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Click here for the full text of this decision FACTS: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 2 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 17 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. HOLDING:Granted. The court finds that the expert opinions given by several doctors could have been discovered at the time of applicant’s plea with due diligence on the part of the applicant. The court agrees with the trial court that: 1. the medical evidence of Daniel’s cause of death was always available, and 2. the expert opinions presented are not medically indisputable, and thus applicant’s evidence submitted on the writ does not “unquestionably” establish her innocence under Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1997). The court denies applicant relief on her “actual innocence” claim. 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. “[A]pplicant’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. 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.’ 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. “[U]nder 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 [v. Oklahoma, 470 U.S. 68 (1985)], 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. This was not a”strategic’ decision made after a full investigation of the facts and law.” The court also concludes that this deficient performance prejudiced applicant. 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. 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, the court concludes that there is a probability sufficient to undermine confidence in the outcome that Daniel’s death was the result of a criminal act. OPINION:Cochran, J., delivered the opinion of the court in which Meyers, Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Keller, PJ, filed a dissenting opinion. DISSENT:Keller, PJ. “The trial court chose to believe trial counsel. Based on the documents filed in the habeas action, the official records of the challenged conviction, testimony from the evidentiary hearing held on the application, and the trial court’s own recollection, the trial court specifically found that applicant was not credible and that her trial counsel and the prosecutor were credible individuals. The trial court found that defense counsel did not tell applicant that she would go to prison if she did not pay for an expert. The trial court found that neither trial counsel nor the prosecutor promised applicant that the judge would give her any form of probation. The trial court further found that trial counsel was aware of the victim’s pre-existing medical condition and had perused the medical records pertaining to that condition. The trial court found that applicant’s guilty plea was entered ‘freely and voluntarily, with a full understanding of the consequences of doing so.’ And the trial court found that”there is no evidence that applicant was indigent at any time before she pled guilty.’ . . . “Based on the trial court’s findings � including those about applicant’s credibility, the voluntariness of the plea, and the absence of evidence of indigence � I would deny relief.”

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