









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,199


EX PARTE BRANDY DEL BRIGGS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 815234-A FROM THE 232ND  DISTRICT COURT

HARRIS COUNTY



 Cochran, J., delivered the opinion of the Court in which Meyers, Price,
Womack, Johnson, Keasler, Hervey, and Holcomb, JJ., joined.  Keller, P.J.,
filed a dissenting opinion. 

O P I N I O N


 We withdraw the original opinion delivered on December 14, 2005, and substitute this
corrected opinion.
	Applicant's baby boy, Daniel Lemons, was very sick from the time he was born. 
Applicant repeatedly took him to doctors, but they did not diagnose the underlying cause of
his ailments.  He died at the age of two months at Texas Children's Hospital after having
been admitted several days earlier with a diagnosis of hypoxia (lack of oxygen to the brain),
which was aggravated by emergency-room personnel who mistakenly inserted an
endotracheal (oxygen) tube into his stomach instead of his lungs.  The original 1999 autopsy
report stated that Daniel's death was the result of homicide, but in 2003, the Harris County
Chief Medical Examiner amended that report and concluded that Daniel's death was the
result of "undetermined" causes.
	Meanwhile, applicant had pled guilty to injury to a child for causing Daniel's death
and been sentenced to seventeen years in prison.  In 2004, she filed a petition for a writ of
habeas corpus claiming that:  (1) she was actually innocent of the offense;  (2) her attorney
provided ineffective assistance of counsel; and (3) the prosecution failed to adequately
investigate this case. (1)  We grant relief, finding that applicant's attorney failed to adequately
investigate this case under the standards set out in Strickland v. Washington (2) and  Wiggins
v. Smith. (3)
I.

	Daniel Lemons was born to seventeen-year-old Brandy Del Briggs and her  husband,
David Lemons, on March 3, 1999.  According to Dr. Luis Sanchez, the Harris County Chief
Medical Examiner, who testified at the 2004 writ hearing, Daniel "was pretty sick from the
beginning of his life."   He was born with a congenital defect.  When he was one week old,
he developed a serious urinary infection because his "defective" left ureter caused his urine
to back up into the kidney.  Daniel became "septic."  
	On March 10, 1999, applicant took him to the hospital where he was diagnosed with
a "raging urinary infection."  No x-rays were taken and no kidney studies were conducted
during what turned into a ten-day hospitalization. (4)  Daniel was then involved in an
automobile accident and may have been injured because his car seat faced forward instead
of backward. (5)  By then, Daniel also suffered from breathing problems, especially when
applicant changed his diaper, hugged or held him-all times in which Daniel's abdominal
organs were brought toward his chest or compressed.  Applicant took Daniel back to the
hospital again because he was suffering from shortness of breath and constant choking, (6) but
he was sent home after having been diagnosed with "nasal congestion."  Because the signs
were "subtle and sometimes not very clear," the underlying cause of Daniel's fussiness and
his birth defect were undiagnosed.  Applicant took Daniel to doctors and hospitals five
different times before he was two months old.
	According to  the medical records, applicant called 911 around noon on May 2, 1999,
after she checked on Daniel during his nap and found that he was blue and limp, though he
still had a pulse.  She began mouth-to-mouth resuscitation.  When EMS personnel arrived,
they intubated Daniel and transported him to LBJ Hospital.  The admitting diagnosis there
was hypoxia (lack of oxygen to the brain) of unknown origin.  Upon admission, emergency
room personnel reintubated Daniel.  In doing so, they accidentally placed the tube into his
esophagus instead of his trachea, and they did not discover their error until x-rays were taken 
approximately thirty minutes later.  By that time, Daniel was cyanotic because his brain had
received "insufficient" or no oxygen during that thirty-minute period.  According to Dr.
Sanchez, "[t]hat made the entire brain to become dead."  Daniel was later transferred to Ben
Taub Hospital and then to Texas Children's Hospital where he died seven days later, on May
9, 1999. (7)
	According to Dr. Sanchez's testimony at the writ hearing, Daniel had suffered no
blunt trauma, and he had no signs of child abuse or of shaken baby syndrome.  The original
pathologist report stated that Daniel had bruising on his left cheek and eyelid, (8) but Dr.
Sanchez explained that this was likely caused by surgical tape attached to his nasal tubes and
was apparent in the pictures taken of Daniel while he was in the hospital.
	Dr. Matthias I. Okoye, the Director of the Nebraska Forensic Medical Services, and
Dr. Jan E. Leestma, a partner in the Chicago Institute of Neurosurgery and Neuroresearch
Medical Group, submitted affidavits in the writ case.  They not only concurred with Dr.
Sanchez's opinion that there is no medical evidence of Daniel having suffered from child
abuse, but they each formed the opinion that Daniel 
	died of multiorgan/system failure resulting from sepsis which was complicated
by disseminated intravascular coagulation, multiple bleeding diathesis and
bilateral acute bronchopneumonia and hypoxic encephalopathy with associated
multiple brain infarcts.

In plain English, they think that Daniel died from an undiagnosed birth defect which led to 
a raging urinary infection, then to sepsis and severe pneumonia, made worse by the faulty
intubation which led to brain death.  
	Dr. James D. Dibdin, a practicing forensic pathologist for over twenty years, also
submitted an affidavit in which she 
	concluded to a high degree of medical certainty that Daniel Lemons died of
natural causes, and that the cause of his death was complications of septicemia
which probably had its origins in a chronic urinary tract infection.  These
complications included septic shock and disseminated intravascular
coagulation which produced conditions which simulated and were mistaken
for physical injuries.

	After Daniel's death, the case was referred to the Harris County Sheriff's Office for
criminal investigation.  Based upon the original autopsy report which had concluded that
Daniel's death was the result of "homicide," (9) and an extensive law enforcement
investigation, including applicant's own grand jury testimony and a failed polygraph
examination, applicant was charged with first-degree injury to a child on June 9, 1999.
	She retained counsel and paid him $10,400 of his $15,000 fee.  On May 18, 2000, he
wrote applicant a letter stating that he "will probably present the Court a Motion to Withdraw
when we appear on May 24, 2000," because applicant had not paid the remainder of his fee. 
He also stated that he could not hire experts unless he was paid additional money for their
expenses and for coming to court.  He estimated this additional fee for experts as being
between $2,500 and $7,500.  Applicant's attorney did not withdraw and the case was set for
trial, but, on October 2, 2000, applicant pled guilty without a recommendation from the State. 
The case was reset for preparation of a Presentence Investigation Report. (10)  After a
sentencing hearing on December 8, 2000, the trial judge sentenced applicant to seventeen
years' imprisonment.  Applicant filed a motion for new trial on January 8, 2001, which was
overruled by operation of law, and her conviction was affirmed on appeal. (11)
II.

	Applicant's first habeas claim is that she is actually innocent of the crime charged
because no crime ever occurred.  Daniel died of natural causes.  Although there is
considerable evidence that supports applicant's position, there is nonetheless evidence in the
record that would support a finding that Daniel did not die of natural causes and that
applicant caused his death.  We cannot ignore applicant's guilty plea in 2000 or her self-inculpatory, "consciousness of guilt" testimony at the sentencing hearing, although
reasonable factfinders might reach different conclusions concerning that testimony. (12)  The trial court found her writ assertions of innocence "not credible" and therefore we will not
consider applicant's factual statements supporting her innocence.
	In her findings, the trial judge repeatedly relied upon the fact that Daniel's prior
medical records were available to applicant before she pled guilty:
	The opinions of the experts hired by applicant are based on physical evidence
and records that existed at the time of applicant's guilty plea.

	Applicant was aware of the complainant's medical history and its significance
before she pled guilty, as evidenced by her grand jury testimony about the
complainant's several visits to doctor and hospital during his brief life.

	[Applicant's trial attorney] was aware of the complaining witness's pre-existing medical condition and perused the medical records pertaining to that
condition.

	Applicant and her attorney intended to make the complainant's pre-existing
medical condition a central point of her defense but could not effectively do
so without the assistance of an expert witness.

Indeed, the trial court is correct:  Daniel's extensive medical records documenting his  history
of a birth defect, urinary tract infection, sepsis, and bronchopneumonia were available at the
time this case was set for trial.  These records are not, therefore, "newly discovered" or
"newly available" evidence.  They were always available had someone investigated their
import.   
	We agree with the trial court that:  (1) the medical evidence of Daniel's cause of death
was always available; and (2) the expert opinions of Dr. Sanchez, the current Chief of the
Harris County Medical Examiner's Office, and those of Drs. Okoye, Leetsma and Dibdin,
are not medically indisputable, and thus applicant's evidence submitted on the writ does  not
"unquestionably" establish her innocence under Elizando. (13)  Thus, we deny applicant relief
on her "actual innocence" claim.
III.

	Applicant also claims that her attorney provided ineffective assistance of counsel.  In
her writ application, she contends that her trial attorney "did not investigate any medical
reports on my son.  He told me to plead guilty for probation.  It was only after hiring [another
attorney for the writ application] that the medical records were checked and showed that I
did not hurt my baby."  
	Applicant's trial attorney submitted an affidavit in which he denied coercing her into
pleading guilty because she could not pay him for experts.  He stated, inter alia,
	During the representation of Ms. Briggs, I secured all of the medical records
for Daniel Lemons and presented them to Brandy and her family to review. 
They returned the records back to me and I placed the records in two 3-ring
binders according to the person who examined Daniel, their findings, and what
I thought the relevant statements were.  I did that for every doctor that was
mentioned in the records.  I highlighted the areas that I felt would be a problem
for our case and Brandy and her mother came to my office and we reviewed
these records in detail specifically going over the parts that I highlighted. (14)  I
told Brandy that I had ordered documentation on a similar disease that she had
brought to my attention as a result of what other people had told her.  On the
basis of the information I received, I advised Brandy that they needed to pay
me to hire a medical expert to review the records and compare it to the
findings set out in the brochures I had received.  I was never paid anything for
any medical expert, nor was I paid for the medical records that I had already
secured.
		This case was set for trial.  At the time of trial, I reminded Brandy that
we had no medical expert testimony to offset some of the problems that I had
brought to her attention approximately 4-6 months earlier.  The entire time,
they told me that "they were working on getting some money" for an expert. 
I told them it could range from $2500-$7500, which I felt was reasonable to
pay a medical expert to review the records and advise us of his position. (15) 
There was never any discussion that she had to pay me any specific amount of
money for a specific medical expert OR that "she would go to prison" for that
reason alone.

	Under the legal standards for ineffective assistance of counsel claims established by 
Strickland v. Washington (16) and Wiggins v. Smith, (17) a habeas applicant must show "that
counsel's performance was deficient, and that the deficiency prejudiced the defense." (18)  To
establish deficient performance, applicant must show that her trial counsel's representation
"'fell below an objective standard of reasonableness'" under "'prevailing professional
norms.'" (19)   As the Supreme Court has stated:
	"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.  In
other words, counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.  In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgments." (20) 

	Here, applicant's claim stems from counsel's decision not to fully investigate Daniel's
medical records or consult with experts until he had been paid an additional $2500-$7500 in
expert fees.  This was not a "strategic" decision, it was an economic one.  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. (21)  But counsel has an absolute duty "to conduct a prompt
investigation of the circumstances of the case and to explore all avenues likely to lead to facts
relevant to the merits of the case." (22)  The decision was made because he had not been paid
for experts.  Counsel is most assuredly not required to pay expert witness fees or the costs
of investigation out of his own pocket, but a reasonably competent attorney- regardless of
whether he is retained or appointed- must seek to advance his client's best defense in a
reasonably competent manner. (23)
	In this case, the clear and obvious defense strategy, which applicant's trial attorney
recognized, was to focus on Daniel's medical history and his cause of death. (24)  The sole issue
in this case was:  How did Daniel die?  Was his death a homicide or was it the result of
natural causes, exacerbated by improper medical treatment?  The fact that Daniel had been
oxygen-starved for thirty minutes at LBJ Hospital because the intubation tube was pouring
oxygen into his stomach rather than his lungs should have raised immediate cause for
concern, even to a layman attorney.  
	In his letter of May 18, 2000, counsel told applicant that "I have written letters and
have verbally requested the balance of my fee, which is over $5,000, as well as money to hire
experts.  I have been told that there is no money available for either."  After noting that his
$15,000 fee was "well below the normal minimal fee for murder," counsel stated that he had
not charged more "because I knew finances were a problem."  But he could not hire experts
"unless the money is available to pay for their research and expenses for coming to court to
testify."  Thus, he did "not feel justified in continuing in this matter through trial for what I
have been paid." 
	When it became clear that applicant could not "come up with" the remainder of the
fee or additional money for medical experts, a reasonably competent attorney would have
several options:

Subpoena all of the doctors who had treated Daniel during the two months of his life
to testify at trial.  Introduce the medical records through the treating doctors and elicit
their expert opinions; 
 If counsel was convinced that applicant could not pay for experts to assist him in
preparation for trial or to provide expert testimony, withdraw from the case,
explaining to the court that applicant was now indigent, prove that indigency (as was
done in the writ proceeding), and request appointment of new counsel; (25)
 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 pursuant to Ake v.
Oklahoma. (26)

More than a decade ago, this Court held that Ake applies to the appointment of a defense
expert pathologist to investigate a complainant's cause of death when that is a crucial issue
in a particular case. (27)  Given both the State's and applicant's interest in maintaining "the
accuracy of the proceeding," (28) the trial court undoubtedly would have permitted state-funded
appointment of expert assistance under Ake had applicant's attorney put on proof of his
client's present indigency. (29)  Failing that, applicant could have appealed on the basis of the
trial court's failure to appoint expert assistance under Ake. (30)
	If any reasonable attorney appointed to represent an indigent defendant would be
expected to investigate and request expert assistance to determine a deceased infant's cause
of death, a privately retained attorney should be held to no lower standard.  As the Supreme
Court has explained, "The vital guarantee of the Sixth Amendment would stand for little if
the often uninformed decision to retain a particular lawyer could reduce or forfeit the
defendant's entitlement to constitutional protection. . . . [W]e see no basis for drawing a
distinction between retained and appointed counsel that would deny equal justice to
defendants who must choose their own lawyers." (31) 
	We conclude that, under these particular circumstances, the failure by applicant's
attorney to take any steps to subpoena the treating doctors, withdraw from the case because
applicant's indigency prevented him from providing constitutionally effective assistance of
counsel, or request state-funded expert assistance under Ake, constituted deficient 
performance.  Applicant's trial counsel's financial decision to do nothing about the obvious
need to develop evidence concerning Daniel's medical history did not reflect reasonable
professional judgment. (32)  This was not a "strategic" decision made after a full investigation
of the facts and law. (33)
	We also conclude that this deficient performance prejudiced applicant.  In the plea
context, a 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"-an assessment that
"will depend in large part upon a prediction whether the evidence likely would have changed
the outcome of a trial."  (34)   Applicant was entitled to rely upon her counsel "to make an
independent examination of the facts, circumstances, pleadings and laws involved and then
to offer his informed opinion as to what plea should be entered" (35)
 based upon an informed
investigation of the facts surrounding Daniel's demise.  We find that had applicant's attorney
investigated and informed applicant of the significance of Daniel's full medical history- his
birth defect, repeated hospitalizations, history of sepsis, evidence of the "bungled" intubation
which led to his brain death, and expert testimony explaining his healing fractured rib and
bruises on his face- there is a reasonable probability that she would not have pled guilty.  
Undertaking an objective prediction, "without regard for the 'idiosyncrasies of the particular
decisionmaker[,]'" (36) we conclude that it is  highly likely that a jury would have returned with
a "not guilty" verdict based upon a reasonable doubt concerning the cause of Daniel's
death. (37)  Although applicant has not proven that she is "unquestionably" innocent,
examination of Daniel's full medical records by themselves, raise considerable doubt as to
the reliability of the original medical examiner's conclusion that Daniel's death was the result
of homicide. (38)  When those records are coupled with the testimony of the current Harris
County Chief Medical Examiner and the other expert opinions offered during the writ
proceeding, we conclude that there is a "probability sufficient to undermine confidence in
the outcome" that Daniel's death was the result of a criminal act. (39)
	We therefore grant applicant relief.  The judgment in cause number 815234 from the
232nd District Court of Harris County, Texas, is vacated.  Applicant is remanded to the
custody of the Sheriff of Harris County to answer to the indictment.
	A copy of this opinion shall be sent to the Texas Department of Criminal Justice,
Correctional Institutions Division.

Delivered: December 16, 2005
Publish	
1.  We need not address this third claim which deals with the State's failure to fully
investigate Daniel's medical records as that issue is addressed under applicant's ineffective
assistance of counsel claim.
2.  466 U.S. 668 (1984).
3.  539 U.S. 510 (2003).
4.  The medical records from Daniels's ten-day stay at the Texas Children's Hospital, from
March 10-19, 1999, are included in the writ record. 
5.  The autopsy report indicated that Daniel had a healing anterior rib fracture.   According
to Dr. Sanchez and other medical experts who submitted reports and affidavits for the writ
hearing, posterior rib fractures are common signs of child abuse and result from a person's
squeezing a child's chest.  
6.  The Texas Children's Hospital medical records of April 7, 1999, are included in the writ
record.  
7.  The admitting diagnosis at Texas Children's Hospital on May 2, 1999, noted that Daniel
had been given an excessive amount of IV fluids at Ben Taub, and that he was in septic shock
with acute respiratory failure, followed by multiple organ failure.  According to one consulting
doctor at Texas Children's, Daniel had suffered a lack of oxygen to the brain because of the
faulty intubation that had caused anoxic ischemic injury to the brain.  Daniel's prognosis was
"extremely poor" due to an increase in intracranial pressure.  
8.  A Texas Children's Hospital report by Dr. David Coats on May 3, 1999, noted that
Daniel had "severe, intraretinal hemorrhages.  This is also bruising about the nose. . . . In this
setting, non accidental trauma (i.e. shaking injury) should be strongly considered."   
	The LBJ Hospital records do not indicate that Daniel had retinal hemorrhaging when he
arrived there.  It was only after the faulty intubation and transfer to Texas Children's Hospital
that the intraretinal hemorrhaging appeared.  And it was only after Daniel's transfer to Texas
Children's that the medical records reflected bruising around his nose.
	According to one of the medical articles included in the writ record, Patterns of
Presentation of the Shaken Baby Syndrome- Subdural and Retinal Hemorrhages Are Not
Necessarily Signs of Abuse, LeFanu J., Edwards-Brown, R., BMJ 2004:328:767-769, these
physical signs, though frequently accompanying a "shaken baby," may result from entirely
unrelated causes as well, such as sepsis and disseminated intravascular coagulation.  According
to another treatise referenced in the writ record,
	Not all causes of retinal hemorrhage are due to trauma.  Retinal hemorrhage may
be found in cases of subacute bacterial endocarditis . . . [and] disseminated
intravascular coagulopathy . . .
Spitz, Werner, Russell, Medicolegal Investigation of Death 710 (3d ed. 1993).
	Although Dr. Coats focused upon Daniel's "severe brain injury" as an indication of
possible child abuse, he did not mention the faulty intubation at LBJ which had led to Daniel's
brain death. 
9.  The pathologist who performed the original autopsy on Daniel submitted an affidavit in
the writ case reaffirming her initial opinion that Daniel's death was a homicide, but she also
stated that "I feel that another opinion from an outside source would be of utmost importance. . . .
[S]omeone with more experience (performed several autopsies on pediatric cases for years) and
more expertise (in neuropathology and/or pediatric pathology or pediatrics) than I could help
resolve the issues involved in this case."  
	The pathologist acknowledged that Daniel's medical history and the medical records
setting out his prior hospitalizations show that he had a urinary tract infection, prior history of
breathing problems and nasal congestion, and a documentation of the prior faulty intubation
which contributed to "some of the findings of hypoxic/ischemic enephalopathy of the brain, but
the child was noted to be cyanotic, with unreactive pupils, with labored breathing (respiratory
distress) and absent breath sounds when the paramedics arrived at the scene at 13:22 on
05/02/99."  The EMS records also show that after the paramedics intubated Daniel and began
"bagging" him, his breathing and color improved during the drive to LBJ.
	The original pathologist is no longer with the Medical Examiner's Office.  Applicant
introduced numerous official Harris County Medical Examiner's Office "conduct counseling"
reports in the writ hearing concerning the purported deficient performance in various cases by the
original pathologist.  We express no opinion on the relevance or admissibility of such materials.
10.   The PSI indicated that applicant was an eighth-grade drop-out who worked at the
Crosby Olde Time Café and earned $1,500.00 a month plus tips.  She had monthly expenses of
$1,062.00, a personal loan of $3,000.00, and a credit card balance of $600.00.  She reported that
she still owed her trial attorney $10,000.00.   
	According to an affidavit filed by applicant's mother in the writ case, she paid all of her
savings to applicant's trial attorney; as a result she lost a small restaurant and her car was
repossessed.  Applicant's husband filed an affidavit stating that he drives a truck to pick up scrap
tires, has no money in the bank or assets to sell.  He lives in an apartment.  Applicant's father
filed an affidavit stating that he lives from paycheck to paycheck and makes mortgage payments
on his home and car payments.  He has no assets available to sell. 
11.  Briggs v. State, No. 01-01-00248-CR, 2002 Tex. App. LEXIS 1562 (Tex. App. -
Houston [1st Dist.] 2002, no pet.) (not designated for publication).  The only issue raised on direct
appeal was the trial court's failure to conduct a hearing on applicant's motion for new trial.  
12.  It would not necessarily be surprising that a seventeen-year-old eighth-grade drop-out
mother would feel responsible for her infant son's death, especially if she was unaware of her
child's birth defect (which was not diagnosed until 2003 by the Harris County Chief Medical
Examiner) or of the faulty intubation at LBJ Hospital.  There is no indication in the medical
records that Daniel's parents were ever told of their son's mis-intubation.
	The State also relies heavily upon applicant's testimony during the sentencing hearing to
show that she had, in fact, "shaken" Daniel on May 2, 1999.  A couple of days before that
hearing, applicant's trial attorney called applicant and secretly tape-recorded his conversation
with her.  He expressed surprise and annoyance that the pre-sentence investigation report stated
that applicant's CPS caseworker told the probation officer that applicant had "consistently denied
that [she] did anything wrong and the only reason [she] pled guilty was because her lawyer
forced [her] to do it."  He also said, "The only other thing in there that's a real problem is
throughout the whole . . . PSI, you said you never did anything wrong to your child to cause any
kind of injury[.]"  He told applicant that "unless you are willing to sign a statement saying that's
not true, the Judge is not going to have any way of knowing, she's going to believe what's in that
statement and I just don't want to be, want to be caught in that position."  
	During the sentencing hearing, her attorney asked her:

Now, you pled guilty to injury to a child.  What did you do, Ms. Briggs, that caused the
injury that lead to Daniel's death?

A: 	That morning I woke up to wake him up to feed him, when I got him out of his bed he
was limp and his face was real blue.  I brought him into the living room, sat him on the
couch, he wasn't breathing.  I panicked and I shook him hoping that he would breathe and
I called my mother and then I called 911.
	. . .
Q: 	Did you shake your baby, Brandy?
A: 	Yes.
	. . .
Q: 	Do you understand that you don't shake little babies?
A: 	Yes, sir.
On cross-examination, the prosecutor followed up on this:
Q: 	Mrs. Briggs, how hard did you shake Daniel?  If you can, you can pick up that box of
tissues for the judge and show the judge with that box of tissues how hard you shook
Daniel that morning.
A: 	Probably like that.
Q: 	How long did you shake him for?
A: 	I didn't think for very long.
Q: 	Why don't you demonstrate for the judge how long you shook him with that box of
tissues.
A: 	Probably like that.
Q: 	For one or two seconds, that's all?
A: 	I don't- I don't remember.
Q: 	You don't remember.  When you were-when you were shaking him, did he hit his head
up against something, a wall, a table, or anything?
A: 	No, not that I remember.
Q: 	You don't remember, but you possibly could have hit his head up against something?
A: 	There was nothing around to hit his head.
Q: 	What were his head and neck doing when you were shaking?
A: 	It probably went back.
Q: 	Went back.  Where were your hands when you were shaking?
A: 	Just on his side.
Q: 	On his ribs?  On both sides of him?
A: 	Just like, right in here.
Q: 	So you had him up-you had him up like this and were shaking.  And what was his head
and neck doing?
A: 	It went back.
Q: 	Back and forth?
A: 	It didn't go, but maybe one time and then I stopped.
Q: 	Had you ever shaken him like that before?
A: 	No, sir.
	. . .
Q: 	So you're telling the Judge you knew that there was a danger because you had heard it
that if you shake a baby, you could cause injuries and damage to him, am I correct?
A: 	Yes, sir.
Q: 	And you still did it, am I correct?
A: 	Yes, sir.
	. . .
Q: 	And you don't remember if his head hit something?
A: 	Yes, sir.
	. . .

And you can agree with me that you didn't do a very good job with Daniel, am I correct?

A: 	Yes, sir.
13.  Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1997) (defendant bears
burden of showing that newly discovered evidence unquestionably establishes his innocence).
14.  The trial attorney's affidavit does not mention the LBJ emergency room record that
documents the thirty-minute faulty intubation and Daniel's seizures as a result of oxygen-starvation.
15.  One of applicant's medical experts in the writ case filed an amicus brief in this case. 
Attached to that brief is a copy of her original report with a handwritten notation that she
submitted a bill of $350.00 for her review of Daniel's medical records.  We will not, however,
consider factual materials submitted in briefs for the truth of the matter asserted because this
material was not submitted to the trial court. See Ex parte Simpson, 136 S.W.3d 660, 668 (Tex.
Crim. App. 2004).
16.  466 U.S. 668 (1984).
17.  539 U.S. 510 (2003).
18.  Id. at 521.
19.  Id. (quoting Strickland, 466 U.S. at 688).
20.  Id. at 521-22 (quoting Strickland, 466 U.S. at 690-91).
21.  See id. at 534 (trial counsel constitutionally ineffective when "incomplete investigation
was the result of inattention, not reasoned strategic judgment"). 
22.  ABA Standards for Criminal Justice: The Defense Function, Standard 4-4.1 (2d ed.
1986).  As the commentary to this Standard states, 
	The resources of scientific laboratories may be required to evaluate certain kinds
of evidence:  analyses of fingerprints or handwriting, clothing, hair, or blood
samples, or ballistics tests may be necessary.  Neglect of any of these steps may
preclude the presentation of an effective defense.
Id. at 4-54.  If investigation of medical records to determine a child's cause of death is essential
to the presentation of an effective defense, counsel cannot decline to conduct such an
investigation based on his client's lack of financial resources, but still remain as trial counsel
because
	[e]ffective investigation by the lawyer has an important bearing on competent
representation at trial, for without adequate investigation the lawyer is not in a
position to make the best use of such mechanisms as cross-examination or
impeachment of adverse witnesses at trial or to conduct plea discussions
effectively.
Id. at 4-55.
23. Brown v. Sternes, 304 F.3d 677, 693-98 (7th Cir. 2002) (noting that "[a]ttorneys have an
obligation to explore all readily available sources of evidence that might benefit their client[,]"
and concluding that counsel who had access to defendant's medical records "had a professional
obligation to do an in-depth investigation into their client's deep-seated psychiatric problems";
failure to do so was ineffective assistance of counsel); see also Bouchillon v. Collins, 907 F.2d
589, 595-97 (5th Cir. 1990) (trial attorney who failed to do any investigation into client's medical
and mental history after he had been informed of prior hospitalizations and who may have
persuaded client to plead guilty and accept plea offer was constitutionally ineffective for failing
to make adequate investigation when it did not appear that defendant had any other available
defense).
24.  See Brown, 304 F.3d at 692 (stating that because "the record establishes that counsel
had reason to know, from an objective standpoint, that a possible defense, such as insanity, was
available, failure to investigate fully can constitute ineffective assistance of counsel") (emphasis
in original; internal quotations and citations omitted).
25.  Indeed, applicant's trial counsel had drafted such a motion which is contained in the
writ record, but he never signed it, presented it to the trial court, or obtained permission to
withdraw.
26.  470 U.S. 68, 77 (1985) (noting that, while the State need not "purchase for the indigent
defendant all the assistance that his wealthier counterparts might buy," it must provide him "the
basic tools" to present his defense within our adversarial system).
27.  Rey v. State 897 S.W.2d 333, 338 (Tex. Crim. App. 1995) (noting that "pathology, like
psychiatry, is a sub-specialty of the science of medicine. Medicine in any of its sub-specialties
eludes mathematic precision, as evidenced by the need for a 'second opinion' with regard to any
important medical question.  Causation or mechanism of death are examples of important
medical questions addressed by pathologists that require more than an objective or rote
determination").
28.  Id. at 339.
29.  Refer to note 10, supra.
30.  See Rey, 897 S.W.2d at 343 (reversing defendant's capital murder conviction because
he did not have access to an expert to testify on his behalf or "technical assistance . . . to help
evaluate the strength of [that] defense, . . . and to identify the weaknesses in the State's case, if
any, by . . . preparing counsel to cross-examine opposing experts").
31.  Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).
32.  Wiggins, 539 U.S. at 534.
33.  Id.
34.  Hill v. Lockhart, 474 U.S. 52, 59 (1985); Ex parte Battle, 817 S.W.2d 81, 83-84 (Tex.
Crim. App. 1991) (finding counsel ineffective and defendant entitled to withdraw plea under Hill
when counsel failed to investigate client's criminal history and assured him that he was eligible
for probation when he was not); Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987)
(granting habeas relief under Hill and withdrawing applicant's guilty plea; noting that "it is
fundamental that an attorney representing a defendant must acquaint himself not only with the
law but also the facts of the case before he can render reasonably effective assistance of counsel";
here defense counsel relied upon State's assertion that prior DWI convictions could be used for
habitual enhancement purposes and thus attorney failed to conduct independent investigation
which would have shown that prior convictions could not be used to enhance as habitual).
35.  Von Moltke v. Gillies, 332 U.S. 708, 721 (1948); see also McMann v. Richardson, 397
U.S. 759, 769-70 (1970) (defense counsel must make his  judgment as to the weight of the state's
case and share his predictions with the defendant even though the predictions are necessarily
uncertain). 
36.  Hill, 474 U.S. at 59-60.  In Hill, the Court stated that
	where the alleged error of counsel is a failure to investigate . . . the determination
whether the error "prejudiced" the defendant by causing him to plead guilty rather
than go to trial will depend in large part on a prediction whether the evidence
likely would have led counsel to change his recommendation as to the plea.  This
assessment, in turn, will depend . . . in large part on a prediction whether the
evidence likely would have changed the outcome of a trial. . . . [T]hese
predictions of the outcome at a possible trial, where necessary, should be made
objectively, without regard for the "idiosyncracies of the particular
decisionmaker."
Id.
37.  See Wiggins, 539 U.S. at 536 (in assessing prejudice under Strickland in the context of
a failure to investigate claim, "we evaluate the totality of the evidence- 'both that adduced at
trial, and the evidence adduced in the habeas proceeding[s]'"in determining that, had the jury
been confronted with the uninvestigated evidence, "there is a reasonable probability that it would
have returned with a different sentence" or verdict) (emphasis in original; quoting Williams v.
Taylor, 529 U.S. 362, 397-98 (2000)).
38.  In defense of the original pathologist and her report, there is no evidence in the record
that suggests that she had access to these voluminous medical records at the time she performed
her autopsy the day after Daniel's death.
39.  See Strickland, 466 U.S. at 694.
