      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00020-CR



                                 Robert Aaron Franz, Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
             NO. 65578, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Robert Aaron Franz pleaded guilty to the charge of injury to a child and the trial court

assessed sentence at thirty years in prison. Franz asserts on appeal that his trial counsel rendered

ineffective assistance by failing to hire a medical expert to assess causation of the child’s injuries.

He contends that the hiring of the expert would have made him aware of facts that would have

caused him not to plead guilty. We will affirm the judgment.

               Franz undisputedly was alone with his twin eight-month-old daughters and another

young child for three hours when one of the twins was seriously injured. When the girls’ mother

returned home from running errands, the child was limp and not breathing. Franz told the girls’

mother that the child had been in the crib the whole time and that he did not know what had

happened. The child suffered brain bleeding and swelling that caused mental and physical deficits

that will likely persist for the rest of her life. The examining doctor concluded that the injury was
caused by a traumatic event. Eventually, Franz told police in a signed statement that the child

wiggled out of his grasp and fell, landing on his steel-toe boot head-first. He said he then picked her

up and started to run, but tripped over a box. To avoid landing on the child, he said, he threw her

and she rolled into the living room. At the trial court, Franz supplied a signed judicial confession,

in which he stated consistent with the indictment that he


       did then and there intentionally and knowingly cause serious bodily injury to [A.F.],
       a child younger than 15 years of age, by striking the said [A.F.] with the defendant’s
       hands and by kicking the said [A.F.] with defendant’s foot and by causing the head
       of [A.F.] to strike the floor or an object unknown to the grand jury and by causing an
       object unknown to the grand jury to strike and impact the head of the said [A.F.] and
       the defendant did then and there use or exhibit a deadly weapon, to wit: his hands and
       his foot and the floor or an object unknown to the grand jury . . . .


After hearing testimony from the child’s mother, as well as from Franz’s father and aunt, the

trial court assessed the maximum prison term available under the plea bargain.

               Franz then obtained new counsel who filed a motion for new trial, urging that

previous counsel should have hired an expert to investigate the cause of the child’s injury. He

focuses on the following passage from a medical report describing the child’s treatment at the

hospital as the keystone to showing prior counsel’s deficient performance: “Differential includes

shearing forces from back-and-forth head motion, a fall from a 2-story height, motor vehicle accident

with ejection, or blood dyscrasia.” The parties agree that blood dyscrasia in this context means a

tendency to bleed more freely than normal. Franz contends that this passage from the report

means that the child’s injuries might have been more due to a tendency to bleed excessively rather




                                                  2
than any action by Franz and that trial counsel should have hired an expert to explain this passage

in the report.

                  To show deprivation of the right to reasonably effective counsel, a defendant

must show that (1) counsel’s performance was deficient and (2) counsel’s deficient performance

prejudiced the defense, resulting in an unreliable or fundamentally unfair outcome. Strickland

v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim.

App. 1999). To show deficient performance under Strickland, a defendant must show that counsel’s

performance fell below an objective standard of reasonableness. See 466 U.S. at 688. The review

of defense counsel’s representation is highly deferential and presumes that counsel’s actions

fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). To overcome the presumption of reasonable professional assistance, “[a]ny

allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.

App. 1999). In a plea-bargain case, the defendant must show a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005). That assessment that will depend

in large part upon a prediction whether the evidence likely would have changed the outcome

of a trial. Id.

                  In Briggs, the court of criminal appeals granted relief on a petition for habeas corpus,

concluding that the attorney’s failure to obtain an expert witness constituted ineffective assistance

of counsel that affected the result of the prosecution. Briggs pleaded guilty to injuring her child. Id.



                                                     3
at 460. The child had a short, difficult life. He was born with a congenital defect that caused urine

to back up into a kidney and prompt an infection. Id. at 461. He was then involved in an automobile

accident while his car seat incorrectly faced forward. He suffered breathing difficulties any time he

was held in a position that brought his abdominal organs toward his chest—e.g. when his mother

changed his diaper or hugged him. Id. When he was two months old, Briggs found the child blue

and limp, though he had a pulse. She called 911 and performed cardiopulminary respiration until

emergency medical technicians arrived, intubated him, and transported him to a hospital. Emergency

room personnel reintubated him, incorrectly running the tube into his stomach rather than his lungs.

By the time the error was discovered, the child’s brain had died. Id.

               Briggs’s retained attorney reviewed the records, discussed weaknesses in the case

with Briggs, and asserted that he needed $2,500 to $7,500 additional fees to retain the necessary

experts. Id. at 462. After being paid $10,400 of his $15,000 fee, Briggs’s attorney declared that he

would withdraw from representation. Instead, Briggs pleaded guilty. Id. at 463. Experts hired by

habeas counsel provided affidavits declaring that the child’s medical records indicated no child abuse

and multiple other causes of injury and death, including an undiagnosed birth defect. Id. at 462. The

court of criminal appeals concluded that the medical records trial counsel obtained should have

prompted further investigation and wrote, “There is no suggestion that trial counsel declined to

fully investigate Daniel’s medical records because he made a strategic decision that such an

investigation was unnecessary or likely to be fruitless or counterproductive.” Id. at 467.1 Instead,


       1
         The court of criminal appeals set out retained trial counsel’s options when a client needs,
but cannot pay for, experts:


                                                  4
he stopped investigating solely for financial reasons. Id. at 470. The court found counsel’s

performance deficient and further held that, had Briggs obtained the necessary expert review, she

likely would not have pleaded guilty and a jury “highly likely” would have found her not guilty. Id.

at 470. This undermining of confidence in the outcome of the original trial caused the court of

criminal appeals to vacate Briggs’s conviction. Id.

               The record in this case does not similarly persuade us that Franz’s counsel was

ineffective. Where Briggs had evidence discrediting the evidence used to show her guilt (child’s

facial bruising caused not by abuse, but by medical tape and tubing, id. at 462) and showing other

causes of death (birth defect and ER providing oxygen to his stomach, not his lungs, id. at 461),

Franz has seized on the “diagnosis” of blood dyscrasia as a possible alternate explanation that

merited exploration. We find no such definitive diagnosis in the record. Blood dyscrasia is one of

three items listed in a sentence discussing “differential” in an “assessment and plan” section of the

record of the child’s hospital examination, but there is no testimony regarding the meaning of this

list. In context, the list appears to be events that theoretically could cause the conditions observed.




       1. Subpoena the doctors who treated Daniel during his life to testify at trial.
       Introduce the medical records through the treating doctors and elicit their expert
       opinions;

       2. If the applicant could not pay for experts, withdraw from the case, explaining to
       the trial court that applicant was now indigent, prove that indigency, and request
       appointment of new counsel; or

       3. 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.

Ex parte Briggs, 187 S.W.2d 458, 468 (Tex. Crim. App. 2005).

                                                   5
If the listed causes were diagnoses, as Franz argues, the reader would be equally justified in

concluding that the doctor believed the child suffered one of the other listed causes—shearing

forces from back-and-forth head motion, a fall from a 2-story height, or a motor vehicle accident

with ejection—but there is no indication that the child suffered from any of these. Franz also cites

other unexplored conditions such as abnormally high glucose levels, diabetes, premature birth, and

a half-sibling’s previous death from Sudden Infant Death Syndrome but, unlike the applicant in

Briggs, Franz did not produce evidence that these conditions contributed to the child’s injuries. Here

the overriding causation evidence comes from Franz’s statement to police that he dropped the

baby on his steel-toed boot, picked her up and inadvertently threw her, whereupon she rolled

into another room. The speculative effects of other unexplored causes pale in significance against

Franz’s admission. Trial counsel testified that Franz’s decision to plead guilty was based on

counsel’s reading of the medical records, his conversation with Franz’s parents, and his conversation

with Franz.2 Trial counsel testified that his conversations with Franz “enlightened” him as to the




       2
          Franz bases his argument in part on trial counsel’s alleged admissions, some of which
Franz overplays. Franz argues that trial counsel failed to educate himself on medical terms and
findings, but trial counsel’s testimony was that he remembered looking up medical terms and could
not remember whether “blood dyscrasia” was among them. Franz asserts that trial counsel admitted
that he “probably should have applied to the court for funding of an expert witness.” Instead,
counsel testified that “was one avenue I could have taken.” When asked whether, if he had to do his
representation over again, he would hire an expert, trial counsel responded, “Sitting here right now
as I speak, being questioned by you, absolutely, yeah, I would.” In context, that is less an objective
admission of the need for an expert than an expressed wish to avoid having his performance
scrutinized through interrogation at trial. When asked directly whether he thought that the failure
to hire an expert constituted ineffective assistance of counsel, trial counsel plainly responded, “I
don’t believe so, no.”

                                                  6
events that led to the child’s injury and were part of the equation that led to the plea.3 Unlike counsel

in Briggs who admittedly failed to obtain needed experts for purely financial reasons, counsel (and

Franz) here plainly made the strategic decision to plead based on the merits of the case after

discussion with Franz and his parents. Franz faults counsel for failing to depose the State’s medical

expert, but there is no indication that the deposition would have revealed any cracks in the State’s

case. In another case, some of these factors might be sufficient to show deficient performance.

Based on the record presented, Franz has not demonstrated that his trial counsel’s performance fell

below a reasonable standard.

                We are also not persuaded that Franz has demonstrated that trial counsel’s failure to

hire an expert harmed him. Unlike Briggs, where the applicant hired several experts who testified

that she likely did not cause the child’s injuries, here Franz is only speculating that investigation of

the “diagnosis” of blood dyscrasia would have revealed exculpatory evidence that would have led

him not to plead guilty. While we cannot rule out the possibility that such evidence exists, the record

before us does not contain such evidence or persuasive indications that it exists. Franz argues that

excessive bleeding due to blood dyscrasia can cause conditions that resemble the effects of great

intentional force trauma to the head, and bluntly opines that “[t]he excessive damage caused by the

brain was not caused by such a blow, but by a minor one caused accidentally as the Appellant

described.” This assertion of fact is not supported by evidence that the child actually suffered from

blood dyscrasia or that the condition had the described effect in this case. Finally, we note that,


        3
          Although Franz waived attorney-client privilege for the hearing on the motion for new trial,
his right to avoid self-incrimination was invoked to curtail interrogation of trial counsel regarding
their conversations.

                                                   7
although the trial court sentenced Franz to the maximum term available under the plea bargain, the

sentence is far less than the life term authorized by statute. The record does not persuade us that

hiring an expert would have generated information that would have altered either his decision to

plead guilty or his punishment. Franz has not shown a reasonable probability that, but for counsel’s

decision not to hire an expert, he would not have pleaded guilty and the result at trial could likely

have been different.

               We affirm the judgment.




                                              Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: August 22, 2012

Do Not Publish




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