Ex Parte Briggs

Decision Date16 December 2005
Docket NumberNo. AP-75199.,AP-75199.
Citation187 S.W.3d 458
PartiesEx parte Brandy Del BRIGGS, Applicant.
CourtTexas Court of Criminal Appeals

Charles H. Portz, Houston, for Appellant.

Charles A. Rosenthal, Jr., Houston, for the State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.

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. Washington2 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, Leestma and Dibdin, are not medically indisputable, and thus applicant's evidence submitted on the writ does not "unquestionably" establish her innocence under Elizondo.13 Thus, we deny applicant relief on...

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    ...due to the lack of payment is not a strategic choice, it is an economic one, and can constitute deficient performance. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) (where the attorney failed to investigate medical evidence). This standard has never been interpreted to mean that th......
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