              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-86,373-01


                        EX PARTE PHILLIP MERLE PITTS, Applicant


             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. W11-12902-L (A) IN THE CRIMINAL DISTRICT COURT NO. 5
                           FROM DALLAS COUNTY


     Per curiam. YEARY , J., filed a dissenting opinion, in which KELLER , P.J., and
KEASLER and HERVEY , JJ., joined.

                                            OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to

injury to a child, and was sentenced by the trial court to twenty years’ imprisonment. The Fifth

Court of Appeals affirmed his conviction. Pitts v. State, No. 05-13-01053-CR (Tex. App. — Dallas,

May 19, 2015) (not designated for publication).

        Applicant contends, among other things, that his trial counsel at the original plea rendered

ineffective assistance because trial counsel failed to investigate, failed to examine the child’s medical
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records and Applicant’s own medical records to determine whether the facts were consistent with

Applicant’s claim that he had a seizure and likely fell on the infant but had no memory of the event.

Applicant alleges that trial counsel did not seek funds for or consult with a medical expert, but relied

only on his personal experience with his own son’s epilepsy. Applicant also alleges that trial counsel

failed to challenge the voluntariness of Applicant’s statements to police, which Applicant alleges

were induced by threats to take away Applicant’s own children.

          The trial court has determined that trial counsel's performance was deficient in that counsel

analyzed Applicant’s case based on the defense he presented for his own son, without having the

required knowledge as to whether Applicant’s epilepsy was similar to his son’s. In addition, the trial

court finds that there is no evidence that trial counsel ever spoke with Applicant’s treating physician,

looked for forensic evidence of a defense, filed a motion for an expert to review Applicant’s medical

records or the child’s medical records, explored any defenses based on Applicant’s mental

deficiencies, had Applicant examined to determine whether those deficiencies affected Applicant’s

ability to understand the nature and consequences of his plea, or made any effort to challenge the

voluntariness of Applicant’s statements to police. The trial court finds that trial counsel’s

preparation and investigation in this case was deficient, and that such deficient performance

prejudiced Applicant. Relief is granted. The judgment in Cause No. W11-12902-L (A) in the

Criminal District Court No. 5 District Court of Dallas County is set aside, and Applicant is remanded

to the custody of the Sheriff of Dallas County to answer the charges as set out in the indictment. The

trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court

issues.

          Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
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Institutions Division and Pardons and Paroles Division.



Delivered:     June 20, 2018
Do not publish
