Lewis, Andrew ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,433-01
EX PARTE ANDREW LEWIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2016-0335-A IN THE 217TH/159TH DISTRICT COURT
FROM ANGELINA COUNTY
Per curiam.
ORDER
Applicant was convicted of two counts of reckless injury to a child causing serious bodily
injury and one count of intentional or knowing injury to a child causing serious bodily injury. The
Twelfth Court of Appeals affirmed his conviction. Lewis v. State, No. 12-16-00319-CR (Tex.
App.–Tyler Sept. 6, 2017, pet. ref’d). Applicant filed this application for a writ of habeas corpus in
the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM .
PROC. art. 11.07.
The trial court held a hearing and adopted Applicant’s proposed findings of fact and
conclusions of law. The court found that, with respect to the third count, Applicant’s claims of
ineffective assistance of trial counsel had merit and recommended granting a new trial. We disagree.
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On post-conviction review of habeas corpus applications, the convicting court is the “original
factfinder” and this Court is the “ultimate factfinder.” Ex parte Storey, 584 S.W.3d 437, 439 (Tex.
Crim. App. 2019). In most circumstances, we defer to the trial judge’s findings of fact because the
judge is in the best position to assess witnesses’ credibility. Ex parte Thuesen, 546 S.W.3d 145, 157
(Tex. Crim. App. 2017). However, if our independent review of the record reveals circumstances that
contradict or undermine the trial judge’s findings, we may exercise our authority to enter contrary
findings and conclusions. Storey, 584 S.W.3d at 440. We review de novo conclusions of law. Ex
parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).
Applicant contends in relevant part that defense counsel failed to obtain a doctor’s assistance
to review the child’s medical records, help counsel prepare for cross-examination, or testify. As a
result, counsel failed to impeach the State’s doctors with evidence in the hospital records that
contradicted their testimony. The trial court finds and concludes that no reasonable trial strategy
could justify defense counsel’s omission in failing to call a pediatrician or radiologist to impeach the
State’s doctors’ testimony.
However, Applicant has not shown prejudice. Both State’s doctors testified at trial that the
child’s “shrill cry,” loss of alertness, and going limp while in Applicant’s care would have
immediately followed the infliction of a brain injury. The swelling on the child’s forehead originated
shortly before the child went to the hospital because swelling appears quickly and subsides quickly.
Applicant’s doctors who testified at the habeas hearing did not contradict this testimony.
Applicant also asserts that defense counsel should have obtained school and medical records
showing that, contrary to the State’s doctor’s “grim prognosis,” the child “had no medical problems”
and was doing well. Applicant neglects to mention that the medical records admitted into evidence
at trial showed that in June 2014, a medical report concluded the child had “Mild left sided lower
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extremity hypertonicity most likely sequilae of the head trauma. But expect to have minimal impact
of mobility and ambulation.” And in April 2015, a doctor noted that the child’s “exam was notable
for increased left sided tone predominantly in the leg that is most likely sequilae of the head trauma.
Based on her exam findings she has a handcapping condition diagnosed as spastic monoplegic
cerebral palsy.” 1 WRIT .pdf 191. An EMT who he responded to the 9-1-1 call noted that “all her
movements tracked to the left side,” which he explained indicated a brain injury. 1 WRIT .pdf 96.
Defense counsel acknowledged in the habeas proceedings that a medical expert would have
been helpful. But he also stated that at trial, he was focused on the identity of the abuser. He believed
the jury would conclude that someone caused “serious bodily injury by criminal means,” to the child,
so he wanted to create doubt that the abuser was Applicant.
In light of the symptoms described at trial by Applicant, the child’s grandfather, and the EMT
– plus the reports of subdural bleeding, the 2014 report of a condition likely related to head trauma,
and the 2015 report of spastic monoplegic cerebral palsy likely resulting from the head injury – it
is unlikely that a defense doctor’s testimony such as Applicant describes, or a cross-examination
informed by consulting with a doctor, would have affected the result. See TEX . PENAL CODE § 6.04;
Honea v. State, 585 S.W.2d 681, 685 (Tex. Crim. App. 1979) (overruled on other grounds in
Thompson v. State, 236 S.W.3d 787, 800 (Tex. Crim. App. 2007).
Therefore, Applicant has not established ineffective assistance of trial counsel for failing to
obtain the assistance of a doctor. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Applicant’s remaining allegations are without merit.
Relief is denied.
Filed: February 1, 2023
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