Full opinion text
OPINION ON REHEARING SUE WALKER, Justice. Following the issuance of our original opinion, appellant Allen John Aldrich filed a motion for rehearing requesting that we reinstate the State’s original plea bargain offer. We deny Aldrich’s motion for rehearing, but we withdraw our opinion and judgment issued November 26, 2008 and substitute the following in their place to explain and clarify why reinstatement the State’s plea bargain offer is not proper. I. Introduction The primary issue we address in this appeal is whether appellant Allen John Aldrich was denied his constitutional right to effective assistance of counsel. Because we hold that the record before us demonstrates that he was, we reverse the trial court’s judgment and remand for a new trial. II. Factual Background Aldrich was charged with intoxication manslaughter. The evidence showed that at around 8:30 p.m. on April 8, 2004, at the intersection of North Colony and Ragan in The Colony, a pickup truck driven by Aid-rich struck Kimberly Hudson, who was crossing the intersection crosswalk in a motorized wheelchair, accompanied by her husband. Kimberly was taken to Parkland Hospital, where she later died. Shortly after Officer Chad Springer and Sergeant Bill Hall arrived at the accident scene, Aldrich’s wife, Danielle, told Sergeant Hall that she and Aldrich were in the vehicle that had struck the woman in the wheelchair. At first, Aldrich denied that he had been driving the pickup, but he later admitted to Sergeant Hall that in fact he, not Danielle, had been driving. Sergeant Hall detected the odor of alcohol on Aldrich’s breath, so he asked Officer James Slack to conduct field sobriety tests. Officer Slack also noticed the smell of alcohol on Aldrich’s breath, although Aldrich denied having consumed any alcohol. The field sobriety tests were conducted approximately thirty to forty-five minutes after the accident. Aldrich’s performance on the horizontal gaze nystagmus and walk- and-turn tests indicated intoxication; his performance on the one-legged-stand test did not. After observing Aldrich’s performance on the field sobriety tests, Officer Slack again asked Aldrich if he had been drinking. According to Officer Slack, this time Aldrich admitted that he had consumed three twelve-ounce beers between 6:30 and 7:00 p.m. that evening but had lied earlier because he was scared. Officer Slack reported the results of the field sobriety tests to Sergeant Hall, who asked Aldrich if he would give a blood sample. Aldrich said yes. Once at the hospital, however, Aldrich retracted his consent. Sergeant Hall then ordered that a blood sample be taken because Aldrich had alcohol on his breath, had failed two of the field sobriety tests, and had initially lied about driving and because any alcohol in his blood would not be there by morning. A nurse drew a blood sample between 10:30 and 11:00 p.m., more than two hours after the accident. The blood sample contained 0.07 grams of alcohol per 100 milliliters of blood. The State elicited retrograde extrapolation expert testimony that a 0.07 result at 11:00 p.m. meant that Aldrich’s blood alcohol level at 8:30 p.m. would have been between 0.1 and 0.12. A drug screen performed on Aldrich’s blood sample did not reveal the presence of any drugs. According to Aldrich, he drank three beers while he played frisbee golf between 2:30 p.m. and 6:30 p.m. the day of the accident. Four individuals, who were Ald-rich’s neighbors and friends, testified that they had seen or spoken with Aldrich at various times throughout the day and evening prior to the 8:30 p.m. accident and expressed their opinions that Aldrich did not appear intoxicated or to have lost the normal use of his mental or physical faculties. Aldrich told Sergeant Hall at the scene that he did not see the Hudsons because he was blinded by the headlights of oncoming traffic. A jury convicted Aldrich of intoxication manslaughter, and the trial court assessed his punishment, enhanced by a prior felony conviction for driving while intoxicated, at sixty-two years’ confinement. This appeal followed. III. Legal Sufficiency of the Evidence In his seventh point, Aldrich claims that the evidence is legally insufficient to support his conviction. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). A successful legal sufficiency challenge will result in the rendition of an acquittal by the reviewing court. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). Accordingly, we address legal sufficiency rendition points before we address remand points. See Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002, pet. ref'd). The statutory elements of intoxication manslaughter, as modified by the particular allegations in the indictment at issue, are as follows: (1) Aldrich (2) operated a motor vehicle (3) in a public place (4) while intoxicated by not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body (5) and as a result of the intoxication, caused the death of an individual, namely: Kimberly Sue Hudson (6) through accident or mistake, to-wit: by failing to yield the right of way, by failing to maintain a proper lookout, and by failing to avoid a collision between his vehicle and Kimberly Sue Hudson, a pedestrian. See Tex. Penal Code Ann. § 49.08 (Vernon Supp. 2008); see Auldridge v. State, 228 S.W.3d 258, 260 (Tex.App.-Fort Worth 2007, pet. ref'd) (setting forth elements of intoxication manslaughter). Aldrich testified that he was driving his truck in a public place, that he struck Kimberly Sue Hudson as she maneuvered her motorized wheelchair in a crosswalk, and that he had consumed three twelve-ounce beers earlier that day. Based on Aldrich’s blood alcohol level after the accident, the State’s retrograde extrapolation experts testified that Aldrich’s blood alcohol level at the time of the accident would have been between 0.1 and 0.12. Numerous witnesses testified that when the accident occurred, it was dusk but not dark; that the street where the accident occurred was well lit; and that the crosswalk was clearly marked and visible. Thus, applying the legal sufficiency standard of review, that is, viewing all of the evidence in the light most favorable to the prosecution, we hold that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. We overrule Aldrich’s seventh point. IV. Ineffective Assistance of Counsel In his first point, Aldrich complains that he was denied his constitutional right to effective assistance of counsel because retained counsel’s performance was so deficient that no reasonable trial strategy could justify it and because his retained attorney’s outrageous conduct was so serious that it undermined the proper functioning of the adversarial process, deprived him of a fair trial, and prejudiced and harmed him. Aldrich raises and presents thirteen categories of alleged ineffective acts by his counsel during trial, including that he “failed to properly interview witnesses, review evidence, and investigate”; “failed to request that the trial court appoint necessary experts despite Appellant’s indigency”; failed to file proper and timely motions; misunderstood and misapplied the law; exhibited general incompetence stemming from problems associated with either mental or physical infirmity; made inaccurate and incomprehensible statements; alienated the judge and the prosecutor to the detriment of his client and violated the rules of professional responsibility; failed to adequately convey the plea offer; presented harmful evidence with no strategic purpose; presented defensive theories unsupported by the evidence; failed to make proper objections or ask proper questions of witnesses; failed to object to the improper reading of the victim impact statements before punishment was assessed; and failed to offer any evidence or argument at punishment at all. Within each of these thirteen categories, Aldrich points to numerous specific instances of conduct and specific omissions by his trial counsel. A. Standard of Review To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). No distinction exists between the standards of effectiveness for retained counsel and appointed counsel. Ex parte Briggs, 187 S.W.3d 458, 469 (Tex.Crim.App.2005) (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980)). In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Our review of counsel’s performance must be highly deferential. Id. There is a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance, and the defendant must overcome the presumption. Id. And, under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking as to overcome the presumption that counsel’s representation was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). But in the occasional, rare case, the trial record on direct appeal alone may present the appellate court with sufficient information to conclude that no reasonable trial strategy could justify counsel’s conduct because counsel’s performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel’s subjective reasons for acting as he did. Cannon v. State, 252 S.W.3d 342, 349-50 (Tex.Crim.App.2008) (reversing conviction based on ineffective assistance of counsel raised on direct appeal in absence of motion for new trial); Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App.2005) (same); Robinson v. State, 16 S.W.3d 808, 809-11 (Tex.Crim.App.2000) (holding failure to file motion for new trial does not proeedurally prohibit appellate claim of ineffective assistance of counsel). Concerning the second Strickland, prong, in giving meaning to the Sixth Amendment’s requirement that an accused have access to effective assistance of counsel, “we must take its purpose — to ensure a fair trial — as the guide.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. The United States Supreme Court has explained the meaning of a fair trial: [A] fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the “ample opportunity to meet the case of the prosecution” to which they are entitled .... That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. Id. at 685, 104 S.Ct. at 2063 (citations omitted). “The benchmark for judging any claim of ineffectiveness must be whether counsél’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. Prejudice to the applicant from counsel’s deficient performance is judged by whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Ex parte Amezquita, 223 S.W.3d 363, 366 (Tex.Crim.App.2006). “As the Supreme Court explained, the purpose of the constitutional requirement of effective counsel is to ensure a fair trial.” Id. (granting habeas relief on ineffective assistance grounds because trial counsel failed to investigate evidence involving the complainant’s cell phone and trial counsel’s deficient performance so undermined the proper functioning of the adversarial process that the trial could not be relied on as having produced a just result); Ex parte Briggs, 187 S.W.3d at 466-67 (granting habeas relief on ineffective assistance of counsel grounds because trial counsel failed to investigate or obtain experts for economic reasons, not as trial strategy); accord Hofman v. Weber, 639 N.W.2d 523, 529 (S.D.2002) (remanding case for new trial after holding that trial counsel’s failure to move to suppress confessions was not within the realm of competence required of members of the profession); Peebles v. State, 331 Ark. 188, 958 S.W.2d 533, 537 (1998) (remanding case for new trial after holding that trial counsel’s failure to present the victim’s inconsistent statements to the jury deprived the defendant of a fair trial). A failure to make a showing under either prong of the Strickland test defeats a claim of ineffective assistance of counsel. Andrews, 159 S.W.3d at 101; Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003). B. First Prong of the Strickland Analysis In this case, Aldrich has alleged thirteen categories of ineffective acts and omissions by his counsel at each stage of the proceedings, from pretrial to punishment. In sixty pages of his ninety-two-page appellate brief, Aldrich presents and discusses these thirteen categories of errors, making numerous and specific citations to the record detailing the challenged conduct and explaining how the challenged conduct not only fell below the standard of prevailing professional norms but was so outrageous that no competent attorney would have engaged in it. Consequently, we begin with a detailed review of the record, focusing on the portions of the record cited by Aldrich in connection with the thirteen categories of alleged ineffectiveness. 1. The Record Concerning Alleged Ineffective Pretrial Conduct: Misunderstanding of the Law, Failure to Adequately Convey Plea Offer, Failure to Investigate, and Failure to Timely Obtain and Disclose Defense Experts Many of counsel’s alleged pretrial, as well as trial, errors and omissions are based on counsel’s legally incorrect interpretation of the United States Supreme Court case of Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). From the pretrial phase of the case through the trial of the case, despite repeated correction by both the prosecutor and the trial court, Aldrich’s counsel persisted in his legally incorrect assertion that he did not have to do any investigation, any witness interviews, or make any attempt to obtain discovery because the Kyles case basically required the State to do all of the investigation in the case and to turn over to Aldrich all reports, statements, and evidence discovered in its investigation. The Kyles issue, which permeated the entire case, first arose when Aldrich’s counsel filed a motion that he titled, “Motion For Discovery/Production.” The motion states, in pertinent part, that [i]n K[yl]es v. Whitley, 115 Sup.Ct. 1555, although the final majority opinion was 5/4, apparently it was 9/0 for the proposition that a prosecutor has a non-dele-gable duty, early on in the prosecutions process, to personally interview all persons who have more than minimal information concerning the case, and to ask such person the type of questions that could reveal information that an attorney would recognize could be exculpatory, (as opposed, let’s say, what a policemen might consider exculpatory), and even if the prosecutor doubts the credibility of such information, to immediately give such information to the defense for, among other reasons, the defense may need such information when deciding whether or not to explore the possibility of a trial as opposed to plea bargaining. The relief Aldrich’s counsel requested at the conclusion of this motion was “that the District Attorney be ORDERED to comply with the U.S. Supreme Court mandate set out in Kyles, and that a deadline be set for such compliance.” The reporter’s record of the September 9, 2004 pretrial hearing on Aldrich’s motion for discovery/production begins with Aldrich’s counsel stating, I have talked to — I forget Jim’s last name, but it’s the guy who is going to be — the attorney who is going to be prosecuting this case — at one time before the first hearing on the case and asked him if he intended to follow the mandates of the Supreme Court of the United States in Kyles versus Whitley. And he said he was busy and tied up and he’d talk to me later about it. I want a court order that gives him a deadline, because I can never be ready in this case until he does what he’s supposed to do. I want an order from this court that says that he must do — he must talk to these witnesses, he must ask them the kind of questions that the Supreme Court says he has to ask them, and he has to reveal to us anything that could even lead to exculpatory evidence, because he’s saying he’s not going to do it. I said, well, at least call the police and ask them to talk to us, because we have talked to them and they say they won’t talk to us unless you say it’s okay. He says, no, he wouldn’t do that. THE COURT: I don’t think that you have any authority that says that he [the prosecutor] has to tell the police officers to talk to you. DEFENSE COUNSEL: That’s true. He has the obligation under Kyles versus Whitley to do it himself and to report back to us if there’s anything exculpatory. Finally, the prosecutor responded as follows: What the Kyles case holds is that there is a distinction between the State’s nondisclosure of known Brady material versus going out and investigating to uncover Brady material. And the State acknowledges that it does have a duty to obtain exculpatory information, mitigating, or impeachment evidence that would otherwise be unavailable to the defense, but the case — that case, and on its facts, turned upon the bad-faith nondisclosure of Brady material. In this case, as we would in any other case, Your Honor, we intend to comply with the rules of evidence and the case law to turn over any exculpatory, mitigating, as well as impeachment evidence. Now, that may not be on [defense counsel’s] time frame in terms of ordering the State to go out and interview witnesses or police officers, but it will be done timely and appropriately in this case. DEFENSE COUNSEL: I’m waiting for him to say when that might be, Your Honor, because I’m going to need at least 90 dags after I have this information to get readg for trial. THE COURT: I don’t know that he has to say when they’re going to do it. DEFENSE COUNSEL: Well, the Supreme Court says that they should have done it already. [Emphasis added.] After the hearing, the trial court signed a September 21, 2004 order requiring the State to timely disclose at the earliest feasible opportunity the existence of evidence tending to negate the guilt of the accused or mitigate the offense charged or reduce the punishment of the accused. At a subsequent pretrial hearing, Ald-rich’s defense counsel again argued that the State was violating Kyles. Despite the prosecutor’s representation that the State would be proving intoxication through the introduction of alcohol (as opposed to drugs) into Aldrich’s body, defense counsel argued that the prosecutor should have obtained the results of a drug screen performed on Aldrich’s blood and should have forwarded it to defense counsel. Finally, after a lengthy attempt to explain to defense counsel that, because the State was proceeding under the theory of intoxication by alcohol, the results of any drug screen performed on Aldrich’s blood sample would not be exculpatory and would not be subject to production under the order signed by the trial court, the trial court explicitly told defense counsel that the case was not set for trial yet and that, if in fact he wanted the results of the drug screen records, he could subpoena them. Counsel responded, Well, when it’s set for trial, then I guess I could use a trial subpoena, but where am I going to — we’re going to subpoena him just to come into the — you know he’s got to be subpoenaed to trial. THE COURT: You can subpoena records, though. DEFENSE COUNSEL: Just tell them to come up here on any day I choose and hand them to him?. The subpoenas say[ ] they have a right to produce them in court. They don’t have to show me diddly squat. THE COURT: No, sir. You can subpoena records without that. You don’t have to have a person present to produce them to you. DEFENSE COUNSEL: And the subpoena usually says you’re to be at — with those records on such and such a date. They don’t have to give them to me at all. They are just required to be there. THE COURT: No, sir. I think you’re completely mistaken. You can get those records and then file them as a business record and those people don’t even have to be here in order for them to be admissible into evidence. Despite this instruction from the court, when the hearing concluded some thirty pages later in the record, the trial court again told defense counsel, “Sir, you can get that. All you have to do is file a subpoena down at DPS lab and they will send that to you.” Defense counsel responded, “All right. I shall call them and report back to you, Your Honor.” Finally, at the third pretrial hearing in this case, when the trial court called the hearing, defense counsel immediately began arguing again that the State had failed to comply with Kyles: A district attorney simply cannot wait nine months out of a year and say, Well, I haven’t talked — last time, you remember, he said, I haven’t talked to any witness in this case since it began. And so that was a good thing. But he cannot just let the State use the evidence and develop theories of the case and experiments for nine months or ten months or 11 months, however long it’s going to be until he talks to them, and then when he gets all this exculpatory information, thinks that I’m going to be able to play catch up in 60 days or something. That’s always been my problem before, as I said. [A]nd I told him, [the prosecutor] on numerous — I want that — I want you to obey Kyles v. Whitley. Again, the trial court attempted to explain to defense counsel that there were motions he could file and ways he could obtain nonexculpatory evidence. The following exchange occurred: THE COURT: And all that [defense counsel’s prior motion for discovery/production] asks for is exculpatory information. You have not asked for anything else. You haven’t asked for any tests, any, you know, how things were tested, under what conditions they were tested, things of that nature. Now, you said your client passed the blood test? DEFENSE COUNSEL: Yes, he certainly did. THE COURT: All right. Again, don’t you think a motion for discovery might be proper for you to get what you need? DEFENSE COUNSEL: Well, I think after I get the exculpatory information, it certainly is something— THE COURT: But, if, in fact — let’s suppose that there’s no exculpatory information. How can you get that? [Emphasis added.] The hearing concluded, and defense counsel again still had not performed any investigation or discovery; he was waiting on the State to comply with his legally incorrect interpretation of Kyles. At yet another pretrial hearing, defense counsel still focused on Kyles. Defense counsel claimed he wanted to call himself to the stand to testify because [w]ell, the only person that’s really in a position to testify to these facts about the lack of the court enforcing [the prior order requiring the State to timely produce exculpatory evidence] about that he was ordered way back last year to give exculpatory information, and the fact that you ordered him to give it on the 21st of January — I have the transcripts — would be the lawyer. The only one who knows about a conversation with [the prosecutor]. The trial court permitted defense counsel to offer his own testimony as a bill, and defense counsel again focused on - the State’s purported lack of compliance with Kyles. He testified: The Court will remember that after you told him to do it, two pages later in the transcript you ordered him to turn over exculpatory information then. And, of course, the only way that the D.A.’s find out about exculpatory information is to ask the witnesses as the Supreme Court began in Brady and later in something and later in the Kyles case that I’ve already given that cite to, but he would have to talk to these people. Also in that hearing the Court said let’s get to the heart of the matter, [the prosecutor], you’re not going to go on the, per se, 08 sign of intoxication. You’re going to only go on the 07; am I correct? To which [the prosecutor] said, Absolutely, Your Honor, only the 07. So that was an indication to us that we were not going to have to worry about drawing down more money out of my retirement to get an expert witness on what he has now done. So we were told that at your direct questions, his saying absolutely that we weren’t going to have an attempt at an 08, per se. Now — • THE COURT: No, I don’t remember it that way. I think what [the prosecutor] meant when he said they were going on the .07 is that they were not going to do anything regarding any drugs or anything, just the alcohol part of it; is that not correct? THE PROSECUTOR: Yes, Your Hon- or. On the day Aldrich’s case was originally called for trial, defense counsel testified on the record in a narrative form spanning eight pages in the reporter’s record. Portions of defense counsel’s testimony include the following: I warned the Court that they would exhaust our resources, exhaust our money and at the last minute come up and do this.... Now, he didn’t say I’m going on the alcohol. He said, Everybody’s saying 07 throughout this transcript that I have. So I didn’t draw out more money out of my retirement to get somebody to show — to oppose the extrapolation part of it.... I called the police and I said, Look, Captain Chris Chandler is telling us the police are going to give us nothing, but the Court ordered the District Attorney to tell the people that it was okay to talk to us and we set up the appointment. They said, Gee, [defense counsel], that’s not the message I got. And I said, Well, Mr. Chandler, what is the message you got? He said that he got it from a lady D.A. who said to him, You don’t have to talk to them.... So then I called back [the prosecutor] and I said, Well, you’ve proven to me that there is no — I’ll be honest with you — there’s no court in Denton County that’s going to enforce [the September 21, 2004] order. You can just remain in culpable ignorance, as long as you don’t ask, then they’re not going to make you find out and tell me. So I guess that, rather than the right way that I’ve always done it, find out the exculpatory stuff first and look at the D.A.’s file, I guess I’m just going to have to look at your file first because I’m not going to get anything exculpatory. [Defense counsel] said, now, I’m so startled about this answer, but this is really not a quote, but it is doggone near. [Defense counsel], you’ve hurt my feelings in this case by saying bad things about me, so for you only, your client is going to suffer. I’m going to close the open-file policy that the District Attorney established in this county, and you’re not going to get it.... We feel that that should have been given by the — DWI videotape that we should have been given a copy, I believe it’s 20 days. I believe the law says they got to give us a copy of it 20 days before trial. THE COURT: If they’re going to use it. DEFENSE COUNSEL: No. Give it to us 20 days before trial. THE COURT: If they’re going to use it and it contains exculpatory information. If it doesn’t show anything, then they don’t have to give it to you. And, also, did you file a motion for discovery? DEFENSE COUNSEL: Well— THE COURT: Is that a yes or no? DEFENSE COUNSEL: To discover exculpatory information, yes, we did. THE COURT: Did you file a motion for discovery of any scientific tests, any type of videotapes, etcetera, etcetera? DEFENSE COUNSEL: Well, since it wasn’t until Tuesday of last week— THE COURT: My question is, sir, did you file a motion for discovery? DEFENSE COUNSEL: Yes. I think that you would consider my motion filed and ruled on [on September 21, 2004] a motion for discovery, yes. THE COURT: Well, I’m looking at this motion for discovery [that was ruled on on September 21, 2004], DEFENSE COUNSEL: Yeah. THE COURT: And the only thing that I see in here is that you’re asking for exculpatory information. You’re not asking for anything specific, just anything that’s exculpatory. DEFENSE COUNSEL: Right. DEFENSE COUNSEL: Now Judge, just so my position is clear, there’s no appellate court that’s ever said that exculpatory is what the D.A. has. What they say is that exculpatory is any information possessed by paramedics, by police department, by all the witnesses that are considered State witnesses because their knowl-edye is imputed to the D.A. So in order to be exculpatory, that includes things that would lead to exculpatory, they have to ask. But what gets changed here is you keep saying that your vision is, is just what they have. They don’t have to ask. So no wonder [the prosecutor] hearing that, doesn’t ask. Now, they can’t say that we admitted — State can’t say we made a good faith effort to dig out all this exculpatory information so we could turn it over. That’s exactly what happened in Kyles. If we don’t find out, we don’t have to disclose it, and that’s re-enforced by the Court saying they only have to turn over what they have. That’s not what the appellate courts say at all. THE COURT: Okay. You’re talking about witnesses? Have you filed a motion for a witness list? I mean, for trial hearing. Have you done that? DEFENSE COUNSEL: Have I done it? THE COURT: Yes. I don’t see it in the file. DEFENSE COUNSEL: I didn’t know the defense was required to do that. THE COURT: You think that the prosecution has to turn over a witness list without a proper motion? DEFENSE COUNSEL: No. It’s truthful, I’m not sure. I’m not familiar with all the local rules. THE COURT: I don’t think it’s a local rule. [Emphasis added.] After defense counsel concluded his narrative testimony, the trial court permitted the prosecutor to cross-examine defense counsel. The prosecutor established that defense counsel had not filed a motion for rule 404b notice, had not filed any kind of discovery motion (other than the one for exculpatory evidence ruled on on September 21, 2004), had not turned over to the State the names of any experts the defense might call, and did not know the law concerning the State’s right to amend an indictment. At the conclusion of this hearing, the prosecutor stated, Just to put on the record that the State, based on what we heard today from Defense Counsel, is seriously worried about [an] ineffective assistance claim. And we’re afraid of going and trying this case because of what Defense Counsel has not done, where he’s never filed a 404(b), and I had to send it to him. And when I did, he accused the State of trying to intimidate him. He has never filed any motions, didn’t even know when the witness list has to be turned over, didn’t even know when we had an absolute right to turn over — I mean to amend the indictment. And the State, based on his testimony, has very serious concerns on trying this whole case again, possibly getting a conviction, and then getting it overturned because of ineffective assistance, when he didn’t even file a motion telling us about an expert. And we’re afraid that on appeal, that this would be — whatever would happen today, would be overturned because of ineffective assistance. And we just wanted to put that on the record. The prosecutor later stated, I have one quick thing to put on the record. I just want for the record to state that the State had made a plea offer, 20, to the Defense and they’ve never responded. So I just wanted to put that on the record. DEFENSE COUNSEL: That’s not accurate, Your Honor. He told us that the offer of 20 years, the maximum, would have to be taken up by the 16th or he would take our reply to be that we rejected it. I believe that’s what your letter said. THE PROSECUTOR: Your Honor, he doesn’t even know what the sentence is. [Twenty years] is not the maximum. The maximum here is life. And that shows that he did get — he did get the plea offer. Likewise, the trial judge later commented to Aldrich, And what I’m worried about, and I know this might offend [defense counsel], and the jury panel or no one is present. There are some people present in the court. That almost per [se], what I see right now is ineffective assistance of counsel. And I would be worried that if you were tried — and I don’t want to try this case twice, and you were convicted, that in all probability, if this case was appealed on ineffective assistance of counsel — and, of course, I don’t know what the Court of Appeals would say, but just thinking about what they might say, that in all probability your case would be overturned, and you would have to be tried again in this matter. Based on concerns for Aldrich’s rights, even though a jury panel had been waiting all morning for trial to commence, the State moved for and was granted a continuance of the trial setting. Defense counsel was specifically told that the granting of the continuance reset the timetables for him to be able to timely file any motions he desired. Approximately five months later, the trial court set a status conference in the case. Prior to the status conference, defense counsel sent a letter to the prosecutor and the trial court claiming the following: Our courts hold that no matter what my client tells me about the facts in his case, I am compelled to make a thorough investigation of all facets and law of his case before I discuss the idea of expending possibly Mr. Aldrich’s entire wealth upon a trial or if we should consider a plea. No lawyer should be compelled to enter into the trial or plea discussion with his client until he obtains from the prosecutor all the exculpatory information as he is required by Kyles to produce. The prosecutor is forbidden, as he has bragged about doing in this case, to refrain from even talking to any witnesses for over a year after the occurrence, long after memories have faded. Especially when clients have little money (Mr. Aldrich is in bankruptcy), his meager resources should be preserved to hire experts, if necessary. The best way, I have found, to prepare for trial is to get from the District Attorney that which Kyles says he must give early in the process. Then, knowing what facts the State’s witnesses and the defense agrees upon, to concentrate to develop additional witnesses, expert and fact, to produce testimony favorable to the defense. Only then is the attorney allowed to discuss with a client whether to attempt a plea or proceed to trial. When I explained that [the prosecutor] was attempting to force me to commit what I considered malpractice by forcing my client to choose twenty (20) years or trial before the case was thoroughly investigated by the defense they did not seem surprised.... The threat of [the prosecutor] to withdraw his twenty (20) year offer on 06 June 2005 if I do not commit malpractice has been conveyed to Mr. Aldrich whom I am proud to say rejects this latest attempt at blackmail. [Emphasis added.] A few weeks later, the trial court held the status conference. Despite the intervening four- to five-month time interlude, defense counsel still had not filed any discovery motions, had not filed a motion that a specimen from Aldrich’s blood sample be physically turned over to him, and had not requested a witness list from the State nor turned over his witness list to the State. Defense counsel fell back to his standard position, “Well, then the status is that we still haven’t been given exculpatory matters by the State.” At this point, the trial court instructed defense counsel to sit down and to handwrite a request that a specimen of Aldrich’s blood be turned over to him. Defense counsel complied; the handwritten request is contained in the clerk’s record. The trial court immediately signed an order granting the request. Defense counsel, upon being informed that the sample was ready for him, failed to pick it up for over a week until the prosecutor called defense counsel and asked why he had not picked up the sample. Another pretrial hearing was held approximately one month later. Defense counsel, by this time, had filed three motions: one motion for production of evidence favorable to the accused, one motion for reproduction of witness statements or writings used to refresh the recollection of witnesses, and then a regular discovery motion. These three motions are copied from a form book, replete with blanks and brackets for [caption], [attorney signature block], and other case-specific items. At this hearing, defense counsel indicated that he had obtained his client’s blood sample and had it tested and that the results showed a blood alcohol level of .04; the focus of defense counsel’s concern at this hearing was the admissibility of his test results because of what defense counsel perceived to be chain of custody issues. The prosecutor explained that defense counsel did not need to worry about establishing the State’s chain of custody, he had to establish only his own chain of custody — what he did with the blood sample from when he picked it up until he returned it. Defense counsel stated, “If he says that’s what the law is, I’m willing to accept that. All I’ve got to do is [prove] my one-hour custody and that would be fine.” The trial court granted most, if not all, of the relief sought in defense counsel’s motions; the prosecutor indicated that most of the items and information sought had already been gratuitously provided to defense counsel. A final pretrial conference was held on the morning of July 25, 2005, the first day of trial. The trial court had previously ordered the defense to disclose the names and addresses of all defense experts at least twenty days before trial. The week before trial, not twenty days before trial, defense counsel faxed to the State a document titled, “In Response to the State of Texas Request for Information on Expert Witnesses.” The response listed a “David Taylor” as an expert who would testify regarding roadway headlights. No address, phone number, or curriculum vitae was provided for “David Taylor.” Nonetheless, the State conducted an internet search and contacted the person it believed was the defense expert, an accident recon-structionist from the Carrollton Police Department. That particular David Taylor said that he had never been contacted by anyone about the case, and defense counsel stated on the day of trial that he intended to call a different David Taylor. The trial court ruled that David Taylor would not be allowed to testify because defense counsel had failed to provide proper or timely notice to the State regarding Taylor. The response also listed Don In-gle as an accident reconstructionist expert. The trial court subsequently ruled, however, that because Ingle’s accident recon-structionist experience included only taking one short course thirty years ago, he was not qualified to testify as an accident reconstructionist expert; he did testify as a fact witness. On the morning of trial, defense counsel filed a “Supplement to Defendant’s List of Expert Witnesses.” The supplement sought to designate a “Richard E. Sullivan” as an illumination expert and attached a report from Sullivan that had been prepared the weekend before trial started on Monday. The report documents the illuminance in the crosswalk at issue, specifically, the limited illuminance provided in the crosswalk near the center of the four-lane street. Defense counsel claimed that he had just decided to call Sullivan as an expert because the State had tardily provided the defense exculpatory information' — the fact that Sergeant Bill Hall was the officer to whom Aldrich had stated at the scene that he had been blinded by the lights of oncoming traffic. But the record reflects that the prosecutor had gratuitously provided the names of all the involved officers to defense counsel on January 21, 2005, at a hearing that had occurred six months before trial commenced. The trial court ruled that Sullivan could not testify because this notice was given too late. The trial court explained, “You can bide your time, sir. You’ve had a year and a half to prepare this case, so you’ve had ample opportunity. And we were ready to try this case, what, six months ago; and you’ve had six months more to prepare for it.” The trial court did rule, however, that it would permit Max Courtney to testify for the defense. Defense counsel had provided Courtney’s curriculum vitae to the State in connection with a motion for continuance that he had filed about a month earlier. The prosecutor indicated, “I know Max Courtney. I don’t have any problem at all with Max Courtney. But these other people, Your Honor, the people listed here without — I have — he didn’t give us proper notice.” Finally, at some point during the trial, defense counsel subpoenaed Trooper Blair. The prosecutor pointed out, “I thought we had a ruling on that that any of his [Trooper Blair’s] testimony was irrelevant because Defense Counsel was going to have him testify to him having an accident, that you can have an accident in the daytime, and since both this Trooper’s accident was on a highway in another county, not at this intersection, not in The Colony, not at the exact same time, anything that would have been relevant with his crash has nothing to do with the case in chief.” The trial court ultimately permitted Defense Counsel to call Trooper Blair; he testified only that it is possible with different circumstances for a careful driver to nonetheless not see an approaching pedestrian. a. Misunderstanding of the Law Constituted Deficient Performance Looking with great deference to defense counsel’s perspective at the time, defense counsel’s misinterpretation of Kyles, his lack of understanding of basic discovery procedures, and his misunderstanding of what legally constitutes exculpatory evidence are amply reflected in the record, and all fall below the objective standard of reasonableness as a matter of law. Accord Andrews, 159 S.W.3d at 100 (holding defense counsel’s failure to object to the prosecutor’s misstatement of the law fell below objective standard of reasonableness as a matter of law); Ex parte Welch, 981 S.W.2d 183, 185 (Tex.Crim.App.1998) (holding defense counsel’s misunderstanding of law constituted ineffective assistance of counsel); accord Ex parte Chandler, 182 S.W.3d 350, 358 (Tex.Crim.App.2005) (recognizing that “[flgnorance of well-defined general laws, statutes and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of counsel”). Defense counsel was repeatedly told by the trial court that his interpretation of Kyles was legally incorrect. Defense counsel nonetheless persisted in his mistaken interpretation of Kyles and relied upon his mistaken interpretation — knowing that the trial court disagreed with it— to make the decision to do nothing to prepare Aldrich’s case. Defense counsel recognized that he was doing nothing and that he intended to do nothing; he repeatedly claimed on the record that he would need sixty to ninety days to prepare after the State completed its investigation and turned over the results of its investigation to him. There is no plausible basis in strategy or tactics for counsel’s misunderstanding of Kyles, of discovery procedures, or of what constitutes exculpatory evidence. See Thompson, 9 S.W.3d at 814. We hold that this conduct satisfies the first prong of the Strickland test. b. Failure to Adequately Convey Plea Offer Constituted Deficient Performance Aldrich argues that trial counsel failed to adequately convey the twenty-year plea bargain to him. The record before us contains defense counsel’s letter rejecting the plea bargain, and it supports Aldrich’s position. The letter specifically sets forth defense counsel’s belief that it would be unethical and would constitute malpractice for him to even discuss the proposed plea bargain with Aldrich: The best way, I have found, to prepare for trial is to get from the District Attorney that which Kyles says he must give early in the process. Then, knowing what facts the State’s witnesses and the defense agrees upon, to concentrate to develop additional witnesses, expert and fact, to produce testimony favorable to the defense. Only then is the attorney allowed to discuss with a client whether to attempt a plea or proceed to trial. The letter characterizes the plea offer as “forcing my client to choose twenty (20) years or trial before the case was th[o]roughly investigated by the defense ” and is dated a mere two months before trial actually started. [Emphasis added.] Finally, the letter rejects the plea offer, stating, “The threat of [the prosecutor] to withdraw his twenty (20) year offer on 06 June 2005 if I do not commit malpractice has been conveyed to Mr. Aldrich whom I am proud to say rejects this latest attempt at blackmail.” There is no doubt that an accused is entitled to effective assistance of counsel during the plea bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex.Crim.App.1987). Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness. See, e.g., Ex parte Lemke, 13 S.W.3d 791, 796-97 (Tex.Crim.App.2000) (citing numerous cases holding same). As noted in Ex parte Wilson, It is important that the accused be informed of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide on prosecution proposals, even when a proposal is one that the lawyer would not approve. If the accused’s choice on the question of guilty plea is to be an informed one, the accused must act with full awareness of the alternatives, including any that arise from proposals made by the prosecutor. 724 S.W.2d at 74 (quoting Hanzelka v. State, 682 S.W.2d 385, 387 (Tex.App.-Austin 1984, no pet.)) (emphasis added). A defendant’s right to reasonably effective assistance of counsel during the plea bargaining process likewise encompasses the requirement that defense counsel communicate an accepted plea bargain to the State. See Randle v. State, 847 S.W.2d 576, 580 (Tex.Crim.App.1993). Here, Aldrich’s right to effective assistance of counsel during the plea bargaining process encompasses the requirement that defense counsel objectively and adequately convey a plea offer in a fashion enabling a defendant to make an informed decision concerning the offer. See Ex parte Wil son, 724 S.W.2d at 74. The record affirmatively reflects that when Aldrich rejected the plea offer — approximately two months before trial — -defense counsel by his own admission still had not thoroughly investigated the case and, in fact, believed he was legally and ethically prohibited from even discussing with Aldrich whether he should attempt a plea or proceed to trial. Given this belief, defense counsel characterized the offer as an improper attempt by the State at blackmail and to force defense counsel to commit malpractice. Defense counsel by his own words established that he did not function as effective counsel during the plea process because he believed that he was ethically prohibited from discussing the plea offer with his client. We hold that defense counsel failed to objectively and adequately convey the State’s twenty-year plea offer to Aldrich because defense counsel failed to convey the plea offer in a fashion enabling Aldrich to make an informed decision concerning the offer and that defense counsel’s conduct in this regard fell below an objective standard of reasonableness. Consequently, we hold that this conduct satisfies the first prong of the Strickland test. c. The Failure to Investigate Constitutes Deficient Performance In judging the defense’s investigation, as in applying Strickland generally, hindsight is discounted by pegging adequacy to “counsel’s perspective at the time” investigative decisions are made. Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005). Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Id. Here, defense counsel was acutely aware that he needed to investigate Aldrich’s case; he informed the trial court on multiple occasions that he would need sixty days, ninety days, or four months to get ready after the State turned over the “exculpatory information as [it] is required to do by Kyles.” And defense counsel explained repeatedly that by exculpatory he meant “any information possessed by paramedics, by police department, by all the witnesses that are considered State witnesses because their knowledge is imputed to the D.A.” Defense counsel purposefully decided, however, to do little (about a year after the accident, defense did go to the scene and take pictures) or no investigation until after the State had completed its investigation and had “turned over exculpatory information” per defense counsel’s interpretation of Kyles. Based on this entrenched, legally incorrect interpretation of Kyles, defense counsel admitted in writing (in the letter rejecting the plea offer) that, on a date only two months before Aldrich’s case actually went to trial, he had not thoroughly investigated Aldrich’s case. The record further reflects that defense counsel failed and refused to request permission to independently test Aldrich’s blood sample, arguing again that the State had the duty to turn it over to him per Kyles. Finally, at one of the pretrial hearings about a month before trial, the frustrated trial court instructed defense counsel to handwrite a motion for a blood sample he could have tested. The handwritten request appears in the clerk’s record and was immediately signed by the trial court. The record also reflects that Aldrich told defense counsel that headlights from an • oncoming car had blinded him. Aldrich claimed that he had told an officer at the scene about the blinding headlights. Nonetheless, relying again on his interpretation of Kyles — despite the fact that the prosecutor had disclosed the names of all involved officers to defense counsel — defense counsel failed to undertake any investigation to verify this fact or to ascertain the identity of the particular officer. Defense counsel claimed on the record that until a few days before trial, he was unable to learn the identity of this officer, Sergeant Bill Hall. The record before us establishes that defense counsel neither performed a reasonable investigation nor made a reasonable decision that a particular investigation was unnecessary. Instead, even after receiving the benefit of multiple continuances, defense counsel undertook little or no investigation — until just a few weeks before the July 25, 2005 trial setting— based on the unreasonable decision that Kyles required the State to perform an investigation for him and to turn over all “exculpatory” matters, which defense counsel defined broadly as anything known by anyone that might lead to information helpful to Aldrich. And the record reflects defense counsel’s repeated assertions that he needed sixty days, ninety days, or four months to get ready for trial, not just a few weeks. We hold that defense counsel’s failure to conduct a reasonable investigation or to make a reasonable decision that no investigation was necessary fell below an objee-tive standard of reasonableness. There is no plausible basis in strategy or tactics for defense counsel’s failure to perform an investigation that he acknowledged was needed and indicated would take sixty days, ninety days, or four months. See Strickland, 466 U.S. at 690-91,104 S.Ct. at 2066; Ex parte Amezquita, 223 S.W.3d at 363, 368; Ex parte Briggs, 187 S.W.3d at 467. Consequently, we hold that this conduct satisfies the first prong of the Strickland test. d. Failure to Timely Obtain and Disclose Defense Experts Constituted Deficient Performance The record affirmatively reflects that although defense counsel repeatedly recognized the need for defense experts, he did not timely designate experts for two reasons: (1) based on Aldrich’s dire financial situation, and (2) on his misinterpretation of Kyles. Aldrich testified via a bill of exceptions about his current financial situation and bankruptcy. Specifically, Aid-rich testified that he and his wife were in bankruptcy about the time the accident occurred. His bankruptcy was discharged a few months before trial. Aldrich testified that he never had enough money and could not borrow enough money to hire lighting experts. Immediately following this trial, the trial court entered a finding of indigence and appointed appellate counsel for Aldrich. Defense counsel testified that the Aid-riches “don’t have the money to investigate this” and said that he, likewise, did not have the money to investigate it. Defense counsel repeatedly told the trial court that Aldrich was in a dire financial situation, stating, “We are broke;” that Aldrich had been paying him $100 per month; that defense counsel had been “drawing down” from his own retirement account to fund Aldrich’s defense; and that “I’ve already put out of my pocket a couple of grand in this case. I’m never going to get that back because he doesn’t have any money.” At one pretrial hearing, defense counsel said he needed four months before a trial setting. When the court asked why he needed four months, defense counsel explained, “[Financially, I’m carrying my client .... financially I’ll need about three or four months’ income from my client and from myself just to get ready.... I’ll need at least 90 days after he [the prosecutor] says there’s all the exculpatory stuff.” In fact on the fifth day of trial, defense counsel explained on the record his reasons for not hiring experts: We have known since my first trip out there [to the location of the accident] that lights were going to be a problem, but. we were shepherding the money, and it is throughout the — all the hearings, judge.... Mr. Angelino says that I ought to get my evidence, but we’re waiting to find out the exculpatory stuff so we’ll know what things to spend our — our little money on. Nobody doubts that the Defendant is broke in this trial and so I said, [g]ive me the exculpatory suff and then — and I even said and then we’ll know how to shepherd our money and see what experts we could afford. Although the accident occurred in April 2004 and the trial court had ordered the defense to file its list of expert witnesses twenty days before the July 25, 2005 trial setting, the record reflects that Aldrich did not designate any experts until a few days before trial (except Max Courtney whom the State agreed they knew of via a motion for continuance) and did not designate a lighting expert — Richard Sullivan — until the morning of trial. Ultimately, the trial court excluded the expert testimony (some testified as fact witnesses) of all experts listed by defense counsel, except Max Courtney. At the pretrial hearings, defense counsel repeatedly indicated his intent to timely retain experts. But defense counsel’s failure to timely retain experts, as explained in his own words during trial — in addition to a lack of financial resources — was based on defense counsel’s decision to not hire any experts until after the State had turned over “exculpatory” information as defense counsel believed the State was required to do under Kyles. When it became clear that Aldrich was bankrupt and could not pay for or borrow money to pay for experts and when it became clear that the trial court did not share defense counsel’s legally incorrect view of the State’s obligations under Kyles, a reasonably competent attorney would have several options, including to withdraw from the case, explaining to the court that Aldrich was now indigent; to prove that indigency; and to request appointment of counsel or to remain as counsel with the payment of a reduced fee but request investigatory and expert witness fees from the trial court for a now-indigent client. See Ex parte Briggs, 187 S.W.3d at 468-69. Here, defense counsel’s failure to timely designate experts was not a strategic decision, it was an economic decision and a decision based on a legally incorrect interpretation of a United States Supreme Court decision. See id. at 467 (recognizing record reflected defense counsel’s failure to consult with experts was not a strategic decision but an economic one). We hold that defense counsel’s failure to timely designate experts or to make a reasoned decision that no experts were necessary — defense counsel evidently believed experts were necessary because he did attempt to designate experts, but his designation was untimely — fell below an objective standard of reasonableness. See id Consequently, we hold that this conduct satisfies the first prong of the Strickland test. 2. Conduct During the Guilt-Innocence Phase of Trial Aldrich complains that his trial counsel continued to provide ineffective assistance throughout the guilt-innocence phase of trial. He argues that trial counsel presented theories not supported by the evidence, had physical or mental infirmities that prevented effective representation, alienated the prosecutor and the trial court, misunderstood and misapplied the law, failed to properly question witnesses or to make objections, and made inaccurate statements throughout trial. Furthermore, Aldrich claims that defense counsel was ineffective because he presented harmful evidence to the jury through Aldrich’s own testimony. a. Presentation of Defensive Theories Not Supported by the Evidence Constituted Deficient Performance Defense counsel’s defensive theory of the case was that