Andrea Pia YATES

Andrea Pia YATES

Born: Andrea Pia Kennedy

Classification: Homicide
Characteristics: Parricide
Number of victims: 5
Date of murder: June 20, 2001
Date of arrest: Same day
Date of birth: July 2, 1964
Victim profile: Her five children, Noah, 7, John, 5, Paul, 3, Luke 2, and Mary, 6 months
Method of murder: Drowning in the bathtub
Location: Houston, Texas, USA
Status: Sentenced to life imprisonment with eligibility for parole in 40 years in March 2002. Sentence reversed on January 6, 2005. Found not guilty by reason of insanity on July 26, 2006. Committed to a high-security mental health facily

Andrea Yates (born Andrea Pia Kennedy on July 2, 1964) is a former Houston, Texas resident who killed her five children on June 20, 2001 by drowning them in the bathtub in her house.

She had been suffering for some time with very severe postpartum depression and postpartum psychosis. Her case placed the M'Naghten Rules with the Irresistible Impulse Test, a legal test for sanity, under close public scrutiny in the United States. Yates's 2002 conviction of capital murder and sentence to life in prison with the possibility of parole after 40 years was later overturned on appeal.

On July 26, 2006, a Texas jury found that Yates was not guilty by reason of insanity. She was consequently committed by the court to the North Texas State Hospital, Vernon Campus, a high-security mental health facility in Vernon, Texas, where she received medical treatment and was a roommate of Dena Schlosser, another woman who committed filicide by killing her infant daughter. In January 2007, Yates was moved to a low security state mental hospital in Kerrville, Texas.

Overview

Andrea Yates was born in Houston, Texas. She is the youngest of five children to Jutta Karin Koehler, a German immigrant, and Andrew Emmett Kennedy, whose parents were born in Ireland. Yates was raised in a Catholic household.

She graduated from Milby High School, in Houston, Texas, in 1982. She was the class valedictorian, captain of the swim team, and an officer in the National Honor Society. Yates completed a two-year pre-nursing program at the University of Houston and graduated from the University of Texas School of Nursing. From 1986 until 1994, she worked as a registered nurse at the University of Texas M.D. Anderson Cancer Center.

In the summer of 1989, she met Russell "Rusty" Yates at the Sunscape Apartments in Houston, Texas, two months her junior. They soon moved in together and were married on April 17, 1993, and they announced that they "would seek to have as many babies as nature allowed". Afterwards, they bought a four-bedroom house in the town of Friendswood. In February 1994, the couple's first child, a son named Noah, was born. Shortly thereafter, Rusty accepted a job offer in Florida, so the family relocated to a small trailer in Seminole. By the birth of their third son, Paul, they settled back to Houston and purchased a GMC motor home.

Following the birth of their fourth son, Luke, Andrea became depressed. The media alleged that her condition was influenced by the extremist sermons of Michael Peter Woroniecki, the preacher who sold them their bus. Her family was concerned by the way that she was so captivated by the minister’s words.

On June 16, 1999, Rusty found Andrea shaking and chewing her fingers. The next day, she attempted to commit suicide by overdosing on pills. She was admitted to the hospital, and prescribed antidepressants. Soon after her release, she begged her husband to let her die as she held a knife up to her neck. Once again hospitalized, she was given a mixture of medications including Haldol, an anti-psychotic drug. Her condition improved immediately, and she was prescribed it on her release. After that, Rusty moved the family into a small house for the sake of her health. Andrea appeared temporarily to stabilise.

In July 1999, she succumbed to a nervous breakdown, which culminated in two suicide attempts and two psychiatric hospitalizations that summer. She was diagnosed with postpartum psychosis.

Her first psychiatrist, Dr. Eileen Starbranch, testified that she urged the couple not to have more children, as it would "guarantee future psychotic depression". They conceived their fifth and final child approximately 7 weeks after her discharge. She stopped taking the Haldol in March 2000 and gave birth to daughter Mary on November 30 of that year. She seemed to be coping well until the death of her father on March 12, 2001.

She then stopped taking medication, mutilated herself, and read the Bible feverishly. She also stopped feeding her youngest child, Mary. Yates became so incapacitated that she required immediate hospitalization.

On April 1, 2001 she came under the care of Dr. Mohammed Saeed. She was treated and released. On May 3, 2001, she degenerated back into a "near catatonic" state and drew a bath in the middle of the day; she would later confess to police that she had planned to drown the children that day, but had decided against doing it then. She was hospitalized the next day after a scheduled doctor visit; her psychiatrist determined she was probably suicidal and had filled the tub to drown herself.

Yates continued under Dr. Saeed's care until June 20, 2001, when Rusty left for work, leaving her alone to watch the children against Dr. Saeed's instructions to supervise her around the clock. Rusty's mother, Dora Yates, had been scheduled by him to arrive an hour later to take over for her. In the space of that hour, she drowned all five children. She started with the youngest boys, and after drowning them in her bathtub, laid them in her bed. She then drowned Mary, whom she left floating in the tub. Her oldest son, Noah, came in and asked what was wrong with Mary. He then ran, but she soon caught up with him and drowned him. She then left him floating in the tub and laid Mary in her brothers' arms. Afterwards, she called the police. Then she called Rusty, saying only “It’s time” repeatedly.

Trials

Yates confessed to drowning her children. She told Dr. Michael Welner that she waited for Rusty to leave for work that morning before filling the bathtub because she knew he would have prevented her from harming the children. After the killings, police found the family dog locked up; Rusty advised Welner that it had normally been allowed to run free, and was so when he had left the house that morning, leading the psychiatrist to conclude that she locked it in a cage to prevent it from interfering with her killing the children one by one.

Although the defense's expert testimony agreed that Yates was psychotic, Texas law requires that, in order to successfully assert the insanity defense, the defendant must prove that he or she could not discern right from wrong at the time of the crime. In March 2002, a jury rejected the insanity defense and found her guilty. Although the prosecution had sought the death penalty, the jury refused that option. The trial court sentenced her to life imprisonment in the Texas Department of Criminal Justice with eligibility for parole in 40 years.

On January 6, 2005, a Texas Court of Appeals reversed the convictions, because California psychiatrist and prosecution witness Dr. Park Dietz admitted he had given materially false testimony during the trial. Dietz stated that shortly before the killings, an episode of Law & Order had aired featuring a woman who drowned her children and was acquitted of murder by reason of insanity. Author Suzanne O'Malley, who was covering the trial for Oprah magazine and had previously been a writer for Law & Order, immediately reported that no such episode existed; the appellate court held that the jury may have been influenced by his false testimony and that thus a new trial would be necessary.

On January 9, 2006, Yates again entered pleas of not guilty by reason of insanity. On February 1, 2006, she was granted release on bail on the condition that she be admitted to a mental health treatment facility.

On July 26, 2006, after three days of deliberations, Yates was found not guilty by reason of insanity, as defined by the state of Texas. She was thereafter committed to the North Texas State Hospital - Vernon Campus. In January 2007, Yates was moved to a low security state mental hospital in Kerrville, Texas.

Although psychiatrists for both the Texas State prosecutors and Yates' defense lawyers agreed that she was severely mentally ill with one of several psychotic diseases at the time she killed her children, the state of Texas asserted that she was by legal definition aware enough to judge her actions as right or wrong despite her mental defect. The prosecution further implied spousal-revenge as motive for the killings, despite the conclusion of defense experts that there was no evidence to support such a motive. Although the original jury believed she was legally aware of her actions, they disagreed that her motive was spousal-revenge. The jury in 2006 completely disagreed with the prosecution's assertions and her earlier conviction from 2002 was overturned.

Andrea was bulimic during her teenage years. She also suffered from depression and, at the age of seventeen, spoke to a friend about suicide.

While in prison, Andrea stated she had considered killing the children for two years, adding that they thought she was not a good mother and claimed her sons were developing improperly. She told her jail psychiatrist: "It was the seventh deadly sin. My children weren't righteous. They stumbled because I was evil. The way I was raising them, they could never be saved. They were doomed to perish in the fires of hell." She also told her jail psychiatrist that Satan influenced her children and made them more disobedient

Russell Yates

According to trial testimony in 2006, Dr. Saeed advised Rusty, a former NASA engineer, not to leave his patient unattended. However, he began leaving her alone with the children in the weeks leading up to the drownings for short periods of time hoping to improve her independence. He had announced at a family gathering the weekend before the drownings that he had decided to leave her home alone for an hour each morning and evening, so that she would not become totally dependent on him and his mother for her maternal responsibilities.

Her brother, Brian Kennedy, told Larry King on a broadcast of CNN's Larry King Live that Rusty expressed to him in 2001 while transporting her to Devereux treatment facility that all depressed people needed was a "swift kick in the pants" to get them motivated.

Her mother, Jutta Karin Kennedy, expressed shock when she heard of Rusty's plan while at the gathering with them, saying that she wasn't stable enough to care for the children. She noted that her daughter demonstrated she wasn't in her right mind when she nearly choked her still-toothless infant daughter Mary by trying to feed her solid food. According to authors Suzy Spencer and Suzanne O'Malley, who investigated her story in great detail, it was during a phone call Dr. Saeed made to Rusty during the breaking news of the killings that he first learned that she was not being supervised full time.

Andrea's first psychiatrist, Dr. Eileen Starbranch, says she was shocked to disbelief when the Yateses expressed a desire to discontinue her medications so that she could become pregnant again during an office visit with them. She warned and counseled them against having more children, and noted in the medical record two days later, '"Apparently patient and husband plan to have as many babies as nature will allow! This will surely guarantee future psychotic depression."'

Nevertheless, she became pregnant with her fifth child, Mary, only 7 weeks after being discharged from Dr. Starbranch's care on January 12, 2000. Despite Rusty's statements to the media that he was never told by psychiatrists that she was psychotic nor that she could harm her children, and that he would have never had more children had he known otherwise, she revealed to her jail psychiatrist, Dr. Melissa Ferguson, that prior to their last child, "she had told Rusty that she did not want to have sex because Dr. Starbranch had said she might hurt her children." Rusty, she said, simply asserted his procreative religious beliefs, complimented her as a good mother, and persuaded her that she could handle more children.

Author Suzanne O'Malley highlighted Russell Yates's continuing sense of unreality regarding having more children:

"During the trial, he'd successfully maintained the position that Andrea would be found innocent. He had fantasies of having more children with her after she was successfully treated in a mental health facility and released on the proper medication. He worked his way through various fixes for their damaged lives, such as a surrogate motherhood and adoption (horrifying Andrea's family, attorneys and Houston psychiatrists) before giving in to reality."

Medical community

Rusty Yates contended that as a psychiatrist, Dr. Saeed was responsible for recognizing and properly treating his wife's psychosis, not a medically untrained person like himself. He also claimed that, despite his urgings to check her medical records for prior treatment, Dr. Saeed had refused to continue her regimen of the antipsychotic Haldol, the treatment that had worked for her during her first breakdown in 1999. He added that she was too sick to be released from her last stay in the hospital in May, 2001. He said he noticed the staff lower their heads as if in shame and embarrassment, turning away without saying a word. The hospital had no other choice due to the ten day psychiatric hospitalization insurance constraints of their provider, Blue Cross-Blue Shield, subcontracted by Magellan Health Services.

Anti-depressants and homicidal ideation

Rusty and her birth family came to believe that a combination of antidepressants improperly prescribed by Dr. Saeed in the days before the tragedy was responsible for Andrea's violent, psychotic behavior. According to Dr. Moira Dolan, executive director of the Medical Accountability Network, "homicidal ideation" was added to the warning label of the antidepressant drug Effexor as a rare adverse event, in 2005. Yates, she said, had been taking 450 mg, twice the recommended maximum dose, for a month before killing her children. Dr. Dolan reviewed Yates's medical record at the request of Rusty.

Dr. Lucy Puyear, an expert witness hired by Yates's defense team, countered their contention regarding the administration of her antidepressants, saying the dosages prescribed by Dr. Saeed are not uncommon in practice and had nothing at all to do with her reemergent psychosis. She suggested rather that her psychosis returned as a result of the Haldol having been discontinued by her doctor two weeks earlier. The oral form of haloperidol (Haldol) takes 4–6 days after discontinuation to reach a terminal plasma level of under 1.5%—a medical standard for "complete" elimination of a drug from the body.

Alleged religious influences

Media outlets alleged that Michael Peter Woroniecki, a traveling preacher whom Rusty had met while attending Auburn University, bears some responsibility for the deaths due to his “fire and brimstone” message and certain teachings found in his newsletter “The Perilous Times” that they had received on occasion and which was entered into evidence at the trial.

However, both Rusty and Michael Woroniecki reject these accusations. Rusty said that his family’s relationship with the Woronieckis was not that close and that Woroniecki did not cause her delusions. Woroniecki maintained that his correspondence with them was with the intention of helping them strengthen their marriage and find the love that he says his own family had found in Jesus.

Both men agreed that the alleged connection between his message and her mental state was “nothing more than media created fiction”. The adherence of the Yates family to the principles of the Quiverfull lifestyle, which encourages couples to have many children, has been posited as a factor contributing to the mental and emotional stress that she experienced. Some sources have suggested the lack of community may have contributed to her isolation.

Popular culture

Wikipedia.org

Andrea Yates Called Police After Killing Her Children

After Andrea Yates systematically murdered her five children she called police to report the crime.

The Call:

Andrea Yates: "Andrea Yates."

911 Dispatcher "What's the problem?"

Andrea Yates: "Um, I just need him to come."

911 Dispatcher "Is your husband there?"

Andrea Yates: "No."

911 Dispatcher "Well, what's the problem?"

Andrea Yates: "I need him to come."

911 Dispatcher "I need to know why we're coming, ma'am. Is he there standing next to you?"

Andrea Yates: "No."

911 Dispatcher "She?"

Andrea Yates: "Pardon me?"

911 Dispatcher "Are you having a disturbance? Are you ill or what?"

Andrea Yates: "Um, yes, I'm ill."

911 Dispatcher "Do you need an ambulance?"

Andrea Yates: "No, I need a police officer. Yeah, send an ambulance."

911 Dispatcher "What's the problem?"

Andrea Yates: "Um?"

911 Dispatcher "Hello?"

Andrea Yates: "I just need a police officer."

Profile of Andrea Yates

By Charles Montaldo - Crime.About.com

Education and Achievements:

Andrea (Kennedy) Yates was born on July 2, 1964 in Houston, Tex. She graduated from Milby High School in Houston in 1982. She was the class valedictorian, captain of the swim team and an officer in the National Honor Society. She completed a two-year pre-nursing program at the University of Houston and then graduated in 1986 from the University of Texas School of Nursing in Houston. She worked as a registered nurse at the University of Texas M.D. Anderson Cancer Center from 1986 until 1994.

Andrea Meets Rusty Yates:

Andrea and Rusty Yates, both 25, met at their apartment complex in Houston. Andrea, who was usually reserved, initiated the conversation. Andrea had never dated anyone until she turned 23 and prior to meeting Rusty she was healing from a broken relationship. They eventually moved in together and spent much of their time involved in religious study and prayer. They were married on April 17, 1993. They shared with their guests that they planned on having as many children as nature provided.

Andrea Called Herself "Fertile Myrtle":

In their eight years of marriage, the Yates had five children; four boys and one girl. Andrea stopped jogging and swimming when she became pregnant with her second child. Friends say that she became reclusive. The decision to home-school the children seemed to feed her isolation.

The Yates Children:

Feb. 26, 1994 – Noah Yates, Dec. 12, 1995 - John Yates, Sept. 13, 1997 - Paul Yates, Feb. 15, 1999 - Luke Yates, and on Nov. 30, 2000 - Mary Yates was the last child to be born.

Their Living Conditions:

Rusty accepted work in Florida in 1996 and the family moved into a 38-foot travel trailer in Seminole, FL While in Florida, Andrea got pregnant, but miscarried. In 1997 they returned to Houston and lived in their trailer because Rusty wanted to "live light." The next year. Rusty decided to purchase a 350-square-foot, renovated bus which became their permanent home. Luke was born bringing the number of children to four. Living conditions were cramped and Andrea's insanity began to surface.

Michael Woroniecki:

Michael Woroniecki was a traveling minister from whom Rusty purchased their bus and whose religious views had influenced both Rusty and Andrea. Rusty only agreed with some of Woroniecki's ideas but Andrea embraced the extremist sermons. He preached, "the role of women is derived from the sin of Eve and that bad mothers who are going to hell create bad children who will go to hell." Andrea was so totally captivated by Woroniecki that Rusty and Andrea's family grew concerned.

Andrea’s First Suicide Attempt :

On June 16 1999, Andrea called Rusty and begged him to come home. He found her shaking involuntarily and chewing on her fingers. The next day, she was hospitalized after she tried to commit suicide by taking an overdose of pills. She was transferred to the Methodist Hospital psychiatric unit and diagnosed with a major depressive disorder. The medical staff described Andrea as evasive in discussing her problems. However, on June 24 she was prescribed an antidepressant and released.

Spiraling Downward:

Once home, Andrea did not take the medication and as a result she began to self mutilate and refused to feed her children because she felt they were eating too much. She thought there were video cameras in the ceilings and said that the characters on television were talking to her and the children. She told Rusty about the hallucinations, yet neither of them informed Andrea's psychiatrist, Dr. Starbranch. On July 20, Andrea put a knife to her neck and begged her husband to let her die.

Warned About the Risks of Having More Babies :

Andrea was again hospitalized and stayed in a catatonic state for 10 days. After being treated with an injection of different drugs that included Haldol, an anti-psychotic drug, her condition immediately improved. Rusty was optimistic about the drug therapy because Andrea appeared more like the person he first met. Dr. Starbranch warned the Yates that having another baby might bring on more episodes of psychotic behavior. Andrea was placed on out-patient care and prescribed Haldol.

New Hopes for the Future :

Andrea's family urged Rusty to buy a home instead of returning Andrea to the cramped space of the bus. He purchased a nice home in a peaceful neighborhood. Once in her new home, Andrea's condition improved to the point that she returned to past activities like swimming, cooking and some socializing. She was also interacting well with her children. She expressed to Rusty that she had strong hopes for the future but still viewed her life on the bus as her failure.

The Tragic End:

In March of 2000, Andrea, on Rusty's urging, became pregnant and stopped taking the Haldol. On November 30, 2000, Mary was born. Andrea was coping but on March 12, her father died and immediately her mental state digressed. She stopped talking, refused liquids, mutilated herself, and would not feed Mary. She also frantically read the Bible.

By the end of March Andrea returned to a different hospital. Her psychiatrist, Dr. Mohammed Saeed, treated her briefly with Haldol but discontinued it, saying that she did not did not seem psychotic. Andrea was released only to return again in May. She was released in 10 days and in her last follow-up visit with Saeed, she was told to think positive thoughts and to see a psychologist.

Two days later, Rusty left for work and before his mother arrived to help, Andrea began to put into action the thoughts that had consumed her for two years.

Andrea filled the tub with water and beginning with Paul, she systematically drowned the three youngest boys, then placed them on her bed and covered them. Mary was left floating in the tub. The last child alive was the first born, seven-year-old Noah. He asked his mother what was wrong with Mary, then turned and ran away. Andrea caught up with him and as he screamed, she dragged him and forced him into the tub next to Mary's floating body. He fought desperately, coming up for air twice, but Andrea held him down until he was dead. Leaving Noah in the tub, she brought Mary to the bed and laid her in the arms of her brothers.

During Andrea's confession she explained her actions by saying that she wasn't a good mother and that the children were "not developing correctly" and she needed to be punished.

Her controversial trial lasted three weeks. The jury found Andrea guilty of capital murder, but rather then recommending the death penalty, they voted for life in prison. At the age of 77, in the year 2041, Andrea will be eligible for parole

Update

In July 2006, a Houston jury of six men and six women found Andrea Yates not guilty of murder by reason of insanity.

Andrea Yates Could Be Released From Psychiatric Hospital to Attend Church

By Katie Moisse - ABCNews.go.com

March 28, 2012

Andrea Yates, the Houston mom who in 2001 drowned her five young children one-by-one in the bathtub, might soon be allowed to leave the state psychiatric hospital where she is being treated for mental illness to attend church.

"She's been approved by a certain church to attend Sunday services, and I anticipate that that recommendation will be forthcoming from her doctors," Yates' attorney George Parnham told ABCNews.com. He would not name the church.

Parnham said he expects doctors at Kerrville State Hospital to file a letter to the state district court within 10 days recommending that Yates be granted a two-hour pass to attend church on Sundays, the first step toward a permanent release.

"I hope that little by little she will adapt to the outside world by taking baby steps," he said.

Yates was convicted of capital murder in 2002, but acquitted in 2006 after jurors found her not guilty by reason of insanity. The stay-at-home mom had a history of mental illness and suicide attempts before drowning Noah, 7, John, 5, Paul, 3, Luke 2, and Mary, 6 months, after her husband, Rusty, left for work.

Yates confessed to the killings after calling police to her home. A police video showed a wet sock in the hallway and the body of one of Yates' children faced down in the bathtub. The other four bodies were laid on a bed and covered with a sheet.

In tapes released to ABC News' "Primetime" in 2006, Yates said she drowned her children because she didn't want them to go to hell. Yates' defense team argued she was influenced by Michael Woroniecki, a preacher from Oregon.

"The church she requested to attend is 180 degrees different from the ramblings of that hell, fire and brimstone preacher," said Parnham. "She would just like to get back into a stable church whereby God and Christianity become a role in her life. There's nothing nefarious about that."

Experts testified that postpartum psychosis prevented Yates from knowing right from wrong. With treatment, the delusions and hallucinations cleared and Yates realized what she had done.

"There were six victims that day, and Andrea was one of them," said Parnham, describing Yates' devastation. "But she understands that mental illness was the prime mover that caused various things to take place. She understands, she grieves, she mourns and she memorializes [her children]."

Parnham said Yates makes cards and other crafts and sells them in the hospital gift shop. She sends the proceeds to the Yates Memorial Children's Fund, a charity founded by Parnham to fund women's mental health education.

While Yates' doctors may deem her ready to reenter society, the public may feel differently.

"We tend to keep people with pyschosis hospitalized a lot longer than we need to, partly because society is spooked by these individuals and judges tend to reflect those views," said Dr. Phil Resnick, director of forensic psychiatry at UH Case Medical Center in Cleveland. Resnick testified in both of Yates' trials in her defense. "States tend to be quite conservative in releasing people."

Resnick said he recently examined two women who murdered their children based on religious delusions.

"One said she didn't want to go back to church because she didn't want to be put back in that situation. The other woman felt religion was a very important way for her to cope," he said.

Andrea Yates May Get to Leave Hospital

Dr. Stephen Montgomery, a forensic psychiatrist at Vanderbilt University Medical Center in Nashville, said church could be a good starting point for Yates' return to life outside the hospital.

"It's always healthy for patients to be reintroduced into society, and church is a good support network and source of strength for many people," he said. "The only concern would be making sure she's no longer having any type of delusion that might affect her understanding of spiritual scripture."

After seven years of treatment, Parnham said Yates is "just as normal as you or I." He hopes conditional release for weekly church services will be the first step toward her one day living on her own and holding down a job.

"It's not like she's going be turned loose without any care or any way to support herself," he said, describing frequent outpatient checkups. "She will basically be under the spotlight if she's ever released."

John Hinckley, the man tried to assassinate President Ronald Reagan in 1981, was also found not guilty by reason of insanity. He is currently allowed to leave St. Elizabeth's Hospital in Washington, D.C. for 10-day stints to visit his mother's home in Virginia, closely monitored by the Secret Service. But in February, his attorney asked a district court judge to extend the stretch to 24 days and ultimately release him from the psychiatric facility. The judge is expected to make a decision by May.

In The Court of Appeals
For The First District of Texas

NOS. 01-02-00462-CR

01-02-00463-CR

ANDREA PIA YATES, Appellant
V.
THE STATE OF TEXAS, Appellee

Opinion issued January 6, 2005

On Appeal from the 230th District Court
Harris County, Texas

Trial Court Cause Nos. 880205 & 883590

O P I N I O N

Appellant, Andrea Pia Yates, was charged by two indictments with capital murder for the drowning deaths of three of her five children. Appellant was charged in cause number 880205 with intentionally and knowinglycausing the deaths of Noah Yates and John Yates. See Tex. Pen. Code Ann.§ 19.03(a)(7)(A) (Vernon Supp. 2004-2005) (providing that murder of more than one personin same transaction is capital murder). Appellant was charged in cause number 883590 withintentionally and knowingly causing the death of Mary Yates. See Tex. Pen. Code Ann.§ 19.03(a)(8) (Vernon Supp. 2004-2005) (providing that murder of an individual under sixyears of age is capital murder).

Rejecting appellant’s insanity defense, the jury found her guilty and, having answered the special issue regarding appellant’s continuing threat to society “No,” assessed punishment at life in prison. Following the verdict and before the punishment phase of the trial, appellant learned that the State’s expert witness, Dr. Park Dietz, had presented false testimony. Appellant moved for mistrial, but the trial court denied the motion. Appellant asserts 19 points of error in which she challenges, among other things, the factual sufficiency of the evidence to support the verdict rejecting the insanity defense, the denial of a motion for mistrial based on false testimony, and the denial of her right to due process by the use of false or perjured testimony. We reverse and remand.

BACKGROUND

Appellant and Russell Yates (Yates) were married on April 17, 1993. Their first child, Noah, was born in February 1994; their second child, John, was born in December 1995; and their third child, Paul, was born in September 1997. During this time, the Yates family moved from Friendswood to Florida and back to the Houston area, living in a recreational vehicle. In 1998, they moved from the recreational vehicle to a converted bus and continued to live in a trailer park. At one point, appellant told her husband she felt depressed and overwhelmed, and he suggested that she talk to her mother and a friend.

In February 1999, a fourth child, Luke, was born. On June 18, 1999, appellant suffered severe depression and tried to commit suicide by taking an overdose of an antidepressant that had been prescribed for her father. She was admitted to the psychiatric unit of Methodist Hospital. After her release six days later, she began seeing a psychiatrist, Dr. Eileen Starbranch, as an outpatient. On July 20, 1999, Yates found appellant in the bathroom, holding a knife to her neck. Dr. Starbranch recommended that appellant be admitted to Spring Shadows Glen Hospital. Appellant was admitted, against her wishes, the next day. At Spring Shadows Glen, appellant told a psychologist, Dr. James Thompson, that she had had visions and had heard voices since the birth of her first child. Dr. Starbranch ranked appellant, at the time of her admission to Spring Shadows Glen, among the five sickest patients she had ever seen. Before discharging appellant from the hospital, Dr. Starbranch told appellant and Yates that appellant had a high risk of another psychotic episode if she had another baby.

In August 1999, the Yates family moved from the converted bus to a house that Yates had bought while appellant was in the hospital. That fall, appellant began home-schooling Noah. Appellant saw Dr. Starbranch for the last time on January 12, 2000. She told Dr. Starbranch that she had stopped taking her medication in November 1999. In November 2000, appellant’s fifth child, Mary, was born. In March 2001, appellant’s father died. This death seemed to precipitate a decline in appellant’s functioning, and she began to suffer from depression. On March 28, 2001, Yates contacted Dr. Starbranch and told her that appellant was ill again. Dr. Starbranch wanted to see appellant immediately, but Yates said he could not bring her in until the next Monday.

Appellant was not taken to Dr. Starbranch’s office, but was admitted to Devereux Hospital in League City on March 31, 2001. There, she was observed as being catatonic or nearly catatonic and possibly delusional or having bizarre thoughts. She was treated by Dr. Mohammed Saeed and was placed on a suicide watch. Appellant was discharged on April 13, 2001 upon her own and Yates’s request. She began an outpatient program at Devereux, and Dr. Saeed recommended that someone stay with her at all times and that she not be left alone with her children.

On April 19, Yates’s mother came for a visit. She had intended to stay for about one week, but, when Yates told his mother that appellant was suffering from depression, his mother decided to stay longer and moved to a nearby extended-stay hotel.

Yates’s mother went to appellant’s home every day. She observed that appellant was almost catatonic, did not respond to conversation or made a delayed response, stared into space, trembled, scratched her head until she created bald spots, and did not eat. On May 3, appellant filled a bathtub with water, but could not give a good reason for doing so. When asked, she said, “I might need it.” On May 4, appellant was re-admitted to Devereux, and on May 14, she was discharged, seeming to be better. Dr. Saeed had prescribed the medication, Haldol, and appellant continued to take it after her discharge. Dr. Saeed also recommended electroconvulsive therapy, but appellant rejected that recommendation.

After her second discharge from Devereux, appellant was able to take care of her children, but was still uncommunicative and withdrawn. She smiled infrequently and seemed to have no emotions, but Yates did not think it was unsafe to leave her alone with the children. On June 4, appellant had a follow-up appointment with Dr. Saeed, who decided to taper her off of Haldol. Appellant denied having any suicidal or psychotic thoughts. Appellant met with Dr. Saeed again on June 18, and she again denied having any psychotic symptoms or suicidal thoughts. She was no longer taking Haldol, and Dr. Saeed adjusted the dosages of her other anti-depressant medications.

On June 20, 2001, at 9:48 a.m., appellant called 9-1-1 and told the operator, Sylvia Morris, that she needed the police. Morris transferred the call to the Houston Police Department, and appellant told the police operator that she needed a police officer to come to her home. Appellant also called Yates at his work and told him that he needed to come home, but would not say why. As Yates was leaving, he called her and asked if anyone was hurt, and she said that the kids were hurt. He asked, “Which ones?” She responded, “All of them.”

Within minutes of appellant’s 9-1-1 call, several police officers arrived at appellant’s home. They discovered four dead children, soaking wet and covered with a sheet, lying on appellant’s bed. The fifth child, Noah, was still in the bathtub, floating face down. Appellant was quiet and cooperative with the police officers.

At trial, ten psychiatrists and two psychologists testified regarding appellant’s mental illness. Four of the psychiatrists and one of the psychologists had treated appellant either in a medical facility or as a private patient before June 20, 2001. They testified regarding the symptoms, severity, and treatment of appellant’s mental illness. Five psychiatrists and one psychologist saw appellant on or soon after June 20 for assessment and/or treatment of her mental illness. Four of these five psychiatrists and the psychologist testified, in addition to their observations and opinions regarding appellant’s mental illness, that appellant, on June 20, 2001, did not know right from wrong, was incapable of knowing what she did was wrong, or believed that her acts were right.

The fifth psychiatrist in this group, Dr. Melissa Ferguson, testified that she had notmade a determination regarding appellants ability to know whether her actions were wrong. However, she testified that appellant made the statement that, in the context that the childrenwould perish in the fires of hell, [their drowning] was the right thing to do.

The tenth psychiatrist, Dr. Park Dietz, who interviewed appellant and was the State’s sole mental-health expert in the case, testified that appellant, although psychotic on June 20, knew that what she did was wrong. Dr. Dietz reasoned that because appellant indicated that her thoughts were coming from Satan, she must have known they were wrong; that if she believed she was saving the children, she would have shared her plan with others rather than hide it as she did; that if she really believed that Satan was going to harm the children, she would have called the police or a pastor or would have sent the children away; and that she covered the bodies out of guilt or shame.

On cross-examination, appellant’s counsel asked Dr. Dietz about his consulting work with the television show, “Law & Order,” which appellant was known to watch. The testimony was as follows:

Q.Now, you are, are you not, a consultant on the television program known as “Law & Order”?

A.Two of them.

Q.Okay. Did either one of those deal with postpartum depression or women’s mental health?

A.As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before the crime occurred.

The second mention of “Law & Order” came during Dr. Lucy Puryear’s testimony. Dr. Puryear, a defense expert witness, was cross-examined by the State regarding her evaluation of appellant. The State specifically asked about her failure to inquire into whether or not appellant had seen “Law & Order.” Dr. Puryear testified as follows:

Q.You know she watched “Law & Order” a lot; right?

A.I didn’t know. No.

Q.Did you know that in the weeks before June 20th, there was a “Law & Order” episode where a woman killed her children by drowning them in a bathtub, was defended on the basis of whether she was sane or insane under the law, and the diagnosis was postpartum depression and in the program the person was found insane, not guilty by reason of insanity? Did you know that?

A.No.

Q.If you had known that and had known that Andrea Yates was subject to these delusions, not that she was the subject of a delusion of reference, but that she regularly watched “Law & Order” and may have seen that episode, would you have changed the way you went about interviewing her, would you have interviewed whether she got the idea somehow she could do this and not suffer hell or prison?

A.I certainly wouldn’t have asked her that question. No.

Q.Would you have - - you didn’t have to ask her that question, but you could have explored that?

A.If I had known she watched that show, I would have ask[ed] her about it, yes.

In his final argument at the guilt-innocence phase of the trial, appellant’s attorney referred to Dr. Dietz’s testimony by stating, “Or maybe even we heard some evidence that she saw some show on TV and knew she could drown her children and get away with it.”

The prosecutor, in his final argument, made the following reference to Dietz’s testimony about the “Law & Order” episode:

She gets very depressed and goes into Devereux. And at times she says these thoughts came to her during that month. These thoughts came to her, and she watches “Law & Order” regularly, she sees this program. There is a way out. She tells that to Dr. Dietz. A way out.

After the jury had returned a guilty verdict, appellant’s counsel discovered that Dr. Dietz had given false testimony. The producer of “Law & Order” spoke to counsel by telephone and said he could not recall such an episode. An attorney representing the producer, after talking to Dr. Dietz and researching the shows, verified to counsel that there was no show with a plot as outlined by Dr. Dietz. Dr. Dietz acknowledged that he had made an error in his testimony. Dr. Dietz’s acknowledgment is not on the record. The record is unclear as towhether it was made to the attorney representing the producer or to appellant’s counsel.

Appellant and the State entered into the following written stipulation:

1.Dr. Park Dietz testified on cross-examination that “As a matter of fact, there was a show of a woman with postpartum depression who drowned her children in the bathtub and was found insane and it was aired shortly before this crime occurred.”

2.Dr. Park Dietz would testify that he was in error and that no episode of “Law & Order” and/or “Law & Order: Criminal Intent” as described above was ever produced for the “Law & Order” television series.

Appellant moved for a mistrial based on Dr. Dietz’s false testimony, and the trial court denied the motion. Appellant then requested that the stipulation be admitted into evidence and read to the jury. The trial court granted this request. In connection with the stipulation, the trial court, in response to appellant’s request, made the following statement to the jury:

Ladies and gentlemen, during the course of this trial there have been occasions when written stipulations have been introduced for your consideration. . . . While those witnesses that give information which is contained in this stipulation do not physically appear here in court to testify, you must consider the matters which they have indicated in the written stipulation as if they actually appeared in court and give it whatever weight you wish to give to it. So the witness does not have to actually appear in court, but the matters contained in the stipulation are offered into evidence as if they had appeared.

The jury returned verdicts on both charges that at least 10 jurors had a reasonable doubt that appellant would commit criminal acts of violence that would constitute a continuing threat to society.

DISCUSSION

Motion for Mistrial

In her second point of error, appellant contends that the trial court abused its discretion by denying her motion for mistrial when it was revealed that the State’s expert witness had presented false testimony. Appellant argues that Dr. Dietz’s testimony was essential to the jury’s “guilty” verdict and that his testimony relating to the “Law & Order” episode was the most compelling testimony supporting Dr. Dietz’s conclusion that appellant knew right from wrong.

The State recognizes that the State’s knowing use of perjured testimony that is likely to materially affect the judgment violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. See Ex parte Castellano, 863 S.W.2d 476, 485 (Tex. Crim. App. 1993). The State argues that it did not know that the testimony was false, did not use the false information, and the information was not material. We agree that this case does not involve the State’s knowing use of perjured testimony. At the hearing on appellant’s motion for mistrial, appellant did not complain that there had been prosecutorial misconduct. Rather, appellant stated,

[M]ake no mistake, the issue is not whether or not the State was aware and we have no reason to believe the State was aware that such a program did not exist. The issue is that the defense of insanity was rebutted by the testimony of Dr. Dietz relative to an act of premeditation, that is a planned and/or a deceptive act on Mrs. Yates’ part, that is something that would give her an idea, a way out of these particular allegations. And that was relayed to this jury and we believe that the jury relied upon the presentation of Dr. Dietz as well as the cross-examination by [the State’s attorney] of Dr. Puryear relative to this particular issue.

We review the denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In this case, the motion for mistrial was the functional equivalent of a motion for new trial; therefore, we look to the standards governing the review of the granting or denial of a motion for new trial. See State v. Garza, 774 S.W.2d 724, 726 (Tex. App.—Corpus Christi 1989, pet. ref’d) (concluding that State may appeal order granting mistrial that is functionally indistinguishable from order granting motion for new trial).

Generally, if a witness has testified to material, inculpatory facts against a defendant and, after the verdict but before a motion for new trial has been ruled upon, the witness makes an affidavit that he testified falsely, a new trial should be granted. In our case, Dr. Dietz did not make an affidavit that he testified falsely. However,because the State stipulated that Dr. Dietz would testify that his testimony was in error, thereis no credibility issue requiring an affidavit. See Dougherty v. State, 745 S.W.2d 107, 107(Tex. App.—Amarillo 1988), aff’d, 773 S.W.2d 320 (Tex. Crim. App. 1989) (stating that State was bound by its stipulation). Williams v. State, 375 S.W.2d 449, 451 (Tex. Crim. App. 1964). The exceptions to this rule—such as, when the recanting witness is an accomplice, or the recantation is found to be incredible in light of the evidence, or the recantation has been coerced—do not apply in the present case. See Villarreal v. State, 788 S.W.2d 672, 674 (Tex. App.—Corpus Christi 1990, pet. ref’d) (applying general rule to determine that, because State offered no evidence to controvert recantation of testimony, denial of motion for new trial was abuse of discretion). We note that this rule does not require that the State have knowledge that the testimony was false. We review the record to determine whether the State used the false testimony and, if so, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. See Ramirez v. State, 96 S.W.3d 386, 394-95 (Tex. App.—Austin 2002, pet. ref’d). We recognize that Ramirez v. State involved the prosecutor’s knowing use of falsetestimony. 96 S.W.3d 386, 393 (Tex. App.—Austin 2002, pet. ref’d). However, when falsetestimony is a factor in securing a conviction, the effect is the same, regardless of whetherthe State used the false testimony knowingly or not. See Trujillo v. State, 757 S.W.2d 169,172 n.1 (Tex. App.—San Antonio 1988, no pet.) (Cadena, C.J. concurring).

It is uncontested that the testimony of Dr. Dietz regarding his consultation on a “Law & Order” television show having a plot remarkably similar to the acts committed by appellant was untrue and that there was no “Law & Order” television show with such a plot. The State is bound by its stipulation to these facts. See Dougherty v. State, 745 S.W.2d 107, 107 (Tex. App.—Amarillo 1988), aff’d, 773 S.W.2d 320 (Tex. Crim. App. 1989) (stating that State was bound by its stipulation). However, the State asserts that it is “very questionable whether it can be said that the trial prosecutors used Dr. Dietz’ testimony on cross-examination, especially in light of the fact that it played absolutely no role in the development of Dr. Dietz’ conclusion that the appellant knew that her conduct was wrong . . . .”

The record reflects that the State used Dr. Dietz’s testimony twice. First, the State used the testimony to cross-examine Dr. Puryear, who had seen appellant for several months while appellant was in the county jail, asking Dr. Puryear whether she knew that appellant watched “Law & Order” and whether she knew that there was an episode with a plot line mirroring appellant’s acts. In so doing, the State repeated those facts that were common to appellant’s acts and the referenced episode, thus emphasizing those facts already stated by Dr. Dietz. Second, the State connected the dots in its final argument by juxtaposing appellant’s depression, her dark thoughts, watching “Law & Order,” and seeing “a way out.” Thus, the State used Dr. Dietz’s false testimony to suggest to the jury that appellant patterned her actions after that “Law & Order” episode. We emphasize that the State’s use of Dr. Dietz’s false testimony was not prosecutorial misconduct. Rather, it served to give weight to that testimony.

The State argues that Dr. Dietz’s testimony regarding the “Law & Order” episode was not material. The State asserts that “there is no reasonable likelihood” that the testimony “could have affected the judgment of the jury,” but does not make any argument to support such a conclusory statement. We conclude that the testimony, combined with the State’s cross-examination of Dr. Puryear and closing argument, was material. The materiality of the testimony is further evidenced by the fact that appellant’s attorney felt compelled to address it in his own closing argument.

The State also asserts that Dr. Dietz did not suggest that appellant used the plot of the show to plan killing her children. Although it is true that Dr. Dietz did not make such a suggestion, the State did in its closing argument.

Five mental health experts testified that appellant did not know right from wrong or that she thought what she did was right. Dr. Dietz was the only mental health expert who testified that appellant knew right from wrong. Therefore, his testimony was critical to establish the State’s case. Although the record does not show that Dr. Dietz intentionally lied in his testimony, his false testimony undoubtedly gave greater weight to his opinion.

On the other hand, had the jury known prior to their deliberations in the guilt-innocence phase of the trial, that Dr. Dietz’s testimony regarding the “Law & Order” episodewas false, the jury would likely have considered him, the State’s only mental health expert,to be less credible.

We conclude that there is a reasonable likelihood that Dr. Dietz’s false testimony could have affected the judgment of the jury. We further conclude that Dr. Dietz’s false testimony affected the substantial rights of appellant. Therefore, the trial court abused its discretion in denying appellant’s motion for mistrial.

Accordingly, we sustain appellant’s second issue.

CONCLUSION

Having sustained appellant’s second issue, we need not reach her other issues. We reverse the trial court’s judgment and remand the cause for further proceedings.

Sam Nuchia

Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

Publish. Tex. R. App. P. 47.2(b).