at trial any reasonable jury would have returned a verdict of acquittal.

THE STATE’S THEORY

1. The State’s theory was that Hannah Overton forced a slurry of 23 teaspoons of Zatarain’s seasoning in water in a sippy cup down AB’s throat as she struggled with him on the floor holding his nose and mouth.2 Its alternate theory was that Hannah Overton failed to give AB medical care knowing that he would die.3 This is despite the above and the fact that she gave AB medical care commensurate with his symptoms at every stage of his illness and that once he ingested the lethal dose of sodium, he could not have been saved.  a. Hannah Overton did provide AB medical care. She administered medical     care commensurate with AB’s cold like symptoms. She warmed him when     he was chilled, he had free access to water4 (that is the best treatment to

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2The State neither retrieved the sippy cup, nor did it put its contents in evidence.

3The State also indicted on the theory that Overton injected AB with sodium or that AB died of blunt force head trauma. Neither of these theories were submitted to the jury since there was no evidence in support of either of them.

4The State conceded this in its closing argument in the writ hearing as well. 8WH81, 94 [Intro.8WH81.94.pdf].

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dilute sodium),5 she gave him a breathing treatment her other son used for his asthma when AB’s breathing was congested, and when he became listless and his breathing was congested again she and her husband, Larry, rushed him to Driscoll Urgent Care facility in the family car. When he stopped breathing, as they pulled up, she administered CPR and mouth-to mouth resuscitation in the car and continued as they went into Driscoll Urgent Care.  

b. The State argued that her failure to call 911 caused AB’s death, even though there is no successful treatment for this high a level of sodium intoxication and even though it took emergency room physicians hours to diagnose the hypernatremia. AB’s pediatrician and other doctors testified that you would not get an ambulance to respond for cold and flu symptoms such as AB had exhibited. Moreover, during the first hours that he was in physicians’ care, doctors continued to administer saline and sodium bicarbonate which contain more sodium, hardly an antidote to sodium poisoning. The jury that convicted Hannah Overton did not know these facts.

STATE’S WITNESSES LACKED KNOWLEDGE ABOUT HYPERNATREMIA

2. No expert on hypernatremia testified regarding that condition. Dr. Rotta, the State’s expert, admitted in pretrial testimony, that he did not know anything about the science regarding hypernatremia.   

“Q. And what medical papers do you have that can tell us how quickly he  would need to receive treatment in order to survive? 

A. What do you mean, that I have? That I have written or that I have  encountered? 

Q. Can you point to me a single paper saying that if somebody has a serum  sodium above 200, that they have to get treatment within a ten-minute  period of time, an hour period of time, a two-hour period of time to  survive? 

A. That is not part of the literature. You will not encounter that. That is not  known knowledge. And if it is known knowledge, it is—you know, one  would have to look at the science of that [hypernatremia].” 8RR1396  (Daubert hearing).

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5Thus, if she was intentionally sodium poisoning him, she would not have given him water.

6“8RR139” is from Volume 8 of the Reporter’s Record of the trial at page 139. The Writ Hearing transcripts are noted as “WH” (i.e. Vol. # /WH /page #); the Defendant’s Exhibits are noted as “DEx#”, the State’s Exhibits are noted as “StEx#”; the Clerk’s Record is noted as “CR” for Clerk’s Record; the trial transcripts are noted as “RR” for Reporter’s Record and the trial exhibits are noted as “RRDEx” or “RRStEx” for Reporter’s Record Defense or State’s Exhibits.

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He did not know of a single case involving hypernatremia among the cases that he was relying on to say that AB would have survived if he had been taken to the Urgent Care facility earlier. 8RR141. He further testified that he discussed with a Dr. Halperin his thoughts of the possibility that AB’s death was not intentional salt poisoning. 11RR71-72. After sharing these thoughts, Dr. Halperin called him back with more information, which would point to accidental sodium intoxication.

DEFENSE FAILED TO PUT ON WORLD’S EXPERT ON HYPERNATREMIA

3. The defense was also ineffective during trial. The trial lawyers did not observe Dr. Moritz’ testimony taken during an out-of-court deposition by a civil lawyer who was not involved in the criminal trial. They neither reviewed the video deposition, did not edit it, nor did they put on his live testimony. These lawyers testified that they had “failed [Hannah Overton] miserably” because of this and were “ineffective” because they presented no defense medical evidence regarding hypernatremia, the very medical condition that killed AB. They testified that this failure led to Hannah Overton’s wrongful conviction and that with Dr. Moritz’ testimony she would have been acquitted.

EXONERATING BRADY EVIDENCE WAS WITHHELD AND HIDDEN

4. The defense lawyers were affirmatively told, upon repeated requests, that the first vomit did not exist. Moreover, the favorable nature of those tests was hidden by switched lab results reflecting an erroneous sodium level for the child’s first vomit. During writ discovery in 2010, habeas counsel discovered a test result document from Spohn Hospital that reported a 48 meq/l sodium level for what the Medical Examiner’s office mistakenly labeled aas “sample D” containing “hospital gastric contents.” Likewise, “Sample E” was erroneously labeled to contain “Zatarains + H2O”, having a 250 meq/l sodium level in the test result documents. While the 48 meq/l test result and ME’s “key” document had been produced in an ancillary civil child custody case concerning the Overton’s other children, it was not provided to criminal defense counsel, and the photographs clearly showing that the samples had been switched was withheld from all defense counsel and their experts.

5. The Medical Examiner had sent items labeled A-F (including the child’s first vomit7) for testing of sodium levels after the lead prosecutor requested the testing of the vomit via an October 24, 2006 email to the police who had it in their custody.8

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7The Medical Examiner’s “key” shows sample “A” to contain water, sample “B” to contain water and salt, sample “C” to contain Wendy’s chili, sample “D” to contain Zatarains and water, sample “E” to contain “hospital gastric content, and sample “F” to contain chili powder and water.

8Despite the prosecutor’s repeated representations to Defense counsel and her own co-counsel, that no such vomit was available for testing.

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6. Photographs of the Medical Examiner’s “experiment,” which were withheld from the defense entirely, conclusively show that the child’s first vomit was in fact in sample labeled “E.” which tested at a 250 meq/l sodium level, not in sample “D.” which tested at a much lower sodium level of 48 me/l, as reflected in the Medical Examiner’s “key” or legend to the samples sent for sodium level testing.

7. Further, these documents alone did not reveal the true nature or quality of this evidence. The “hospital gastric content” was not from a hospital at all, but was the first vomit of AB collected by Driscoll Urgent Care facility. It did not test at a sodium level of 48 meq/l (similar to lavage), but at 250 meq/l, proving Overton was innocent of force feeding her child a hyper-acute amount of sodium. The 250 meq/l level of sodium is roughly equal to the sodium content of Wendy’s chili mixed with a little Zatarains.9 Again, this is what Hannah Overton told medical personnel10 and the police11 that she had given AB, and precisely what she testified to at trial. Moreover, the medical personnel who collected the child’s first vomit also recalled that it smelled like chili powder.12

CRUCIAL FIRST VOMIT WAS

MISCHARACTERIZED AS MEANINGLESS LAVAGE

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9One of the nation’s leading medical examiners, Judy Melinek, M.D. testified that gastric contents with a sodium level of 250 “matches the chili plus Zatarain’s spice.” 3WH108 [Intro.3WH108.pdf].

10“When the nurses at the Urgent Care facility asked…what happened…I told them that he had eaten chili, that he had thrown up…” 17RR124 [Intro.17RR124.pdf].

11“A. I gave Andrew his lunch…He had— Q. What was the lunch of? A. It was chili and like a – a stew with Zatarain’s seasoning on it. Q. With what? A. Zatarain’s chili seasoning on it. …He was eating the chili, but he was upset. When he finished the chili— Q. Uh huh? A. And he got - - got up and he said ‘I want more’. I said ‘You don’t need any more, Andrew, you’ve eaten a big bowl of chili,’ And he started throwing a fit again and so I got some water and I put a little bit of the chili powder [‘a spoonful or less’ pp. 56-67] in it and I said ‘Do you want this? You can have this.’ Q. What what is that? A. Zatarain’s, the seasoning in it so that - - so it would taste kind of like it, but he wouldn’t eat so much - - eat too much because he tends to eat until he makes himself sick to his stomach.” 13CRSX40p8-10. Afterward, several other events transpired and then “He threw up after that all over the floor.” 13CRSX40p13.

12Driscoll Urgent Care’s, Dr. Wesley Jacubowski, testified, “It was chili smell…I know the smell. And the content looks like chili.” 9RR66. Phlebotomist Gemma Mitchell testified that the vomit had a “very strong odor of like a chili…that comino smell, the spice smell.” 9RR82. Driscoll Urgent Care nurse, Diane Zapata testified that the vomit “smelled like “chili powder.” 8RR227. Nurse Teresa Ercan testified that the vomit “smelled like chili.” 9RR56.

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6. The civil lawyers were misled and told that the tested “hospital gastric contents” on the tests result slip and “key” was not vomit but rather watered-down lavage. In response to their repeated requests for vomit, they were told by the State that it did not exist and that this “hospital gastric contents” was meaningless lavage, stomach contents with water added by physicians to wash out the stomach of the child and, thus, an exceedingly low 48 meq/l in sodium. This is about the equivalent of the sodium level in mineral water.    

a. During the deposition of the Medical Examiner Ray Fernandez, in the child  custody civil case, Dr. Fernandez testified that he had no notation or any  idea where the “hospital gastric content” came from, but that it was from  some hospital along the way and had a sodium level of 48 meq/l. But, AB  had been taken to the Driscoll Urgent Care facility on Saratoga Street first  and two hospitals thereafter: Spohn Hospital and Driscoll Children’s  Hospital on Alameda. To be certain, the civil lawyer asked Dr. Fernandez  if the vomit sample came from the emergency room (the Driscoll Urgent  Care facility). But he replied that it was from a “hospital,” and did not  know which one.    

b. More importantly, the State withheld from all defense counsel, their experts  and even her own co-counsel the photographs, which clearly demonstrated  that the child’s first vomit did not have a “low sodium level” of 48, but  rather a level 250, consistent with a chili/Zatarain’s mixture, which is  precisely what Hannah Overton had told the medical personnel, authorities  and later testified she had fed the child earlier that day.    

c. No criminal defense lawyers received or saw this information. Even the  second chair prosecutor who was also repeatedly asked for the first vomit  was not aware of its existence. She was also told that it did not exist.

NO DEFENSE LAWYER WAS PROVIDED THE VOMIT THAT WAS EXPRESSLY REQUESTED AND ORDERED PRODUCED

7. Two of the lawyers involved in the ancillary child custody case also handled the State’s medical witnesses at the criminal trial. They and the criminal defense lawyers (through writing letters, obtaining the court’s order and in conversations) requested, and the State agreed to provide, all bodily fluids of the child, including gastric contents or vomit, to the defense for testing. The Court ordered this production by March 9, 2007. By this time the State had already requested that the vomit be tested and were in the possession of results that were injurious to its case and probative of Overton’s innocence.    

a. Each of the civil and criminal lawyers asked for the first vomit of AB.  Even the second chair prosecutor who received many of these requests was  told that it did not exist.    

b. Every one of Overton’s counsel were told that:   

       i. It did not exist; and

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      ii. None was available for testing.    

c. And Overton’s civil lawyers were told   

i. It did not exist;  

ii. None was available for testing;  

iii. And, the “hospital gastric contents” was lavage; or water added to the stomach in the hospital to wash it out that was meaningless to the question of sodium intoxication.  

iv. One of Hannah Overton’s lawyers went to view the physical evidence with the first chair prosecutor, Ms. Eastwood. A brown paper bag, labeled with the Overton’s home address and with “reddish brown liquid” written on it appeared to be labeled just like the other condiments from the Overton’s kitchen that were seized and bagged. The lawyer who went, Brad Condit, specifically recalled that the bag was not opened since it appeared to contain a condiment from the Overton home in which he had no interest. He also photographed this closed bag. He photographed other items of physical evidence he examined as well. When asked at the writ hearing about whether he opened the other bags containing condiments, he could not recall what other bags he had opened and which he had not opened. However, the bag of reddish brown liquid that he photographed, he specifically remembered not opening just the way that he photographed it.

LEAD PROSECUTOR ORDERED THE VOMIT TESTED SHE KNEW IT EXISTED AND WAS FAVORABLE TO OVERTON

8. Prior to this physical evidence viewing, in October of 2006, Ms. Eastwood asked for this same vomit to be tested for sodium. When the low results came back in November of 2006, she wrote in notes of her conversation with Dr. Fernandez: why is the gastric content so low in sodium? This demonstrates that she knew about the existence of the first vomit, its availability for testing, its importance and its low sodium level. At the writ hearing, she testified that this was Brady evidence, would be important to the doctors and that it should have been turned over to the defense. While she had no independent recollection of providing this critical discovery, every other lawyer on either side of the Bar testified unequivocally that Ms Eastwood had repeatedly denied that such evidence existed.

COURT’S FINDING THAT EASTWOOD’S LACK OF MEMORY WAS REASONABLE IS UNREASONABLE

9. Ms. Eastwood also testified seventy-two (72) times [Intro.SEastwood.wmv] that she did not recall or did not know the answers to relevant and important questions

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which counsel for Overton posed to her at the Writ Hearing.13 She would not acknowledge or authenticate her own signature or her own handwritten notes14, her own e-mails15, or her own initials16. When asked to check the pages of the disclosure motion and order to see if pages were missing, she replied “I don’t know how to do that.” 5WH23. She did not recall sending an email that came from her email address asking for the vomit to be tested. She did not recall seeing any vomit when she viewed the evidence with Brad Condit (which is correct as the bag was not opened) and she did not recall asking to have it tested by the police or seeing photos of the testing process (which revealed the switched results). 

Inexplicably, Ms. Eastwood testified at the Writ Hearing that she did not believe that Hannah Overton intended to kill AB.

“Q. Do you recall ever advising the Defense lawyers or any of the Defense experts that in Dr. Cortes’ opinion Hannah Overton did not intend to kill Andrew Burd? 

A. Can you repeat that question?

Q. Do you recall telling any of the Defense lawyers or the Defense witnesses that Dr. Cortes told you that in his opinion he did not believe Hannah Overton intended to kill Andrew Burd? A. I don't remember specifically saying that, but that’s what I maintained throughout the trial.” 5WH74-75.

PROSECUTOR SAID SHE WOULD STOP AT NOTHING TO GAIN ADVANTAGE OVER DEFENSE

10. Ms. Anna Jimenez, her second chair prosecutor, testified that Ms. Eastwood sent a person to spy at Hannah Overton’s church to learn her defense strategy, that Ms.

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13“I don’t remember” 5WH26, 29-30, 43, 48-53, 57, 70, 74, 79-80, 98, 104; “I don’t recall” 5WH27, 31-33, 60-61, 71, 72, 73, 81, 112, 114; ”I can’t remember specifically” 5WH23-25, 27-30, 33, 43, 68- 69, 75-76, 81, 96, 104, 108-109, 116, “I don’t know” 5WH23, 28, 43, 46, 48, 60, 103, 105; “I’m not positive” 5WH26; “vaguely” 31, 51; “not aware” 5WH37; “That’s what it says, but I cannot remember anything specifically.” 5WH28; “I’m drawing a blank” 5WH20 (emphasis supplied).

14“Q. You’re saying when you look at your handwriting that it looks like your handwriting, but you can’t testify that it is your handwriting. Is that correct? A. That is correct.” 5WH58.

15 “Q. You’re not going to dispute that this was your e-mail.”

      A. My e-mail address? No.

      Q. And that this was an e-mail that you wrote?

      A. I don’t remember.” 5WH51.

16“Q. … Are those your initials?

     A. They appear to be my initials.” 5WH27.

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Eastwood told her that she would do anything to gain an advantage over the defense and that Ms. Eastwood is not ethical and is not worthy of belief. Subsequent to the trial Ms. Jimenez was appointed by Governor Perry as the District Attorney and she fired Ms. Eastwood. Thereafter she provided full discovery to the defense for a writ. At the writ hearing Ms. Eastwood’s lawyer filed an unsuccessful motion to quash her subpoena and attempted to participate in the writ hearing as a litigant or party.

REPORTS, NOTATIONS AND PHOTOS SHOWING FAVORABLE EVIDENCE WITHHELD

11. At trial, none of the defense lawyers, nor the second chair prosecutor were advised:    

a. The “hospital gastric contents,” was not from a hospital at all, but was, in  fact, the first vomit collected from AB’s mouth on October 2, 2006 in  attempts to clear his airway at Driscoll Urgent Care. Also, the “hospital  gastric contents” was not lavage and meaningless. This first vomit was  contained in the brown paper bag labeled with the Overton’s home address  and “reddish brown liquid” listed in 7. c. iv. above.    

b. Nothing that the trial lawyers were given would lead them to the  exonerating evidence. The copy of Dr. Fernandez’s “Key” provided to the  civil lawyers did not have CCPD Evidence Tech, Deigo Rivera’s, initials  and the CCPD case number notation, that appeared on the original. So the  lawyers had no way of knowing that he was part of the chain of custody for  the substances listed in the key. They were not provided his reports or  photos either. These reports revealed that one of the items was the first  vomit collected from Driscoll Urgent Care and was brought to the Medical  Examiner’s office for testing. His reports also reveal that the test sampling  process was photographed. And these photographs showed that the  samples in Dr. Fernandez’s key were switched.    

c. CCPD Evidence Tech Diego Rivera #801 reported that he collected the first  vomit from Driscoll Urgent Care on October 4, 2006 and took it to the  CCPD evidence room. On October 24, 2006 Ms. Eastwood asked for the  vomit to be tested. On November 21, 2006, Rivera reported that he took  the Bemis containing the first vomit to the Medical Examiner’s office for  the testing reported in Dr. Fernandez’s key. Rivera prepared reports about  these events and photographed the process. These items were only found  during writ discovery.    

d. Not only did the photographs document that Sample E was the first vomit,  but the handwritten lab order for its testing said that Sample E was  collected on October 2, 2006, the day that AB’s first vomit was collected  from Driscoll Urgent Care. All of the other orders stated that the other  samples A-D and F were collected on November 22, 2006 at 2 p.m., the day  and time of the sample taking in the ME’s office.

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     e. The photos of the sample collection process reveal that Sample D was  Zatarain’s and water and Sample E was AB’s “hospital gastric content”  which was, in fact, AB’s first vomit. So that the sodium level of the first  vomit was 250 meq/l and the test results for D and E were not written down  correctly by the Medical Examiner in his key. The photos show the correct  labeling: item D was Zatarain’s and water and item E was the first vomit  from Driscoll Urgent Care facility (250 meq/l). See photos in objections 31  and 32 below.

WORLD’S EXPERT ON HYPERNATREMIA TESTIFIED IN WRIT HEARING,

SCIENCE PROVES OVERTON’S INNOCENCE

12. Dr. Moritz is a world’s leading expert on hypernatremia. Even though he was in Corpus Christi to testify at the trial on behalf of Overton, he did not testify during trial because, due to delays during the presentation of the State’s case17, his

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17The State stated that it was its trial strategy to engage in repetition. 9R203. The Court, asked the State to stop the delay tactics at least thirty-three times, 9R31, 36-37, 147, 149-150, 185, 203-204, 10R108-110, 112, 141, 194-195, 11R10, 36, 116-117, 12R8-9, 28, 88, 13R13, 73, 14R98-101, 15R77, 97, 117, 16R15, 20, 25, 17R96, 105, 110-111, 18R98, 102, 126, 135, 139. 

Further, the State used trial time to prepare, having witnesses review their reports for the first time on the stand, 9R36-37, 10R108-09, failing to redact hearsay from medical records before seeking to admit them, 9R147, and asking to prep a witness while she was on the stand, 10R38. It did not advise witnesses of matters that had been excluded, 11R76. Further, it did not have its witnesses lined up, 10R186. 

In addition, the State engaged in repetitive inflammatory comments. Their repetition leads one to conclude this was intentional and Ms. Jimenez, the second chair prosecutor, confirmed this was the case. 

Ms. Eastwood further violated the Court’s order in limine and exceeded the scope of direct examination, improperly questioning a witness regarding unsubstantiated “child abuse.” The Court instructed her to “not go into child abuse,” 18R91. Despite the instruction, she went back to the same subject, causing the Court to warn her again. “The Court: I know you’re trying to get her to get into child abuse. Get away from it. I’ll grant that motion [for mistrial] faster than you can think,” 18R139. She repeated this misconduct during Dr. Moritz’s out of court deposition. 

The defense complained that the State “not once but twice she made [the] implication that we were not telling the truth to this witness and withholding something from this witness.” 18R130. “Going back to the jury room what they’re going to remember in the last 24 hours is that somehow we supposedly withheld information this witness, who is a key witness. We believe that this is improper,” 18R132 . But the Court denied a mistrial after warning the State. 

“THE COURT: Okay. You better say something because you’re getting ready to go downstairs. 

... She kept telling you I don’t know because I can’t review those records. So defend that. 

...THE COURT: Let me just ask you. You keep talking and talking, and it doesn’t make sense  sometimes. How much more do you need before I make this ruling?

...THE COURT: Remember what we talked about in my chambers. 

...THE COURT: Stop asking her other people’s testimony. Okay? Unless it’s the doctor that she  reviewed. She reviewed the medical records. So you can ask her about the medical records. She  reviewed Dr. Fernandez. You can ask her about Dr. Fernandez. Don’t ask her about witnesses  that testified that she doesn’t know anything about. Okay?  MS. EASTWOOD: Yes, Your Honor.

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deposition was taken by a civil lawyer (who did not participate in the criminal trial) outside the courtroom while the State was presenting its case. Failing to adequately investigate the evidence Dr. Moritz had to offer, no lawyer who was trying the case reviewed the deposition and the defense did not use it despite their lack of any such review. The defense had several remaining days of trial to review the video and edit it to use it, or to call Dr. Moritz back to testify live before the jury. They did not and they testified at the writ hearing that their failure to do so was done without investigation, without any strategy or knowledge of what Dr. Moritz would say and, therefore, was ineffective and prejudiced Hannah Overton. They testified that the above vomit information and Dr. Moritz’ testimony would firmly convinced a jury of Hannah Overton’s innocence.

a. In fact, Dr. Moritz testified that a child who ingests a hyper-acute amount of sodium, that is a toxic level in liquid form18 at one time, can experience the immediate shut down of his kidneys and multiple organ failure. Under these circumstances, symptoms have a rapid onset. Because the kidneys are not functioning, the sodium content of the blood remains high because the body does not process it. For a blood serum sodium level of 240 in a 34 pound child, he must have absorbed a minimum of 770 meq/l of sodium. If he weighed 40 pounds, he would have to absorb a minimum of 850 meq/l. If he took it in in liquid form (in a slurry), as was charged and argued by the State, then his gastric sodium level could be as high as 1600 meq/l.

b. AB’s gastric sodium of 250 meq/l in his first vomit means that he already absorbed all of the sodium he had ingested. It means that AB ingested the lethal quantity of sodium an about an hour earlier than the chili Overton fed her child. His irritated stomach lining shows that he digested the sodium and it irritated his stomach so that he later became nauseous and could no longer intake food or water. It means that just as Hannah Overton testified, he must have self-ingested the sodium earlier and that he may have taken in more when his mother was on the phone with his father at 3:30 p.m. (StEx40p17, 74-75) since he later protested to Hannah Overton, with the

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THE COURT: Motion for prosecutorial misconduct denied. Let’s get on with it...,” 18R127-129.

Ms. Eastwood also engaged in this misconduct in the out of court deposition of Dr. Moritz. Her second chair prosecutor confirmed at the writ hearing that the delay tactics, repetition and repeatedly engaging in excluded and unsubstantiated matter was intentional. 

“A. [Ms. Jimenez] …I’ve had many trials in front of this Court, and he’s been very particular  about what he allows. And one of the things he never allows is for somebody to waste a jury’s  time. And that was happening by the way that Sandra was questioning witnesses. And so - -  …She kept repeating questions that basically were eliciting objections from the Defense. And  even though he would admonish her, she - - …I did at some point because it just had already gone  on a lot. And the judge was - - he admonished us several times and he was becoming  increasingly more - - I don’t want to say angry, but more assertive about his admonishments that  we needed to quit wasting time and move on and - - …With regards to that, she said that eliciting  the objections would make the jury have sympathy for her. And since they were ganging up on  her and beating up on her, she wanted the jury to have sympathy for her.” 5WH141-142.

18 A liquid and sodium mixture is very quickly absorbed.

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Zatarain’s container in his hand, “Mommy I want some more soup, I want some more of this.” This was further borne out by his onset of symptoms of hypernatremia, which were described by his parents. Cold and flu like symptoms, progressing to congestion, listlessness and, as his parents were pulling up to the Driscoll Urgent Care facility, respiratory arrest, for which Hannah Overton heroically administered CPR and mouth to mouth resuscitation in the car and in the Driscoll Urgent Care facility. Dr. Moritz and Cortes, the child’s pediatrician, testified that with these mild symptoms it would be reasonable not to call to an ambulance or 911. These symptoms do not alert anyone to the seriousness of the underlying problem. Not even a physician would recognize them. They testified that only a blood test reveals the problem.

c. In contrast to AB’s symptoms and the course of his illness and death, a child who takes in a hyper-acute mixture of 23 teaspoons of Zatarain’s and water would have had immediate kidney and multiple organ failure, coma and death. His stomach contents would have a very high sodium of 1600 meq/l or more.

d. Instead AB had cold and flu symptoms, then congested breathing, followed by improved breathing, then congested breathing and lethargy. It was not until his parents pulled up to the Driscoll Urgent Care that he experienced respiratory arrest. In response, Hannah Overton performed CPR and administered mouth-to-mouth resuscitation. Dr. Cortes opined during the writ hearing that he first thought that Hannah Overton was cold when he saw her with AB that day at Spohn Hospital, the second place AB was taken since the first could not treat him. After learning she had just been administering CPR to her dying child he had the opinion that she must have been in shock after administering CPR to her dying child as he had also been after administering CPR to a colleague of his on a prior occasion. Dr. Cortes helped transport AB to a third medical facility, the Driscoll Children’s Hospital. This is because Spohn could not treat him. And yet Hannah Overton is being faulted with not providing AB medical care. In fact, no available medical care would save this child.

DR. FERNANDEZ OPINED CHILD SELF-INGESTED SODIUM

13. Consistent with AB’s accidental self ingestion of this sodium, Dr. Fernandez did not deny that he opined during the autopsy to a CPS worker in attendance that the child must have self ingested the sodium. He observed no signs of trauma and no signs of forced feeding. In addition, he conceded at the writ hearing that if AB had blunt force head trauma, the bleeding would have a single focal point. Instead, AB’s head had diffuse or global subarachnoid hemorrhaging. Dr. Fernandez agreed this was not blunt force head trauma but bleeding caused by the coagulopathy associated with this high hypernatremia. 14. The Prosecution and law enforcement rushed to judgment in this case and made the decision to charge Hannah and Larry Overton with capital murder, and contemplated asking for the death penalty for both, long before Dr. Fernandez had

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completed his autopsy. The Overton’s were arrested for capital murder eleven days after AB’s death. Dr. Fernandez did not complete his autopsy for over a month. The State had to try to make the autopsy fit their theory.

STATE’S WITNESSES LACKED EXPERTISE IN HYPERNATREMIA

15. Dr. Rotta, the emergent pediatrician, had only seen one prior case of high sodium intoxication before; right after his residency. But there the child had a fragment of the container of soap in his stomach that the parents had forced upon him and a sibling had witnessed the parents forcing the mixture of liquid and soap on the child. Dr. Rotta was not familiar with and misunderstood that AB’s injuries from normal emergency room treatments were in fact just that in light of AB’s coagulopathy19; failure of blood to clot. He erroneously felt that they were indicative of child abuse. The State did not call Dr. Rotta back to testify about the new information concerning this coagulopathy, the low 250 meq/l sodium contents of AB’s first vomit, and Dr. Moritz’s expert testimony about the known knowledge and science concerning hypernatremia which Dr. Rotta admitted that he did not have.

PATTERN FOR SALT POISONING EMERGED AFTER OVERTON’S TRIAL

16. Dr. Moritz, who had seen child abuse in cases of salt poisoning and who had studied every reported case of salt poisoning, ruled out child abuse as a cause of AB’s external injuries. He testified about sodium absorption, the importance of gastric contents20 in differentiating intentional sodium poisoning from accidental sodium intoxication, and he testified at the writ hearing about the patterns that exist in sodium intoxication. These patterns emerged in the science after Hannah Overton’s trial. Over sixty additional articles on hypernatremia emerged post trial. Dr. Moritz’s study of all of the published cases of salt poisoning reveals that there are two patterns in sodium poisoning of children. Parents with mental illness or drug abuse and a history of prior CPS involvement, sodium poison their kids. There is another pattern, children with emotional or genetic eating disorders: accidentally ingest excess sodium in lethal amounts. The presentation of AB is more consistent with the later. Not only was there no prior involvement with Hannah Overton and CPS with her children, and no mental illness or drug use on her part, but the evidence shows that she had years of involvement with caring for other people’s children, multiple children, children with special needs and orphans in Mexico. She has a docile and patient nature and great a affinity with children.

_______________________________

19A good analogy to understand coagulopathy and AB’s injuries is to hemophiliacs. They bruise (an under skin bleed) and bleed profusely from very slight injuries. 20He testified about the importance of gastric contents to this finding before any defense lawyer had discovered that the State had AB’s first vomit.

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GENETIC SCIENCE DEVELOPED AFTER OVERTON’S TRIAL

17. Dr. Zinn, a geneticist who studies such disorders testified that AB had the symptoms for Prader Willi-like syndrome. This syndrome was identified after Overton’s trial. Prader Willi syndrome has a genetic test that may identify it. AB tested negative on this genetic test and the results noted that it did not “rule out other genetic etiologies that may be associated with the clinical findings in this patient.” See 9WHDEx27.21 Prader Willi had so many variant diseases that were like it, that after Overton’s trial the term for these genetic disorders became Prader Willi-like syndrome. This syndrome includes almond shaped eyes, intellectual impairment of varying severity, shortness in stature, excessive overeating to the point of vomiting, voracious appetite, eating non-nutritious substances (glue, salt, dirt, bitter bakers chocolate), throwing fits, mental delays and skin picking. AB had all of these symptoms. This could be attributed to AB’s birth mother’s drug addiction and use of methamphetamine when he was born.

OVERTON’S TOLD SPECIAL NEEDS CHILD WAS PERFECTLY HEALTHY

18. While the Overton’s were told AB was a healthy child and this was the State’s theory at trial, this was not the truth. Sharon Hamil, AB’s prior foster mother reported that AB was slower than other children his age. She was referred to MHMR by a lawyer. AB received special care from an MHMR team and CCISD for his developmental and behavioral delays. Dr. Cortes, AB’s pediatrician, was aware of AB’s delays and echolalia and suspected AB was mentally retarded. He referred AB to a neurologist for further diagnosis and treatment.

19. Dr. Cortes was not aware of the full extent of the child’s difficulties, nor was his opinion that this was an accidental death shared with the defense. This was raised at Hannah Overton’s motion for new trial. What is new about Dr. Cortes’ writ testimony is that he was, now, fully informed by the record of AB’s medical and developmental history,22 the newly discovered exonerating evidence of AB’s first vomit, and Dr. Moritz’s testimony he observed at the writ hearing. After learning these matters, he opined that AB’s death was an accident. Dr. Cortes was the State’s expert and a part of the prosecution team according to his own testimony and that of the lead prosecutor.

LEADING MEDICAL EXAMINER RULES DEATH ACCIDENTAL

_________________________________

21Those clinical findings were of an eating disorder.

22These records of AB’s prior difficulties were in the possession of CPS, a State agent and part of the prosecution team.

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20. Dr. Melinek, a highly competent medical examiner who processed the victims at ground zero in the September 11 attacks, testified at the trial that the cause of death here was undetermined. Upon learning about the first vomit and Dr. Moritz’ testimony, she opined that the death was accidental. And at the writ hearing, fully informed about the science concerning hypernatremia, Dr. Fernandez, the Medical Examiner also agreed that the child’s injuries were due to hypernatremia caused coagulopathy and deferred to Dr. Moritz concerning hypernatremia.

“Q. Alright. And you would certainly defer to Dr. Moritz referring an issue pertaining to hypernatremia, correct? 

A. He would have an opinion that I would expect and that I would respect based on his education, training and experience. … He would be a person that the State would rely on and patients would rely on for treatment, and I would not be able to treat patients the way he treats patients.” 6WH216.

21. This, new medical evidence, undisclosed Brady evidence (first vomit which tested at a low sodium level of 250 meq/l), and the testimony of the world’s expert on hypernatremia when coupled with the physical evidence and facts of this case firmly established Hannah Overton’s innocence of capital murder of AB.

22. Hannah Overton also rejected the submission of an instruction to the jury concerning lesser included offenses on the basis of advice that she received to the effect that asking for them would be the equivalent of pleading guilty. She understood that if she chose to ask for them she would not be able to appeal her conviction on sufficiency of the evidence. However, that was not the law at the time of her trial, and the legal advice was incorrect.

OBJECTIONS

A mentioned above, Ms. Overton will state each Finding of the Trial Court and will then state her objections citing and linking the record support therefore.

Trial Court’s Finding of Fact One at Page 1:

1. The Court finds from the record that Dr. Alexandre Rotta testified at trial to his belief that Andrew’s sodium level was elevated due to salt poisoning, and that he ruled out other possible causes, such as diabetes mellitus, diabetes insipidus, and other causes as per his testimony. (vol. 12, p. 58-62, 71-72, 75-78, 81, 96-98)

Objection 1: Dr. Alexandre Rotta testified during his deposition in an ancillary child custody case, (10WHDEx22pME189 [O1.10WHDEx22ME189.pdf], that he had never seen a case of sodium intoxication with this high a level of sodium. He was not aware of

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the opinion of the world’s expert, Carlos Ayus (4WH7 [O1.4WHp7.pdf]), concerning dysnatremias, or of Dr. Michael Moritz, the world’s expert on hypernatremia. He was not aware of the phenomenon of high hypernatremic coagulopathy which caused AB to bleed freely from every scratch and caused him to bruise from the slightest touch (4WH53-55 [O1.4WH53-55.pdf], he was not aware of the fact that the first vomit of this child should have been over 1600 meq/l (4WH47-48 [O1.4WH47-48.pdf]) if he had acutely and recently ingested sodium in a slurry (4WH267-269 [O1.4WH267-269.pdf]); he was not aware of the new evidence of AB’s first vomit from Driscoll Urgent Care Clinic that tested a low 250 meq/l sodium level showing no recent acute ingestion of a lethal Zatarain’s slurry (11RR94 [O1.11RR94.pdf]; 12RR53 [O1.12RR53.pdf]); he was not aware that AB’s sodium ingestion was fatal at the time it occurred (4WHp111 [O1.4WH111.pdf]); 12WHDEx49p67 [O1.12WHDEx49p67.pdf]); and he was not aware of Dr. Moritz’s review of all reported cases of sodium poisoning showing that only mentally ill or drug abusing parents with a history of prior CPS involvement with their children intentionally or knowingly salt poison their children. In addition, he was unaware that this same new science establishes that children with eating disorders and emotion deprivation accidentally salt poison themselves. 12WHDEx49pp25-26 [O1.12WHDEx49p25-26.pdf]. In fact, he testified that he was not aware of the science and known knowledge of hypernatremia at all. 8RR138-140.

“Q. (By Mr. Pinedo) None of those papers dealt specifically with hypernatremia, high salt levels, did they? 

A. (Dr. Rotta) No. 

Q. And likewise, none of those papers dealt with specifically recognizing child abuse, did they? 

A. No. … 

Q. And what medical papers do you have that can tell us how quickly he would need to receive treatment in order to survive? 

A. What do you mean, that I have? That I have written or that I have encountered? 

Q. Can you point to me a single paper saying that if somebody has a serum sodium above 200, that they have to get treatment within a ten-minute period of time, an hour period of time, a two-hour period of time to survive? 

A. That is not part of the literature. You will not encounter that. That is not known knowledge. And if it is known knowledge, it is—you know, one would have to look at the science of that.” 8RR139 (Daubert hearing). Further, he was unaware of the switched test results of AB’s first vomit and Zatarain’s with water from the Medical Examiner’s Office sample testing. Dr. Fernandez’ notes erroneously reported that sample D was the first vomit, and sample D reported a 48 meq/l sodium level. Sample E was, in fact the first vomit23 and tested as 250 meq/l sodium, a normal level. This reading of 250, from the first vomit, is critical in

________________________________

23 Mislabeled as “hospital gastric content” and mistaken as lavage.

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determining whether or not there has been intentional salt poisoning. In order to reach a sodium content level of 245 in the blood serum, AB would have had to absorb a minimum of 850 meq/l of sodium if he weighed 40 pounds. 4WH48. If the State’s theory were true, and AB was forced to drink a sippy cup filled with a slurry of 23 teaspoons of Zatarain’s, his body and major organs would have immediately shut down. 4WH30. As a result, according to Dr. Moritz the world’s foremost leading expert in salt poisoning, the kidneys would have stopped functioning and the gastric sodium content would not be filtered out of the system. Therefore, the blood level would remain high and a reading as high as 1000-1600 meq/l of sodium of sodium in the stomach could be expected in an intentional salt poisoning case, not 250. 4WH23, 26. The fact that the blood serum level was 245 and the gastric content level was a similar 250, indicates equilibration has occurred, which would be expected in an accidental sodium intoxication. 4WH28-29.

Dr. Rotta’s trial testimony, 12RR53 [O1.12RR53.pdf], reflects that he incorrectly believed the “gastric stomach content” was collected from a subsequent hospital where AB was treated and, thus, was not relevant to what AB had ingested and when he had ingested it. He thought it was lavage, water irrigated stomach content. 12RR51-52 [O1.12RR51-52.pdf].

No expert on hypernatremia testified at trial regarding the condition. Dr. Rotta testified pretrial that he did not know anything about the science regarding hypernatremia.

“A. [Dr. Rotta] …I am internationally recognized for my work on mechanical ventilation and liquid ventilation; and those are the topics that I have been asked to speak on persistently over the last ten years. …I have written approximately - - over 30, less than 40 original papers. I have written several book chapters.

THE COURT: In what specific areas, please, Doctor?

THE WITNESS: In pediatric critical care, which is the all-encompassing area of critically ill children and children that have substantial injuries or lifethreatening conditions.

… 

Q. (By Mr. Pinedo) None of those papers or invited presentations you gave dealt with specifically recognizing assault in children, did they? 

A. That is correct. That’s not the area that I routinely lecture on. 

Q. None of those papers dealt specifically with hypernatremia, high salt levels, did they? 

A. No. 

Q. And likewise, none of those papers dealt with specifically recognizing child abuse, did they? 

A. No.

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Q. Can you point to me a single paper saying that if somebody has a serum sodium above 200, that they have to get treatment within a ten-minute period of time, an hour period of time, a two-hour period of time to survive? 

A. That is not part of the literature. You will not encounter that. That is not known knowledge. And if it is known knowledge one would have to look at the science of that.” 8RR137-139 [O1.8RR137-139.pdf].

He did not know of a single case there the child who had a cardiac arrest had underlying hypernatremia.

“Q. (Mr. Pinedo) How about just simply a paper where people arrested and they were hypernatremic? Do you have any paper you can point us to for that? …As you sit here today, you cannot name a single one, can you? 

A. (Dr. Rotta) I cannot.” 8RR141.

He also testified pretrial that he discussed with Dr. Halperin “the possibility that this could not have been intentional” salt poisoning. 11RR71 [O1.11RR71.pdf].

“A. (Dr. Rotta) …I discussed the possibility that this could not have been intentional…. 

Q. (Mr. Pinedo) Did he ever give you an opinion on the possibility that this was an accidental salt poisoning? 

A. He did not. 

Q. Did you speak with him about that possibility? 

A. Yeah. I spoke with him about that possibility.” 11RR71-72.

Dr. Halperin later emailed Dr. Rotta with an additional natural cause for AB’s hypernatremia. 11RR69-70, 72-73.

“A. (Dr. Rotta) …There was one piece of information that he offered me that I did not know. And now that I think of it, after I had my phone conversation we actually exchanged e-mails one more time because he e-mailed me back and told me he had a theory … he thought it could have been a contributing factor. …and that’s a very obscure trivia, but that some patients that have prolonged seizures might have a slight elevation in sodium for a short period of time. I did not know that information. … The information in the e-mail was he - - I believe he couldn’t recall the …name of the author of this seizure sodium paper. …I believe it’s Watt, the name, W-a-t-t. And I believe it’s in the Journal of Clinical Investigation.” 11RR69-70, 72-73.

Dr. Rotta did not testify at the writ hearing and so his uniformed trial testimony is of little relevance. He agreed that he only had exposure to sodium intoxication from his days as a pediatric critical care fellowship where he observed one other case. 11RR92

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[O1.11RR92.pdf]; 10WHDEx22ME146, 170-172 [O1.10WHDEx22ME146etc.pdf]. Dr. Rotta had never treated a salt poisoning case like this. 11RR92 [O1.11RR92.pdf]. And based only upon the out of hospital cardiac arrest of AB he opined that AB could have survived if brought to the medical facility sooner. 8RR99 [O1.8RR99.SvdIfSner.pdf]. But, he based this on literature which did not include a single case of hypernatremia. Dr. Cortes, who had similar experience as a pediatric emergent care physician testified at the writ hearing that he would defer to Dr. Moritz in this area of expertise. 3WH156 [O1.3WH156DrM.pdf]. Since Dr. Moritz is the only expert in the diagnosis, treatment and symptoms of hypernatremia in this case, the evidence is clear and convincing that AB died of accidental toxic sodium ingestion that he took in an hour or more before he manifested symptoms serious enough to alert even medical doctors that this was his problem.

Trial Court’s Finding of Fact Two at Page 1:

2. The Court finds from the record that Dr. Judy Melinek likewise  discussed during her testimony at trial concerns about the absence of a  microscopic examination of the brain that might have disclose a tumor (RR  vol. 18, pp. 20, 75-76, 106), the effects of Andrew’s birth mother’s drug  abuse (RR vol. 18, pp. 64—69), diabetes (RR vol. 18, pp. 69-74, 100, 103),  available medical records (RR vol. 18, p. 121-24). At the writ hearing, she  testified the stomach contents would have some value to explaining the  events that lead to Andrew’s death.

Objection 2: Dr. Melinek was similarly misled about the first vomit, which was mislabeled as “hospital gastric content” and equally uninformed about the new peer reviewed medical literature and Dr. Moritz’ opinions at the time of her trial testimony. 3WH97 [O2.3WH97.pdf]. Dr. Melinek was informed that no vomit for the child existed and that the gastric content was irrelevant lavage that tested at a 48 meq/l. 3WH101, 109 [O2.3WH101.109.pdf]. At the writ hearing she testified that this new information was “crucial” to her changed opinion as a medical examiner from AB’s cause of death as undetermined to the fact that AB’s death was accidental. 3WH98 [O2.3WH98.pdf]. Therefore, the first vomit was not only of “some value,” she testified it was “crucial” to the determination of AB’s cause of death. She also testified that the true test results, that AB’s first vomit was a 250 meq/l was proof of Overton’s innocence and would have changed the way that the trial lawyers prepared for trial. 3WH102-103 [O2.3WH102- 103.pdf].

Trial Court’s Finding of Fact Three at Page 1: 

3. The Court finds that all of the new evidence provided by Dr. Melinek  and Dr. Moritz mentioned in Overton’s application for writ was clearly  known and/or discussed at time of trial by Overton’s defense team. 

Objection 3: Over 60 (sixty) articles in the medical peer reviewed literature have been  published after the date of the Overton trial in August and September of 2007. 3WH93

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[O3.3WH93.pdf]. One of these articles, “The epidemiology of hypernatraemia in hospitalized children in Lothian: a 10-year study showing differences between dehydration, osmoregulatory dysfunction and salt poisoning,”24 12WHDEx56 [O3.12WHDEx56.pdf], is a comprehensive study of all reported sodium intoxications and poisonings. 3WH130 [O3.3WH130.pdf]. These new articles and post-trial studies were not “clearly known or discussed at time of trial.” Dr. Moritz testified that the most important study was the comprehensive study done in the United Kingdom that caused him to update his book chapter on hypernatremia. 4WH31 [O3.4WH31.pdf]. In 2007 he would have testified that sodium this high had a low survival rate. 12WHDEx49p67 [O3.12WHDEx49p67SrvvlRt.pdf]. At the writ hearing he testified that sodium this high in the field is always fatal. 4WH31 [O3.4WH31AlwysFtl.pdf]. This is because hypernatremia is hard to diagnose. The doctors here, knowing the child had ingested Zatarain’s seasoning, water and chili, took two and a half hours to diagnose AB. 3WH75- 76 [O3.3WH75-76Tk2.5hrsDgns.pdf]; RRStEx16 [O3.RRStEx16.pdf]. Thus, during this time the doctors continued to give AB saline solution and sodium bicarbonate. 3WH75 [O3.3WH75GvSlne.pdf]; 7WH61-62 [O3.7WH61-62.pdf]; 1CR113 [O3.1CR113.pdf].

No one except the civilian police evidence tech and the lead prosecutor were aware that the “hospital gastric contents,” was, in fact, the first vomit of AB that had been collected from Driscoll Urgent Care at 5945 Saratoga Boulevard, Corpus Christi, Texas 78414, nor that the test result misreported as a 48 instead of the true results of 250.25 9WHDEx31 [O3.9WHDEx31.pdf]; 10WHDEx22ME55-60 [O3.10WHDEx22ME55- 60DRvraSppRpt.pdf].

Nevertheless, the State’s medical examiner testified in a deposition in an ancillary child custody case that he did not know where the “hospital gastric content” came from and incorrectly that it tested at 48 meq/l. 10WHDEx22ME93 [O3.10WHDEx22ME93.pdf]. Dr. Rotta thought it was lavage. See Objection 1 above. Dr. Melinek testified she was told the same thing. 3WH101 [O3.3WH101.pdf].

______________________________________

24Sarah Forman, Patricia Crofton, Hian Huang, et al., Arch Dis Child published online April 3, 2012; doi: 10.1136/archdischild-2011-300305.

25Photos of the experiment sample process and the orders for testing establish that the tests were mixed up. 9WHDEx8 [O3.9WHDEx8.pdf. and see the same exhibit in color - O3.9WHDEx8ExprPicsClr.pdf]; 9WHDEx6 [O3.9WHDEx6.pdf]. The photos in DEx8 show that “sample E” was the first vomit and “sample D” was the Zatarain’s and water; see the notations on the cups next to each sample in the photos. Dr. Fernandez’s handwritten key states, erroneously, that “sample D” was the “hospital gastric contents.” And the test requisition form, or order, notes that all of the samples tested were acquired on November 22, 2006, except “sample E,” which was acquired on October 2, 2006. Thus, “sample E” is the first vomit of AB from Driscoll Urgent Care where AB was suctioned on October 2, 2006. See also the testimony of Dr. Jakubowski that he suctioned vomit from AB’s mouth to establish an airway and well as his nurses to the same effect. See also report of D. Rivera #811 that he collected the Bemis container suctioned from AB at Driscoll Urgent Care on October 4, 2006. 10WHDEx22ME58 [O3.10WHDEx22ME58.pdf].

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Moreover, the medical records incorrectly stated that the “hospital gastric contents” were picked up at Driscoll Children’s Hospital 3533 South Alameda Street, Corpus Christi, Texas 78411.26 10WHDEx22ME58 [O3.10WHDEx22ME58.pdf]. See objection 1 above. In fact, the non-hospital gastric contents was AB’s first vomit at the Driscoll Urgent Care and showed the last thing he ingested. It was crucial evidence to the defense and of Overton’s innocence. And Dr. Moritz testified at the writ hearing that he also was unaware of the first vomit and its sodium level.

All defense counsel testified that they were told there was no vomit (2WH33-34 [O3.2WH33-34.pdf]; 6WH31 [O3.6WH31.pdf]), that none was available for testing (6WH120 [O3.6WH120.pdf]), that the “hospital gastric content” was lavage (2WH32 [O3.2WH32.pdf]) and that there was none (5WH253-254 [O3.5WH253-254.pdf]). None of the lawyers went to see the physical evidence except Brad Condit. 6WH86, 123 [O3.6WH86.123.pdf]. And Mr. Condit did not open the bag that contained the vomit because it was labeled with the Overton home address and stated it was a “reddish brown liquid.” 5WH263-264 [O3.5WH263-264.pdf]; 6WH11 [O3.6WH11.pdf].

“Q. [MR. NORMAN] …So, the last item, …, the one we’re talking about, which we assume is the vomitus. 

A. Yes, sir. 

Q. …Isn’t it true that that did identify the item in question as a Bemis containing a reddish brown substance? … 

A. Bemis 1200 CC something canister with approximately 1800 of reddish brown liquid.

… 

Q. …did you assume that that came from the Overton home because of the labeling? 

A. Oh, yes.” 6WH10-11 [O3.6WH10-11.pdf].

He was looking for vomit and never found it. 5WH256-257 [O3.5WH256-257.pdf]; 6WH9 [O3.6WH9.pdf]; 9WHDEx40 [O3.9WHDEx40.pdf], DEx40 (in color) [O3.DEx40PicsEvidClr.pdf].

The second chair prosecutor testified that the defense kept asking for “vomit, vomit, vomit,” (5WH151 [O3.5WH151.pdf]), that they were told that there was not any; (5WH190-191 [O3.5WH190-191.pdf]), that obviously the State still had it and should have turned it over; (5WH211 [O3.5WH211.pdf]), and that it was Brady evidence they were obligated to find and turn over. 5WH231 [O3.5WH231.pdf]. So none of this new exonerating information was available to Overton’s defense team.

______________________________

26This may be because Driscoll Urgent Care was associated with the Driscoll Children’s Hospital System which maintained its records.

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“[Ms. Jimenez]: So there was discussion about the vomit being part of the things that had to be turned over. …The vomit, they have it now and they were told there was none. So - - … When you look at it, when you look at the fact that they asked and asked and asked for this stuff and we said there was none and we did not turn it over and now there is some and now they’ve tested it, that meant there was some and we didn’t give it to them.

Q. How do you know that they asked and asked?

A. I just remember the vomit being a big deal.

Q. Okay.

A. You know, it sticks out in my mind that they wanted the vomit, they wanted the vomit. And then some people were calling it lavage and some people were saying, well, no, that wasn’t it and it was only on his clothing. And I remember the discussions taking place. I don’t know if there’s discussions on the record. The one thing I do know and the reason that it was such a crucial deal was because the judge ordered us to give everything over, everything. And so at that point it was this is everything. The vomit has to be included if there’s any. If there’s not, then we can’t give it. And the vomit was a big topic. It was the first thing out of that baby’s mouth. They wanted it. I would have wanted it if I was representing her.” 5WH215-218 (emphasis added) [O3.5WH215-218.pdf]. “A. …We had a duty to turn over the vomit.” 5WH231 [O3.5WH231.pdf].

Trial Court’s Finding of Fact Four at Page 1:

4. The Court finds that additional medical articles and case studies mentioned by Dr. Michael Moritz during his testimony at the writ hearing would not have been dispositive to the testimony and evidence provided by Dr. Alexandre Rotta and Dr. Ray Fernandez, to the point of changing the overall outcome of the original trial.

Objection 4: Each defense lawyer, recognized by the State as highly qualified lawyers, (6WH75 [O4.6WH75.pdf]), testified that the new evidence was new, material and would have firmly convinced the jury of Overton’s innocence. There was no testimony to the contrary. Dr. Moritz is the expert on salt poisoning, unlike Dr. Fernandez, the State’s sole medical witness at the writ hearing, who testified prior to trial that he was inexperienced in hypernatremia cases, (10WHDEx22ME9 [O4.10WHDEx22p9.pdf]), that he changed his opinion about the cause of AB’s subarachnoid bleed from trauma to coagulopathy based on the new information, (7WH53-54 [O4.7WH53-54.pdf]), and that he would reconsider his opinion of homicide in AB’s autopsy upon being provided all of the new scientific information. 7WH24-26 [O4.7WH24-26.pdf]. Dr. Fernandez testified at the writ hearing that he and the State would rely upon Dr. Moritz’ expertise concerning hypernatremia. Further, Dr. Rotta’s trial testimony was not based upon knowledge of hypernatremia or the science of hypernatremia. See also Objection 1.

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It is also important that Ms. Eastwood, the lead prosecutor in this case, opined based on what she did recall about the case that had the jury been given lesser included offense instructions, it is her professional opinion that the jury would have convicted Overton of a lesser included offense. 12WHDEx62p12 [O4.12WHDEx62SEAffp12.pdf].

“Based on my experience and considering the factors applicable to the Hannah Overton trial, particularly the jury’s omission poll, the jury in the Hannah Overton case in all likelihood would have returned a verdict on a lesser included offense had the jurors been given that option.” Affidavit of Sandra Eastwood at 12WHDEx62p13-14 [O4.12WHDEx62p13-14.pdf].

Trial Court’s Finding of Fact Five at Page 2:

5. The Court does not find Dr. Michael Moritz’s testimony at the writ hearing adequate that additional medical articles and case studies since the time of trial amount to newly discovered evidence of Overton’s actual innocence. Specifically, the Court finds that, in his deposition, Dr. Moritz admitted that child abuse was not his area of expertise. (DX #49 at 3:24:00) Accordingly, the Court does not presently find persuasive his opinion concerning the likelihood that Hanna Overton did not abusively administer the sodium in question to Andrew based on a profile and case studies that fall outside his area of expertise.

Objection 5: Dr. Moritz testified in his trial deposition, which defense counsel did not review or use at trial, that he is Board Certified in Pediatrics and Pediatric Nephrology, which includes disorders involving sodium. 12WHDEx49p5 [O5.12WHDEx49p5.pdf]. He was selected as one of America’s top pediatricians in 2005 till the time of his deposition. 12WHDEx49p7 [O5.12WHDEx49p7.pdf]. At that time, he saw over 100 children a month with kidney problems. Id. He testified that he reviewed all of the case studies on hypernatremia whether they were accidents or intentional. 12WHDEx49p44 [O5.12WHDEx49p44.pd]. He further testified that in his practice he often see cases of child neglect or abuse, is a mandated reporter and in those cases consults with child advocates because he is not an expert in abuse. 12WHDEx49p79-80 [O5.12WHDEx49p79-80.pdf].

He reviewed all of the medical records in this case, saw the evidentiary photos of AB, read Hannah Overton’s statement, talked to her and others who dealt with the child, read the report of, AB’s former foster mother, Sharon Hamil’s statement as well and saw no evidence of abuse or that Overton forced AB to ingest toxic levels of sodium. 12WHDEx49p55-56 [O5.12WHDEx49p55-56.pdf]. He emphasized that the first thing he considered in this case was whether this was child abuse (12WHDEx49p82 [O5.12WHDEx49p82.pdf]), and he ruled it out because of no prior history of abuse, unimpressive wounds on the child, no evidence of forced ingestion, and because it would be almost impossible to force a four year old child to drink 15 teaspoons of Zatarain’s in

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water. 12WHDEx49p78, 83, 95 [O5.12WHDEx49p78.83.95.pdf]. The prosecutor would not let him complete his answers, interjected untrue factors for which there was no evidence in her questions and the deposition concluded before it was completed. 12WHDEx49p86-95 [O5.12WHDEx49p86-95.pdf].

He further testified that his determination of whether this was intentional salt poisoning or accidental ingestion was based upon his review of the facts in this case and all the medical literature extant in his area of expertise, sodium intoxication. 12WHDEx49p70-71 [O5.12WHEx49p70-71.pdf]. He testified that animal studies showed that blood salt levels of 190-200 were lethal 30 to 50 percent of the time (12WHDEx49p61, 67 [O5.12WHDEx49p61.67.pdf]), but no animal studies went up to 245. Id. That by the time one recognizes sodium intoxication as the problem, no known successful treatment exists and it is a mater of luck if one survives, even if dialysis is used. 12WHDEx49p67 [O5.12WHDEx49p67.pdf].

He testified that Dr. Rotta did not perform any medical evaluation to determine the cause of AB’s hypernatremia at all. 12WHDEx49p36 [O5.12WHDEx49p36.pdf]. In particular he testified that Dr. Rotta did not check if AB’s kidneys held onto water or were excreting massive amounts of salt so he could appropriately evaluate the contributing causes of the hypernatremia, nor did he test the sodium concentration of the stomach contents.27 12WHDEx49p37-38 [O5.12WHDEx49p37-38.pdf]. Because he was unfamiliar with high hypernatremia, Dr. Rotta was incorrect about AB’s sodium level being the highest ever recorded. 12RR29 [O5.12RR29.pdf]. That occurred in an article report in 1984 where the highest level was 274. 12WHDEx49p52-53 [O5.12WHDEx49p52-53.pdf]. This child was accidentally salt poisoned in a hospital with a number of other infants. Because he was in a hospital where numerous other babies were salt poisoned with formula, he lived because the mistake was caught immediately. 12WHDEx49p52, 61 [O5.12WHDEx49p52.61.pdf].

Dr. Moritz also testified, in this unused deposition, that sodium cannot pass the cell membrane and so it pulls water outside of the cells. So high acute sodium, or high sodium taken very quickly will pull water out of the brain causing fatal damage. 12WHDEx49p59-60 [O5.12WHDEx49p59-60.pdf].

At the writ hearing, the article entitled The epidemiology of hypernatremia in hospitalized children in Lothain: a 10-year study showing differences between dehydration, osmoregulatory dysfunction and salt poisoning at 12WHDEx56 [O5.12WHDEx56.pdf], which was published in 2010, was a comprehensive examination

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27An important fact no defense lawyer knew and that we later discovered had been done at the medical examiner’s office using Spohn Hospital. The results of testing this first vomit is the low 250 meq/l meaning that AB did not ingest high levels of Zatarain’s from a sippy cup just prior to being taken to Driscoll Urgent Care. He had gotten into the pantry on his own some time earlier and at some point accidently consumed toxic levels of salt, Zatarain’s, or some other high sodium food.

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of all of the reported cases of hypernatremia then. Sixty-one additional medical articles had also been published on hypernatremia since the Overton trial. Among them was another 2010 article, Severe Haypernatremia in a Hospitalized Child: Munchhausen by Proxy at 12WHDEx59 [O5.12WHDEx59.pdf], and attached to Offer of Proof filed April 24, 2012, 12WHDEx59. All of these articles are in his area of expertise, hypernatremia.

The studies published since 2007, strengthen and verify Dr. Moritz’ determination that AB died of accidental sodium intoxication. Dr. Moritz testified that these comprehensive recent studies change what he knows about intentional or knowing salt poisoning by a parent. A pattern emerged in every purposeful poisoning as outlined under Objection 40 below.

“Q. The question on the table, sir, is, based your experience, your education, your studying of dozens of cases around the world, does Hannah meet the profile of someone who could be capable of intentionally poisoning her child with salt?   

A. No.” 4WHp82-83 [O5.4WH82-83.pdf].

Trial Court’s Finding of Fact Six at Page 2:

6. In addition, the Court finds credible Dr. Moritz’s testimony at the writ hearing that additional medical articles and case studies do not change his underlying opinion that Hannah Overton did not intentionally poison Andrew with salt, but merely confirm that prior opinion.

Objection 6: These new articles serve to strengthen Dr. Moritz’s opinion that Overton did not cause AB’s death either intentionally or by omission. 4WH120 [O6.4WH120.pdf]; 9WHDEx26 [O6.9WH26.pdf]; 12WHDExs56, 59-60 [O6.12WHDEx56.59-60.pdf]. The testimony and articles evaluated by one of the world’s leading authorities on salt poisoning, regarding the cause of death, would have carried considerable weight had the jury heard his testimony. He did not testify at the trial because, as experienced defense counsel testified, they were ineffective for not reviewing his deposition and either editing it or putting him on live before the completion of the defense case. 4WH194-195 [O6.4WH194-195.pdf]. His opinion is solidified by new medical studies in his area of expertise published after the trial. For these reasons, his opinion and the articles and case studies since the trial are new evidence.

Trial Court’s Finding of Fact Seven at Page 2:

7. The Court finds Dr. Moritz’s opinion at the writ hearing has not changed from the time of trial to the present, even with the additional case studies.

Objection 7: Objection 6 is incorporated fully herein. Applicant would again note that none of the trial lawyers reviewed his deposition and they did not edit and put on his video deposition, nor did they call him back to testify on behalf of the defense in the

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remaining days of trial. There was ample time to do so. In addition, Dr. Moritz now knows the patterns for those who intentionally salt poison their children and for the children who accidentally salt poison themselves. He also now knows that AB’s sodium ingestion was fatal. Dr. Moritz testified that if he had been standing there when AB salt poisoned himself, it would have been fatal still. 6WH32.

Trial Court’s Finding of Fact Eight at Page 2:

8. The Court further finds that the Applicant has failed to show that Andrew did exhibit Prader-Willi-like syndrome symptoms, and that recent genetic research into Prader-Willi-like conditions would have proven her innocent. The Court further finds that there is no evidence in the record, other than through Hannah Overton’s self-serving testimony that Andrew Burd exhibited Prader-Willi-like syndrome symptoms. Further, the Court finds that the evidence at the writ hearing given by Dr. Fernandez show that Dr. Fernandez examined Andrew’s stomach and intestines, and found no evidence of an eating disorder, i.e. glue, plastics, Styrofoam, or any other non-edible substance. In addition, in Dr. Cortes’s medical records in caring for Andrew, Sharon Hamil stated there was not (sic) eating disorder, which was confirmed through her trial testimony. The Court further finds that Dr. Bobel, a pediatric neurologist, states in his report after examining the child, that he found no evidence of any mental deficiencies. Dr. Bobel did note in his report that Andrew was also making progress on his speech development. The Applicant has therefore failed to provide new evidence through the submitted recent genetic research that Andrew could have had Prader-Willi-like syndrome.

Objection 8: That Dr. Fernandez found no non-edible substances or items in the stomach and/or intestines of AB, is not proof that AB did not have an eating disorder. The Overton’s made every attempt to keep AB from ingesting any non-food substances and even if they were not successful, these items would have been excreted as waste from his body. 17RR18-19 [O8.17RR18-19.pdf]; 4WH136-137 [O8.4WH136-137.pdf]. There is no evidence that on the day or days leading to his death that he ate any glue, plastic, Styrofoam or other non-food substances. The testimony of Overton that she had seen him in the pantry prior to AB’s death and the testimony of Hamil that he would eat five (5) pieces of pizza in one sitting at three (3) years of age are in themselves symptoms of an eating disorder, even Prader-Willi-like syndrome. 8RR208 [O8.8RR208.pdf]; 3WH194-196 [O8.3WH194-196.pdf]; 8WH6-7 [O8.8WH6-7.pdf], DEx50 [O8.DEx50SGrffthAff.pdf]. On the day of his sodium intoxication, AB held up the Zatarain’s container and told Overton, “I want more soup, I want more of this.” Thus, showing that AB equated Zatarain’s with soup. This is further evidence of his voluntary accidental self ingestion of a toxic level of sodium, especially when considered in conjunction with his first vomit, a low 250 showing that the toxic ingestion must have

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occurred earlier than his eating of soup and drinking from his sippy cup. See also Objection No.’s 3 and 4 above.

Ms. Hamil’s trial testimony that it was normal for a three year-old to eat five pieces of pizza at one sitting is fairly typical for care takers of children with eating disorders.

“[Dr. Zinn]A. It is very often the case that the parents will tell you that there is nothing wrong and that the child eats a normal amount, and when you actually look objectively, you find out that’s not the case.” 3WH203.

Numerous witnesses who observed AB were aware of his cognitive delays and eating disorder. See 3WH77 (Dr. Cortes: AB slower than other kids his age) [O8.3WH77.pdf]; 16RR52-53 [O8.16RR52-53.pdf] (a Sunday School teacher he ate glue, snacks had to be deferred to after class), pastor 15RR82, 85-86 [O8.15RR82.85-86.pdf]; Sharon Hamil (prior foster mother in school records where he was evaluated for special ed) [9WHDEx43 [O8.9WHDEx43SEd.pdf], was below average in a number of areas (9WHDEx43 [O8.9WHDEx43SEd.pdf]) saying AB slower than other kids his age (9WHDEx43p40 [O8.9WHDEx43slower.pdf]) “compared to other children in the family this child’s development has been slower” “slower than normal children as far and foster mom can tell”28) [O8.9WHDEx43.pdf], and his background of a drug addicted mother and abusive upbringing convinced Dr. Zinn that AB had an emotional or genetic eating disorder. He strongly suspected a genetic etiology.

“Hypothetically, you have a four year-old male child, ate as much food as his adult parents did at meals, demanded food in between meals, ate inedible items such as dog food cat food, ate out of the trash, ate glue, toothpaste, Baker's chocolate and if he also drank large quantities of water, for example a quart of water during just a Sunday school class. And if he also ate until he gagged or vomited and then would eat more. If it was reported that at one sitting at age 3 he ate five slices of

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28“How does your child react to strangers? Doesn’t seem to get the concept of strangers. Would go with anyone. …Has your child received any special education services? Was served by ECI for a very short time. Briefly discuss any other important information about your child. Hard to understand. Trouble following direction. Receptive language seems delayed.” 9WHDEx43 [O8.9WHDEx43delayed.pdf]. She stated that she saw a specialist, Dr. Bobele, “at attorney’s request.” 9WHDEx43 [O8.9WHDEx43request.pdf]. She also reports: “Parent reports that Andrew repeats end of a direction and has difficulty answering questions.” 9WHDEx43 [O8.9WHDEx43questions.pdf] and “Andrew is a 32 month old little boy who has been in foster care for 4-5 months. Foster mom is concerned with clarity of speech and cognitive abilities. Andrew was assessed using the Hawaii early learning profile and shows solid delay of 8 months and scattered more, in both language and cognitive skills.” 9WHDEx43 [O8.9WHDEx43skills.pdf]. Dr. Cortes testified that this “echolalia” was indicative of “neurological problems like mental retardation or autism spectrum disorder.” 3WH27-28 [O8.3WH27-28.pdf]. See also MHMR records 9DEx23, page 368 “There may be cognitive delays as well.” 9WHDEx23p368-369 [O8.9WHDEx23p368-369.pdf].

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pizza, if he also threw violent temper tantrums throwing himself to the floor and hitting his head on the floor and engaged in self mutilation like picking on mosquito bites or scratching skin, and if he would become enraged purposely defecating and smearing his feces or throwing it, what would you opine about this child with regard to whether or not he might have one of these genetic eating disorders?

A. [Dr. Zinn] Well that constellation of signs or symptoms would certainly prompt me to want to evaluate that child for a genetic abnormality or for a tumor that might be involving the feeding and thirst centers of the brain or for some type of psychiatric disturbance that might be causing this type of behavior. That is markedly abnormal behavior.

Q. If this child also, add to the hypothetical, had special evaluation by MH MR and was shown to have developmental delays and deficiencies would that change your opinion in any way?

A. That would push me even further toward the idea of genetic evaluation and testing searching for genetic etiology. It's quite clear that that connection is quite clear between intellectual impairment and genetic abnormalities. And the type of study I mentioned chromosome MicroArray would be the 1st study the study of choice in someone like that.” 3WH194-196 [O8.3WH194-196.pdf].

The trial Court is incorrect that Dr. Bobel’s records state that he found “no evidence of any mental deficiencies.” His records actually state, “He is hyperactive. He does not know his own age, and does not know primary colors. He seems to have a little bit of short-term memory problem. …He has problems following some commands…There may be cognitive delays as well.” 9WHDEx23p368-369 [O8.9WHDEx23p368-369.pdf]. As mentioned above, his previous foster mother, Sharon Hamil also wrote in his MHMR records that AB was slower than other kids his age. 9WHDEx43 [O8.9WHDEx43slower.pdf]. That is from a foster mother who has had approximately 300 children in her home and therefore, from experience, would know whether a child was slower than others. 8RR174, 218 [O8.8RR174.218.pdf].

Ground Three-Ineffective Assistance Concerning Advice on Lesser-Included Offenses

Trial Court’s Finding of Fact Nine at Page 3:

9. The Court finds credible attorney John Gilmore’s testimony at the writ hearing that he and attorney David Stith correctly advised Ms. Overton concerning the consequences of asking for a lesser-included offense, and specifically that this would not preclude her from challenging on appeal a conviction on the lesser offenses. The Court further finds that the Court itself admonished Hannah Overton on the consequences of not allowing the lesser-included offenses to her added to the charge, before the charge was read to the jury. (RR vol. 17, p. 211)

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Objection 9: The testimony here is incomplete because Brad Condit had no memory regarding what he had advised Hannah Overton concerning lesser included offenses. 6WH5-8 [O9.6WH5-8.pdf]. John Gilmore recalled that she was advised properly by he and David Stith concerning the issue. 6WH130-133 [O9.6WH130-133.pdf]. The Court merely noted her decision on the record. 17RR211 [O9.17RR211.pdf].

“THE COURT: Ms. Overton, come forward, please. You’ve consulted with your attorneys and you understand the ramifications on just going on capital murder. Is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: And that’s what you want?

THE DEFENDANT: Yes, sir.” 17RR211 [O9.17RR211.pdf].

However, Pastor Rod Carver was present when Hannah Overton was advised that if she asked for submission of lesser included offenses to the jury, it would be like admitting guilt. She understood that she would not be able to appeal her conviction in such a case and thus she declined to submit lesser-included offense instructions. 6WH114-116.

“Q. Okay at the time of Hannah’s trial, what was your understanding of the law when one asks for lesser-included offenses from the jury?

THE WITNESS: I believed that if you asked for lesser includeds, you were admitting guilt.” 6WH114 [O9.6WH114.pdf].

This was based upon the advice that defense lawyers gave Hannah Overton and, after that, she declined to ask for their submission to the jury.

Trial Court’s Finding of Fact Ten at Page 3:

10. Accordingly, the Court finds that Overton has failed to prove by a preponderance of the evidence that her trial attorneys’ decision to honor her request not to ask that lesser-included offenses by (sic) submitted to the jury was deficient in any way. Specifically, the Court finds that Overton’s trial attorneys’ explained to her the consequences of her decision, and that nothing indicated that her decision was involuntary or unknowing or that Overton was then incompetent to make that decision, nor was that suggestion made at any point during trial.

Objection 10: Note comment in Objection No. 9 above.

Grounds Four and Five-Ineffective Assistance for Failure to Investigate

Trial Court’s Finding of Fact Eleven at Page 3:

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11. The Court finds that the Applicant failed to develop her claim that her trial attorneys were deficient for failing to seek additional testing of the victim’s tissue and further investigation of the brain scan, to further investigate Andrew’s birth records, and to determine whether Andrew had Prader-Willi Syndrome. The Court further finds that the Defense did test Andrew’s tissue for Prader-Willi Syndrome and that the test results were negative. (DX #27)

Objection 11: The lawyers failed to investigate the existence of personal gene mutations and their role in Prader-Willi-like syndrome. The SIM-1 disease and genetically caused eating disorder was discovered by the time of Overton’s trial. 12WHDEx47 [O11.12WHDEx47.pdf]. Even though the Prader-Willi test the lawyers had performed stated on its face that the test could not rule out genetic syndromes like Prader-Willi Syndrome (9WHDEx27 [O11.9WHDEx27.pdf]), the lawyers neither investigated these other diseases, nor put on any evidence of the fact AB probably suffered from such a disorder, but that genetic tests might not yet exist to identify it.

“These findings do not rule out other genetic etiologies that may be associated with the clinical findings in this patient. If warranted a complete genetic evaluation should be considered. It should be noted that this assay may not detect the presence of an abnormality if present in the mosaic state.” 9WHDEx27 [O11.9WHDEx27.pdf].

Had they investigated, the lawyers could have put on evidence that AB’ symptoms led to the diagnosis of an eating disorder of emotional or genetic causes. 3WH187-188 [O11.3WH187-188.pdf].

“[Dr. Zinn] Many patients are - - are - - are referred for genetic testing with a diagnosis that says Prader-Willi or Prader-Willi-like or Prader-Willi symptoms, meaning that they display some of the abnormalities. And if the test results come back and are negative for Prader-Willi, the tendency now has become to change the diagnosis to give the child a diagnosis of Prader-Willi-like Syndrome, because it’s thought the current generation of tests are very good and detect more than 99 percent of the individuals that truly have Prader-Willi. So in a sense, the definition of Prader-Willi has evolved from being a syndrome or a collection of signs and symptoms to becoming the results of a diagnostic test. And you may have all of the features of the original Prader-Willi description, and if the test is negative, people will then tend to say you have Prader-Willi-like rather than Prader-Willi.

Q. So you can test negative for Prader-Willi Syndrome and not have it, and yet your disorder is still referred to by the term Prader-Willi but Prader-Willi-like?

A. Correct.

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Q. Okay. And did you become aware, Doctor, that in March of 2007 some genetic material for Andrew Burd was tested and it was found negative for Prader- Willi Syndrome?

A. Yes.

Q. Is it - - can you explain - - would that mean necessarily, Doctor, that Andrew Burd did not have a Prader-Willi-like syndrome?

A. Absolutely not. In the - - in the report it even says, ‘These findings do not rule out other genetic etiologies that may be associated with the clinical findings in this patient.’

Q. Okay. So if some lawyers were to have gotten that test done, that did not rule out the possibility of presenting information about these Prader- Willi-like illnesses?

A. Right. That did not rule out the possibility that there was a Prader- Willi-like illness.” 3WH187-188 (emphasis added) [O11.3WH187-188.pdf].

This would have lead jurors to understand that Overton did not poison her child, but that he accidentally ingested too much sodium on his own, earlier, because he had an eating disorder. See also Objection No.’s 3 and 4 above.

Trial Court’s Finding of Fact Twelve at Page 3:

12. The Court further finds that there is no credible evidence that would have lead the defense attorneys at the time of trial to believe further testing for Prader-Willi-like syndrome was necessary based on their trial strategy.

Objection 12: It was the defense strategy to show that AB had an eating disorder and that he, therefore, accidentally and voluntarily ate too much sodium, causing his own death.

“[Mr. Gilmore] I will say that there was a tragic event that happened about three weeks before this. It was an accident. And Andrew’s behavior changed after that accident. I’m going to let our witnesses detail how it changed his behavioral pattern; but he did start acting differently, differently than he acted when he was with Ms. Hamil.” 8RR171 [O12.8RR171.pdf].

“[Mr. Gilmore] The pictures of the pantry here, this one right here is the one that I wanted you to look at. It’s State’s Exhibit Number 55. Look what’s in here. Remember, Hannah told you that Andrew had pulled the stool into the pantry and then she caught him in there and she put it back and then she went off. She was talking to Kathi, the next door neighbor. These are the photographs that were taken, and look what’s there. There is the stool back in the pantry again. And what’s on it, a bag of candy.

The State - - I mean, they cannot say that Andrew didn’t eat whatever he ate, whatever caused this, they can’t say that he didn’t do it himself. We’re not

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blaming him for it. It’s something - - he had a problem. He had an eating disorder.” 19RR32-33 [O12.19RR32-33.pdf].

There was no evidence presented to the contrary. Prader-Willi is a genetic eating disorder and the testing that the lawyers had done did not rule it out. The test results stated:

“These findings do not rule out other genetic etiologies that may be associated with the clinical findings in this patient. If warranted a complete genetic evaluation should be considered. It should be noted that this assay may not detect the presence of an abnormality if present in the mosaic state.” 9WHDEx27 [O12.9WHDEx27.pdf].

It and the evidence of evolving science showing that personal genetic mutations and numerous other eating disorders referred to as Prader-Willi like syndrome exist and fit AB’s symptoms should have been explored and presented to the jury. 6WH72-73 [O12.6WH72-73.pdf]. This is especially so since AB’s eating disorder was a key component of their defense. 19RR52 [O12.19RR52.pdf]. See also Objection No.’s 8 and 11 above. The defense was that an eating disorder in the child caused his accidental ingestion of too much sodium and that the symptoms are so rare that their significance is not realized by even medical doctors for several hours. 4WH109-111 [O12.4WH109- 111.pdf]. Such high hypernatremia in the field is always fatal. 4WH31 [O12.4WH31.pdf]; 4WH32.

Trial Court’s Finding of Fact Thirteen at Page 3:

13. The Court further finds from the trial record that Overton’s trial attorney did develop her testimony concerning her history of caring for children. (RR vol. 17, pp. 5-7, 96-97, 106)

Objection 13: While Overton’s care for children was explored in her testimony at trial (17RR6-7, 9-10 [O13.17RR6-7.9-10.pdf]), her docile nature and selfless devotion to the children of others was not delved into.

“[Mr. Jones] …my wife and Hannah, I believe, had done some mission trips in Mexico at an orphanage there that our church would do. I believe Hannah was the one who had done a lot of that and organized it. …

Q. [Ms. Orr] And would that be a once-a-year thing that you-all would do?

A. I’m not quite sure. I believe Hannah did it more often than we did. …

Q. And what would you-all do with respect to these orphanages in Mexico?

A. It was a mission trip. A lot of times we would take - - I didn’t get to go on them, but I do know the purpose. A lot of times we would gather stuff together for them because they didn’t have very much. And the church would get together and

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get items like soap, toothbrushes, toys, clothes, things of that nature.” 6WH19-21 [O13.6WH19-21.pdf].

This special affinity for child care along with her selfless and docile nature would have alerted the jury to the fact that absent any evidence that she lost her temper and in the face of substantial evidence to the contrary, Overton was not guilty of bad parenting and causing AB to ingest forced sodium or Zatarain’s. 6WH132 [O13.6WH132.pdf].

Trial Court’s Finding of Fact Fourteen at Page 3:

14. The Court finds that any deficient performance by the Defense attorneys in this regard, did not cause prejudice; specifically that there is not a probability sufficient to undermine confidence in the outcome that, but for this complained-about deficiency, the result of the proceeding would have been different.

Objection 14: If the jurors had heard about Overton’s great affinity for child care and for the care of multiple children of others along with evidence of AB’s eating disorder that they did not further investigate, and had they also known of the low sodium in his first vomit, they would have been convinced that this was accidental ingestion by the child of too much sodium some hours prior to his exhibiting clear symptoms of hypernatremia. They were rendered ineffective by the withheld evidence and evidence which they did not investigate to discover. 12DEx49p55-57 [O14.12WHDEx49p55- 57.pdf]; 4WH26 [O14.4WH26.pdf]; 3WH102-103, 110-111 [O14.3WH102-103.110- 111.pdf]; 3WH194-195 [O14.3WH194-195.pdf].

Grounds Six and Seven- Ineffective Assistance for Failure to Develop Evidence Concerning Causation

Trial Court’s Finding of Fact Fifteen at Page 4:

15. The Court finds credible attorney David Jones’ testimony at the writ hearing that he did not review Dr. Moritz’s deposition testimony before recommending that it not be offered into evidence at the trial. However, the Court does not find that this decision amounted to deficient performance in light of the fact that another defense attorney, Chris Pinedo, an attorney specializing in medical malpractice cases, was also present at the deposition, and testified it was trial strategy not to use the deposition, and that there were clearly certain matters on the deposition that might have prejudiced the defense. Further, the Court finds Dr. Moritz’s opinions on the deposition did not conclusively refute trial testimony by Dr. Alexandre Rotta that Andrew could have been saved had he been brought to the hospital sooner.

Objection 15: The Court is incorrect in finding that Mr. Pinedo attended Dr. Moritz’

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deposition. 4WH258 [O15.4WH258.pdf]. Mr. Pinedo said he had come in and out a few times [6WH63] and understood that Sandra Eastwood was injecting inadmissible matter (false alleged facts) into the deposition so that it could not be used. 4WH257 – 258 [O15.4WH257-258.pdf]. A simple review of the deposition shows much admissible evidence that could have been adequately edited to present it to the jury in the days remaining in the trial. 6WH118 [O15.6WH118.pdf]. In addition, the defense could have called Dr. Moritz to return and testify on behalf of the defense live. 6WH128 [O15.6WH128.pdf])

As David Jones testified, no trial lawyer reviewed the video deposition prior to deciding not to use it. 6WH83-85 [O15.6WH83-85.pdf]; 6WH73 [O15.6WH73.pdf]; 6WH68 [O15.6WH68.pdf]. The lawyer who conducted the deposition had no other involvement in the trial and was unaware of the Court’s rulings during it. 6WH51 [O15.6WH51.pdf]. He had helped conduct discovery in the case. 6WH51 [O15.6WH51disc.pdf].

David Jones testified that a brief thirty-minute review demonstrated to him that he was ineffective for failing to review and use the only defense evidence that the lawyers had to rebut the State’s theory put on through Dr. Rotta. Dr. Moritz’ qualified testimony dealing with high hypernatremias, instead of Dr. Rotta’s unscientific and unknowlegeable testimony, was the only evidence that this level of sodium is fatal and that the ingestion had to be self-administered by accident. 4WH31 [O15.4WH31.pdf]; (4WH79-82 [O15.4WH79-82.pdf]). He ruled out child abuse, there were no injuries to AB’s mouth, no excess salt on the floor of the home, and no salt crystals crusted on his clothing. 4WH26, 89–90 [O15.4WH26.89-90.pdf]. His first vomit had the low sodium level of 250 meq/l instead of over 1600 that would have been expected with a serum blood sodium of 245 meq/l. 8WH32–33 [O15.8WH32-33.pdf]. Thus, AB had ingested the excessive amount, approximately an hour, prior to Overton giving him soup and a sippy cup of water and Zatarain’s. 8WH53-54 [O15.8WH53-54.pdf]; 4WH15-16 [O15.4WH15-16.pdf].

It was impossible to cause a child to ingest that much sodium, because sodium is an emetic and he would have immediately vomited it. 12WHDEx49p50-51 [O15.12WHDEx49p50-51.pdf]. He must, therefore, have suffered from an eating disorder like salt pica where he became more tolerant of higher levels of self administered sodium and finally ingested too much of it in the pantry earlier that morning or by pouring Zatarain’s in his first soup. 4WH100-102 [O15.4WH100-102.pdf].

Instead of hearing Dr. Moritz’ testimony to this effect, the jurors only heard the testimony of Dr. Rotta that had he not suffered a cardiac arrest out of the hospital, he would have had a better chance at survival. 8RR100 [O15.8RR100.pdf]; 11RR87-88 [O15.11RR87-88.pdf]; 12RR94-95 [O15.12RR94-95.pdf]. This testimony was based on studies that did not involve one case of hypernatremia. 8RR140. Dr. Rotta was

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unfamiliar with coagulopathy and other symptoms of hypernatremia this high. So he mistook it for child abuse and head trauma. He did not know what a child with underlying hypernatremia might experience. He did not know the science of hypernatremia. 8RR139. During the writ hearing, Dr. Fernandez reversed himself on this important point. 7WH8, 29-36 [O15.7WH8.29-36.pdf].

Thus, the lawyers were ineffective for failing to offer the only evidence that they had of their defense. They made a decision without even reviewing the deposition in order to make a decision concerning the expert testimony of Dr. Moritz, which provided the only evidence of their medical defense. 6WH68-69 [O15.6WH68-69.pdf].

Trial Court’s Finding of Fact Sixteen at Page 4:

16. The Court finds credible the testimony at trial of Dr. Alexandre Rotta that, as a pediatric critical care specialist, he takes care of the children who are too sick to be taken care of by a nephrologist, endocrinologist or a general pediatric practitioner, and thus that he would be in a better position to assess the treatment and survivability of such a critically ill child. (RR. Vol. 12, p. 170; vol. 13, p. 21)

Objection 16: Dr Rotta had only seen one case of hypernatremia before (8RR75 [O16.8RR75.pdf]), but had never seen one with blood serum sodium this high. 11RR92 [O16.11RR92.pdf]). Dr. Moritz has studied all the reported cases of hypernatrermia and is the world’s expert on it, including the cases of very high sodium intoxication. 12WHDEx49p15, 35 [O16.12WHDEx49p15.35.pdf].

If Dr. Rotta were, in fact, the best expert to treat it, why did he allow the child to be given continuing quantities of sodium in saline solution and sodium bicarbonate? 12RR136 [O16.12RR136.pdf]. Because, like Overton, without the tests, he could not tell what was wrong. 7WH61-62 [O16.7WH61-62.pdf]. He saw coagulopathy as child abuse (12RR90-91 [O16.12RR90-91.pdf]; 8RR127 [O16.8RR127.pdf]), instead of the bleeding of slight bumps and handling by medical personnel providing treatment and prior existing scratches. Dr. Fernandez, when informed of this phenomenon, reversed himself regarding AB’s injuries as being caused by coagulopathy and not trauma. 7WH52-54 [O16.7WH52-54.pdf]. He reversed himself and disagreed with Dr. Rotta based upon the superior information from Dr. Moritz. 7WH8, 53-54 [O16.7WH8.53-54.pdf]. And he defers and said the State would rely on Dr. Moritz concerning hypernatremia.

The fact that a 245 meq/l blood serum sodium is fatal, is something that Dr. Rotta’s evidence did not cover, and that even the doctors at Driscoll Children’s Hospital could not treat. 7WH60-61 [O16.7WH60-61.pdf]. It took medical doctors one and ½ to two hours to diagnose this. 6WH98 [O16.6WH98.pdf]. This is the proof also that Overton did not delay or omit to provide adequate medical care to AB. 4WH118-120 [O16.4WH118-120.pdf]. She engaged in care appropriate to AB’s symptoms including

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heroic measures when he arrested as they arrived at Driscoll Urgent Care with him. 4WH108-109 [O16.4WH108-109.pdf].

Dr. Moritz is the world’s expert on hypernatremia and doctors consult with him about what to do in cases of suspected hypernatremia. 4WH107 [O16.4WH107.pdf]. He sees and treats patients with numerous causes for this disorder and knows what the best treatment is. V12WHDEx49p36 [O16.12WHDEx49p36.pdf]. His testimony is that out of hospital hypernatremias this high are always fatal. 4WH31 [O16.4WH31.pdf]; 4WH32.

Trial Court’s Finding of Fact Seventeen at Pages 4-5:

17. The Court finds that, in his deposition, Dr. Moritz admitted that a child with a sodium concentration of some 270 (some 30 points higher than the present victim) did recover. (DX #49 at 2:56:00) When asked about the window of opportunity for the parent to seek treatment for a child with salt poisoning, Dr. Moritz testified that the mortality rate was high, based on an estimate of one hour in taking the child to the hospital and some three to four hours total before diagnosing the condition, that Dr. Moritz admitted that he had never treated someone with that high a sodium level, that there was no “specific therapy,” and that there are limited things available to treat this high sodium poisoning, although he did mention using dialysis as a treatment, and that there would be a 30 to 50 percent mortality rate. (DX #49 at 3:00:00-3:05:00) The Court further finds that, during the State’s cross-examination, it became clear that Dr. Moritz did not review all the evidence in this case, including but not limited to Hannah Overton’s children’s testimony or Mr. Overton’s interview regarding Hannah’s discipline of Andrew. (DX #49 at 3:28:00-3:29:00) Dr. Moritz also admitted that he would feel misled if there was a witness not provided to him who would testify that Andrew was punished by forcing him to take salt. (DX #49 at 3:30:00-3:31:00)

Objection 17: Dr. Moritz testified that an in hospital case of hypernatremia of 270 had survived. This case involved numerous infants given a mixture of baby formula with salt mistakenly added instead of sugar in the hospital. 4WH52 [O17.4WH52.pdf]. Since such a large number of infants were involved in a hospital, the high sodium was discovered for them immediately. The child was in the hospital and treated at the same time the accident occurred. Under these unusual circumstances, a high sodium can be treated, but perhaps not successfully. A child treated with functioning kidneys who was caught right away, and immediately given massive amounts of fluid, not additional sodium, may survive. We do not know the subsequent complications that the child experienced, such as brain damage and the like. The 30 -50% mortality rate about which he testified concerns animal cases of hypernatremia. 12WHDEx49p67 [O17.12WHDEx49p67.pdf]. The kind of dialysis Dr. Moritz spoke about using was

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complete blood replacement, something that was unavailable in Corpus Christi. 12WHDEx49p67 [O17.12WHDEx49p67dlyss.pdf].

Dr. Moritz testified that high hypernatremia in the field, outside the hospital, was always fatal. 4WH32 [O17.4WH32.pdf]; 12WHDEx49p65 [O17.12WHDEx49p65.pdf]. He had examined every reported case to arrive at his conclusions. 12WHDEx49p21, 35 [O17.12WHDEx49p21.35.pdf]. He noted that if there were information shown to him that should cause him to change his opinion, that as with any other expert witness, he reserved the right to do so. He testified that he ruled out child abuse based upon the information provided to him by the lawyer in charge of discovery. 12WHDEx49p87 [O17.12WHDEx49p87.pdf]. That there were not previous calls to the home by CPS, which was true. And that there was no evidence of any injury to any other child in the home. 4WH28 [O17.4WH28.pdf]; 12WHDEx49p85 [O17.12WHDEx49p85.pdf]. This was also true.

He observed and reviewed the medical records, reports and photos of AB himself and found his injuries, unrelated to the hypernatremia, insignificant. 12WHDEx49p78, 87-88 [O17.12WHDEx49p78.87-88.pdf]. The State improperly suggested false facts; that a witness observed sodium being forced upon AB and that a witness confessed he punished the child with sodium. 12WHDEx49p93, 96 [O17.12WHDEx49p93.96.pdf]. But counsel properly objected to these untrue suggestions that had no foundation in fact. 12WHDEx49p92-93, 96 [O17.12WHDEx49p92-93.96.pdf]; 12WHDEx49p86-87 [O17.12WHDEx49p86-87.pdf]; 6WH71, 77, 79, 82 [O17.6WH71.77.79.82.pdf].

This was the same pattern and practice tat the prosecutor improperly engaged in at trial. See footnote, 31, supra, page 54. These untrue suggestions could have been edited out of the videotaped deposition and the video used in front of the jury, or the defense had several days in which to call Dr. Moritz to the stand to testify for the defense.

“[Ms. Orr] Mr. Gilmore, are you aware of whether or not videotaped depositions can be edited before they’re presented to the jury?

A. [Mr. Gilmore] I rarely ever use depositions; but I am kind of familiar with it, yes.

Q. Okay. And did you have time to do that if you-all had wanted to after Dr. Moritz testified?

A. I don’t - - I don’t believe so.

A. You know, I think we had a weekend. So if somebody wanted to do it, I guess we could have done it.

Q. And are you aware whether or not any of the Defense lawyers reviewed the videotape to make that assessment back at the time of Hannah Overton’s trial?

A. I don’t know. …

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Q. [Mr. Norman] A couple of the Defense attorneys were present during that deposition, at least, were they not?

A. Brad Condit conducted the deposition, and I think David Stith was watching. And I believe somebody else went down at one point. Whether it was Chris or David Jones, I’m not sure.

Q. Okay. And Mr. Condit is a civil attorney. Is that correct?

A. He is.

Q. So presumably he’s familiar with depositions and what can and can’t be done?

A. Yeah, presumably.

Q. [Ms. Orr] And are you aware of whether he [Brad Condit] reviewed the video to make an assessment of whether it could be edited for use?

A. I’m not.

Q. Are you aware of whether or not matters were presented during the deposition that the Court had ruled would not be admissible in the trial of the case?

A. I was - - from hearsay I was told that.” 6WH134-136 [O17.6WH134-136.pdf].

Trial Court’s Finding of Fact Eighteen at Page 5:

18. The Court finds credible Chris Pinedo’s testimony that he made the decision not to introduce the testimony or the deposition of Dr. Moritz due to trial strategy. The Court further finds and agrees with Mr. Pinedo’s testimony he was not ineffective as trial counsel based upon this choice. Mr. Pinedo, when presented with the aforementioned possibility that Dr. Moritz’s testimony might open the door to evidence and testimony harmful to the defense that was otherwise excluded at trial, cannot be said to be ineffective in choosing to exclude Dr. Moritz’s testimony from trial, especially when the excluded evidence concerned child abuse. Further, Dr. Moritz never treated the patient, nor was provided with all the evidence available at the time of trial and was therefore not in a position to effectively refute either Dr. Rotta’s testimony regarding Andrew Burd’s survivability or Dr. Fernandez’s testimony regarding cause and manner of death.

Objection 18: See Objection No.’s 16 and 17 above. This is repetitive and neglects to acknowledge that Chris Pinedo never reviewed the deposition and thought that the interjection of untrue information by the State rendered the deposition un-usable. 4WH194-196 [O18.4WH194-196.pdf]. In fact, after a review of the deposition it was apparent that it could have been edited and used or Dr. Moritz could have been called back as a live witness during the completion of the trial. 4WH197 [O18.4WH197.pdf]. Since he was the only witness to the medical defense evidence, both David Jones (who is the only trial lawyer to have reviewed the deposition, 6WH73 [O18.6WH73.pdf]), and John Gilmore [lead counsel] testified that they were ineffective for failing to put this evidence on. 6WH118 [O18.6WH118.pdf]. Chris Pinedo testified that he went into the

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deposition for only a brief period and did not attend it in full.

No retained expert witness in a medical case actually treats the patients about which they testify. Dr. Moritz’s life work is to study this condition, reviewing medical records and observing patients he does treat.

The medical examiner who testified at the writ hearing was likewise, not a treating physician. 6WH216-217 [O18.6WH216-217.pdf]. However, when informed about coagulopathy and symptoms of hypernatremia, he changed his medical opinion about alleged head trauma to AB to reflect this brain bleed was, in fact, a symptom of coagulopathy caused by hypernatremia. 6WH253, 255 [O18.6WH253.255.pdf]. He deferred to Dr. Moritz on hypernatremia.

Trial Court’s Finding of Fact Nineteen at Page 5:

19. Accordingly, the Court finds Overton has failed to prove by a preponderance of the evidence that her trial attorneys’ performance was deficient in failing to offer Dr. Moritz’s deposition at trial. Further, the Court finds that any deficient performance in this regard did not cause prejudice, and specifically that there is not a probability sufficient to undermine confidence in the outcome that, but for this complained-about deficiency, the result of the proceeding would have been different.

Objection 19: It is not strategy to make a blind decision about using the deposition or live testimony of a Doctor who is the world’s expert in hypernatremia, when that is what caused the decedent’s death. See Wiggins v. Smith, 539 U.S. 510, 536 (2003). It is not strategy to decide not to use a videotape you have not reviewed. The testimony at the writ hearing is that the videotape was not reviewed by any trial lawyer. 4WH197 [O19.4WH197VtpNtRvwd.pdf]. Nor did counsel attempt to bring Dr. Moritz back during the remaining days of the trial to testify live, without the interjection of inadmissible matter by the prosecution. 4WH197 [O19.4WH197BrngBck.pdf].

Dr. Moritz was the only witness to the medical defense regarding accidental salt self-ingestion and its fatal non-treatable nature. Defense counsel testified that they could not elicit this necessary testimony from Dr. Rotta. 12WHDEx49p36-37 [O19.12WHDEx49p36-37.pdf]. Dr. Rotta was also not knowledgeable about hypernatremia and the science of it.

With the defense evidence, the jury would have heard that the child had an eating disorder, that the doctor had ruled out abuse, that the child showed no signs of forced ingestion of sodium, that he showed no evidence of child abuse, that the symptoms of hypernatremia do not appear to be life threatening, but instead trivial, at first and that causing sodium ingestion was nearly impossible and was fatal regardless of how quickly Overton sought treatment after clearly more serious symptoms manifested themselves.

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12WHDEx49p66 [O19.12WHDEx49p66.pdf]. This would have lead the jury to conclude that the world’s expert on hypernatremia was correct, Overton was not guilty of capital murder. She was innocent of salt poisoning her child, AB, and of knowingly omitting to provide medical care that would save his life. 12WHDEx49p65 [O19.12WHDEx49p65.pdf].

Trial Court’s Finding of Fact Twenty at Page 5:

20. The Court further finds that the Applicant failed to develop her claim that her trial attorneys failed to adequately cross-examine Dr. Rotta at trial concerning causation and Andrew’s survivability.

Objection 20: When Dr. Rotta testified that if AB had not arrested outside of the hospital, he was completely ignoring the fact that AB was already fatally ill with hypernatremia. If the lawyers had viewed Dr. Moritz’ deposition or called Dr. Moritz to testify, they would have known this and could have called him back or impeached Dr. Rotta at the time of his testimony. 12WHDEx49p65-66 [O20.12WHDEx49p65-66.pdf].

“Q. (By Mr. Raley) So we have over an hour, somewhere close to two hours, depending on the response time. And we’ll just assume for the sake of argument it is what you say. We won’t say that’s the exact time. But assuming for the sake of argument it’s that much time, one to two hours, in a child with 245 milliequivalents in the blood, can that child be saved even if there’s the very, very best of care? In other words, as a matter of reasonable medical probability, will that child die?

A. After an hour of a sodium of 245, I would say no, within reasonable medical probability it’s exceedingly unlikely.

Q. Exceedingly unlikely that he –    A. That the child could be saved and live.” 4WH111 [O20.4WH111.pdf].

The State’s theory was that AB had noticeable scratches on him, head trauma, and infected wounds in addition to the high sodium. Sandra Eastwood testified:

“Q. Sodium level was important in that case. It was a salt poisoning case. Without any indication of sodium level, there wouldn't be a case. Am I correct?

A. [Sandra Eastwood] I would disagree with that.

Q. You could actually try a salt poisoning without knowing what any sodium level was in a person?

A. There were other factors in the case. The child clearly had scratches all over, had a head injury. There was bruising. There were markings, festering sores. It wasn't just sodium. So I can't say that it was just sodium that --

Q. I didn't ask you what. Excuse me. I didn't mean to interrupt you. My sodium. You remember everything about head injuries, bruising, scratches all over. That's your testimony. But you don't remember that sodium level was -- all I said was it

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 was important in this case, was it not?

A. Yes.

 Q. And the Court of Criminal Appeals has sent it back for the scientific testimony
and evidence regarding sodium levels. And that's one of the specific things they
asked us about. So they thought it was important. Didn't you? Did you think
sodium levels were important at the time?

 A. Yes.

 Q. And to determine sodium levels it would be important to determine where thesubstance was obtained and when it was obtained in terms of assessing the
significance of those sodium levels. Am I correct?

A. Yes.

Q. I mean, whether I have a sodium level on Wednesday may be a factor, but it
certainly doesn't determine what my sodium level was on Monday. Is that a correct
statement?

A. I guess, yes. I'm not a doctor.” 5WH40-41 (emphasis added) [O20.5WH40-
O20.5WH40-41.pdf].

 This is the subject matter of Dr. Rotta’s testimony that was incorrect (11RR122-123
[O20.11RR122-123.pdf]), and could have been adequately challenged at trial if the trial
lawyers used Dr. Moritz’s testimony as the writ lawyers did. During the writ hearing Dr.
Fernandez learned of the fact that coagulopathy occurred in instances of high
hypernatremia. 7WH54 [O20.7WH54.pdf]. This caused him to change his opinion about
the injuries seen on AB at the last hospital where he was taken. 7WH58
[O20.7WH58.pdf]. AB initially presented with a bruise on his knee, a missing
fingernail and old picked on insect bites. 6WH221 [O20.6WH221.pdf]. By the time he
was at Driscoll Children’s Hospital and Dr. Rotta saw him for the first time, each of the
scratches on his body was bleeding and he had bruises caused by any touch or movement
of his body. 11RR122-123 [O20.11RR122-123TchMvmnt.pdf]. His coagulopathy
caused this bleeding and easy immediate bruising. 7WH54
[O20.7WH54BldngBrsng.pdf]. In light of Dr. Moritz’s information about the
coagulopathy and brain bleeds associated with hypernatremia (4WH53-55 [O20.4WH53-
O20.4WH53-55.pdf]), Dr. Fernandez agreed on cross-examination that:

 “Q. [Mr. Raley] Yes, sir. And with the coagulopathy, certainly with
coagulopathy caused by such a high level of salt in the blood of 245, even a small
impact, one that wouldn’t be of great force, could cause a larger than normal
bruise or injury, correct?

 A. [Fernandez] They would bruise easier than someone who doesn’t have
coagulopathy.

 Q. Yes, sir. And the coagulopathy, for example, is one of the reasons that you see
this bleeding on the surface of the brain, correct?

 A. Yes.

 Q. And it is the reason for the subarachnoid hemorrhage?

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 A. That’s right. The sodium causing the coagulopathy, causing the bleeding on
the brain.” 7WH54 [O20.7WH54.pdf].

 Trial counsel would have had the same information and ability had they reviewed and
utilized Dr. Moritz and his information to cross-examine Dr. Rotta at trial. Defense
counsel David Jones agreed that Dr. Moritz presented the only defense medical evidence
they had at their disposal (6WH83 [O20.6WH83.pdf]), that he and no other trial lawyer
attended or reviewed his deposition (6WH63-64 [O20.6WH63-64.pdf]), and that they
were therefore ineffective for not utilizing Dr. Moritz and his medical information.
6WH69-70 [O20.6WH69-70.pdf].

 Jones further testified that, had they utilized the evidence, Overton would have
been acquitted because the evidence firmly convinces one of her actual innocence.
6WH69, 71 [O20.6WH69.71.pdf].

 Because of the absence of Dr. Moritz’s information and adequate crossexamination
of Dr. Rotta, Dr. Rotta’s uninformed testimony was able to go before the
jury unchallenged. Dr. Rotta was wrong about the scratches and bruises on AB’s body
being caused by child abuse. 12RR90-91 [O20.12RR90-91.pdf]. The scratches and
bruises were not present at Driscoll Urgent Care where AB was first taken and his
coagulopathy caused them to occur. 8RR127 [O20.8RR127.pdf]. Dr. Rotta was
similarly wrong about opining that head trauma was present. 8RR127
[O20.8RR127.pdf]. In fact, the hypernatremia caused the brain bleeds to occur
(12RR98 [O20.12RR98.pdf]), there was no outside sign of any trauma (8RR133
[O20.8RR133.pdf]; 4WH56-57 [O20.4WH56-57.pdf]), and Dr. Fernandez agreed during
the writ hearing that the bruising occurred from any bump or handling during treatment,
due to AB’s hypernatremic coagulopathy, or inability to clot. 7WH53 [O20.7WH53.pdf].
Dr. Rotta was also incorrect to conclude that AB could have survived if he did not arrest
just outside the Driscoll Urgent Care. 12RR95 [O20.12RR95.pdf]. He did not know
anything about children with underlying hypernatremia. 8RR139. AB’s sodium ingestion
was fatal. 4WH32, 111 [O20.4WH32.111.pdf].

 Grounds Eight and Nine- Brady Claim Regarding the State’s Failure to
Disclose Information Known by Dr. Cortes

 Trial Court’s Finding of Fact Twenty-One at Page 5:

21. The Court finds credible the testimony of Dr. Edgar Cortes at the writ
hearing that he was not employed by the District Attorney’s office or any

 

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other State agency and was not an agent of the State or of the prosecution
for purposes of a duty to reveal exculpatory information to the defense.

 

Objection 21: Dr. Cortes and Sandra Eastwood testified that Dr. Cortes was a member of
the prosecution team. 3WH74 [O21.3WH74.pdf]; 22RR194-195 [O21.22RR194-
O21.22RR194-195.pdf].

 “Q. So he was a part of your prosecution team to that certain extent [in the
preparation of the prosecution]?

 A. [Eastwood] Yes.” 22RR195 [O21.22RR195.pdf].

 “Q. Does that accurately reflect your relationship with the State?

 A. [Cortes] Yes, I felt like I was part of the prosecution team.” 3WH74
[O21.3WH74.pdf].

 Dr. Cortes observed the State refuse to allow the defense to interview him and also
observed them taking him away after Chris Pinedo spoke to him for just a few moments.
He was also kept sequestered from the public and out of his office so that he could not be
reached. 3WH20-21, 29, 41-42, 52, 60-61 [O21.3WH20-21.29.41-42.52.60-61.pdf].
From this, he took away that he was not permitted to talk with the defense. 3WH41-42,
60-61 [O21.3WH41-42.60-61.pdf].

 

Trial Court’s Finding of Fact Twenty-Two at Pages 5-6:

 22. The Court finds credible the testimony of Anna Jimenez, that she
initially told Dr. Cortes he could not talk to the defense attorneys, but
immediately recanted and allowed him to talk to the defense attorneys,
which by Dr. Cortes’s testimony at the writ hearing he did do so for a short
amount of time, and that she did not abruptly end the interview with Dr.
Cortes and the defense attorneys in question. Further the Court finds Dr.
Cortes was a subpoenaed witness and available to both the prosecution and
defense.

 Objection 22: Chris Pinedo testified in the motion for new trial hearing that he was not
going to put Dr. Cortes on the stand to testify to what they briefly spoke about in the
hallway. 4WH180 [O22.4WH180.pdf]. His interview with Cortes was interrupted and
Dr. Cortes was made unavailable for the defense to reach. If defense counsel had
attempted to reach him at his office, they would not have been able to do so. 4WH172-
173, 181 [O22.4WH172-173.181.pdf].

 

This manufactured unavailability did not relieve the State of its duty to reveal the
favorable evidence he possessed. AB was not a well child, he had a eating disorder and
developmental delays. Dr. Cortes knew that AB’s death was an accident. 4WH172-173
[O22.4WH172-173.pdf].

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 Trial Court’s Finding of Fact Twenty-Three at Page 6:

 23. The Court finds that testimony of Dr. Edgar Cortes not credible at the
writ hearing concerning his opinion that Hannah Overton’s state of mind
was based on facts that were available in the medical records and known to
the defense. The Court further finds his testimony credible that his opinion
on Hannah Overton’s state of mind was not based on personal knowledge
of any other facts concerning Hannah Overton or AB or their relationship
with one another.

Objection 23: After Dr. Cortes learned that Overton had been administering CPR to her
dying child on the day that he saw her with AB. He realized that she was in shock. He
could relate to this himself since he felt empty and in shock after having administered
CPR to a medical colleague. 3WH75 [O23.3WH75.pdf]; 12DEx54
[O23.12WHDEx54.pdf].

“Previously Dr. Cortez had referred to Mrs. Overton as cold. Now, having learned
what he did not know then, that Mrs. Overton had been performing CPR on her
child, his opinion of how she appeared then has changed. His testimony would
have been:

‘I would like to address the appearance of Hannah Overton at Spohn South
Hospital when I arrived to accept the transfer of Andrew Burd to Driscoll
Children’s Hospital. At that time, Hannah appeared exhausted. She was quiet and
appeared to be in shock.

I understand this all too well as I had to do CPR on one of my senior partners
when he collapsed at my office 3 years ago and I had to do CPR for 20 minutes
until EMS arrived. I felt ill, numb, and empty inside for hours afterwards. I
suspect I looked very much like her.’” 12WHDEx54 [O23.12WHDEx54.pdf].

Trial Court’s Finding of Fact Twenty-Four at Page 6:

 24. The Court finds from the record of trial and the hearing on the motion
for new trial that Applicant’s present claim concerning the State’s failure to
disclose the opinions held by Dr. Cortes was fully developed in the written
motion for new trial and at the hearing on that motion, and that this
complaint was raised and rejected both by the trial court and by the
intermediate appellate court in connection with the appeal.

Objection 24: Dr. Cortes, like Dr. Moritz, Rotta and Fernandez did not have the first
vomit evidence of this child when he testified at the motion for new trial. 3WH36
[O24.3WH36.pdf]. Once each of them had it, it strengthened the opinions of those who
testified that AB’s injuries were all as a result of accidental hypernatremia. 3WH36-37
[O24.3WH36-37.pdf]. In addition, each of them had the benefit at the writ hearing of the

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 evolving medical and genetic evidence that AB had an eating disorder, which may have
been genetic in origin and contributed to his accidental death. 3WH45
[O24.3WH45.pdf]. Dr. Moritz was recognized by Dr. Cortes and Dr. Fernandez as the
leading expert in hypernatremia. 3WH83-84 [O24.3WH83-84.pdf]; 6WH216
[O24.6WH216.pdf]. His testimony was not used at trial, nor was it known to the lawyers
or other experts.

See also Objection No. 20 above.

Trial Court’s Finding of Fact Twenty-Five at Page 6:
25. The Court finds credible the testimony of attorney John Gilmore at the
hearing on motion for new trial that Dr. Cortes was the first expert witness
on Overton’s April 2007 disclosure of experts and that he knew Dr. Cortes
participated in Andrew’s care on the day he was poisoned (RR vol. 22, pp.
96-97), and that after talking to Dr. Cortes at trial, the defense did not want
him to testify. (RR vol. 22, p. 105) The Court further finds the testimony
of attorney Sandra Eastwood at the hearing on motion for new trial
reasonable that she did not recall Dr. Cortes ever expressing his opinion
that Overton did not intentionally kill Andrew. (RR vol. 22, p. 181)

Objection 25: The fact that the trial lawyers did not want to call Dr. Cortes to testify at
trial is clear evidence that his opinion that this was not capital murder and the medical
facts that lead him to this conclusion were not relayed to the defense. 5WH140, 194
[O25.5WH140.194.pdf].

Also, it is not reasonable for the Court to conclude that a witness who testified on
seventy-two occasions that she did not recall the trial (5WH68 [O25.5WH68.pdf]), makes
it reasonable to conclude that Dr. Cortes did tell her this information since she also
testified that the did not recall him telling her that. 5WH75 [O25.5WH75.pdf]. Dr. Cortes
was kept from the defense. 3WH41-42 [O25.3WH41-42.pdf]. If they had tried to reach
him at his office, they would not have been able to contact him since he was sequestered
by the prosecution in rooms at the courthouse and in the DA’s office. 5WH140
[O25.5WH140.pdf].

Ms. Jimenez, Ms. Eastwood’s second chair, testified that Eastwood was engaging
in unethical behavior during trial (5WH142-143, 145 [O25.5WH142-143.145.pdf]), did
not produce the vomit to the defense and should have done so (5WH190
[O25.5WH190.pdf]), was untruthful (5WH145-146 [O25.5WH145-146.pdf]), and told
Jimenez that she would do anything to gain an advantage over the defense. 5WH144
[O25.5WH144.pdf]. When Ms. Jimenez became the appointed District Attorney, she
fired Ms. Eastwood. 5WH171 [O25.5WH171.pdf].


Dr. Cortes told Ms. Eastwood emphatically that this was not a capital murder case,

45


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 but was an accident. 3WH43-44 [O25.3WH43-44.pdf]. He testified that there was no
skull and cross-bones on Zatarain’s seasoning and that he was certain that she did not
intend to kill AB (22RR23, 25, 30 [O25.22RR23.25.30.pdf]), nor did she delay in
seeking medical care. 22RR29 [O25.22RR29.pdf]. He testified that AB was not a
healthy child and that no evidence pointed to AB having been intentionally or knowingly
killed. 22RR57 [O25.22RR57.pdf].

Ms. Eastwood’s recollection of the trial was so poor, that she could not recall her
own signature on any motion or order, her own email, nor her own handwritten notes.
8WH25-26 [O25.8WH25-26.pdf], 5WH52, 69 [O25.5WH52.69.pdf].

“Q. (By Mr. Goldstein) You can recall that there are notes, e-mails missing from
your file; but you can't recognize your own e-mail when I show it to you? Is that
your testimony? I showed you Defendant's Exhibit 6429. You don't recognize that
as your e-mail, that you wrote that?

 A. That is correct. I do not remember writing that e-mail.

 Q. But you remember the logs and notes that you couldn't find when you went
back to look at the files. That's correct?

 A. Yes.” 5WH57 [O25.5WH57.pdf].

 Q. But you don't recall the -- excuse me. You don't recall the sodium level in a
“salt poisoning case where someone is serving life without parole, and that's the
one issue that this Court and the Court of Criminal Appeals are conducting this
hearing about. You don't remember that?

 MR. NORMAN: Asked and answered, Your Honor. She's already testified
(she had previously stated no that she did not recall the sodium level)” 5WH72
[O25.5WH72.pdf]; see objection 20, above.

Ms. Eastwood’s writ hearing testimony was evasive and not credible. If we were to
wholly believe her testimony, it is that she does not remember the first vomit (5WH27-30
[O25.5WH27-30.pdf]), its testing (5WH74 [O25.5WH74.pdf]), its non-production to the
defense (5WH63-64 [O25.5WH63-64.pdf]), the fact that the court ordered it produced
(5WH24-25 [O25.5WH24-25.pdf]), that she ordered it to be tested prior to trial
(12WHDEx64 [O25.12WHDEx64.pdf]) (5WH50 [O25.5WH50.pdf]), that it tested for
a normal sodium content (5WH49, 53 [O25.5WH49.53.pdf]), and that Dr. Cortes told her
this was not a capital murder, but was, in fact, an accident. 3WH43-44 [O25.3WH43-
O25.3WH43-44.pdf]; 5WH75 [O25.5WH75accdnt.pdf].

__________________________________
29Exhibit 64 is Ms. Eastwood’s e-mail asking for AB’s first vomit to be tested. 12WHDEx64
[O25.12WHDEx64.pdf].

46


------------------------------------------------------------------------------------------------------------------

From this the Court can conclude at best, only that Ms. Eastwood does not recall
and that every other witness at the writ hearing confirms the evidence existed, was
material and favorable, and was not produced.

Trial Court’s Finding of Fact Twenty-Six at Page 6:

26. Accordingly, the Court finds that Applicant has failed to prove by a
preponderance of the evidence that the prosecutors failed to disclose
material evidence to the defense concerning Dr. Cortes’s opinions.

Objection 26: Dr. Cortes was not alone in his opinion that this case was overcharged.
3WH23 [O26.3WH23.pdf]. He and Ms. Jimenez, both, opined that this was the case.
5WH202 [O26.5WH202.pdf]. The prosecution failed to produce AB’s treating
pediatrician’s opinion that he was accidentally salt poisoned and that Overton obtained
adequate medical care for AB. 3WH43 [O26.3WH43.pdf]. Cortes recalled the trial and
his specific preparation with Ms. Eastwood. 3WH43 [O26.3WH43DrCIfTestfd.pdf]. Ms.
Eastwood recalled very little of the trial. 5WH69, 126 [O26.5WH69.126.pdf].

When asked if she knew the purpose of this hearing in which she was subpoenaed to
testify, she responded:

“A. I’m not fully aware of what the purpose of the hearing is.” 5WH21
[O26.5WH21.pdf].

She was shown an order for discovery that both the State and the defense had agreed to
comply, Ms. Eastwood could not confirm that it was her signature that appeared on the
document.

“Q. [Mr. Goldstein] And is that your signature?

A. It appears to be, but I can’t authenticate any documents.” 5WH23
[O26.5WH23.pdf].

As she was not able to authenticate her own signature, she also could not say if her
handwritten notes were made by her.

“Q. (By Mr. Goldstein) …You’re saying when you look at your handwriting that it
looks like your handwriting, but you can’t testify that that is your handwriting. Is
that correct?

A. That is correct.” 5WH58 [O26.5WH58.pdf].
While Ms. Eastwood did know her e-mail address, after being shown the e-mail, she
could not recall if what was written in the e-mail from her was what she wrote.

Pg47
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“MR. GOLDSTEIN: Your Honor, so the record will at least assist whoever is
looking at it to know what the witness does not recall, I’d like to have – since it is
her e-mail address.

Q. [By Mr. Goldstein] You’re not going to dispute that this was your e-mail?

A. My e-mail address? No.

Q. And that this was an e-mail that you wrote?

A. I don’t remember.” 5WH51 [O26.5WH51.pdf].

Ms. Eastwood testified that she had difficulties in remembering things.

“A. I have trouble remembering phone numbers. I have trouble remembering
what I had for lunch yesterday. I think that’s normal. I just don’t remember
specifics. If it was a simple trial, I would have been able to. But there’s thousands
of documents and I had hundreds of conversations. So I can remember specific
things.” 5WH69 [O26.5WH69.pdf].

She was able to recall that there were documents missing from her file in this case, a case
with thousands and thousands of documents. She can remember some specifics but not
others.

“Q. [Mr. Goldstein] Having recalled all of these reports that serve your interest,
does that help you to recall a sodium level report?

You still don’t recall the sodium experiment that Dr. Fernandez did and the
photographs?

A. No, but I will certainly remember it now after being questioned about it.

Q. Did you ever tell the Defense witnesses or the Defense expert witnesses or the
Defense lawyers, did you ever tell them that Dr. Cortes had told you that Andrew
Burd had behavioral problems? Did you ever tell them that?

A. I do not remember ever telling them that.

Q. Do you recall ever telling any of the Defense lawyers or any of the Defense
experts that Dr. Cores advised you that it was his opinion this was not a normal
child?

A. I do not remember ever saying that to the Defense attorneys.” 5WH74
[O26.5WH74DrC.pdf].

See also Objection No. 25 above.

Grounds Ten and Eleven- Brady Claim Regarding the State’s Failure to Disclose
the Gastric Contents and Other Medical Records

Pg48
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Trial Court’s Finding of Fact Twenty-Seven at Page 6:

27. The Court finds Credible the testimony of attorney Chris Pinedo at the
writ hearing that he did receive a test result, labeled as DX 57, showing that
the victim’s gastric content from an unknown location tested at a level of
48 millimoles.

Objection 27: This Finding of Fact disregards the fact that the first vomit of AB
collected from his mouth to clear an airway at Driscoll Urgent Care was tested for
sodium level and indicated that AB’s stomach content was a normal sodium level of 250
meq/l at that time. Thus, the States’ prosecution theory and argument, that Hannah
Overton forced AB to drink a Zatarain’s and water slurry from his sippy cup that killed
him was disproven.

The fact that Chris Pinedo had been given a false test 48 result for something that
was misidentified in the document (4WH231 [O27.4WH231.pdf]), also incorrectly, as
“hospital gastric content” (4WH166 [O27.4WH166.pdf]), and which was falsely
represented to be lavage (2WH32 [O27.2WH32.pdf]; 4WH231 [O27.4WH231.pdf]),
revealed nothing to the defense about existence of this first vomit and the fact that it
proves Overton’s innocence.

Mr. Pinedo testified that he was told that AB’s first vomit did not exist (4WH178
[O27.4WH178.pdf]; 6WH119-120 [O27.6WH119-120.pdf]) and, incorrectly, that the 48
test result was meaningless lavage. 4WH231 [O27.4WH231.pdf]. Dr. Fernandez
testified in his deposition in an ancillary child custody case that he did not know “which
hospital” the “hospital gastric content” came from (6WH31 [O27.6WH31.pdf]), when it
did not come from any hospital at all. 9WHDEx6 [O27.9WHDEx6.pdf]. At the writ
hearing, he once again, at the State’s suggestion, tried to imply it was lavage. 6WH191-
193 [O27.6WH191-193.pdf]. But on cross-examination, he conceded that this first
vomit was nothing other than the vomit collected from AB’s mouth at Driscoll Urgent
Care center with no water added. 6WH242-243 [O27.6WH242-243.pdf].

As Dr. Jakubowski, and nurses Zapata and Gonzalez testified, the contents of the
Bemis container was AB’s vomit.

“Q. Okay. What all did you do to try to save Andrew Burd?

A. [Dr. Jakubowski] Well, first you have to establish airway. We have to suction
the contents from the mouth, which was chili. A lot of chili was coming out from
the mouth. So you have to use the suction and suction the contents from the
mouth.” 9RR61 [O27.9RR61.pdf].

“Q. Now, as you were administering aid, your statement seems to indicate that
there was a large amount of chili.

A. [Zapata] A. Yes.

Pg49
------------------------------------------------------------------------------------------------------------------

Q. Was this collected, labeled, and then subsequently sent somewhere for
processing?

A. Yes.

Q. Okay. Do you know who labeled it and do you have a record sheet - - what
lawyers like to call a chain of custody - - so we know who handled it along the
way?

A. No.

Q. Do you know who picked up these samples that were collected?

A. I was not there. I had not clocked in when the person had came in to collect
them, to collect the canister.

Q. Well, okay. So let me just make sure I’m clear. I guess I was referring to
some of the chili that you said was on the clothing as well as a canister. Would
that be a suction canister?

A. Yes.

Q. So in my mind we have two separate evidence containers, right? We have the
chili that was collected?

A. Yes.

Q. Or what could have been chili. We don’t know. And then this canister,
correct?

A. It was in the canister.

Q. Well, was the canister collected from vomit or on the clothes?

A. No, from where he was vomiting. I was suctioning out his mouth.” 9RR16-18
[O27.9RR16-18.pdf].

And nothing more. It was collected by them at Driscoll Urgent Care upon his first arrival
and where he only stayed for ten minutes before he was subsequently transported to two
(2) hospitals in succession; Spohn Hospital and Driscoll Children’s Hospital.
10WHDEx22 [O27.10WHDEx22.pdf] and 11WHDEx22 [O27.11WHDEx22.pdf].

The defense kept asking for this vomit and the prosecution represented that it did
not exist (5WH190-191 [O27.5WH190-191.pdf]), failed to produce the report showing
its collection at Driscoll Urgent Care (5WH194-196 [O27.5WH194-196.pdf]), and did
not disclose the photographs of the testing which revealed the 48 result was not the
correct result for the vomit; sample E. 4WH177 [O27.4WH177.pdf].

Pg50
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 Resp to FOF Pg51

 

 

 

 

51
------------------------------------------------------------------------------------------------------------------

 Resp to FOF Pg52

 

The test result of 250 meq/l for AB’s first vomit shows that AB ingested his lethal
quantity of sodium of approximately 1600 meq/l some time before he ate his soup and
took a sip from his sippy cup of water with a sprinkle of Zatarain’s in it. It is
scientifically impossible for AB’s gastric sodium content to test at a 250 if he received a
hyperacute slurry of high sodium and water from his sippy cup. If the State’s theory were
true, he would have sustained immediate neurological injury and his major organs would
begin to shut down immediately. The kidneys would have shut down and thus left high
sodium in his stomach. 4WH30. This is why it is impossible for the gastric contents to
only test at a sodium content level of 250 if he was given high sodium in a slurry of
Zatarain’s liquid just prior to being taken to Driscoll Urgent Care. The switched test
results prove that Overton did what she said and that AB accidentally poisoned himself
sometime earlier.

52
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The defense lawyers had none of this information because the prosecution
withheld it.

Trial Court’s Finding of Fact Twenty-Eight at Page 7:

28. Accordingly, the Court finds that the low 48 sodium test result actually
mentioned in Overton’s application for writ was clearly known to the
defense at the time of trial, and that Applicant has failed to prove by a
preponderance of the evidence that the prosecutor or any agent of the State
failed to disclose this evidence to the defense.

Objection 28: See Objection No. 27 above.

Trial Court’s Finding of Fact Twenty-Nine at Page 7:
29. The Court finds that additional items mentioned at the hearing,
including the supplemental report indicating the location at which the
vomitus was collected, photographs showing an experiment conducted with
the vomitus and other items, and the existence of the vomitus itself, were
not provided to the defense upon the initial request. The Court further finds
that the vomitus was known to the defense prior to trial as per the testimony
of Dr. Fernandez at his deposition. Further, the Court finds the lower 48
test was available and excluded from evidence at the defense’s request.
The Court further finds that Attorney Brad Condit, one of the defense
attorneys, testified that the bag containing the vomitus was made available
to him, but he chose not to open the bag to inspect the contents.

Objection 29: As set out in Objection No. 27 above, Dr. Fernandez testified at an
ancillary civil child custody proceeding that the “hospital gastric contents” was not first
vomit collected a Driscoll Urgent Care, but vomitus collected at some subsequent
hospital that was a 48. 6WH141 [O29.6WH141.pdf]; 3WH148 [O29.3WH148.pdf];
5WH253-254 [O29.5WH253-254.pdf]. The State lied to defense counsel and told them
that vomit did not exist (2WH33-34 [O29.2WH33-34.pdf]; 4WH190-191 [O29.4WH190-
191.pdf]), and that this was lavage. 2WH32 [O29.2WH32.pdf]; 4WH217
[O29.4WH217.pdf]. Upon repeated requests for the vomit, the State denied that it existed
and falsely said that none was available for testing. 4WH190-191, 231 [O29.4WH190-
191.231.pdf].

They withheld the report of police evidence tech D Rivera showing that it had
been collected from Driscoll Urgent Care. 5WH251, 253 [O29.5WH251-253.pdf]. It
further withheld the photos showing that is first vomit tested at a low sodium of 250
meq/l. 5WH253-254 [O29.5WH253-254test.pdf].

The lawyer who assisted Overton’s lawyers with the collection of discovery
sought this vomit from the Driscoll Urgent Care. 5WH258 [O29.5WH258.pdf]. When

Pg53
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he was taken to the evidence room in the police station to look at the physical evidence,
this Bemis container was inside a paper bag labeled with the home address of the
Overton’s and “reddish brown liquid,” (5WH261 [O29.5WH261.pdf]; 9WHDEx40
[O29.9WHDEx40.pdf], DEx40 in color [O29.DEx40PicsEvidColor.pdf]), just as every
condiment seized from the Overton pantry was labeled with their home address and a
description of the condiment, similar to the “reddish spice.” 5WH26 [O29.5WH26.pdf];
see also 9WHDEx40 and 9WHDEx8, the “reddish spice”, [O29.9WHDEx40.pdf;
O29.DEx40PicsEvidColor.pdf], [O29.9WHDEx8.pdf; O29.DEx8Color.pdf].

“Q. So I mean, there was a reason you might want to open that up and see what it
was. Would you agree with that?

A. Well, if I’d opened it up and looked inside, I’m assuming it was a reddish
brown liquid.” 6WH12 [O29.6WH12.pdf].

Chris Pinedo testified that he sought and obtained the exclusion of the 48 test
result at trial for the “hospital gastric content” because he did not know what it was
(2WH33 [O29.2WH33.pdf]), was told it was lavage and thus meant nothing (2WH32-33
[O29.2WH32-33.pdf]; 4WH231 [O29.4WH231.pdf]), and because he was told that the
first vomit did not exist and was not available for testing. 2WH39 [O29.2WH39.pdf];
2WH33-34 [O29.2WH33-34.pdf].

Trial Court’s Finding of Fact Thirty at Page 7:

30. The Court finds credible the testimony of attorney Cynthia Orr at the
writ hearing that she conducted discovery for Overton on the present writ of
habeas corpus and was allowed to look through the entire file maintained
by the Nueces County District Attorney’s Office during the time in which
Anna Jimenez was the appointed District Attorney for Nueces County
(from March to November 2010), which occurred before Overton’s present
Application was filed in March 2011. The Court further finds that at some
point during this process of discovery Orr discovered the basis for her
present Brady claims, including the supplemental police report indicating
the location at which the vomitus was collected, photographs showing an
experiment conducted with the vomitus and other items, and the existence
of the vomitus itself.

Objection 30: See Objection No.’s 27-29 above.
Trial Court’s Finding of Fact Thirty-One at Page 7:
31. The Court finds that Sandra Eastwood was the lead prosecutor at trial
and that she has a limited memory of the trial and discovery in the present
case.

Pg54
------------------------------------------------------------------------------------------------------------------

Objection 31. The Court finds that Sandra Eastwood was the lead prosecutor at
trial and that she has a limited memory of the trial and discovery in the present case.

The Court’s finding that lead prosecutor Sandra Eastwood “has a limited memory
of the trial and discovery in the present case,” is overly generous. Ms. Eastwood’s
memory was more than “limited,” it was nonexistent as to these critical issues.
Incredulously, the lead prosecutor, repeatedly testified that she had no independent
recollection of providing any discovery in this case whatsoever.30 See: 5WH109 and 116
[O31.5WH109.116.pdf].

“I do not remember specifically tendering anything.” Testimony of lead
prosecutor, Sandra Eastwood, 5WH109 [O31.5WH109.pdf].

“I do not remember specifically giving discovery; so I can’t answer yes or no. but
I cannot imagine that happening.” Testimony of lead prosecutor, Sandra
Eastwood, 5WH116 [O32.5WH116.pdf].

In fact, Ms. Eastwood testified on some seventy-two (72) occasions that “I don’t
remember” or “I don’t recall,” to relevant questions.31

Ms. Eastwood refused to even authenticate her own signature.

“Q. Is that your signature?

A. It appears to be, but I cannot authenticate any documents.” 5WH23.
Refusing to recognize her own handwritten notes.

“Q. …You’re saying when you look at your handwriting that it looks like your
handwriting, but you can’t testify that it is your handwriting. Is that correct?

A. That is correct.” 5WH58.

Or recognize or authenticate her own e-mails.

“Q. You’re not going to dispute that this was your e-mail?

A. My e-mail address? No.

Q. And that this was an e-mail that you wrote?

________________________________________
30Critical Brady evidence that her own co-counsel testified was not provided to the defense. 5WH151-
152, 217 [O31.5WH151-152.217.pdf].

31“I don’t remember” 5WH26, 29-30, 43, 48-53, 57, 70, 74, 79-80, 98, 104; “I don’t recall” 5WH27,
31-33, 60-61, 71, 72, 73, 81, 112, 114; ”I can’t remember specifically” 5WH23-25, 27-30, 33, 43, 68-
69, 75-76, 81, 96, 104, 108-109, 116, “I don’t know” 5WH23, 28, 43, 46, 48, 60, 103, 105; “I’m not
positive” 5WH26; “vaguely” 31, 51; “not aware” 5WH37; “That’s what it says, but I cannot
remember anything specifically.” 5WH28; “I’m drawing a blank” 5WH20 (emphasis supplied).

Pg55
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A. I don’t remember.” 5WH51.

Or her own initials on the Court’s order:

“Q. …Are those your initials?

A. They appear to be my initials.” 5WH27.

It is not just that the lead prosecutor had no memory of providing critical Brady discovery
to the defense, one has to question how a lawyer who was a “Phi Beta Kappa and magna
cum laude graduate of college,”32 would be unable or unwilling to authenticate her own
signature, her initials, her e-mails or her own handwritten notes.

Trial Court’s Finding of Fact Thirty-Two at Page 7:

32. The Court finds reasonable Sandra Eastwood’s testimony at the writ hearing
that it was her practice to provide discovery to the defense of all potentially
exculpatory evidence, and that she would have recognized the low sodium test
results on the vomitus in question as potentially exculpatory and provided it to the
defense, along with the vomitus itself and any photographs regarding the testing of
such vomitus.

The “low sodium test results on the vomitus” described by the Trial Court above,
refers to the child’s first vomit collected at the Driscoll Urgent Care. It is undisputed that
the State was in possession of this vomitus,33 as well as a report from Officer Diego
Rivera showing that this was the child’s first vomit, collected by Driscoll Children’s
Urgent Care, the first medical facility to which the child was taken.34 The existence and
testing of the vomit, and the fact that this was the first vomitus collected by the initial
receiving medical facility were all matters that expert witness Dr. Judy Melinek testified
would have been “critical” to any opinion regarding young Andrew’s cause of death.

___________________________________
325WH126.

33See: E-mail from John T. Hornsby, Corpus Christi Police Department Forensic Services Division
Supervisor, dated 10/24/06, “[W]e are still hitting a brick wall with respect to the vomit evidence. We
have several calls out to various experts in this field but are still trying to find an accredited lab to sen[d]
the vomit to for sodium level testing.” (emphasis supplied), 9WHDEx31; and See: e-mail from prosecutor
Sandra Eastwood to Hornsby, that same date, “Call a pediatric nephrologist and find out what labs they
use to test stool/vomit samples.,” 12WHDEx64; 6WH139. Moreover, the State had the vomit tested to
determine the sodium level. See: 9WHDEx6; 5WH48–49, and the Medical Examiner, Dr. Fernandez
conducted an “experiment” with the vomit. See: 9WHDEx6 and photographs of said “experiment,”
9WHDEx8. Even Ms. Eastwood “vaguely” recalled the vomitus, the testing and the “experiment.”
5WH30–31, 37–38, 50–51, and testified that she “recall[ed] discussions about sending the vomitus for
testing.” 5WH83.

3410WHDEx22ME58 [O32.10WHDEx22ME58.pdf].

Pg56
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3WH147, 149-50 [O32.3WH147.149-150.pdf].35 Despite repeated and specific requests,
the State failed to produce this vomit or Officer Rivera’s report that same was the first
vomit collected from the child.

Completely ignoring the uncontroverted testimony of five (5) defense counsel36
and the second chair prosecutor37 that this critical and admittedly exculpatory evidence
was withheld from defense counsel, the Trial Court inexplicitly credits the testimony of
lead prosecutor, Sandra Eastwood, that it was “her practice to provide discovery…of all
potentially exculpatory evidence,” speculating that she believed she “would have”
provided same to the defense,38 despite the fact that she had no independent recollection
of ever providing any discovery whatsoever.39

LEAD PROSECUTOR HAD NO RECOLLECTION OF PRODUCING DISCOVERY

Sandra Eastwood, the lead prosecutor, repeatedly testified that she had no
independent recollection of providing any discovery in this case. See: 5WH109 and 116.

“I do not remember specifically tendering anything.” Testimony of lead
prosecutor, Sandra Eastwood, 5WH109.

“I do not remember specifically giving discovery; so I can’t answer yes or no. but
I cannot imagine that happening.” Testimony of lead prosecutor, Sandra
Eastwood, 5WH116 [O32.5WH116.pdf].

In fact, Ms. Eastwood testified on some seventy-two (72) occasions that “I don’t
remember” or “I don’t recall,” to relevant questions,40 refusing to authenticate her own
signature,41 recognize her own handwritten notes,42 her own e-mails,43 or her own
initials.44

________________________________
35Second chair prosecutor also testified that the “vomitus…obtained by medical professionals at the first
medical facility that Andrew Burd, the victim, had been taken to…would have been significant.”
(emphasis supplied) 5WH136[17] – 137[12].

36 See: Testimony of Defense Attorneys John Gilmore [6WH118-120, 125-126]; David Jones [6WH27-
37]; Judge David Smith [5WH242-244, Affidavit]; Chris Pinedo [2RR34-40 and 4WH153; 245-247];
Brad Condit [5WH246-257].

37 See: Testimony of Assistant District Attorney Anna Jimenez [5WH136-137; 151; 190-191; 210-211;
217-218; 228-229; 231; and 234].

38See: Trial Court’s Finding of Fact Thirty-One, at p. 7.

39See: Testimony of Sandra Eastwood 5WH109[3-5]; 116[22-24].

40“I don’t remember” 5WH26, 29-30, 43, 48-53, 57, 70, 74, 79-80, 98, 104; “I don’t recall” 5WH27,
31-33, 60-61, 71, 72, 73, 81, 112, 114; ”I can’t remember specifically” 5WH23-25, 27-30, 33, 43, 68-
69, 75-76, 81, 96, 104, 108-109, 116, “I don’t know” 5WH23, 28, 43, 46, 48, 60, 103, 105; “I’m not
positive” 5WH26; “vaguely” 31, 51; “not aware” 5WH37; “That’s what it says, but I cannot
remember anything specifically.” 5WH28; “I’m drawing a blank” 5WH20 (emphasis supplied).

41“Q. Is that your signature?

A. It appears to be, but I cannot authenticate any documents.” 5WH23.

Pg57
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EVERY OTHER LAWYER TESTIFIED UNEQUIVOCALLY THAT
THE PROSECUTION WITHHELD “CRITICAL” BRADY MATERIALS

Ms. Eastwood’s own co-counsel, Assistant District Attorney, Anna Jimenez
testified that “during the entire course of all of these proceedings the Defense wanted the
vomit…they wanted the vomit, they wanted the vomit, they wanted the vomit.” 5WH13-
24. Despite the fact that the State possessed vomit, the Assistant District Attorney
testified that “they asked and asked and asked this for this stuff and we said there was
none and we did not turn it over…we didn’t give it to them,” 5WH151-152, 217.

“[Anna Jimenez]…And the Defense kept asking and asking and asking for the
vomit…[W]e were saying there was no vomit to be tested…I remember
conversations where they kept asking and asking for the vomit…They wanted to
test the vomit.” Testimony of Assistant District Attorney, Anna Jimenez,
5WH151-152.

“[W]hen you look at the fact that they asked and asked and asked for this stuff and
we said there was none and we did not turn it over…and we didn’t give it to
them…I just remember the vomit being a big deal…You know, it sticks out in my
mind that they wanted the vomit, they wanted the vomit….It was the first thing out
of the baby’s mouth. They wanted it. I would have wanted it if I was representing
her.” Testimony of Assistant District Attorney, Anna Jimenez, 5WH217-218.

Defense Counsel David Jones testified that despite the fact that Judge Longoria
specifically ordered that the defense be “provided with the bodily fluids, the vomit,” the
“State actually denied that those existed and failed to comply with the Court’s order.”
6WH31.45 The Trial Court also ordered, and the State failed to provide, “the names of
anyone that collected” the bodily fluids “and the time it was collected.” 6WH31.

Jones further testified that the Defense was “not provided with the full report
showing where the vomitus that was tested came from, which was extremely important in
this case.” 6WH27.

__________________________________
42“Q. …You’re saying when you look at your handwriting that it looks like your handwriting, but you
can’t testify that it is your handwriting. Is that correct?

A. That is correct.” 5WH58.

43“Q. You’re not going to dispute that this was your e-mail?

A. My e-mail address? No.

Q. And that this was an e-mail that you wrote?

A. I don’t remember.” 5WH51.

44“Q. …Are those your initials?

A. They appear to be my initials.” 5WH27.

45“Well, we did not get it. [I]t seems to be that it was purposefully withheld because we kept asking for it
and they refused to give it to us.” Testimony of Defense Attorney, David Jones, 6WH36.

Pg58
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“Where the actual vomitus was collected, we were missing that. Again, that is one
of the most important issues in this case that would have significantly changed the
way this case was tried.” 6WH28.

Defense Counsel Chris Pinedo testified that “The Defense team asked the
Prosecution team for the vomitus so we could independently test it,” 2WH39, and “were
told it did not exist.” 2WH39; 4WH153, 245-247.

Defense Counsel, John Gilmore testified that he “went over and met with” Ms.
Eastwood and “specifically asked her for the vomit and got [the] response. ‘I don’t know
if there is any; if there is any, I don’t know where it is.” 6WH125. Attorney Gilmore also
testified that he was never provided and had never seen “the supplemental reports of
Officer Rivera” reflecting where and when the first vomit from the child was collected.
6WH119-120.46

Defense Counsel Brad Condit testified that prior to trial, the civil lawyers actually
served a subpoena duces tecum on the Medical Examiner for the production of any
“gastric contents,” noting that none of “the vomitus or bodily fluids were produced by Dr.
Fernandez.” 6WH247.47

EXISTENCE OF CHILD’S FIRST VOMIT
WAS “CRUCIAL” BRADY MATERIAL

Expert witness, Judy Melinek, M.D., testified that the existence of “primary
vomitus” was “crucial” and “critical” information, which “would have allowed for a
different outcome at trial.” 3WH147–148 [O32.3WH147-148.pdf].

“It’s not just critical because it exists. The fact that it actually exists means that it
can be tested…And because it’s the first vomit, it’s a much more important
specimen than any specimen that would have been taken at autopsy…[T]he fact
that there was a primary vomitus that is in existence that could have informed her
defense, that could have allowed for a different outcome at trial, that would have
changed my opinion with regards to the context of the testimony that I’m now
allowed to see as well. So it is crucial. It is important information.” Testimony of
Dr. Judy Melinek, 3WH147-150.

_____________________________________
46Judge David Stith, who served as one of the civil defense counsel, provided an affidavit [12WHDEx69]
stating that he was aware “the defense team was seeking to test Andrew Burd’s vomit” and that he “never
was provided…any reports by Officer Rivera regarding anyone receiving a Bemis container from Driscoll
[Urgent Care] that contained vomit or other material from Andrew Burd.” 5WH242-3; 12WHDEx69.

47Attorney Condit also testified that he had never seen or been provided with Officer Rivera’s report
reflecting where the first vomit from the child was obtained. 6WH249-50.

Pg59
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Medical Examiner, Dr. Ray Fernandez, testified that he was unaware of “when” or
“which hospital” had collected the “stomach contents” or “vomitus” that he had tested.
Dr. Fernandez’ deposition, 12WHDEx61,190-91. So it was critical to know where and
when the child’s vomit was collected (hence the importance of Officer Diego Rivera’s
undisclosed report, reflecting that this was the first vomit, collected by the Driscoll
Urgent Care professionals). See: 10WHDEx22ME58, and 9WHDEx6.

Importantly, the State withheld Officer Rivera’s report showing that the “gastric
contents” tested by the Medical Examiner, was actually the first vomit collected by the
Driscoll Urgent Care, the first medical facility to which the child was taken.

“[Question of Defense Attorney David Jones] So just to verify, Mr. Jones, you
had not seen Defendant’s Exhibit Number 6 [Officer Rivera’s Report] prior to
Hannah Overton’s trial or during the trial?

A. No. I had not seen this until we met about a month ago…

Q. Are you aware of any other lawyer who was part of the Defense team or even
tangentially related to the Defense team was aware of that report?
A. Absolutely not…This would have been of great import to us if we had had this
document.” 6WH29.

Jones went on to point out that Officer Rivera’s report, revealing where this vomit
came from, was “favorable to the defense” and constituted material that “the prosecutor
has an obligation to go and find…and provide…to the defense so that we can protect the
sanctity of criminal verdicts so that they will stand the test of time.” 6WH36.

As second chair prosecutor, Ana Jimenez, acknowledged, the vomit and reports
reflecting that this was the “first thing out of the baby’s mouth,” constituted Brady
material. 5WH136-137, 210-211, 228-229, 234. See also: Testimony of Defense
Counsel Brad Condit, 5WH255-257; John Gilmore, 6WH120 and Chris Pinedo,
4WH133–134.

BROWN PAPER BAG

The mislabeled brown paper bag with the Overton’s home address and the notation
“reddish brown liquid,” provided no clue that it contained the child’s first vomit,
collected from the Driscoll Urgent Care facility. Having been told that the State did not
possess any of the child’s vomit, and without Officer Rivera’s report, revealing the true
origin of the bag’s contents, a brown paper bag erroneously labeled with only the
Overton’s home address48 and the notation: “brown reddish liquid,” (the same as every

______________________________________
48See: Photograph, 9WHDEx40, and testimony of Chris Pinedo that container of the child’s vomit “was in
a bag that said 5929 Parkview, which was the residence of Hannah Overton, which was not the hospital
where this came from.” 4WH246.

Pg60
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condiment seized from the Overton pantry49), gave defense counsel no notice of the bag’s
true contents.

SODIUM LEVEL MIX-UP

The Trial Court’s description of “photographs regarding the testing of such
vomitus,” refers to photographs of an “experiment” conducted by the medical examiner,
comparing sodium levels of the stomach contents and some five other substances,
including Wendy’s chili and a mixture of Zatarain’s spice and water.50

What is apparent from the photographs and acknowledged by each of the
witnesses is that the results of the sodium level for the “gastric contents” and Zatarainswater
mixture were switched. As a consequence, the Court’s and the prosecution’s
description of “the low sodium test results” of 48 is erroneous. In fact, a comparison of
the Medical Examiner’s photographs and his handwritten “KEY TO SAMPLES FOR
SODIUM TESTING,” See: 9WHDEx6, clearly demonstrates that the sodium level of the
“gastric contents” was “250,” while it was the Zatarain’s and water mixture that had a
low sodium level of “48.” This mix-up of the sodium levels of the first vomit collected
from the child was not disclosed to the defense, nor were the photographs demonstrating
same.51 This would have been critical to Overton’s defense, because the actual sodium
level of the first vomit taken from the child was not a “low” 48, as represented, but “250”
which would be consistent with a chili/Zatarain’s mixture,52 and precisely what Ms.
Overton told the doctors and nurses at the Driscoll Urgent Care facility.53 In fact, the
doctors and nurses at that medical facility testified that the child’s “vomit…smelled quite
a bit like chili powder.”54

________________________________________
49Other brown paper bags were similarly labeled with the Overton’s home address and notations such as
“reddish spice,” 5WH236 [O32.5WH236.pdf]; 9WHDEx40 [O32.DEx40PicsEvidClr.pdf].

50For example, the report labeled “KEY TO SAMPLES FOR SODIUM TESTING,” reflected that water
was labeled Sample “A”, water containing “1 salt packet” was labeled Sample “B”, Wendy’s chili was
labeled Sample “C”, what Dr. Fernandez characterized as the “Hospital Gastric contents” was labeled
Sample “D”, water containing Zatarian’s spice was labeled Sample “E”, and water containing an
“unknown spice” was labeled Sample “F”. See: 9WHDEx6.

51 See: 6WH28, 119 [O32.6WH28.119.pdf].

52 Expert witness, Judy Melinek, M.D., testified that gastric contents with a sodium level of 250 “matches
the chili plus Zatarain’s spice.” 3WH108 [O32.3WH108.pdf]. The State’s Medical Examiner, Dr.
Fernandez even recognized that the 250 sodium level may reflect a chili and spice mixture. 6WH241
[O32.6WH241.pdf].

53“When the nurses at the Urgent Care facility asked…what happened…I told them that he had eaten
chili, that he had thrown up…” 17RR124.

54Driscoll Urgent Care, Dr. Wesley Jackubowski, testified “It was chili smell…I know the smell. And the
content looks like chili.” 9RR66; Dr. Gemma Mitchell testified that the vomit had a “very strong odor of
like a chili…that comino smell, the spice smell.” 9RR82; Driscoll Urgent Care nurse, Dina Zapata
testified that the vomit “smelled like chili, looked like chili.” 8RR255; Nurse Patricia Gonzalez testified

Pg61
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COMPARISON OF PHOTOS AND MEDICAL EXAMINER’S LEGEND
CLEARLY SHOWS THAT SAMPLES WERE SWITCHED

A comparison of Dr. Fernandez’ handwritten report, entitled “KEY TO
SAMPLES FOR SODIUM TESTING,” with the photographs of that experiment, clearly
shows that the sodium level test results were switched. Medical Examiner Dr. Ray
Fernandez’ handwritten “KEY TO SAMPLES FOR SODIUM TESTING,” reflects that
Sample “D” was the “Hospital Gastric Contents,” while Sample “E” constituted the “H20
450ml + Zatarains Spice.” See 9WHDEx6 below:

Resp to FOF Pg62

____________________________
that the vomit smelled like “chili powder.” 8RR227; Nurse Teresa Ercan testified that the vomit “smelled
like chili.” 9RR56.

62
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However, the photographs of that test clearly reflect that in fact the “Hospital
Gastric Contents” are labeled “Sample E,” while the Zatarain’s mixture is labeled
“Sample D.” See: Photograph of Dr. Fernandez’ test below, admitted as 12WHDEx 57.

 Resp to FOF Pg63

As a consequence, the sodium level test results, where Dr. Fernandez has
erroneously handwritten “Hospital Gastric Contents” on the “Sample D” test results,
showing a level “48,” should, in fact be the water and Zatarain’s mixture. See:
Photograph, 12WHDEx57, above. More importantly, “Sample E,” with the erroneous
handwritten notation “H20 + Zatarain’s,” showing a sodium level of “250,” is actually
the child’s first vomit,55 and precisely what Hannah Overton told the medical staff, the
police, and later testified she had just fed the child earlier that day. See: Sodium Test
Results, showing that “Sample E,” which we now know was the child’s vomit, had a
sodium level of “250.” 9WHDEx6, below.

_______________________________
55As the testimony revealed, the child’s first vomit, collected by the Driscoll Urgent Care, was labeled
“Hospital Gastric Contents,” which was misleading and confusing in itself.

63
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Resp to FOF Pg64

THE DEFENSE WAS NEVER PROVIDED THE PHOTOS
DEMONSTRATING THE SWITCHED SAMPLES AND TESTS

The State withheld and did not provide the defense team or any of their experts
with the photographs of Dr. Fernandez’ testing, which would have alerted Defense
Counsel and their experts to the switched testing samples, and the fact that the sodium
level of the child’s first vomit was not, in fact, “low” (a level “48”) as the State had
maintained, but a level “250,” which is equivalent to the chili/Zatarain’s mixture Hannah

64
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Overton had told the medical staff at Driscoll Urgent Care, and later testified at trial she
had fed the child.

Defense Attorney David Jones testified that “We were not provided any of the
photographs or anything else related to this experiment,” 6WH28 [O32.6WH28.pdf].
Defense Attorney Chris Pinedo testified that he had “no recollection of ever seeing” these
photographs before, and if he had been aware of them, he “would have asked about those
photographs.” 4WH163 [O32.4WH163.pdf]. Likewise, Defense Attorney John Gilmore
testified:

“Q. Did you ever see the photographs of what we’re calling the Fernandez
experiment which are shown in Defendant’s Exhibit Number 8?

A. No.” 6WH119 [O32.6WH119.pdf].

Even Ms. Eastwood’s second chair prosecutor testified that she had never seen the
photographs demonstrating the switched samples until the writ hearing hereon. See:
5WH136.

“I believe the first time I saw these photographs was when [writ attorney, Cynthia
Orr] showed them to me approximately a week or two ago.” Testimony of Ana
Jimenez, 5WH136 [O32.5WH136.pdf].

PHOTOS REVEALING SWITCHED SODIUM TESTS
WERE CRITICAL BRADY MATERIAL

Expert witness, Dr. Judy Melinek, testified that these photographs demonstrating
that the samples had been switched and that the first vomit from the child had a sodium
level of 250 would have been “crucial” in making a medical evaluation of the cause of
death and “very important” information that “would effect not only [her] testimony
but…would effect what additional…studies could be done in order to help in defending
the accused.” 3WH112 [O32.3WH112.pdf].

Ms. Jimenez, the second chair prosecutor testified that this mix-up in the sodium
level test results, revealed by the photographs of that test, would have been “significant”
to the defense, and constituted “Brady material.” 5WH137, 22156
[O32.5WH137.221.pdf].

_______________________________
56Defense Attorney John Gilmore testified that it would have made a difference if the defense would have
used “the Rivera report showing there was vomitus picked up from Driscoll Urgent Care, the photos of
the experiment showing what might have actually occurred, the source of the gastric contents, and the
existence of the vomit,” and that same would have made a difference in the outcome. Ms. Eastwood
testified that she “just didn’t know” whether such a critical mix-up in the sodium level test results would
be an important factor to the defense. 5WH45-46 [O32.5WH45-46.pdf].

Pg65
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Having been told that the State did not possess any of the child’s vomit, and
without Officer Rivera’s report revealing the origin, a brown paper bag erroneously
labeled with only the Overton’s home address57 and the notation: “brown reddish liquid,”
the same as every condiment seized from the Overton pantry.58 The defense could not
have known the vomit existed.

Good science is dependent upon accurate testing and a reliable chain of custody in
order to have confidence in the results and conclusions of those tests. Here, it is clear that
critical errors occurred. More importantly, by depriving Defense Counsel of the
photographs and testing, the State prevented the defense from discovering the “mixed test
results” and the opportunity to present same to the jury. This information was “crucial”
to the ultimate contested issue in this case, the child’s cause of death.

Trial Court’s Finding of Fact Thirty-Three at Page 8:

33. The Court finds credible Anna Jimenez’s testimony that she was not
personally involved in the distribution of discovery to the defense attorneys
in this case. The Court finds the testimony of both Chris Pinedo and David
Jones that they were aware of the low 48 results prior to trial, contained in
defense exhibit 57.

Objection 33: It is also significant that even Anna Jimenez, the second chair lawyer in
this case, was not aware of the existence of the first vomit, its testing at 250 meq//ll, and
the fact that it proved Overton’s innocence. See Objection No.’s 27, 29 and 32 above.

Sandra Eastwood did not tell Anna Jimenez or any of the defense lawyers who
were repeatedly requesting it and its’ testing. 5WH190-191 [O33.5WH190-191.pdf].
This first vomit was called by Dr. Fernandez, in error, “hospital gastric content” and the
State told the defense untruthfully that it was lavage. 6WH59 [O33.6WH59.pdf]. If it
were lavage, a 48 sodium level, like that level in mineral water, would make sense.
6WH107 [O33.6WH107.pdf]. But this was not lavage (6WH242-243 [O33.6WH242-
243.pdf]), it was not “hospital gastric content,” (3WH145-146 [O33.3WH145-146.pdf]),
and it did not test at a 48 level meq/l. 3WH107-108 [O33.3WH107-108.pdf]. It was the
child’s first vomit suctioned out of his mouth to establish an airway (3WH105
[O33.3WH105.pdf]), and was 250 meq/l, (3WH107-108 [O33.3WH107-108.pdf]),
showing that Overton did not poison AB. 4WH29 [O34.4WH29.pdf].

Thus, the fact that the trial lawyers knew of a vomitus from a hospital that they

_______________________________
57See: Photograph, 9WHDEx40, and testimony of Chris Pinedo that container of the child’s vomit “was in
a bag that said 5929 Parkview, which was the residence of Hannah Overton, which was not the hospital
where this came from.” 4WH246.

58Other brown paper bags were similarly labeled with the Overton’s address and notations such as
“reddish spice,” 5WH26; 9WHDEx8.

Pg66
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were told was lavage and that was a level 48 meq/l in sodium, is the fact that they were
told a falsehood about the child/s first vomit and its 250 meq/l level that proved their
client’s innocence.

Trial Court’s Finding of Fact Thirty-Four at Page 8:

34. The Court finds from the pre-trial deposition of Dr. Fernandez, labeled
as DX 13, that attorney David Jones, who questioned Dr. Fernandez and
was employed both as an attorney for Hannah Overton in the present
criminal prosecution and for the Overtons in the related civil matter
concerning the custody of their children, was aware that the gastric content
represented by DX 57 was vomitus.

Objection 34: As David Jones testified, he knew that the “hospital gastric content” that
tested a level 48 was vomitus because it was not in AB’s body. 6WH59
[O34.6WH59.pdf]. He specifically questioned Dr. Fernandez regarding where it came
from. 6WH31 [O34.6WH31.pdf].

He too was mislead into believing the falsity that this was lavage from a “hospital
gastric contents” (6WH55 [O34.6WH55Lvg.pdf]), that tested a low 48 sodium (6WH55
[O34.6WH55.pdf]) level like that of mineral water. 6WH107 [O34.6WH107.pdf]. He
did not know, and the doctor did not tell him under oath when asked, that it was from the
emergency room at Driscoll Urgent Care (6WH31 [O34.6WH31.pdf]), was not lavage
(6WH242-243 [O34.6WH242-243.pdf]), was the child’s first vomit and in testing
prepared at the Medical Examiner’s Office (10WHDEx22ME58
[O34.10WHDEx22ME58.pdf]), tested at a level 250 meq/l. 3WH107-108
[O34.3WH107-108.pdf]. This is approximately the same level as commercially available
Wendy’s chili (3WH37 [O34.3WH37.pdf]) with a sprinkling of Zatarain’s seasoning.
3WH108 [O34.3WH108.pdf]. This is what Overton said she fed AB and it was the level
of his first vomit. 4WH206 [O34.4WH206.pdf].

According to Dr. Moritz’ testimony, this means that Overton did not kill this child.
4WH29 [O34.4WH29.pdf]. He had to have accidently self administered a lethal level of
sodium to himself much earlier (4WH29 [O34.4WH29Absrbd.pdf]), since his stomach
sodium content would have to be over 1700 to meq/l to cause a blood serum sodium level
of 245. 6WH97 [O34.6WH97.pdf].

Trial Court’s Finding of Fact Thirty-Five at Page 8:

35. The court finds from the trial record that attorney Sandra Eastwood
specifically questioned Dr. Alexandre Rotta at trial, without objection or
comment from the defense, concerning the reason for a low amount of
sodium in the vomit collected at the Urgent Care Center. (RR vol. 12, pp.
50-51) Dr. Rotta then explained that the sodium could have quickly passed
from the stomach into the intestines and that gastric juices in the stomach

Pg67
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could have watered down the amount of sodium in the vomit. (RR. Vol. 12,
pp. 51-52) Accordingly, the Court finds that the defense was at least aware
of the origin of the low sodium gastric contents existed by the time that the
State presented its evidence at trial, and that the defense could have
countered this evidence with their own experts; however, they chose not to
do so because of trial strategy as set out in sections 15-20 of these findings.

Objection 35: Ms. Eastwood did not ask Dr. Rotta about the low sodium content of the
vomit collected at Driscoll Urgent Care Center. She asked him if a little bit of vomit
from Driscoll Urgent Care was collected and showed low sodium would mean that AB
was not sodium intoxicated. He replied that the stomach empties fluid quickly, especially
when irritated and that the stomach secretes fluids as well.

Again, Dr. Rotta knew nothing about the science of hypernatremia. Further,
Defense counsel was given an incorrect record that the “hospital gastric content” was
from Driscoll Children’s Hospital. When, in fact the Bemis was picked up from Driscoll
Urgent Care Center. See Rivera’s report and Nurse Zapata or Gonzalez’s testimony: See
Driscoll Children’s Hospital record below (10WHDEx22ME58
[O35.10WHDEx22ME58.pdf]):

Resp to FOF Pg68


CCPD Tech D. Rivera picked up one suction canister on October 4, 2006 at 1625 hrs.
2CR169 [O35.2CR169.pdf].

68
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 Resp to FOF Pg69


The following is Nurse Gonzalez’s testimony as to where the Bemis container would
have been.

 “Q. Prior to October 2nd of 2006 at the Urgent Care Center on Saratoga, had any
serious cases come in?

 A. No, ma'am, not while I was there.

 Q. All right. So on October 2nd of 2006 at the Urgent Care Center, what time did
it open?

 A. 5:00 p.m. that afternoon.

 Q. And were you working that day?

 A. Yes, ma’am I am.

 Q. What were your duties there?

 A. 1 was triaging. I would discharge patients. I would help do different types of
procedures. Just basically day-to-day things. We do the same thing every day
there.

 Q. Who were you triaging patients with?

 A. Dina, our nurse that was working at the time.

 Q. And who was the first patient that came in that day?

69
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A. Our first patient that was brought in or that was rushed in was Andrew.”
8RR223 [O35.8RR223.pdf].

“Q. Did the doctor try to suction things out?

A. Yes, ma’am. Once we had gotten off the phone with 911, we did try to do some
suctioning with a suction machine.” 8RR229 [O35.8RR229.pdf].

Dr. Fernandez also incorrectly testified that the “hospital gastric contents” came
from one of the hospitals that AB was in (9WHDEx13p90-91 [O35.9WHDEx13p90-
91.pdf]) and that it did not come from the emergency room, Driscoll Urgent Care Center.
9WHDEx13p90-91 [O35.9WHDEx13p90-91.pdf]. Dr. Rotta assumed that at Driscoll
Children’s Hospital the “hospital gastric contents” was diluted (12RR51-52
[O35.12RR51-52.pdf]) by lavage among other things. 12RR51-52 [O35.12RR51-52.pdf].

At the writ hearing, Dr. Fernandez and the State attempted to continue with the
lavage theory (6WH191-193 [O35.6WH191-193.pdf]), until confronted with the
evidence that the “hospital gastric content” was, in fact, the first vomit, undiluted, and
collected from AB’s mouth from Driscoll Urgent Care. 6WH241-243 [O35.6WH241-
243.pdf].

Overton met her burden of proving by a preponderance of evidence that the State
withheld material evidence that was favorable to her and that she was prejudiced by this
non-production. She also met her burden of proving her actual innocence of these
charges. The State produced no evidence to impeach her case and the trial testimony
does not establish her guilt when considered with the new evidence.

Trial Court’s Finding of Fact Thirty-Six at Page 8:

36. The Court finds credible D.J. Rivera’s testimony at the writ hearing that
he collected from the Driscoll Urgent Care Center a Bemis containing
Andrew’s vomitus, which he then took to the Medical Examiner’s Office
and that he signed for this item in connection with the chain of custody
normally maintained by the Corpus Christi Police Department.

Objection 36: This fact is correct, and was hidden from the defense prior to and during
trial, until it was discovered during writ discovery and this writ ensued.

Trial Court’s Finding of Fact Thirty-Seven at Page 8:

37. The Court finds credible Arnold Arias’ testimony that one of Hannah
Overton’s defense attorneys, Brad Condit, as well as Mr. Overton’s defense
attorney Lisa Harris were present at the police department with prosecutor
Sandra Eastwood to view a number of items of evidence, and that the outer
bag containing the vomitus in question was opened and a photograph
thereof was taken. Specifically, the Court finds credible the testimony of

Pg70
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Arnold Arias that Brad Condit and Lisa Harris, in the presence of Sandra
Eastwood, were on two occasions shown the bag containing the Bemis
canister.

Objection 37: Ms. Eastwood testified that she did not recall ever seeing the vomit.
5WH29-30 [O37.5WH29-30.pdf]. This even though she appeared on the chain of
custody documents as did Mr. Condit. 9WHDEx30 [O37.9WHDEx30.pdf]. In addition,
Mr. Condit never opened the bag containing the vomit because it was labeled “reddish
brown liquid” and had the Overton home address on the outside of it. 5WH263
[O37.5WH263.pdf]. It appeared just as all the other items that had been taken from the
Overton pantry and bagged. 5WH263 [O37.5WH263taken.pdf]. He did not open the
bag. He took a photo of the bag as he saw it, unopened. 5WH264 [O37.5WH264.pdf].
See photo in 9WHDEx40 [O37.9WHDEx40.pdf; O37.DEx40PicsEvidColor.pdf. In
addition, no other member of the defense saw the vomit and were, upon repeated inquiry,
told it did not exist and that none was available for testing. 4WH178 [O37.4WH178.pdf].

The State’s Brady obligation is not satisfied by producing a mislabeled bag and
lying about the existence of the very thing that the defense specifically asked for
repeatedly. 5WH190-191 [O37.5WH190-191.pdf]. It is not satisfied by hiding
favorable results of the normal sodium level of the child’s first vomit. 3WH37, 107-108
[O37.3WH37.107-108.pdf].

Trial Court’s Finding of Fact Thirty-Eight at Page 9:

38. The Court finds credible attorney Brad Condit’s testimony at the writ
hearing that he does not have a good memory concerning the meeting at the
Corpus Christi Police Department at which he viewed certain items of
evidence prior to trial in the Overton case.

Objection 38: Mr. Condit did recall that he had never seen the vomit (5WH263
[O38.5WH263.pdf]), he repeatedly asked for it and he and all other counsel were told
that it did not exist. 4WH178 [O38.4WH178.pdf]. What he testified that he did not
recall was giving Overton any advice about whether to submit lesser included offense
instructions to the jury. 6WH7 [O38.6WH7.pdf].

Trial Court’s Finding of Fact Thirty-Nine at Page 9:

39. The Court finds credible Dr. Ray Fernandez’s testimony at the writ
hearing that it would be speculative to infer anything concerning the time or
manner of sodium ingestion from the sodium contest of Andrew’s vomitus.

Objection 39: There is no basis for Dr. Fernandez’ testimony in this regard. In his
deposition, he admitted that he has no knowledge or experience with sodium poisoning.

Pg71
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“Q. Okay . So you have had no specific training with regards to hypernatremia or
that area?

MR. JETT: Objection, form.

THE WITNESS: Aside from the experience and – and the training that I had for
what I talked about before, no.

Q. (By Mr. Jones) No. And – and I’m not talking about your experience and the
patients you’ve seen. I’m asking – I’m speaking specifically about training.
Do you have – is there any specific training which would qualify you as an expert
on hypernatremia?

A . If – if you’re talking about reviewing as a standard practice for medical
examiners and medical school and that type of training dealing with salt water
problems in patients and treating those problems, I’ve had – I’ve done that.
If you’re talking about dealing it – dealing with it and reviewing records routinely
from patients that have died at the hospital, that have autopsies on at the hospital
or done autopsies at the medical examiner’s, I’ve done that.
But if you’re talking about going and taking a course where all they talk about is
hypernatremia, I don’t recall a course where the whole topic was – was by itself
hypernatremia.

… No. As far as treating patients for the hypernatremia, the best person to ask
about that would be physicians treating patients at the hospital, because I don’t
treat patients at the hospital.
And as far as which of the best medication to treat them with and how much fluid
to give them, how much fluid not to give them – give them, I’m not in that
business on a day-to- day basis, so I’m not the best person to ask about that.

Q. (By Mr. Jones) Okay. And – and really my – my question, Doctor, just goes to
whether or not you believe that you have any specific or specialized training that
would enable you to be an expert with regards to hypernatremia?

MR. JETT: Objection, form.

THE WITNESS: Aside from the training that I already went through, aside from
that training, no.” 10WHDEx22ME85-87 [O39.10WHDEx22ME85-87.pdf].

He was relying on Dr. Rotta to opine that this was forced sodium ingestion.
9WHDEx13p101 [O39.9WHDEx13p101.pdf]. In fact, an expert who Dr. Rotta
conferred with did not agree with him. 8RR139-140 [O39.8RR139-140.pdf]. And Dr.
Rotta, who was unfamiliar with coagulopathy, as was Dr. Fernandez, mistook AB’s
symptoms of coagulopathy as child abuse. 8RR127-128 [O39.8RR127-128.pdf];
6WH234-236 [O39.6WH234-236.pdf]. Neither of them even knew about the first vomit
collected from Driscoll Urgent Care (6WH242-243 [O39.6WH242-243.pdf]) and Dr.
Fernandez attempted to at first characterize it as lavage at the State’s lead. 6WH190-192
[O39.6WH190-192.pdf]. He had to concede when confronted with the truth, that it was
AB’s first vomit and that it was not lavage. 6WH191-193 [O39.6WH190-193.pdf];
6WH242-243 [O39.6WH242-243.pdf]. Just as he had to concede that AB’s “head
trauma” was not head trauma at all, but was coagulopathy and a symptom of his

Pg72
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hypernatremia. 7WH54 [O39.7WH54.pdf].

The world’s expert on Hypernatremia testified that this was accidental salt
intoxication (4WH47 [O39.4WH47.pdf]) that was fatal and could not have been
successfully treated. 4WH31, 53 [O39.4WH31.53.pdf]. Even the doctors at the three
medical facilities AB was taken to, did not diagnose it for hours. 3WH75-76
[O39.3WH75-76.pdf]; RRStEx16 [O39.RRStEx16.pdf].

Dr. Moritz testified that the low sodium in AB’s first vomit meant that Overton
was innocent. 4WH57 [O39.4WH57.pdf].

Trial Court’s Finding of Fact Forty at Page 9:

40. The Court is not persuaded by Dr. Melinek’s testimony at the writ
hearing that her present knowledge that Andrew’s vomitus tested low for
sodium would have changed her opinion in the case concerning Overton’s
responsibility for his death, in light of Dr. Fernandez’s later testimony that
it would be speculative to infer anything concerning the time or manner of
sodium ingestion from the sodium content of the vomitus, and in light of
the lack of expert evidence concerning absorption rates. The Court is not
persuaded by Dr. Melinek’s testimony concerning the low 48 test as she
had this information prior to her testimony at trial as set out in her
testimony at the writ hearing. (RR vol. 3, 96-97)

Objection 40: Dr. Moritz lacked knowledge about alcohol absorption rates which is not
at issue in this case. 4WH137 [O40.4WH137.pdf].

He is the world’s expert on hypernatremia and sodium absorption. 4WH107
[O40.4WH107.pdf]. He testified at length about this. 4WH8-21 [O40.4WH8-21.pdf].
He knew, based on the weight and size of the individual how long it would take sodium
to get into the blood stream. 4WH47-48 [O40.4WH47-48.pdf].

He and Dr. Melinek testified that they had not been aware of the existence and
testing of the first vomit. 3WH145-146, 149 [O40.3WH145-146.149.pdf]; 4WH141
[O40.4WH141.pdf]. Dr. Melinek testified that she had been told the 48 “hospital gastric
content” was lavage. 3WH157 [O40.3WH157.pdf].

Dr. Moritz also testified that AB’s low sodium level of his first vomit and high
blood serum level, meant that AB had to have self-administered the lethal amount of
sodium on his own earlier in the day. 4WH100-102 [O40.4WH100-102.pdf]. For his
blood sodium to be 245, he should have had a vomit sodium level of over 1700 meq//l.
6WH97 [O40.6WH97.pdf].

Pg73
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This means that Overton did what she said that she did. 4WH264
[O40.4WH264.pdf]. She gave AB soup with Zatarain’s on two occasions that day and
then a cup of water with a sprinkle of Zatarain’s which he took one sip of and threw
down in anger that she would not give him more to eat. 4WH106 [O40.4WH106.pdf].

In addition, Dr. Moritz testified that the initial symptoms of sodium intoxication
are so subtle and minor that no ambulance would come in response to them (4WH118-
119 [O40.4WH118-119.pdf]) and no doctor, even an expert in hypernatremia, would
recognize that sodium intoxication was present. 4WH68-69 [O40.4WH68-69.pdf]. It is
not until much later that more serious symptoms manifest themselves and by that time it
is too late to successfully treat the child. 4WH32, 111 [O40.4WH32.111.pdf]. It is fatal.
4WH31, 80 [O40.4WH31.80.pdf].

Further, Dr. Moritz testified that he had examined all the reported cases of
hypernatremia, including the cases reported in new studies, 61 of them, published after
Overton’s trial. 4WH8-10, 21-25, 30-33 [O40.4WH8-etc-33.pdf]. In this examination he
discovered a pattern with respect to salt poisoning. Children with genetic or emotional
eating disorders would ingest lethal amounts of sodium. 4WH59-62, 67, 88
[O40.4WH59-62.67.88.pdf]. Or parents that are mentally ill or drug abusers with a prior
history of CPS involvement gave their children toxic levels of sodium. 4WH25-27
[O40.4WH25-27.pdf]. AB fit the first pattern. 4WH82 [O40.4WH82.pdf], 8WH38-40
[O40.8WH38-40.pdf]. Overton did not fit the second pattern. 4WH82-83
[O40.4WH82-83.pdf], 8WH37 [O40.8WH37.pdf].

Based on all of the above, Dr. Melinek changed her opinion from undetermined
cause of death, to accidental cause of death. 3WH35-44, 140-141 [O40.3WH35-44.140-
141.pdf].

Trial Court’s Finding of Fact Forty-One at Page 9:

41. The Court is not persuaded by Dr. Moritz’s testimony at the writ
hearing that his present knowledge that Andrew’s vomitus tested low for
sodium would have any impact on his opinion concerning Overton’s
responsibility for Andrew’s death, in light of Dr. Fernandez’s later
testimony that it would be speculative to infer anything concerning time or
manner of sodium ingestion from the sodium content of the vomitus, and in
light of the lack of expert evidence concerning absorption rates.

Objection 41: See Objection No. 40 above.

Trial Court’s Finding of Fact Forty-Two at Page 9:
42. The Court further finds that the Applicant failed to develop her claims
that the prosecution failed to disclose other medical records, including the

Pg74
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hospital brain scan, birth records, early development records, and evidence
of some genetic disorder.

Objection 42: The Overton’s were told that AB was a healthy baby and that is the report
that the State produced to the defense and the jurors in StEx157 [O42.StEx157.Trial.pdf];
V10WHDEx22ME312-324 [O42.10WHEx22ME312-324.pdf].

In fact, this child was very ill and was a special needs child. 9WHDEx43
[O42.9WHEx43.pdf]; 8WH33 [O42.8WH33.pdf]; 9WHDEx23p368-369
[O42.9WHDEx23p368-369.pdf]]; 9WHDEx43 [O42.9WHEx43.pdf]. His former foster
mother, Sharon Hamil, saw him at three years-old overeat five pieces of pizza at one
sitting. 8WH39 [O42.8WH39.pdf]. She took him to MHMR upon the advice of
counsel. 9WHDEx43 [O42.9WHEx43atty.pdf]. And she told the specialists there that
AB was slower than other children his age; that she could not understand him; he pointed
and grunted; and that he could not communicate even when he needed to throw up.
9WHDEx43 [O42.9WHDEx43etc.pdf]; 8WH45 [O42.8WH45.pdf]. CPS possessed these
records.

Overton told the Spalding adoption agency about his gorging on non-nutritive
materials and his fits. 8WH39 [O42.8WH39.pdf]. She reported that it was more than an
emotional problem. 8WH39-40 [O42.8WH39-40.pdf]. Spalding promised to arrange his
examination for the eating disorder PICA. 14RR138-139 [O42.14RR138-139.pdf].

His CCISD records showed he was developmentally delayed, had echolalia and
speech delay. 9WHDEx43 [O42.9WHDEx43etc.pdf]; 3WH27-28 [O42.3WH27-28.pdf];
9WHDEx23p368-369 [O42.9WHDEx23p368-369.pdf].

Had the defense been aware of this substantial evidence of AB’s eating disorder
and mental retardation, it would have presented in support of the defense that this child
accidentally ingested a fatal level of sodium. 8WH30 [O42.8WH30.pdf]. Dr. Cortes
testified, based upon this new information that even he had not seen, that such children
are impulsive, lack judgment and are much more difficult to control and supervise.
3WH35 [O42.3WH35.pdf].

The undersigned attempted to obtain AB’s tissue for additional genetic testing and
met resistance from the ME. 10-11WHDEx22 [O42.10WHDEx22.pdf;
O42.11WHDEx22.pdf]; 11WHDEx22ME779-784 [O42.11WHEx22ME779-784.pdf].

Pg75
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Grounds Twelve and Thirteen- Ineffective Assistance for Failure to
Investigate Gastric Contents.

Trial Court’s Finding of Fact Forty-Three at Page 9:

43. The Court finds that the Applicant did develop her claim that her trial
attorneys failed adequately to investigate the gastric contents evidence in
the present case.

Objection 43: No objection.

Trial Court’s Finding of Fact Forty-Four at Pages 9-10:

44. The Court finds that any deficient performance in this regard did not
cause prejudice, and specifically that there is not a probability sufficient to
undermine confidence in the outcome that, but for this complained-about
deficiency, the result of the proceeding would have been different, in light
of Dr. Fernandez’s later testimony that it would be speculative to infer
anything concerning the time or manner of sodium ingestion from the
sodium content in the vomitus, and in light of the lack of expert evidence
concerning absorption rates.

Objection 44: As explained in 8WH52-53 [O44.8WH52-53.pdf], Dr. Fernandez
conceded that the child’s injuries were caused by the hypernatremia and coagulopathy.
He also defers to Dr. Moritz concerning hypernatremia. And Dr. Moritz knows nothing
about alcohol absorption rates that are not at all in issue in this case.

Dr. Moritz is, however, the world’s expert in hypernatremia and knows a great
deal about sodium absorption. 4WH28-29, 135-136 [O44.4WH28-9.135-6.pdf]. He
testified that AB’s body had already absorbed the high sodium that caused his 245 blood
sodium level (4WH19 [O44.4WH19.pdf]), and that his first vomit proves Overton’s
innocence. 4WH56-58 [O44.4WH56-58.pdf]. Moritz does not dispute that AB died
from acute salt intoxication, but that based on the scientific evidence now available and
the results of the 250 revealed, it is not possible that AB was intentionally poisoned.

Each defense lawyer, who the State acknowledged, were experts in criminal
defense (6WH75 [O44.6WH75.pdf]) and medical issues (6WH17 [O44.6WH17.pdf])
testified that the new evidence was firmly convincing of Overton’s innocence (8WH29
[O44.8WH29.pdf]) and would have resulted in a verdict of acquittal. 8WH29
[O44.8WH29.pdf]. The State offered no witness in rebuttal.

Even Ms. Eastwood opined in her affidavit that if the jurors at trial had been given
lesser included offenses to consider, they would have chosen a lesser included offense
instead of capital murder. 12WHSEAffp13-14 [O44.12WHAffSEastwoodp13-14.pdf].
And Ms. Jimenez, her second chair, testified that the case was over charged. 5WH202

Pg76
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[O44.5WH202.pdf].

The non-production of this material evidence, had it been provided would have
resulted in a verdict of acquittal. 2WH39 [O44.2WH39.pdf]; 4WH153
[O44.4WH153.pdf]; 5WH243-244 [O44.5WH243-244.pdf]; 6WH28, 125, 247, 249-250
[O44.6WH28.125.pdf]. Its non-production prejudiced Overton. 8WH32
[O44.8WH32.pdf].

Grounds Fourteen and Fifteen- Ineffective Assistance for Failure to
Make a Confrontation Clause Objection

Trial Court’s Finding of Fact Forty-Five at Page 10:

45. The Court finds from the record of trial that Overton’s trial attorneys
successfully prevented Dr. Fernandez from testifying concerning the
sodium content (RR vol. 15, pp. 23-64), but that other witnesses not
affiliated with the Medical Examiner’s Office or law enforcement did
testify to Andrew Burd’s high sodium levels, based on testing done while
he was still alive and being treated as a patient. (Respiratory Therapist
Farah Verjee- RR vol. 10, pp. 11; Dr. Alexandre Rotta- RR vol. 11, pp. 92-
95)

Objection 45: The trial court excluded Dr. Fernandez’ opinions on sodium from trial on
the basis that they were not scientific. 15RR43-46, 49-50 [O45.15RR43-46.49.50.pdf].
This is supported by the fact that he had no knowledge about hypernatremia.
9WHDEx13p60-68 [O45.9WHDEx13p60-68.pdf]. It is also supported by the fact that
the State must use an accredited lab and Spohn Hospital is not accredited. 6WH189
[O45.6WH189.pdf].

“[By Ms. Eastwood] Q. With the police department do you have to use an
accredited lab?

A. That’s the problem.

Q. Okay. In other words, you can’t go to just any lab like the Defense can. You
have to use one that’s accredited?


A. Certified, accredited. There’s all these - -” 14RR54 [O45.14RR54.pdf].

“A. That was done at Spohn Memorial.

Q. Now, this particular testing, were those results admitted in the original trial?

A. No, I don’t believe they were.

Q. And do you know why that was?

A. Probably since the lab was not a DPS type lab. It’s a hospital lab.

Q. So it was not an accredited lab?

A. It has accreditations by hospital testing laboratory organizations but not by
DPS.” 6WH189 [O45.6WH189.pdf].

Pg77
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Witnesses from Spohn Hospital testified that AB ‘s blood sodium was 245 meq/l and that
is correct. 10RR13 [O45.10RR13.pdf]. But this witness was not qualified to so opine
under Melendez-Diaz v. Massachusetts, 552 U.S. 1256, 128 S.Ct. 1647, 170 L.Ed.2d 352
(2008); and
Williams v. Illinois, 2012 U.S. Lexis 4658 (June 18, 2012)[witness did not
testify for the truth of the matter asserted, trial was before the bench only]. This person,
Ms. Buentello, did not calibrate the machine, did not know when it had last been
calibrated, she did not quality control test it, and otherwise lacked the ability to testify as
to the accuracy of the result. The report was run after medical and police personnel had
made criminal accusations against Hannah Overton and when the medical personnel felt
that the child would not survive. See Objection No. 46 below. Counsel failed to make
the appropriate confrontation objection at trial and Overton was prejudiced as a result.
10RR18 [O45.10RR18.pdf].

No one, had AB’s first vomit and Dr. Fernandez switched Spohn Hospital’s results
for the testing of his vomit and the Zatarain’s in water. 6WH239-240 [O45.6WH239-
240.pdf]. The Zatarain’s and water was a level 48 and the vomit was a level 250.
11WHDEx22ME535-536 [O45.11WHDEx22ME535-536.pdf]. The defense is not
required to use an accredited lab and Spohn Hospital is competent to test for sodium.
14RR54 [O45.14RR54.pdf].

  Resp to FOF Pg78

78
------------------------------------------------------------------------------------------------------------------

 Resp to FOF Pg79a

 Resp to FOF Pg79b

79
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The Spohn Hospital personnel did not tell the doctors treating AB about his high blood
serum sodium for an hour and a half. 3WH75-76 [O45.3WH75-76.pdf]. Thus, these
doctors continued to administer sodium to AB after he was in the hospital. 4WH68-69
[O45.4WH68-69.pdf]. This is further evidence that Overton did not omit in providing
AB medical care. 4WH110 [O45.4WH110.pdf].

As explained in objection 40 above, Dr. Moritz did not know about alcohol
absorption which is completely irrelevant in this case. 4WH137 [O45.4WH137.pdf].
But he is the world’s expert on sodium absorption and hypernatremia. 4WH107
[O45.4WH107.pdf].

Trial Court’s Finding of Fact Forty-Six at Page 10:

46. Accordingly, the Court finds that Overton has failed to prove by a
preponderance of the evidence that her trial attorneys’ performance was
deficient in failing to make a confrontation Clause objection at trial to the
results of sodium testing from the hospital doctors and other non-Medical
Examiner Office affiliated experts.

Objection 46: Sylvia Buentello was called during trial to authenticate the report
indicating Andrew Burd’s sodium content level of 245. This test and report was ordered
for the specific purpose of obtaining information to accuse Hannah Overton of a crime.
The undisputed facts show that AB was brought to Driscoll Urgent Care at 5:17 pm. At
5:18pm the attending Nurse, D. Zapata, called 911 and reported bruising on Burd’s
abdomen and side. 11WHDEx22ME855 [O46.11WHDEx22ME855.pdf]. At 5:48pm
Officer Gamez #1224 and Rivera #0811 had already arrived on the scene to take
photographs of AB. 10WHDEx22ME446 [O46.10WHDEx22ME446.pdf]. Officer
Gamez began questioning Hanna and Larry Overton regarding the facts of the incident
and within minutes the medical staff told the officers that there appeared to be cigarette
burns and bruising on AB’s body. 10WHDEx22ME446 [O46.10WHDEx22ME446.pdf].
M. Markle C-3 #0727 then advised Officer Gamez that a criminal investigation officer
would be contacted. 10WHDEx22ME446 [O46.10WHDEx22ME446.pdf]. At this point,
the test was ordered for AB’s blood levels and at 5:55pm the report was generated
indicating a sodium content level of 245 but was not conveyed to doctors.

This report, State’s exhibit 16, was admitted into evidence without a confrontation
clause objection. 10RR240-241 [O46.10RR240-241.pdf]. The Cobas Intaker 800 was the
machine used to produce these results and subsequent report. 10RR233
[O46.10RR233.pdf]. The accuracy of this machine is predicated upon its calibration
performed once every six months and a QC check every 24 hours. 10RR234
[O46.10RR234.pdf]. The witness called to authenticate these results and verify its
reliability and accuracy, Sylvia Buentello, was not the proper witness because she did not
perform the calibration on that machine nor could she verify that the QC had been
completed that day. More specifically, she could not remember if the QC had been

Pg80
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performed on the Cobas Intaker 800 before or after the testimonial report was generated.
10RR236-237 [O46.10RR236-237.pdf]. The proper witness should have been both the
nurse who performed the calibration and the specific nurse who performed the QC within
the 24-hour period. There is no way to verify the accuracy and reliability of these results
without these two witnesses. Therefore, admittance of exhibit 16 was in direct violation
of Hanna Overton’s confrontation clause rights. It was ineffective not to object and, the
admission of the 245 blood serum sodium prejudiced Overton.

This is especially so since her lawyers did not call their only medical defense
witness in hypernatremia to testify and did not have the child’s first vomit that showed
his stomach content sodium level was normal when he arrived at Driscoll Urgent Care.

All Claims of Ineffective Assistance.

Trial Court’s Finding of Fact Forty-Seven at Page 10:

47. The Court finds that, with regard to each of the claims individually, and
as a whole, Overton has failed to prove by a preponderance of the evidence
that her trial attorneys’ performance was deficient.

Objection 47: The only testimony in this case is to the effect that the trial lawyers were
experts in criminal law and concerning medical issues. They testified that they failed
miserably in not observing or reviewing Dr. Moritz’ videotaped deposition and editing it
to put it on before the jury or calling Dr. Moritz back to testify during the remaining days
of the trial. They concluded that had they presented this only medical defense evidence
concerning hypernatremia to the jury, that it was of such superior quality, it would have
impeached Dr. Rotta’s testimony and firmly convinced the jury of Hannah Overton’s
innocence. Thus, they testified that she was harmed by their ineffective assistance. Mr.
Pinedo did not observe the testimony of Dr. Moritz and was not responsible for that part
of the case. He dealt with the misleading 48 test result which was misrepresented to be
lavage obtained from a subsequent hospital after the Driscoll Urgent Care Clinic, and he
was told that no vomit for this child existed.

Counsel also should have put on more evidence of Overton’s history of her loving
and caring affinity for young children with disabilities. Her docile manner and abilities to
calm special needs children rebutted the State’s theory that she “snapped” and force fed
AB excess sodium to kill him and then delayed medical care so that he would die.

Grounds Sixteen to Forty-One.

Trial Court’s Finding of Fact Forty-Eight at Page 10:

48. The Court finds that there are no controverted fact issues concerning
these grounds, which present only legal issues for the Honorable Texas
Court of Criminal Appeals to determine.

Pg81
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Objection 48: With the exception of one point of error, these issues that were presented
on appeal, do not state new claims for which additional evidence has been adduced. The
one appeal claim for which there was new evidence adduced is with regard to Dr. Cortes’
opinion that Hannah Overton is not guilty of killing AB by act or omission in light of the
newly discovered evidence and withheld Brady produced during the writ hearing.

However, the Court of Appeals decided several of these claims in a manner that is
an unreasonable application of Supreme Court cases applicable to them as reflected in
Overton’s appeal brief.

Conclusions of Law

Grounds One and Two-Newly-Discovered Evidence of Actual
Innocence.

1. The Court concludes that all of the supposedly newly-discovered
evidence actually mentioned in Overton’s application for writ was clearly
known and discussed at the time of trial.

Objection 1 to COL: In order to succeed in an actual innocence claim the
applicant must show “by clear and convincing evidence that, despite the evidence of guilt
that supports the conviction, no reasonable juror could have found the applicant guilty in
light of the new evidence.” Ex parte Brown, 205 S.W.3d 538, 544-46 (Tex. Crim. App.
2006). The term “newly discovered evidence” refers to evidence that was not known to
the applicant at the time of trial and could not be known to him even with the exercise of
due diligence. Id.; Ex parte Henderson, 246 S.W.3d 690, 693 (Tex. Crim. App. 2007)(“In
conducting this analysis, the reviewing court should view the newly available evidence in
the context of the evidence developed during the course of the trial and ask whether any
rational juror would still have convicted the applicant given whatever additional
perspective the newly available evidence may provide, assuming the juror had also heard
that newly available evidence.)[J. Price, concurring].

The applicant cannot rely upon evidence or facts that were available at the time of
trial, plea, or post-trial motions, such as a motion for new trial. Ex parte Brown, 205
S.W.3d at 544-46. However, an exception to this rule is when “direct appeal cannot be
expected to provide an adequate record to evaluate the claim in question, and the claim
might be substantiated through additional evidence gathering in a habeas corpus
proceeding.” Id.

This Court should not afford any deference to findings and conclusions that are
not supported by the record and only defer to those that are. Ex parte Reed, 271 S.W.3d
698, 727-28 (Tex. Crim. App. 2008). When independent review of the record reveals

Pg82
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findings and conclusions that are unsupported by the record, the Court should proceed
cautiously with a view toward exercising their own judgment and enter alternative or
contrary findings and conclusions that the record supports. Id. Furthermore, when the
trial judge's findings and conclusions that are supported by the record require clarification
or supplementation, this Court may exercise its judgment and make findings and
conclusions that the record supports and that are necessary to an independent review and
ultimate disposition. Id. However, where a given finding or conclusion is immaterial to
the issue or is irrelevant to its disposition, the Court may decline to enter an alternative or
contrary finding or conclusion. Id.

The evidence presented during the hearing on the writ of habeas corpus
demonstrates that the State withheld from the defense, the jury, this Court and their own
experts, the report of CCPD evidence tech, D. Rivera, reflecting that on October 4, 2007
he collected the first vomit obtained from AB at Driscoll Urgent Care when he was alive.
It also withheld the actual and correct test result showing that this first vomit contained
250 meq/l of sodium, which is approximately the same as Wendy’s chili.

Defense expert, Dr. Judy Melinek, testified at the Writ Hearing that this was a
“crucial fact,” that had she known at the time of her trial testimony would have caused
her to render a completely different opinion, and that her expert opinion testimony would
have been that Andrew Burd’s cause of death was “accidental,” rather than
“undetermined,” as testified to at the original trial.

The evidence, presented further demonstrated that the State withheld from the
defense, the jury and this Court photographs of an experiment conducted by the Medical
Examiner of a sodium comparison test demonstrating that samples with labels “D” and
“E” containing the “Hospital gastric contents” (that was actually vomit from the first
medical facility where AB arrived) and a water and Zatarain’s spice concoction (for
comparison) were “switched,” when the results were written down in a key or legend by
Dr. Fernandez after having been sent to Spohn Hospital for a laboratory determination of
their respective sodium content levels. This is clear from the photographs taken to
document and memorialize the comparison test samples as well as the order forms
submitted to Spohn Hospital ordering the testing. In this manner the test result for the
Zatarain’s and water were switched with the result for the first vomit. The switch also
allowed for the misrepresentation that the “hospital gastric contents” had to be lavage
because it had 48 meq/l of sodium, or approximately the same sodium content as mineral
water.

In response to defense counsel’s direct question at the writ hearing whether or not
he, Dr. Fernandez, switched the samples himself, Dr. Fernandez replied with the
emphasis indicated, “I didn’t” since it was clear that someone else did. This raises serious
questions regarding Dr. Fernandez’s opinions, especially, since the results were reported
in his own handwriting.

Pg83
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The lead prosecutor, Sandra Eastwood, repeatedly and affirmatively
misrepresented to defense counsel, after their numerous requests, that the State possessed
no vomit and, therefore, there was none to be tested. This is a fact which has now been
proven untrue. Andrew’s first vomit was obtained on arrival at the first medical facility
by nurses clearing an airway by suctioning his mouth on October 2, 2006. This date,
October 2, 2006 is the date reflected as the collection date for sample E. Civilian
evidence tech for the Corpus Christi Police Department, D. Rivera, collected this Bemis
suction container from Driscoll Urgent care on October 4, 2006. He duly noted it in his
report, which was unknown to Overton and was not provided to Defense Counsel, that it
had been ordered by the trial court. The location of the collection and the significantly
critical timing of the collection were unknown to the defense. Also unknown was the fact
that the sample tested a 250 indicating a voluntary much earlier ingestion of a lethal
amount of sodium or a recent meal consistent with Wendy’s chili. Counsel had been told
the sample was lavage (water added by medical personnel) and that it was, therefore,
meaningless. The Nueces County District Attorney’s Office had an open file policy in
the Overton case. Therefore, counsel were entitled to rely upon these misrepresentations
described above. The second chair prosecutor was also unaware of the vomit’s existence,
so she stood silent in the face of representations by the State that no vomit was available
to be tested by the defense. These representations were made while the State still
possessed the vomit. It did exist. The second chair prosecutor, upon learning of its
existence testified that it was Brady evidence and should have been turned over to the
defense. Despite her own lack of knowledge at the time of the trial, she testified that the
defense was repeatedly asking for it, she had a duty to find and produce it, so that she
also had committed a Brady violation in addition to Ms. Eastwood having done so. Ms.
Eastwood also testified that it was Brady evidence and that she did not recall, but she
believed that she would have turned the evidence over. She was the only witness who
believed this. Every other person who acted as defense counsel for Overton testified that
it had not been turned over and that they had been affirmatively told it did not exist and
was unavailable for testing. Banks v. Dretke, 540 U.S. 668, 695-696, 124 S.Ct. 156,
1274-1275, 157 L.Ed.2d 1166, 1190-1191 (2004).

The Trial Court’s conclusion that these habeas proceedings presented nothing new
is also contrary to the significant advances in medical science concerning the
identification of intentional salt poisoning, voluntary accidental hypernatremia and the
fact that high salt intoxication occurring outside of the hospital is always fatal. It also
ignores advances in genetic science post-trial that identified the existence Prader-Willi
like genetic disorders which Andrew’s medical history and symptoms indicated he had.
These two areas of evolving science also establish Hannah Overton’s innocence.

The opinion of AB’s treating pediatrician testified that had he been aware of the
withheld facts and new science, he would have testified that this was not capital murder,
but, in fact, an “accident.” Dr. Melinek testified that, in light of the new evidence, that
she changed her opinion that the death was from undetermined causes, to the opinion that

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the death was an accident. Dr. Moritz testified that his review of every reported case of
hypernatremia and the facts and circumstances of this case led him to firmly conclude
that the cause of death was the child’s voluntary accidental ingestion of too much
sodium, from which he could not be saved. And Dr. Fernandez, the Medical Examiner,
conceded that he did not know as much about hypernatremia as Dr. Moritz and deferred
to him. The child’s bruises, injuries and head bleed were caused by coagulopathy; a
phenomenon with which he had previously been unfamiliar.

Every single attorney that testified at the Writ Hearing stated that they were told
no vomit existed. And all that was left to rebut this claim was the testimony of former
prosecutor Sandra Eastwood whose only comment was, “I don’t remember.” The trial
court is wholly incorrect in its finding that these claims were fully developed at trial.

This Court must find that these conclusions of law are not supported by the
evidence contained in the record and conclude otherwise that Overton presented newly
discovered evidence that establishes her innocence. Ex parte Brown, 205 S.W.3d 538,
544-46 (Tex. Crim. App. 2006)(we are not bound by the habeas judge’s findings). This
Court has also noted that it “is the ‘ultimate’ fact-finder [in post-conviction habeas
corpus proceedings], with the prerogative to reject the convicting court's
recommendations on those rare occasions when we deem it appropriate, even when they
are supported by the record, if we think another disposition is manifestly better supported
by the record.” Ex parte Spencer, 337 S.W.3d 869, 2011 WL 1485448 (Tex. Crim. App.,
No. AP-76,244, decided April 20, 2011)(Price, J., concurring), at*10n.1.

2. The Court concludes the additional unpled complaints that Applicant
raised at the hearing on her writ were allowed in the interest of justice.
Further, the Court concludes that Overton’s unpled complaints concerning
additional medical articles and case studies did not amount to newlydiscovered
evidence of actual innocence.

Objection 2 to COL: A conviction that is based upon unreliable or undeveloped
scientific evidence deprives Hannah Overton of a fundamentally fair trial and violates the
Due Process Clause of the Fourteenth Amendment because it raises a “fundamentally
unjust incarceration.” Ex Parte Robbins, 360 S.W.3d 446, 471 (Tex. Crim. App.
2011)(Cochran, J., dissenting reh'g denied, (Sept. 21, 2011), cert. denied 132 S. Ct. 2374
(2012). In order to consider evolving scientific developments as “newly discovered” it
must be material, exculpatory, and not available at the time of trial. See Ex Parte
Henderson, 246 S.W.3d 690 (Tex. Crim. App. 2007).

Sixty-one (61) new studies on hypernatremia, since trial, reveal a pattern and
profile of persons who intentionally salt poison their children. Dr. Moritz reviewed every
reported case of salt poisoning to discover this pattern. He cited 61 additional medical
articles that had been published on hypernatremia since Overton’s trial. His study reveals

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that caregivers who intentionally salt poison children are mentally ill or drug addicted
parents who have a documented pattern of abuse with CPS. According to his studies of
salt poisoning by a caregiver, it does not happen in isolation; there is always a history of
abuse by the caregiver. These new studies also identify the profile for children who
voluntarily ingest lethal sodium, as children with genetic or behavior disorders,
sometimes associated with cognitive delays. These children often come from foster
homes and prior abusive environments. These same thorough studies make clear that
hypernatremia, like AB’s case, is always fatal in the field and even prompt medical
attention cannot save the person. Also impossible to be known by the trial participants is
the fact that, post trial, genetic science has identified the symptoms indicating Prader-
Willi-like syndrome in AB. He exhibited the behaviors and developmental delays
identified by genetic science that evolved post-trial. Thus, he fits the profile for a child
who would voluntarily self-ingest a lethal amount of sodium.

Patterns, symptoms, and how hypernatremia is properly diagnosed and
successfully treated are not the same as thought during the original trial. This information
is both material and exculpatory. Scientific evidence must be fully informed and stand the
test of time. Less than fully informed science cannot be used to sustain a conviction. Ex
parte Hannah Ruth Overton, WR-75,804-01 and WR-75,804-02 (Tex. Crim. App.
February 8, 2012).

We now know that the medical facts here support the medical science that AB
voluntarily and accidentally self-administered a lethal amount of sodium to himself at
home early in the day. He was not diagnosed by the doctors with hypernatremia for one
and a half to two hours after he was taken to medical facilities for care. The evidence
shows that he must have ingested the sodium much earlier in the day because his stomach
sodium (first vomit) was roughly equivalent to that of Wendy’s chili. And because of
this, we know that Hannah Overton gave him to eat and drink precisely what she told the
doctors and authorities that she had; soup with Zatarain’s seasoning and a sippy cup with
water and a sprinkling of Zatarain’s. We know, from this evidence, that he ate the soup,
took a sip of the water, and threw it down in a fit because it was not more food. It was
not “more of this” as he said earlier that day with the Zatarain’s in his hand.

This evidence was newly discovered and unavailable to Overton because, as set
out below, it was withheld Brady evidence and it was new scientific evidence. There was
also evidence that the trial lawyers failed to put on because they were ineffective. None
of them viewed or reviewed the deposition of their medical defense expert, the world’s
expert on hypernatremia. And without knowing what he had testified to, they did not put
him on before the jury at trial. They testified, unchallenged by any evidence to the
contrary from the State, that they were ineffective in so conducting the trial. This
ineffective assistance of counsel is discussed below.

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In Ex Parte Robbins, 360 S.W.3d 446, 457-459 (Tex. Crim. App. 2011), this Court
noted that in a case where a medical examiner had merely obtained more experience to
reach a different result, and the applicant presented a bare innocence claim, the Court
would analyze whether the new opinion supported the conviction. Hannah Overton has
raised a bare innocence59 claim and a Schulp innocence60 claim as well. Also distinct
from Robbins, here, Overton has proven that the science used at her trial was bad science.
She raised Daubert challenges to the evidence on appeal. And in her writ hearing she
adduced proof that the testimony of Dr. Rotta and Dr. Fernandez at her trial were wrong.
Based upon the true science, and all of the evidence, Hannah Overton is innocent. She
overcame the presumption of regularity of the judgment by substantial evidence to the contrary.
Ex parte Young, 479 S.W.2d 45, 47 (Tex. Crim. App. 1972); see also Ex Parte Cross,
427 S.W.2d 64 (Tex. Crim. App. 1968); Ex Parte Morgan, 412 S.W.2d 657 (Tex. Crim.
App. 1967); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957);
Welch v. Beto, 355 F.2d 1016 (5th Cir. 1966).

This Court discussed instances when new or evolving science would result in the
reversal of a conviction. Judge Price concurred in Robbins, supra, stating that in such
situations due process defeats the State’s interest in the finality of a conviction:

“It is possible, of course, to retroactively regard any given trial as ‘unfair’ if new
evidence—scientific, medical or otherwise—objectively and definitively shows
that good faith trial testimony was inaccurate or false.” Robbins, at 467.

Four additional Judges discussed in the dissent to that opinion that such a possibility
raised a novel and difficult issue for the criminal justice system.61

____________________________
59Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1992) first recognized that a bare
innocence claim might result in reversal of a conviction. In re Davis, 130 S.Ct. 1, 174 L.Ed.2d 614
(2009) established that such a claim is cognizable on a federal writ and remanded the case to the district
court to decide the matter. And this Court recognizes such claims as well. Ex parte Elizondo, 947
S.W.2d 202, 206 (Tex. Crim. App. 1996).

60Schulp v. Delo, 513 U.S. 298, 315-316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) in which the claim of
innocence is not the sole basis for relief. Here, Overton has asserted that her trial was infected by
constitutional errors including ineffective assistance of counsel under the Sixth Amendment Const. and
Article 1 § 10 Tex. Const. as well as a violation of her right to due process under the Fifth and Fourteenth
Amendments because of Brady violations.

61The Department of Justice is currently investigating thousands of cases in which bad science led to the
conviction of the innocent. In its investigation, it discovered one Texas case in which an innocent person
had been executed in Texas in 1997. Spencer. Hsu, Convicted defendants left uninformed of forensic
flaws found by Justice Dept., The Washington Post (April 16, 2012),
http://www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flawsfound-
by-justice-dept/2012/04/16/gIQAWTcgMT_story.html.

A national registry of exonerations reveals that Texas is doing much to overturn these wrongful
convictions. The National Registry of Exonerations,
http://www.law.umich.edu/special/exoneration/Pages/about.aspx (last visited Jul. 11, 2012). And a
further report reveals that many wrongful convictions, 25% of them, are due to prosecutor error. Brandi

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“Part of the problem is that there is a fundamental disconnect between the worlds
of science and of law. Science is constantly evolving by testing and modifying its
prior theories, knowledge, and truths. …This disconnect between changing science
and reliable verdicts that can stand the test of time has grown in recent years as the
speed with which new science and revised scientific methodologies debunk what
had formerly been thought of as reliable forensic science has increased. The
potential problem of relying on today’s science in a criminal trial (especially to
determine an essential element such as criminal causation or the identity of the
perpetrator) is that tomorrow’s science sometimes changes and, based upon that
changed science, the former verdict may look inaccurate, if not downright
ludicrous. But the convicted persons is still imprisoned. Given the facts viewed in
the fullness of time, today’s public may reasonably perceive that the criminal
justice system is sometimes unjust and inaccurate. Finality of judgment is
essential in criminal cases, but so is accuracy of the result – an accurate result that
will stand the test of time and changes in scientific knowledge.” Robbins, at 469-
470.

In an earlier case, Ex parte Spencer, 337 S.W.3d 869 (Tex. Crim. App.
2011)[eyewitness and facial recognition evidence] this Court held that new science is
new evidence and each type of new scientific evidence would be examined individually.

This Court overturned such a case where unrevealed Brady evidence of innocence
and evolved science established innocence. Ex parte Miles, 359 S. W.3d 647 (Tex. Crim.
App. 2012)[police reports of alternate shooter and gun shot residue evidence that was
discredited and abandoned].

In Overton’s writ hearing, she established that the science at trial was wrong, and
that the fully informed science, new and old, prove her actual innocence. Evidence of her
child’s first vomit showing that she did not poison him was withheld. Her lawyers failed
to observe, review and present the jury with the deposition of their only medical defense
expert witness on hypernatremia; the very thing that killed her child. And the science
concerning her child’s eating disorder and cases of hypernatremia had evolved, revealing
her innocence as well.

Her lawyers testified they were ineffective. Both prosecutors testified that the first
vomit evidence was Brady evidence, important to the doctors and should have been

__________________________________
Grissom, 270 Years in Prison, THE CRIME REPORT, (July 06, 2012, 07:21)[Texas has had 78 exonerations
and 25% of errors were by prosecution], http://www.thecrimereport.org/news/articles/2012-07-270-yearsin-
prison.

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turned over. The lead prosecutor did not remember whether she had turned it over. The
second chair prosecutor recalled that they had not done so. All of the lawyers, defense
and prosecutors who testified, stated that Overton would have obtained a different result
had the vomit been turned over. Ms. Eastwood did so in her affidavit. Ms. Jimenez
testified the result of the trial would have been different. And the defense lawyers
testified that the jury would have been firmly convinced of her innocence.

The medical examiner testified that he was unfamiliar with coagulopathy that
accompanies hypernatremia, that he was wrong about head trauma being present and that
he deferred to Dr. Moritz, the hypernatremia expert, on questions related to
hypernatremia. Dr. Moritz ruled out child abuse and determined that the child
accidentally ingested a lethal amount of sodium from which he could not recover. He
observed that the treating doctors gave AB more sodium until they were able to diagnose
the hypernatremia some one and a half to two hours later.

Law Concerning Grounds Three, Four, Five, Six, Seven, Twelve, Thirteen, Fourteen
and Fifteen for Ineffective Assistance of Counsel

Hannah Overton has a constitutionally protected right to the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Newton v. State, 456 S.W.2d 939 (Tex. Crim. App. 1970). The right to the
effective assistance of counsel is recognized because of the effect it has on the ability of
the accused to receive a fair trial. LaPointe v. State, 166 S.W.3d 287 (Tex. App.- Austin
2005), petition for discretionary review dismissed, (Nov. 2, 2005). The essence of an
ineffective assistance of counsel claim is that counsel's unprofessional errors so upset the
adversarial balance between defense and prosecution that the trial is rendered unfair and
the verdict rendered suspect. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91
L.Ed.2d 305 (1986). Moreover, the denial of the effective assistance of counsel violates
the Due Process Clause of the Fourteenth Amendment and the Assistance of Counsel
Clause of the Sixth Amendment of the United States Constitution. Passmore v. Estelle,
594 F.2d 115 (5th Cir. 1979), on reh'g, 607 F.2d 662 (5th Cir. 1979).

The United States Supreme Court has determined that the basic federal approach
to assessing the existence of ineffective assistance of counsel is the application of a twopronged
test: First, whether counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms; and Second, whether there is a
reasonable probability that but for counsel's deficient performance, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 686 (1984). This Court
has also adopted this standard. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001); Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997); Butler v. State, 872
S.W.2d 227, 241 (Tex. Crim. App. 1994) (“since the Texas constitutional and statutory
provisions do not provide any greater protection than the Federal provisions, Texas has
adopted the Strickland two prong test”); see also Hernandez v. State, 726 S.W.2d 53

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(Tex. Crim. App. 1986) (adopting Strickland as standard under Texas Constitution); Ex
parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989).

The defense has an obligation to investigate and present defense evidence to
provide effective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003); Wright v. State, 223 S.W.3d 36 (Tex. App. Houston [1st Dist.]
2006, pet. ref’d)(defense counsel failed to call expert witness therapist who would have
testified about exculpatory evidence that defendant’s daughter had not been sexually
abused by him). Since Counsel’s performance fell far below the range of professional
assistance and this prejudiced Hannah Overton, she has proven the ineffective assistance
of her counsel. Strickland, 466 U.S. 668; Hernandez, 726 S.W.2d 53 (Tex. Crim. App.
1989).

Ground Three-Ineffective Assistance Concerning Advice
on Lesser-Included Offenses

3. The Court concludes that Overton’s trial attorneys did not render
ineffective assistance of counsel by allowing her to reject the submission of
lesser-included offenses.

Objection 3 to COL: During Overton’s trial she was provided incorrect advice about the
submission of lesser-included offenses. Her pastor testified that he was present when she
was advised that submitting a lesser-included offence charge to the jury would preclude
her from challenging a conviction on a lesser-included offence on the grounds that the
evidence was insufficient. But this was not the law, see: McKinney v. State, 207 S.W.3d
366, 374 (Tex. Crim. App. 2006), and it led to her erroneous choice not to submit them to
the jury. The pastor testified that it was after she received this bad advice that she chose
not to request lesser-included offenses.

Such bad legal advice constitutes ineffective assistance of counsel. See Webb v.
State, No. SC91012 (Mo S.Ct. March 29, 2011)(bad advice about parole eligibility);
Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Furthermore, per the lead prosecutor’s own
affidavit, if a lesser-included charge would have been submitted to the jury there is no
way a jury would have found Hannah Overton guilty of capital murder. Had Overton
been properly advised she would have opted for a lesser-included charge and would not
have been convicted of capital murder.

Ground Four and Five-Ineffective Assistance for
Failure to Investigate.

4. The Court concludes that Overton’s trial attorneys did not render
ineffective assistance of counsel by failing to do additional investigation or
testing.

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Objection 4 to COL: The defense has an obligation to investigate and present defense
evidence in order to provide effective assistance of counsel. Wiggins v. Smith, 539 U.S.
510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Wright v. State, 223 S.W.3d 36 (Tex. App.
Houston [1st Dist.] 2006, pet. ref’d)(defense counsel failed to call expert witness
therapist who would have testified about exculpatory evidence that defendant’s daughter
had not been sexually abused by him). Andrew Burd’s underlying medical, genetic,
mental and emotional problems were the cause of his death. Had counsel conducted a
reasonable and sufficient investigation into the science regarding AB’s eating disorder
they would have discovered the existence of personal mutations and the fact that Prader-
Willi-like syndromes had been established. These Prader-Willi-like illnesses presented
themselves as eating disorders in which a child had a quick onset voracious eating to the
point that he vomited and wanted to eat again, drank a great deal of water, ate as much as
his adult parents did and engaged in self-mutilation and throwing fits, banging his head
on the floor. That he soiled his pants and smeared his feces on his bedding and walls and
threw his feces.

Additionally, counsel failed to investigate his family and medical background.
This would have further revealed AB’s mental slowness and behavioral problems was
caused by his biological mother’s drug addition and physical abuse.

Counsel also should have put on more evidence of Overton’s history of her loving
and caring affinity for young children with disabilities. Her docile manner and abilities to
calm special needs children rebutted the State’s theory that she “snapped” and force fed
AB excess sodium to kill him and then delayed medical care so that he would die.

Had the jury been presented with this medical evidence that AB’s behavior was
documented as a mental or genetic eating disorder it would have led them to conclude
that AB accidentally self-ingested a lethal amount of sodium that was indiscernible even
by doctors until it was fatal. The jury’s verdict, would have been different in light of this
undiscovered and un-presented evidence.

Grounds Six and Seven-Ineffective Assistance for Failure to
Develop Evidence Concerning Causation.

5. The Court concludes that Overton’s trial attorneys trial strategy did not
render ineffective assistance of counsel by failing to offer Dr. Moritz’
deposition at trial or by failing to adequately cross-examine Dr. Rotta at
trial concerning causation and survivability of Andrew Burd.

Objection 5 to COL: The right to counsel guarantees a defendant an attorney reasonably
likely to render effective assistance and to conduct rigorous cross-examination of state
witnesses. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see also Minel

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v. State, 831 S.W.2d 310, 323-24 (Tex. Crim. App. 1992). Counsel's competence is
presumed and a defendant must rebut this presumption by proving that his attorney's
representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy. Kimmelman v. Morrison, 477 U.S. 365, 384,
106 S.Ct. 2574, 2588, 91 L.Ed.2d 305, 325 (1986). The defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Minel, 831 S.W.2d at
323.

Dr. Moritz is the foremost expert on hypernatremia in the world. He testified in a
deposition taken outside of trial by a civil lawyer who did not participate in the trial,
while the trial was going on, and the State was resting its case with its last witness.

In his video deposition, which was not transcribed, he testified that there was no
known cure for hypernatremia and that even if AB was in the hospital when he ingested
the sodium there was or is no existing medical treatment available that would have saved
him. This information directly refuted the unchallenged testimony given by the State’s
witness, Dr. Rotta, who testified that AB could have been saved if Overton would have
arrived at the hospital sooner. Dr. Rotta’s testimony was that AB’s cardiac arrest outside
of the hospital made his survivability questionable. He did not render an opinion
regarding survivability of hypernatremia. He did not even take the hypernatremia into
account.

Trial Counsel could have asked for a continuance to allow Dr. Moritz to testify in
front of the jury, had time to call him back to testify in the remaining three days before
trial concluded, or could have edited the video deposition to redact inadmissible and false
matter interjected by the prosecutor. Any of these methods would have allowed the jury
to hear the exculpatory scientific evidence from the world’s leading expert in the field.

Dr. Moritz testified in the video that AB self-ingested lethal sodium by accident
and it was not forced upon him. He ruled out child abuse. And the deposition provided
by Dr. Moritz contained unequivocal evidence that there was nothing Overton could have
done differently to save AB’s life. Furthermore, even if she had arrived to the hospital
within the time frame provided by the State’s witness, Dr. Rotta, the medical technology
did not exist to save someone with hypernatremia. Instead, counsel for Overton left the
jury with the un-refuted, unchallenged, and misleading testimony of Dr. Rotta.

But the trial lawyers did not attend and did not review the deposition of Dr.
Moritz. Without having seen it, they decided not to present it.

The lawyer in charge of this decision, David Jones, testified that he knew within
thirty minutes of viewing the video deposition before the writ hearing for the first time,
that he should have put this evidence on. He was not able to effectively cross-examine

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Dr. Rotta without this evidence. And, he further testified that it would have firmly
convinced the jury of Overton’s innocence; its non-presentation prejudiced her. Lead
criminal defense counsel concurred that they had been ineffective.

Grounds Eight and Nine- Brady Claim Regarding the State’s Failure to
Disclose Information Known by Dr. Cortez.

6. The Court concludes that Dr. Cortes was available at all times before and
during the trial, as he was listed as a witness, and that Overton’s complaint
that Dr. Cortes’s opinions were withheld are without merit. This is the same
complaint that has been raised and rejected both on motion for new trial
and on appeal.

Objection 6 to COL: To establish a claim under Brady, a habeas applicant must
demonstrate that (1) the State failed to disclose evidence, regardless of the prosecution's
good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is
material, that is, there is a reasonable probability that had the evidence been disclosed,
the outcome of the trial would have been different. Ex Parte Miles, 359 S.W.3d 647, 665
(Tex. Crim. App. 2012). To be favorable, the evidence may be exculpatory or it may also
be impeachment. Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012).
Exculpatory evidence is that which may justify, excuse, or clear the defendant from fault,
and impeachment evidence is that which disputes, disparages, denies, or contradicts other
evidence. Id. Finally, in considering materiality, the suppressed evidence is considered
collectively, rather than item-by-item. Kyles v. Whitley, 514 U.S. 419, 436 (1995).

The prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government's behalf in the case. Kyles v. Whitley, 514 U.S. 419, 437
(1995). Dr. Cortes was a member of the prosecution team, as he himself and the lead
prosecutor testified. Thus, he was acting on the government’s behalf in this case. He
was aware of AB’s underlying medical problems including mental and developmental
issues that Hannah Overton was not made aware of – problems that lead to difficulty
raising AB. He was AB’s treating physician and knew that AB’s cognitive and
developmental delays made AB unable to judge, for himself, what and how much was
safe for him to eat.

Most importantly, Dr. Cortes was more fully informed of the other evidence in the
case at the time of his writ hearing testimony. He learned for the first time that Hannah
Overton had been giving AB CPR at the Driscoll Urgent Care as the physician and nurses
cleared his airway of his first vomit. He opined she was in shock when he saw her later.
He learned for the first time of the existence of that first vomit, its’ testing at 250 meq/l,
and the significance of that low a sodium level. Where he had been kept out of the
courtroom and away from the defense lawyers before, he attended the Writ Hearing and

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heard the testimony of the world’s expert on hypernatremia, Dr. Moritz, for the first time.
He thereby learned about hypernatremia.

Dr. Cortes also learned for the first time of the substantial body of MHMR records
and CCISD records for AB that he had not seen before and that established his suspicions
that AB was mentally retarded was correct. AB’s prior foster mother, Sharon Hamil,
reported in those records that AB was slower than other children his age, that he could
not speak and communicate or follow simple commands and that she could not
understand him without watching him because he pointed and grunted. These records
were in the possession of CPS62 and as such, they were in the possession of a part of the
prosecution team. See Gates v. Tex. Dep’t. of Protective and Regulatory Servs, 537 F.3d
404 (5th Cir. 2008).

Having been provided the withheld Brady evidence and hearing the full facts
including the previously un-presented testimony of Dr. Moritz, Dr. Cortes is of the
opinion that AB’s death did not occur through any knowing or intentional conduct nor
any omission on the part of Hannah Overton. He testified that he had also expressly
informed Sandra Eastwood that he did not believe this to be a capital murder case during
trial, a fact that Ms. Eastwood does not deny but claims to not remember as well.

Dr. Cortes described being told not to talk to the defense and his testimony at the
writ hearing demonstrates the ways in which he was hidden from the defense by being
kept away from his office and was made unavailable to speak by phone to the defense.
The Supreme Court and this Honorable Court have discussed the prosecution’s duty to
turn over favorable evidence and the lack of any duty on the part of the defense to hunt
for evidence that they are assured by the State does not exist. See Banks v. Dretke, 540
U.S. 668, 695-696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (stating a rule thus
declaring “prosecutor may hide, defendant must seek,” is not tenable in a system
constitutionally bound to accord defendants due process). The trial court’s conclusion

_____________________________________
62
Here, CPS was called to one of the hospitals and attended the autopsy of AB. At 5:18 pm, nurse Zapata
at Driscoll Urgent Care called 911 and reported the bruising and scratches on AB. 10WHDEx22
[COL6.10WHEx22.pdf]; 11WHDEx22 [COL6.11WHDEx22.pdf]. CPS witnesses Dr. Fernandez opining
during the autopsy that this was voluntary self-ingestion of sodium by AB. 7WH63-64 [COL6.7WH63-
64.pdf]. And that agency was in possession of AB’s school and MHMR records. CPS is so entwined
with law enforcement that matters in its possession are considered to be in the possession of law
enforcement. See Roe v. Texas Dep’t of Protective & Regulatory Servs., 299 F.3d 395, 401(5th Cir.
2002) [Texas law requires TDPRS (Herein “CPS”) to notify law enforcement of all child abuse reports.
See Tex. Fam. Cod. Ann. §261.105(b). Further, Texas law also requires CPS and local law enforcement
to conduct a joint investigation when a report alleges that the child is at risk of immediate physical or
sexual abuse. Id.]; Kyles v.Whitley, 514 U.S. 419, 437, 131 L. Ed. 2d 490, 115 S. Ct. 1555
(1995) (prosecutors are responsible for "any favorable evidence known to the others acting on the
government's behalf in the case, including the police"). Medical personnel are similarly required to report
child abuse, as they did here
Tex. Fam. Code Ann. § 261.101 (West).

Pg94
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that Dr. Cortes was “available”, because with enough hunting and seeking he might have
been found does not relieve the prosecution of their duty to produce the favorable
evidence that was known to them from their conversations with Dr. Cortes. In addition,
contrary to the findings of the court, Dr. Cortes testified at the writ hearing that he was
not made available to the defense. Instead, he testified to being effectively hidden by the
prosecution, instructed that he was a member of the prosecution’s team, and left with the
impression that he was not allowed to speak with the defense. The State’s actions forced
the defense to be in a position of seeking out Dr. Cortes to find out what he knew - a
position contrary to the way the Court has held that due process must function.

This claim, while first presented at the motion for new trial hearing, has been
strengthened by the additional evidence gathered in the habeas corpus proceeding. Ex
parte Brown, 205 S.W.3d 538, 544-46 (Tex. Crim. App. 2006).

Grounds Ten and Eleven-Brady Claim Regarding the State’s Failure to
Disclose the Gastric Contents and Other Medical Records.

7. The Court concludes that the low 48 sodium test result as shown in DX
57 actually mentioned in Overton’s application for writ was clearly known
to the defense at the time of trial, and thus could not be subject to a Brady
attack.

Objection 7 to COL: Even if the mere existence of a low 48 sodium test was known at
the time of trial, the source and time of collection was not, despite the defense’s attempts
to ascertain both of these facts. Defense counsel was affirmatively told by Dr.
Fernandez, under oath, that he did not know the source of the “hospital gastric content”
that he wrote had a 48 test result as sample D. Also, the prosecution repeatedly
represented to defense counsel that no vomit for the child existed nor was any available
for testing. It is the source and the time of collection of what was mislabeled as the 48
test result that makes this evidence favorable to the defense – and it was exactly these
facts that were withheld by the State. The sample that was labeled as sample D, with a
sodium level of 48 was represented as “hospital gastric content” and 48 meq/l. In fact,
Sample D was a spoon full of Zatarain’s seasoning in water. While Dr. Fernandez
mistook it for lavage taken from AB at a hospital, it was not.

Sample E was the child’s gastric contents that was suctioned from his mouth to
establish an airway at Driscoll Urgent Care, the first medical facility where Hannah
Overton took him. It was not a hospital. Also the vomit was not lavage. And it did not
test at 48 meq/ll. It was approximately the sodium level of Wendy’s chili, 250 meq/l.

Hannah Overton’s innocence is proven by the 250 results is fully understood. If
Overton had made a slurry of 23 teaspoons of Zatarain’s and water in AB’s sippy cup and
forced it down AB’s throat, the medical and scientific testimony tell us AB’s major

Pg95
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organs would have immediately began to shut down, including renal failure (acute kidney
failure) and his body would have no way of filtering out the sodium. The gastric sodium
level would have to be over 1000 meq/l because it would have nowhere to go. The fact
that it was only 250 is evidence that the body did not go into immediate shock, as would
be the case in intentional poisoning, but continued to function for several hours and, in
fact, equilibrated with the blood serum level, which as Dr. Moritz testified at the writ
hearing, would normally occur. Because the fatal level had already been absorbed63
causing the rise in blood serum level to a 245, the renal failure came much later as he was
brought into Spohn hospital (“and in his case at the time he presented he was already in
what we call multi-system organ failure.”). 4WH21.

The defense was unaware of the fact that the 48 reading was of Zatarain’s and
water, that the child’s first vomit was in existence and had been tested to contain a low
sodium level of 250 meq/ll and that this proved that Hannah Overton was not guilty and
that AB had ingested a lethal amount of sodium on his own much earlier in the day. The
defense lawyers were told this 48 test result was of meaningless lavage, which is now
proven to be untrue. By representing the 48 test result to be from hospital lavage, the
prosecution rendered such a result meaningless. And it was false. This evidence is both
exculpatory and of an impeachment nature, bringing it under the purview of Brady.

This information was withheld from the defense despite the fact that the attorneys
for the defense asked for it on multiple occasions – a fact that is supported by the
testimony of the second chair prosecutor at the time, Ms. Anna Jimenez. Ms. Eastwood
does not deny that this information was requested by the defense, she once again claims
that she simply does not remember. However, as discussed supra, the defense is not
under the obligation to “seek out” such evidence – the burden was on the prosecution to
turn it over, which they indisputably did not do according to the testimony of Jimenez.

Finally, when considered collectively with the other evidence that was suppressed
along with the evidence presented at trial instead of item-by-item, it is clearly material to
the defense’s case. See Kyles, 514 U.S. at 436. Thus, this evidence falls under Brady and
should have been disclosed to the defense prior to trial.

8. The Court concludes that the additional unpled complaints that Applicant
attempted to raise at the hearing on her writ, which was allowed in the
interest of justice, are not persuasive to the trier of the facts of the writ
hearing because they failed to prove the evidence supporting the unpled
claims amounted to exculpatory evidence. In addition, the Court concludes

________________________________________
63 In Dr. Moritz’s deposition he testified that a 34 pound child would have to absorb 770 meq/l of sodium
to raise his blood serum level to 240. 12WHDEx49p40-41. 850 meq/l of sodium would have been
absorbed for a boy weighing 40 pounds to raise his blood serum level to 240 meq/l. 4WH47-48.

Pg96
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that the writ attorneys were clearly aware of these potential complaints
before the present application was filed.

Objection 8 to COL: In Banks v. Dretke, 540 U.S. 668 (2004) the Court rejected the
argument that Overton needs to file an amended writ of habeas corpus regarding unpled
facts that were not fully developed until the writ hearing. Id. at 703. The Court found
that Banks was not barred from producing new evidence of his Brady claim that had not
been brought previously, as the cause of Bank’s failure was the state’s persistence in
hiding information and “misleadingly [representing] that it had complied in full with its
Brady disclosure obligations. Id. at 693. The same pattern persisted here.

In addition, it has already been established that favorable evidence includes
exculpatory evidence and impeachment evidence. Ex Parte Miles, 359 S.W.3d 647, 665
(Tex. Crim. App. 2012). Impeachment evidence is that which disputes, disparages,
denies, or contradicts other evidence. Id. Ms. Overton’s claims are the same and have
remained unchanged throughout this proceeding. The facts she developed throughout her
writ hearing substantiated those claims through the production of additional facts and
evidence in support of them.

Before resting and closing her writ hearing, Ms. Overton filed an amended writ
that added the newly developed facts to her claims. Such a conclusion by the trial court
is legally erroneous. A writ of habeas corpus may be amended, at any time, prior to its
final disposition by the Court of Criminal Appeals. Ex parte Teeter, 2012 Tex. Crim.
App. Unpub. LEXIS 334, pages 2-3 (Tex. Crim. App. Apr. 4, 2012). Moreover, Overton
did not need to amend her writ since she developed these new facts during the writ
hearing.

9. Alternatively, the Court concludes that Overton’s unpled complaints that
the State failed to disclose a police report showing the source of the
vomitus, photographs of a test involving the vomitus, and the vomitus itself
are without merit because the Defense had knowledge of the vomitus and
were allowed to examine and photograph the physical evidence at the
police station, and at least one defense attorney was present to photograph
the contents of the bag labeled homicide.

Objection 9 to COL: The photographs of testing involving the vomitus reflect that, at
some point in the testing, the Exhibits marked D and E were switched and the sodium
level for each was reported for the other. The photo contained on the face of this
pleading, supra, shows that sample D was not the “hospital gastric content” that ended up
being, in fact, the first vomit collected from AB at Driscoll Urgent Care. And it also
shows that Sample E was not “Zatarains + H2O,” but was the “hospital gastric content.”

Thus, the first vomit test result was that reported by Spohn Hospital for sample E

Pg97
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and was 250 meq/ll and the Zatarains+H2O test result was that reported by Spohn
Hospital for sample D and was 48 meq/ll.

This was unknown to the defense until the writ hearing and casts serious doubt on
the report of the medical examiner, Dr. Fernandez. See Ex Parte Miles, 359 S.W.3d at
665. His handwritten report stated incorrectly that sample D was Hospital gastric content
and sample E was Zatarain’s and water.

More importantly, this evidence clears Hannah Overton of fault as it shows that
Andrew Burd’s most recent meal did not contain a lethal dose of sodium in concurrence
with Hannah Overton’s testimony, but rather the excessive sodium was self administered
much earlier. This is consistent with the physical evidence as well.

Furthermore, the low 250 test and the meaningful results of the tests on AB’s first
vomit were unknown to the defense due to the suppression of these photos, the order
forms for the tests showing that sample E was obtained on October 2, 2006, and the
evidence tech’s report that he picked it up from Driscoll Urgent Care, where nurses
Zapata and Gonzales testified they had collected it. When taken together with the other
evidence, including the suppressed testimony of Dr. Cortes regarding the medical history
of AB, this evidence is clearly material to Hannah Overton.

All defense counsel had been told after repeated written and oral requests that all
bodily fluid, tests, experiments, photos and reports would be produced by March 9, 2007.
They had been told repeatedly that no vomit of AB existed and that none was available
for testing.

The attorney who did go view the physical evidence for Hannah Overton
photographed the results of his visit. Each bag of evidence he opened, he photographed
the contents. For each bag he did not open, he photographed the outside of the bag. The
bag that defense attorney Bradford Condit photographed was labeled in a misleading
way. He was shown a brown paper bag indicating that a container of “reddish brown
liquid” was labeled with the Overton’s home address of 5929 Parkview. It appeared to
him to be more condiments from the Overton home. He inquired about the existence of
vomit and was told that there was none.

The contents of this bag, depicted in Bradford Condit’s last photograph in DX 40
was not taken from the Overton home. It was collected from Driscoll Urgent Care by D
Rivera on October 4, 2006. This mislabeling, when taken in conjunction with the
affirmative representations of the prosecution that no vomit existed, prevented defense
attorney Condit from knowing what was actually in the bag. There is no functional
difference between the mislabeling of the bag and being explicitly told by the prosecution
that there was no vomit in the bag. The effect of such mislabeling was to hide this
critical evidence from the defense. It is reasonable for defense counsel to rely on not just

Pg98
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the presumption that the prosecution will turn over all exculpatory materials but also in
the implicit representation that all materials would provide. Strickler v. Greene, 527 U.S.
263, 284 (1999). Whether the suppression was intentional or whether it was done in
good faith is not relevant to the Brady issue. See Brady v. Maryland, 373 U.S. 83, 87
(1963). Defense counsel relied on the implicit representations of the State that the brown
bag did not contain vomit as well as the explicit representations that the State did not
possess any vomit. Because of this permissible reliance, the defense did not know that
the State actually had any of AB’s vomitus available for testing. This evidence was
crucial evidence of Hannah Overton’s innocence. Thus, this is Brady evidence that was
suppressed by the State.

10. The Court further concludes that Overton’s complaint that the State
failed to disclose other medical records, including the hospital brain scan,
birth records, early development records, and evidence of some genetic
disorder is without merit because they were all provided to the Defense in a
timely manner.

Objection 10 to COL: The birth and medical records of AB show that he had illicit
drugs on board when he was born which affected his mental acuity psychological
functioning and his early childhood development records show that he was not a normal
child. The evidence that he had Prader-Willi-like syndrome supports the fact that he had
a problem with excessive eating and refutes charges of bad parenting and homicidal
forcing of lethal sodium down his throat. All of this supports the fact that his sodium
ingestion was accidental, and self-administered.

Child Protective Services, an arm of the State, held all of this information. This
put the State in control of such documents. As discussed, supra, the prosecutor has a
duty to learn of any favorable evidence known to the others acting on the government's
behalf in the case. See Kyles v. Whitley, 514 U.S. 419, 437 (1995). Child Protective
Services was undoubtedly acting on behalf of the State in this trial as evidenced by the
fact that they are a part of the state, attended AB in the hospital, attended the autopsy,
wrote reports provided to law enforcement and aided the prosecution at trial. In Texas,
once a child is suspected to have been abused the law requires that both law enforcement
and CPS are called. CPS took custody of Hannah Overton’s, then, four (4) other children
that evening. She was expecting her fifth child.

The evidence that CPS had of AB’s developmental and behavioral delays was
favorable to the defense. It was exculpatory in that it showed that AB’s eating disorder,
and not Hannah Overton, was responsible for the high sodium that proved lethal. It
supported the physical evidence of his low sodium first vomit, no injuries to his mouth or
throat, no salt crystals on his clothing, body or mouth, and his high serum blood sodium
level that showed he had self ingested the lethal sodium much earlier in the day on his
own.

Pg99
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Taken together with the other evidence, these records are clearly material to the
defense that the child had an eating disorder caused by a genetic or emotional problem
and that he had self ingested the sodium that killed him, as such, the suppression of the
medical records and birth records by the prosecution is a Brady violation.

Grounds Twelve and Thirteen - Ineffective Assistance for Failure to
Investigate Gastric Contents.

11. The Court concludes that any deficiency by Overton’s attorneys did not
prejudice Overton’s defense to the extent that, but for the supposed
deficiency, Overton would not have been found guilty of capital murder.

Objection 11 to COL: AB’s first vomit, the gastric contents that were first collected by
CCPD Evidence Tech Rivera at Driscoll Urgent Care and stored in evidence labeled as
“reddish brown liquid”, held the key to this case and to evidence of Hannah Overton’s
innocence. The sodium content contained within that bag tested at a 250 which
corroborated Hannah’s claim of innocence. However, Defense counsel was repeatedly
told there was no “vomit” available, and the gastric contents they had, was water infused
lavage, which tested at a low sodium level of 48 rendering it useless. Had the defense
team further investigated this claim, or in the least, opened up the brown bag that was
photographed by defense Attorney Bradford Condit, he would have noticed that it was in
fact the “ vomit” that was in a Bemis container and had a doctor’s name on the container
label. He may have realized it was vomit. Or the State may have come clean at this point
when faced with the “vomit” that Ms. Eastwood asked the CCPD to have tested in her email.
12WHDEx64 [COL11.12WHEx64.pdf].

Failing to further investigate this brown bag—to simply open it up, is ineffectiveassistance
of counsel as set out in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003); Wright v. State, 223 S.W.3d 36 (Tex. App. Houston [1st Dist.] 2006,
pet. ref’d). Its discovery and use would have firmly convinced the jury of her innocence.
Hannah would never have been wrongfully convicted of a murder she did not commit.

Grounds Fourteen and Fifteen Ineffective Assistance for Failure to
Make a Confrontation Clause Objection.

12. The Court concludes that Overton’s trial attorney did not render
ineffective assistance of counsel by failing to raise a Confrontation Clause
objection to the results of sodium testing that was done at the hospitals
where Andrew Burd was treated as a patient, because any such objection
lacked merit as it was not settled law at the time of trial.

Pg100
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Objection 12 to COL: In 2005 the United States Supreme Court announced in Crawford
v. Washington that defendants must be confronted with the witnesses against them when
scientific testing is done. Crawford v. Washington, 124 S.Ct. 1354 (2004). Admission of
the reports or testimony of others about the test results does not satisfy the federal or
Texas confrontation clauses without the proper authentication. Further, in Melendez-Diaz
v. Massachusetts, 129 S.Ct. 2527 (2009), the Supreme Court recognized that reports of
testing are considered testimonial statements when the primary purpose for preparing a
report is to accuse or target an individual. See also Williams v. Illinois, 132 S.Ct. 2221,
2243 (2012). An objective test is used to determine the primary purpose or testimonial
nature of such report. In other words, what would a reasonable person have ascribed to
the statement, taking into account all of the surrounding circumstances. id. The Court of
Appeals has recognized Crawford and Melendez-Diaz confrontation clause objections.
See Wood v. State, 299 S.W.2d 200, 208 (Tex. App. –Austin 2009 pet. ref’d.). Melendez
Diaz and Williams, supra, did not announce a new rule; it clarified the rule announced in
Crawford, supra. Ms. Overton’s petition for discretionary review was denied rehearing
on May 5, 2010. Thus, her Teague date is May 5, 2010 and she benefits from the
holdings in Crawford and Melendez-Diaz.

Here, testing was done regarding the sodium content of Andrews Burd’s blood by
medical personnel after they had accused Overton of criminal child abuse and had
decided that the child would not survive. Thus, the blood serum sodium report was for
use at trial and was admitted over objection. The undisputed facts show that the
investigation of Hannah Overton began prior to the testing of AB’s blood. The test results
were not required to save AB’s life, but merely to be used as part of the criminal case
against Overton. Moreover, the witness called to authenticate the lab results, testified in
open court, that she did not perform the calibration or QC check on the machine used to
generate the report. The lab personnel who performed this testing did not testify at trial
thereby effectively denying Overton her right to confront the person who calibrated or
QC’d the Cobas Intaker 800. The accuracy and reliability of the testing procedures was
not put to the ultimate crucible of cross-examination; therefore, its admittance and
accusatory nature were left unchallenged and in direct violation of Hannah’s
confrontation clause guarantees.

All Claims of Ineffective Assistance.

13. The Court concludes that Overton’s trial attorneys did not render
ineffective assistance of counsel with regard to grounds three, four, six,
seven, fourteen and fifteen of the claims alleged in the present Application.
The Court further concludes any deficiencies found in grounds twelve and
thirteen, whether considered individually or collectively, did not prejudice
Overton’s defense to the extent that, but for the supposed deficiencies,
Overton would not have been found guilty of capital murder.

Pg101
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Objection 13 to COL: The standard here is inquiry into whether counsel's performance
fell below an objective standard of reasonableness under prevailing professional norms;
and second, whether there is a reasonable probability that but for counsel's deficient
performance, the result of the proceeding would have been different. See Strickland, 466
U.S. at 686 (1984); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997); Butler v. State, 872 S.W.2d
227, 241 (Tex. Crim. App. 1994). The only evidence presented at the writ hearing about
ineffective assistance of trial counsel came from those lawyers themselves. Counsel
insisted that they gave correct advice to Hannah Overton regarding the submission of
lesser-included offenses to the jury. The lawyer who gave incorrect advice, according to
the testimony of her pastor, did not recall giving it. In addition, the defense lawyers
testified that they had been ineffective for failing to present the medical defense expert
testimony at trial. They had no trial strategy for this, but neglected to view or review the
video deposition to make the determination that it was necessary for Overton’s defense. It
was never even transcribed.

Far from challenging this testimony, the State conceded that Overton’s lawyers
were experts in criminal law and in medical evidence and would have the expertise to
know. The State presented no evidence to counter each of their stated opinions that the
jury would have reached a verdict of not guilty in her trial had they presented this
evidence.

As poignantly stated by a member of Hannah’s Defense counsel, David Jones, as
he wept on the stand at the Writ hearing, “We Failed Miserably.” Lead criminal defense
counsel concurred. The State put on no expert testimony to the contrary and accepted
criminal defense counsel as authoritative on criminal and medical issues.

Grounds Sixteen to Forty-One

14. The Court concludes there are not controversial facts issues concerning
these grounds, and further concludes that there are legal issues for the
Honorable Court of Criminal Appeals to determine.

Objection 14 to COL: These grounds were raised on direct appeal and, with the
exception of grounds for which new evidence was adduced at the writ hearing as noted
below, the remainder were not made new claims by the development of new evidence at

the writ hearing.
Claims thirty-one and thirty-two were Ms. Overton’s insufficiency of the evidence
claims. They are subsumed within her actual innocence claims. She also asserts that
there is no evidence in support of her conviction. The State charged that she forced
Zatarain’s in a sippy cup down AB’s throat to kill him. That bruises on his body and a
brain bleed proved that she abused him. Dr. Fernandez, the medical examiner agrees that

Pg102
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he was wrong about this and that AB was showing bruising and a brain bleed caused by
coagulopathy from hypernatremia. He also deferred to Dr. Moritz on matters concerning
hypernatremia and agreed he had told CPS during the autopsy that this was voluntary
self-ingestion.

Dr. Moritz testified, and no testimony refutes, that this high hypernatremia in the
field is fatal. There was nothing that could be done for AB to save him. Allegations of
no evidence are cognizable on a writ of habeas corpus.

Grounds thirty- five (35), thirty-six (36) and thirty-seven (37) concern undisclosed
Brady evidence and a single minded investigation that rushed to judgment in Overton’s
case. We heard testimony at the writ hearing that in addition to hiding Dr. Cortes from
the defense, the State withheld the report from CCPD evidence tech Rivera that he picked
up the first vomit from Driscoll Urgent Care of AB and further he reported that it was
tested by Dr. Fernandez and Spohn Hospital for sodium. In addition, we heard testimony
that Dr. Fernandez had not completed his autopsy until November of 2007, but Hannah
Overton was arrested on October 14, 2007.

Grounds thirty-eight (38) through forty-one (41) concern the fact that the Court
should not have admitted the testimony about Hypernatremia and AB’s death from it at
trial. The testimony at the writ hearing and their prior depositions in the ancillary child
custody case which was put in evidence at the writ hearing establishes that neither one of
them had sufficient experience with hypernatremia to testify about the cause and manner
of AB’s death. They did not base their conclusions on scientifically sound evidence. The
scientific testimony of Dr. Fernandez and Dr. Rotta regarded matters for which they
employed no methodology, had no scientific basis, and there was an analytical gap
between the opinions expressed at trial and its basis. Merrill Dow v. Daubert, 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Gen. Elec. v Joiner, 522 U.S. 136, 118
S.Ct. 512, 139 L.Ed.2d 508 (1997); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App.
1992); Vera v. State, 209 S.W.3d 128, 135 (Tex. Crim. App. 2006), 8RR5, 17
[COL14.8RR5.17.pdf].

Overton also restates her conclusions of law concerning her actual innocence claims
here.

RECOMMENDATION

Based on the above finding of fact and conclusions of law of grounds 1-15,
this Court could only recommend denying relief requested. However,
grounds 16-41 are matters of law that only the Honorable Court of Criminal
Appeals can rule on, and therefore this Court does not have the legal
authority to make a recommendation on those grounds.

Pg103
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Recommendation: Based on the facts and law briefed above, the trial Court’s
recommendation is not supported by the record or the law as applied to the facts.

Respectfully submitted:

pu in Pic of sig....

By: ______________________________

Cynthia E. Orr,
Lead Counsel *


CYNTHIA E. ORR *
Bar No. 15313350
GERALD H. GOLDSTEIN
Bar No. 08101000
GOLDSTEIN, GOLDSTEIN AND HILLEY64
310 S. St. Mary’s St.
29th Floor Tower Life Bldg.
San Antonio, Texas 78205
210-226-1463
210-226-8367 facsimile

JOHN WESLEY RALEY
Bar No. 16488400
RALEY & BOWICK LLP
1800 Augusta Drive, Suite 300
Houston, Texas 77057
713-429-8050
713-429-8045 facsimile

DAYNA L. JONES
Bar No. 24049450
LAW OFFICES OF DAYNA L. JONES
206 E. Locust St.
San Antonio, Texas 78212
210-255-8525
210-212-2178 facsimile

____________________________________
64Goldstein, Goldstein & Hilley’ law clerks and students assisting on behalf of Hannah Ruth Overton:
Jamie Mathis, Taylor Coulthurst, Carlos O’Campo, John Matthews, Connor McKinney, Jason Rogers and
Chris Griffith.

Pg104
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Attorneys for Applicant,
HANNAH RUTH OVERTON

CERTIFICATE OF SERVICE


I hereby certify that on the 15th day of August, 2012, a true and correct copy of
the foregoing Applicant’s Objections to Findings of Fact and Conclusions of Law has
been sent in a preaddressed and postage paid envelope to Assistant District Attorneys
William Ainsworth and Doug Norman, 901 Leopard, Room 206, Corpus Christi, Texas
78401 via U.S. Mail, First Class.


put in Pic of Sig

By: ______________________________
Cynthia E. Orr

JoseLongoriaJudge Jose Longoria issued his Findings of Fact and Conclusions of Law attached as Exhibit 1. Hannah objects that they are not supported by the record and asks this Court to reverse and render her conviction based on the clear and convincing evidence that both firmly establishes her actual innocence and that the scientific evidence at her trial was not competent evidence.

Click the Here for the Full Response

 

 

alt

ABC News Video:

http://abcnews.go.com/2020/video/accused-salt-poisoner-mom-faces-police-9881954

 

ABC News-20/20 Article:

“Appeal Denied for Mom Convicted of Murder”- Juju Chang and Shana Druckerman

http://abcnews.go.com/2020/appeal-denied-mom-accused-salt-poisoning/story?id=8946690

 

“Family Fights to Overturn Mom's Salt Poisoning Conviction”-Juju Chang and Shana Druckerman

http://abcnews.go.com/2020/Law/family-fights-overturn-salt-poisoning-conviction/story?id=9861943

 

alt

WORLD Magazine Article:

"Unknown Ingredients" -Clint Rainey

http://www.worldmag.com/articles/13763

 

alt

WorldNetDaily Article:

"Murder by Cajun Seasoning?"

http://www.wnd.com/news/article.asp?ARTICLE_ID=57764

 

 

 

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 The oral arguments for Hannah’s appeal in the 13th Court of Appeals were held on Nov. 6th. We are confident that the three judge panel heard the significant issues and will make the proper ruling soon. Thank you for your continued interest and support.

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