Whether the TCCA failed to conduct the 'probing and fact-specific' prejudice analysis required by Strickland v. Washington

QUESTION PRESENTED Petitioner was convicted of three counts of injury to a child and sentenced to 99 years imprisonment on the most serious charge. Two pediatricians testified for the prosecution that the infant had sustained a traumatic brain injury (TBI) when petitioner was alone with her. Petitioner’s trial counsel did not impeach them with available medical records or call a doctor to testify. Petitioner filed a habeas corpus application alleging that trial counsel was ineffective in this and other respects. A third pediatrician and a radiologist testified at the habeas hearing that, had the infant sustained a TBI, she could not have fed from a bottle for weeks, yet the hospital records reflect that she had normal sucking and fed from a bottle on the morning she was admitted. These doctors also explained why other opinions of the prosecutions’ doctors were incorrect. The habeas trial judge—who had presided at the trial—found that trial counsel performed deficiently and, had he presented expert medical testimony, the jury probably would have acquitted petitioner on the most serious charge. The Texas Court of Criminal Appeals (TCCA) held that petitioner did not prove prejudice, citing trial testimony that supported the convictions without discussing how the expert medical testimony presented at the habeas hearing would have affected the verdicts. The question presented is: Whether the TCCA, by considering only the trial testimony that supported the convictions rather than how the testimony of petitioner’s ii QUESTION PRESENTED—Continued medical experts at the state habeas hearing, if presented at trial, probably would have affected the verdicts, failed to conduct the “probing and fact-specific” prejudice analysis required by Strickland v. Washington, 466 US. 668 (1984). ili RELATED CASES e §©State v. Lewis, No. 2016-0335, 217th District Court of Angelina County, Texas. Judgment entered November 18, 2016. e Lewis v. State, No. 12-16-00319-CR, Twelfth Court of Appeals of Texas. Judgment entered September 6, 2017. e Lewis v. State, No. PD-1091-17, Texas Court of Criminal Appeals. Judgment entered February 14, 2018. e §=6Ex parte Lewis, No. 2016-0335-A, 217th District Court of Angelina County, Texas. Judgment entered December 12, 2022. e =6©Ex parte Lewis, No. WR-94,433-01, Texas Court of Criminal Appeals. Judgment entered February 1, 2023. Reconsideration denied February 27, 2023.