### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00020- CR

Robert Aaron F ranz, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 655 78, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Robert Aar on Fr anz pleade d g uilty to the char g e of injury to a child and the trial court assessed sentenc e at t h i rt y y ear s in prison. Fr anz asser ts on appea l that his trial counsel rende red ineffe ctive assistanc e by

failing to hire a me dical expert to assess c ausation of the child’s injuries. He contends that the hiring of the expert wo u l d h av e m ad e him awa re of fac ts that would have

cause d him not to pl ead guilty . We will affirm the judg ment.

Fr anz undisputedly was alone with his twin eig ht-month-old daug hters and another
y oung child for three hours when one of the twins was seriously inj ured. When the g irls’ mother
returne d home fr o m ru n n i n g err ands, the child was limp and not breathing. Fr anz told the g irls’

m o t h er that the child had been in the crib the whole time and that he did not know what had happene d. The child suffe red brain bleeding and swelling that cause d mental and phy sical defic its that will likely

persist for the rest of he r life. The examining doctor c oncluded that the i njury wascaused b y a traumatic event. Eventually , Fr anz told police in a signe d statement that the child

wig g led out of his g rasp and fell, landing on his steel-toe boot head- first. He said he then picked her up and starte d to run, but tripped over a box

. To avoid l anding on the child, he said, he thre w her and she rolled into the living room. At the trial court, Fr anz supplied a signe d judicial confe ssion, in which he state d consistent with the indictment that he

did then and there intentionally and knowing ly cause serious bodily injury to [A.F.], a child y oung er than 15 y ear s of ag e, by striking the said [A.F.] with the defe ndant’s hands and by kicking the said [A.F.] with defe ndant’s foot and by causing the hea d of [A.F.] to strike the floor or an object unknown to the g rand jury and by causing an object unknown to the g rand jury to strike and impact the head of the said [A.F.] and the defe ndant did then and there use or exhibi t a deadly wea pon, to wit: his hands and his foot and the floor or

an objec t unknown to the g rand jury

. . . .
After hear ing testimony from the child’s mother, as well as from Fr anz’s fathe r and au n t , t h e trial court a ssessed the maximum prison t erm a vailable unde r the plea barg ain.
Fr anz then obtained new counsel who filed a m o t ion for new trial, urg ing that
p re v i o u s co u nsel should have hired an expert to investigate the cause of the child’s injury

. He focuse s on the following passag e from a medical re p o rt descr ibing the child’s trea tment at the hospital as t he key stone to showing prior counsel’s defic ient perf ormanc e: “Diff

ere n t i al includes shear ing forc es from back- and-f orth head motion, a fall from a 2-story heig ht, motor vehicle acc ident with ejec tio n , or blood dy scra sia.” The parties ag ree that blood dy scra sia in this context means a tendenc y to bleed more fre ely than normal. Fr anz contends that this passag e from t h e re p o rt

means that the child’s injuries might have been more due to a tendenc y to ble ed excessively rathe r

2than any action by Fr anz and that trial counse l should have hired a n expert to ex plain this passag e in the repor

t. To show depriva tion of the rig ht to rea sonably eff ective counsel, a d efendant
must show that (1) counsel’s perf ormanc e was defic ient and (2) counsel’s defic ient per fo rm ance prejudice d the defe nse, resulting in an unreliable or fundame ntally unfair outcome. Strickland

v. W ashington , 466 U.S. 668, 687-88 (1984); Hernande z v. State , 988 S.W .2d 770, 770 (Tex. Crim. App. 1999). To show defic ient perf ormanc e under Strickland , a defe ndant must show that counsel’s perf ormanc e fell below an objective standard of rea sonablene ss. See 466 U.S. at 688. The revie w of defe nse counsel’s repr esenta tion is highly defe rential and presumes that counsel’s actions fell wit hin a wide rang e of rea sonable prof essional assistance

. Tong v. State , 25 S.W .3d 707, 712 (Tex. Crim. App. 2000). To overc ome the presumption of rea sonable profe ssional assistance , “[a]ny alleg ation of ineffe ctiveness must be firmly founded in the rec ord, and the rec ord must aff irmatively d em o n s t ra te the alleg ed ineffe ctiveness.” Thompson v. State , 9 S.W .3d 808, 814 (Tex. Crim. App. 1999). I n a plea- barg ain case , the defe ndan t must show a rea sonable probability that, but fo r counsel’s err ors, he would not have pleade d g uilty and would have insisted on g oing to tr i al

. Ex parte Briggs , 187 S.W .3d 458, 469 (Tex. Crim. App. 2005). That assessment that will depend i n larg e part upon a predic tion whether the evidenc e likely would have chang ed the outcome of a tria l. Id.
I n Briggs , the court of criminal appea ls g rante d relief on a petition for habea s corpus, concluding that the attorney ’s failure to obta in a n expert witness constituted ineffe ctive assistanc e of counsel that aff

ecte d the result of the prosec ution. Br igg s pleade d g uilty to injuring her child. Id.

3at 460. The child had a short, difficult life. He was born with a cong enital defe ct that cause d urine

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

acc ident while his car seat incorre ctly fac ed forwa rd. He suffe red breathing difficulties any time he

was held in a position that broug ht his abdominal org ans toward his chest—e .g . when h is mother chang ed his dia

per or hug g ed him. Id. When he was two months old, B rig g s found the child blue and li mp, though he had a puls e. She called 911 and per formed c ardiopulminary respiration until

e me r g e n c y medical technicia ns arr ived, intubated him, and transporte d him to a hospital. E me r g e n c y

room personne l reintubate d him, incorre ctly running the tube into his stomach rathe r than his lungs. By the time the er

ror wa s discovere d, the child’s bra in had died. Id

. Br iggs’ s reta ined attorney revie wed the rec ords, discussed weaknesses in the case with Br igg s, and assert ed t h at he neede d $2,500 to $7,500 additional fee s to reta in the nece ssary experts. Id. at 462. After being paid $10,400 of his $15,000 fee , Br igg s’s attorney decla red that he would withdraw from re prese ntation. I nstead, Br igg s pleade d g uilty

. Id. at 463. Ex perts hired by habea s counsel provided a f f id a v it s d e c la r in g that the child’s medical rec ords indicated no child abuse and multipl e other cause s of injury and death, including an undiag nosed birth defe ct. Id. at 462. The
court of criminal appea ls conclude d that the m ed i ca l rec ords trial counsel obtained should have prompted further investigation and wro t e, “The re is no sug g estion that trial counsel declined to fully investiga

te Daniel’ s med i ca l re cords beca use he made a strateg ic decision that such an investiga tion was unnec essar y or likely to be fruitless or counter

productive.” Id. at 467. I nstead, 1

The court of criminal appea ls set out reta ined trial counsel’s options when a client needs, 1 but cannot pay

for, e x perts:

4he stopped investigating solely for financ ial rea sons. Id. at 470. The court found counsel’s

perf ormanc e deficient and further h el d t h at, had Brig g s obtained the nece ssary expert revie w, s he likely would not have pleade d g uilty and a jury “hig hly likely ” would have found her not g uilty

. Id.
at 470. This undermining of confide nce in the outcome of the orig inal trial cause d the court of criminal appe als to vaca te B rig g s’s conviction. Id.

The rec ord in this case does not simil arly persua de us that Fr anz’s counsel was ineffe ctive. Where Briggs had evidenc e discredit i n g the evidenc e used to show her g uilt (child’s fac ial bruising c aused not by abuse, but by medical tape and tubing , id. at 462) a nd showing other

cause s of death (birth defe ct and E R p ro v i d i ng ox yg en to his stomach, not his lungs, id

. at 461),
Fr anz has seized on the “diag nosis” of blood dy scra sia as a possible alternate explanation that merited exploration. We find no such definitive diag nosis in the rec ord. Blood dy scra sia is one of three items listed in a sentenc e discussing “diffe rential” in an “asse ssment and plan” section of the

rec ord of the child’s hospital examination, but there is no testimony reg arding the meaning of this list. I n context, the list appea rs to be events that theore tically could cause the conditions observe d.

1. Subpoena the docto rs wh o t reated Daniel during his life to testify at trial. I ntroduce the medical rec ords throug h the trea ting doctors and elici t t h ei r expert opinions; 2. I f the applicant could not pa y for experts, withdraw fr om the case , explaining to the trial court that applicant was now indige nt , p ro v e that indige ncy , and reque st appointment of newcounsel; or 3. Remain as counsel with the pay ment of a reduc ed fee, but request investigatory and expert witness fe es fr om the trial court f or a now -indig ent client. Ex parte Briggs , 187 S.W .2d 458, 468 (Tex. Crim. App. 2005). 5I f the listed cause s wer e diag noses, as Fr anz arg ues, the rea der would be equally justified in concluding that the doctor believed the child suffe red one of the other listed cause s

— s h ea ring forc es from back- and-f

orth head motion, a fall from a 2-story heig ht, or a m o t o r v eh i cl e acc ident with ejec tion—but there is no indication that the child suffe red from any of these. Fr anz also cites other unexplored conditions such as abnorma lly high g lucose levels, diabetes, prema ture birth, and

a half-sibling ’s previous death from Sudden I nfant Dea th Sy ndrome but, unlike the appli ca nt in Briggs , Fr anz did not produce evidenc e that these conditions contributed to the child’s injuries. Her e the overr iding causation evidenc e comes from Fr anz’s statement t o police that he dropped the baby on his steel-toed b o o t, picked her up and inadver tently threw her, wher eupon she rolled into a nother room. The specula tive eff ects of other unexplored cause s pale in signific ance ag ainst
Fr anz’s admission. Trial counsel testified t hat Fr anz’s decision to plead g uilty was based on counsel’s rea ding of the medical rec ords, his conver sation with Fr anz’s pare nts, and his conver sation with Fr anz. Trial counsel testi fied that his conver sations with Fr anz “enlig htened” him as to the

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Fr anz bases his ar g ument in part on trial counsel’s alleg ed admissions, some of which 2 Fr anz overpla

y s. Fr anz arg ues that trial counsel failed to educa te himself on medical terms an d finding s, but trial counsel’s testimony was that he reme mbere d looking up medical terms and could not reme mber whether “blood dy scra sia” was among them. Fr anz asser ts that trial counsel admitted that he “proba

bly shoul d h av e ap p l i ed to the court for funding of an expert witness.” I nstead, counsel testified that “wa s one avenue I could have taken.” When asked whether , if he had to do his repr esenta tion over ag ain, he would hire an expert, trial counsel responde d, “Sitting here rig ht now as I speak, being questioned by y ou, absolutely , y eah, I would.” I n context, that is less an objective admission of the need for an expert than an expressed wish to avoid having his perf ormanc e scrutinized throug h interrog ation at trial. When asked directly whether he thought that the fa ilure to hire an expert constituted ineffe ctive as s istance of counsel, trial counsel plainly responde d, “I don’t believe so, no.” 6events that led to the child’s injury and wer e part of the equation that led to the plea. Unlike counsel 3 in Briggs who admittedly failed to obtain neede d experts for purely financ ial rea sons, counsel (and
Fr anz) here plainly made the strateg i c d ec i s i o n to plead based on the merits of the case afte r discussion with Fr anz and his pare nts. Fr anz faults counsel for failing to depose the State’s medical expert, but there is no indication that the de position would have reve aled a ny cra cks in the State’s

case . I n another case , some of t h es e fa ctors might be sufficie nt to show defic ient perf ormanc e. Ba sed on the rec ord prese nted, Fr anz has not demonstrated that his trial counsel’s perf ormanc e fell below a r easona

ble standar d. We are also not persua ded that Fr anz has demonstrated that trial counsel’s failure to hire an expert harme d him. Unlike Briggs , wher e the applicant hired sever al experts who testified that she likely did not cause the child’s injuries, here Fr anz is only specula ting that investigation of the “diag nosis” of blood dy scra sia would have reve aled e x culpatory evidenc e that would have led him not to plead g uilty

. Whil e we cannot rule out the possibili ty that such evidenc e exis ts, the rec ord befor e us does not contain such evidenc e or persua sive indications that it e x ists. Fr anz a rg ues that

ex ce s s ive bleeding due to blood dy scra sia can cause conditions that rese mble the eff ects of gre at intentional forc e trauma to the head, and bluntly opines that “[t] he excessive damag e cause d by the brain was not cause d by such a blow, but by a minor one cause d acc iden t al l y as t h e Appellant descr ibed.” This asser

tion of fac t is not supported by evidenc e that the child actua lly suffe red from blood dy scra sia or that the condition had the descr ibed eff ect in this case . Finally , we note that,

Although Fr anz waived attorney -client privileg e for the hear ing on the motion for new trial, 3 his right to avoid se lf-incr imination was invoked to curtail interr og ation of trial counse l reg arding their conve rsations. 7althoug h the trial court sentenc ed Fr anz to the maxi mum term available under the plea barg ain, the

sentenc e is far less than the life term authorized by statute. The rec ord does n o t p er s u ad e u s that hiring an expert would have g ener ated information that would have altere d either his decision to plead g uilty or his punishment. Fr anz has not shown a rea sonable probability that, but for counsel’s decision not to hire an expert, he would not have pleaded guilty and the result at t rial could likely have be en diffe rent.

We affir m the judgme nt.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: Aug ust 22, 2012 Do Not Publish

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