GUERRA, RIGOBERTO Jr.

A\ttmrne·'ys at La\W

Chase

. Bank Of Te~as

. - Gulfgate

-2900 Woodridge, Suite 202

Houston, Texas 77087

(713) 645-7894

(713) 645-7777 Facsimile

RALPH R. MARTINEZ LAURA S. MARTINEZ

Board Certified in Criminal Law Member of the College of the

Board Certified in Criminal Appellant State Bar of Texas

Texas Board of Legal Specialization

October 24, 2015

Kelley Reyes

Chief Deputy Clerk

Court of Criminal Appeals Via FedEx: 8659 0826 1929

Supreme Court Building

201 West 14th Street, Room 106

Austin, Texas 78701

Re: Prince Thomas-Harris; WR-83;896-01

Rigoberto Guerrero; WR-83,899..:01

Dear Ms. Reyes:

Enclosed please firid a courtesy copy of the above ·mentioned Petitioners. In regards to

Rigoberto Guerrero, I filed a prior 11.07 Writ on his behalf; however, that. Writ was

subsequently dismissed and has been refiled. This Petition was dismissed for non compliance

with Tex. App. Rule 73.l(f) (word count certificate).

I anticipate the same problem with Prince Thomas-Harris and my courtesy copy does comply

with Tex R. App. Proc. 73.1(£). Hopefully, this will avert a·dismissal.

As per our discussion on 10/14/15, I hope that my clients' Petitions can be considered by the

Court now that I am in compliance with Rule 73.1(£). I appreciate your help and courtesy.

Thank you.

RECEIVED IN -

COURT OF CRIMINAL APPEALS Sincerely,

OCT 26 2015

Abel Acosta. Clerk .

RRM/ra

--~----·

••

••

•• IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

••

••

•• APPLICATION FOR WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

•• UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

•• PETITIONER RIGOBERTO GUERRERO JR .

TDCJ-CID NUMBER 01742548

•• ELLIS UNIT TEXAS DEPARTMENT OF

CRIMINAL JUSTICE

•• HUNTSVILLE, TEXAS

••

•• PROCEEDINGS BELOW:

•• Direct Appeal: No. 05-1101298-CR

Fifth District Court of Appeals

•• Trial Court:

Dallas, Texas

Cause No. 059446

•• 15th Judicial District Court

Grayson County, Texas

••

•• REPRESENTED BY: RALPH E.. MARTINEZ

TBA: 13143600

•• 2900 Woodridge, Suite 202

Houston, Texas 77087

•• 713-645-7894

713-645-777-Fax

••

••

••

••

•• IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

••

••

•• APPLICATION FOR WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

•• UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

•• PETITIONER RIGOBERTO GUERRERO JR .

•• TDCJ-CID NUMBER 01742548

ELLIS UNIT TEXAS DEPARTMENT OF

•• CRIMINAL JUSTICE

HUNTSVILLE, TEXAS

••

•• PROCEEDINGS BELOW:

•• Direct Appeal: No. 05-1101298-CR

Fifth District Court of Appeals

•• Trial Court:

Dallas, Texas

Cause No. 059446

•• 15th Judicial District Court

Grayson County, Texas

••

•• REPRESENTED BY: RALPH R. MARTINEZ

TBA: 13143600

•• 2900 Woodridge, Suite 202

Houston, Texas 77087

•• 713-645-7894

713-645-777-Fax

••

••

•

••

•• COURT OF CRIMINAL APPEALS OF TEXAS

••

APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

•• INSTRUCTIONS

•• 1. You must use the complete form, which begins on the following page, to me an

application for a writ of habeas corpus seeking relief from a rmal felony conviction

•• under Article 11.07 of the Code of Criminal Procedure. (This form is not for death-

penalty cases, probated sentences which have not been revoked, or misdemeanors.)

•• 2. The. district.clerkofthe county in .which .you were convicted will make this form

available to you, on request, without charge•

•• 3. You must me the entire writ application form, including those sections that do not

apply to you. If any pages are missing from the form, or if the questions have been

•• 4.

renumbered or omitted, your entire application may be dismissed as non-compliant.

You must make a separate application on a separate form for each judgment of

•• conviction you seek relief from. Even if the judgments were entered in the same

court on the same day, you must make a separate application for each one•

•• 5. Answer every item that applies to you on the form. Do not attach any additional

pages for any item.

•• 6. You must include all grounds for relief on the application form as provided by the

••

instructions under item 17. You must also briefly summarize the facts of your claim

on the application form as provided by the instructions under item 17. Each ground

shall begin on a new page, and the recitation of the facts supporting the ground shall

•• 7.

be no longer than the two pages provided for the claim in the form •

Legal citations and arguments may be made in a separate memorandum that

•• complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000

words if computer-generated or 50 pages if not.

•• 8. You must verify the application by signing either the Oath Before Notary Public or

the Inmate's Declaration, which are at the end of this form on pages 11 and 12. You

•• may be prosecuted and convicted for aggravated perjury if you make any false

statement of a material fact in this application.

•• 9. When the application is fully completed, mail the original to the district clerk of the

county of conviction. Keep a copy of the application for your records•

•• 10. ·You must notify the district clerk of the county of conviction of any change in

address after you have med your application .

••

••

•

••

•• Case No . - - - - - -

•• (The Clerk of the convicting court will fill this line in.)

•• IN THE COURT OF CRIMINAL APPEALS OF TEXAS

•• APPLICATION FOR A WRIT OF HABEAS CORPUS

SEEKING RELIEF FROM FINAL FELONY CONVICTION

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

••

•• NAME:

DATEOFBIRTH:

Rigoberto Guerrero Jr.

-·~A=ug=u=st~1~4~,~19~8~0______________________________________

•• PLACE OF CONFINEMENT: I!is~U......

__._E..... ni.._t- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

•• TDCJ-CID NUMBER: _0_1_74_2_5_48--:------ SID NUMBER: ______0_63_9_6_24_4_____

•• (1) This application concerns (check all that apply):

•• ~

~

a conviction

a sentence

0

0

parole

mandatory supervision

•• 0 time credit 0 out-of-time appeal or petition for

•• discretionary review

•• (2) What district court entered the judgment of the conviction you want relief from?

(Include the court number and county.)

•• 15th Judicial District Court of Grayson County, Texas

•• (3) What was the case number in the trial court?

•• 059446

•• (4) What was the name of the trial judge?

•• Honorable Jim Fallon

••

•• Effective: January 1, 2014 1

•

••

•• (5) Were you represented by counsel? If yes, provide the attorney's name:

•• Jack Louis McGowen

•• (6) What was the date that the judgment was entered?

••

••

September 14, 2011

•• (7) For what offense were you convicted and what was the sentence?

•• Injuty to a child. Fifty years and Ten Thousand Dollar Fine

••

(8) If you were sentenced on more than one count of an indictment in the same court at

the same time, what counts were you convicted of and what was the sentence in each

count?

•• N/A

••

•• (9) What was the plea you entered? (Check one.)

•• 0 guilty-open plea

IX not guilty

0 guilty-plea bargain

0 nolo contendere/no contest

•• If you entered different pleas to counts in a multi-count indictment, please explain:

••

••

•• (10) What kind of trial did you have?

0 no jury ~jury for guilt and punishment

•• 0 jury for guilt, judge for punishment

••

••

•• 2

•

••

•• (11) Did you testify at trial? If yes, at what phase of the trial did you testify?

•• Guilt Innocence phase and Sentencing Phase

•• (12) Did you appeal from the judgment of conviction?

•• Dt yes D no

•• If you did appeal, answer the following questions:

•• (A) What court of appeals did you appeal to? _fifth Supreme Judicial District of Texas

••

(B) What was the case number? No 05-11-01298-CR

(C) Were you represented by counsel on appeal? If yes, provide the attorney's

•• name:

Jason Butscher

•• (D) What was the decision and the date of the decision? Affirmed

•• (13) Did you file a petition for discretionary review in the Court of Criminal Appeals?

•• D yes ~ no

If you did file a petition for discretionary review, answer the following questions:

•• (A) What was the case number?

•• (B) What was the decision and the date of the decision?

•• (14) Have you previously filed an application for a writ of habeas corpus under Article

••

11.07 of the Texas Code of Criminal Procedure challenging this conviction?

Dyes 00 no

•• If you answered yes, answer the following questions:

•• (A) What was the Court of Criminal Appeals' writ number?

••

•-

•• 3

•

••

••

••

(B) What was the decision and the date of the decision?

(C) Please identify the reason that the current claims were not presented and could

•• not have been presented on your previous application .

••

••

••

••

~

• (15) Do you currently have any petition or appeal pending in any other state or federal

court?

•• Dyes ~no

•• If you answered yes, please provide the name of the court and the case number:

••

•• (16) If you are presenting a claim for time credit, have you exhausted your

administrative remedies by presenting your claim to the time credit resolution

system of the Texas Department of Criminal Justice? (This requirement applies to

•• any f"mal felony conviction, including state jail felonies)

••

Dyes D no

If you answered yes, answer the following questions:

•• (A) What date did you present the claim?

•• (B) Did you receive a decision and, if yes, what was the date of the decision?

••

•• If you answered no, please explain why you have not submitted your claim:

••

•• 4

•

••

••

••

••

••

••

••

•• (17) Beginning on page 6, state concisely every legal ground for your claim that you are

•• being unlawfully restrained, and then briefly summarize the facts supporting each

ground. You must present each ground on the form application and a brief

•• summary of the facts. Ifyour grounds and brief summary ofthefacts have not been

presented on the form application, the Court will not consider your grounds•

If you have more than four grounds, use pages 14 and 15 ofthe form, which you

•• may copy as many times as needed to give you a separate page for each ground, with

each ground numbered in sequence. The recitation of the facts supporting each

••

ground must be no longer than the two pages provided for the ground in the form•

You may include with the form a memorandum of law if you want to present legal

•• authorities, but the Court will not consider grounds for relief set out in a

memorandum of law that were not raised on the form. The citations and argument

must be in a memorandum that complies with Texas Rule of Appellate Procedure 73

•• and does not exceed 15,000 words if computer-generated or 50 pages if not. If you

are challenging the validity of your conviction, please include a summary of the facts

•• pertaining to your offense and trial in your memorandum.

••

••

~

••

••

•- 5

••

••

••

•• GROUND ONE:

Denial ofEffectiye Assistance ofCmmsel

••

•• FACTS SUPPORTING GROUND ONE:

•• Trial counsel was ineffective for not requesting the Court to appoint an expert medica) witness or

•• consuJtant or to rise fimds to hire said eXpert to assist ¢ouris¢1 in cross examina:tjob of State lnedjcaJ

•• experts or testify as medical experts at tria] given the existence of a medical condition in complainant

•• that may have caused the injuries ascribed to defendant's actions .

••

••

••

••

••

••

••

••

••

••

••

•• 6

•

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

•• 7

•

••

••

•• GROUND TWO:

Whether the prosecutor's remarks comparing Applicant to "Casey Anthony"

•• violated Applicants Due Course of Law Rights under Tex. Const. Art. I.§

10 and the Fifth and Fourteenth Amendments of the United States Constitution .

•• FACTS SUPPORTING GROUND TWO:

•• During the prosecutors closing argument he compared Applicant to

•• "Casey Anthony" a notorious and publicized criminal case of child a.buse .

•• No record of this comment or objection exists but witness affidavits

•• attached as exhibits attest to its occurrence ..

••

••

••

••

••

••

••

••

••

••

••

~ • 8

~

••

, .••

,

~•

\ ..•

•.•

,

, .••

••

••

••

, .••

••

••

••

••

••

••

••

••

•• 9

•

•

••-·••

-·••

•

GROUND THREE:

•• Trial counsel was ineffective in representing Petitioner by not properly objecting to and insuring that both the objection and

••

prosecutor's closing argument comparing Petitioner to "Casey Anthony" was not recorded .

••

FACTS SUPPORTING GROUND THREE:

The prosecutor in this case argued his closing argument that Petitioner was comparable to "Casey

•• Anthony," an infamous and alleged child abuser who-se case was prominent in the media during

•• Petitioner's trial. This argument is attested to by several witnesses including in Exhibit "A" of this

•• Petition. The trial counsel did not properly object to or ensure the statement was recorded .

••

••

••

••

••

••

••

••

••

••

•• 10

••

•

•••

••

••

••

••

••

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••

••

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••

••

••

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••

•• 11

•·

••

••

•• GROUND FOUR:

Appellate counsel did not object to the exclusion of the prosecutor's closing argument to "Casey Anthony" pursuant to

•• Tex.R.App. P. 34.5(b)(l) or request the record be supplemented pursuant to Tex. R. App. P. 34(L)(l ).

•• FACTS SUPPORTING GROUND FOUR:

•• The prosecutor in this case argued his closing argument that Petitioner was comparable to "Casey

•• Anthony," ail infamous and alleged child abuser whose case was prominent in the media during

•• Petitioner's trial. This argument is attested to by several witnesses including in Exhibit "A" of this

•• Petition. The trial counsel did not properly object to or ensure the statement was recorded .

••

••

••

••

••

••

••

••

••

••

•• 12

••.. --------------------------------------------------------------

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

•

~

••

~·

13

••

••

•• GROUND:

••

•• FACTS SUPPORTING GROUND:

••

••

••

••

••

••

••

••

••

••

••

••

••

••

••

•• 14

•

;.

'':l..

..l.

)

~·

~·

',.,.

.••••

~·

'

•••

••

••

••

••

••

••

••

••

••

••

••

••

••

•• 15

•

••

••

•• WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT

RELIEF TO WHICH HE MAY BE ENTITLED IN TillS PROCEEDING.

•• VERIFICATION

••

This application must be verified or it will be dismissed for non-compliance. For

verification purposes, an applicant is a person filing the application on his or her own behalf. A

petitioner is a person filing the application on behalf of an applicant, for example, an applicant's

•• attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the "Oath Before a Notary Public" before a

•• notary public or the '-'Inmate's-Declaration" without a notary public.-- If the inmate is-represented

by a licensed attorney, the attorney may sign the "Oath Before a Notary Public" as petitioner and

•• then complete "Petitioner's Information." A non-inmate applicant must sign the "Oath Before a

Notary Public" before a notary public unless he is represented by a licensed attorney, in which

case the attorney may sign the verification as petitioner.

•• A non-inmate non-attorney petitioner must sign the "Oath Before a Notary Public"

•••

before a notary public and must also complete "Petitioner's Information." An inmate petitioner

must sign either the "Oath Before a Notary Public" before a notary public or the "Inmate's

Declaration" without a notary public and must also complete the appropriate "Petitioner's

Information."

•• OATH BEFORE A NOTARY PUBLIC

•• STATE OF TEXAS

COUNTY OF ___________

•• - - - - - - - - - - - - - - ' b e i n g duly sworn, under oath says: "I am

•• the applicant I petitioner (circle one) in this action and know the contents of the above

application for a writ of habeas corpus and, according to my belief, the facts stated in the

application are true."

•• Signature of Applicant I Petitioner (circle one)

••

•• SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF _____, 20_ _.

•• Signature ofNotaiy Public

••

•• 16

••

,..

••,.

,

PETITIONER'S INFORMATION

•••

••';. Petitioner's printed name: Ralph R. Martinez (Representing Applicant Rigoberto Guerrero, Jr.)

State bar number, if applicable: -.~l-.;~.3..1.'14*-'3LU6..,..00~--------

•••

••• Address: 2900 Woodridge Suite 202

••• Houston Texas 77087

••

•• Telephone:

Fax:

713-645-7894

••

713-645-7777

•• INMATE'S DECLARATION

f,j ,br- ~1o {_,J.AV'JWJ V

•• I, , am the applicantletion

t/111 V1 J D (" 3- C I j)

(circle one) and

, declare under penalty of

••

being presently incarcerated in 1

perjury that, according to my belief, the facts stated in the above application are true and correct.

•• Signed on

.H.~ y

.Jkr, / Z

<\tb

0 _j_J___.

, 20

•• v

•• of Applicant I Petitioner (

••

••

••

••

••

•• 17

••

•

••

••

••

PETITIONER'S INFORMATION

Petitioner's printed name: Ralph R. Martinez (Representing Applicant Rigoberto Guerrero, Jr.)

•• Address: 2900 Woodridge, Suite 202

•• Houston Texas 77087

•• Telephone: 71 3-645-7894

•• Fax: 713-645-7777

••

•• Signed on _ _ _ _ _ _ _ _, 20_ _

••

•• Signature of Petitioner

••

••

••

••

••

••

••

••

••

~

•• 18

••

••

••

••

••

••

••

•• MEMORANDUM OF LAW

••

•• AND

•• POINTS AND AUTHORITIES

••

••

••

••

••

••

••

••

••

••

•

••

••

•• MEMORANDUM OF POINTS AND AUTHORJTIES IN SUPPORT OF

••

RJGOBERTO GUERRERO'S 11.07 C.C.P. WRIT OF HABEAS COURPUS

ISSUE PRESENTED

••

•• I. Whether Trial Counsel And Appellate Counsel Effectively Represented

•• Petitioner

•• a. Ineffective Assistance of Counsel at Trial

••

•• Introduction

The right to be represented by counsel is by far the most important of a

•• defendant's constitutional rights because it affects the ability of a defendant to

•• assert a myriad of other rights. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

•• L.Ed. 158 .

••

••

The right to the assistance of counsel is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution and Article 1,

•• Section 10 of the Texas Constitution. This right to the assistance of counsel has

•• long been understood to include a "right to the effective assistance of counsel."

•• See, McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449, 25

•• L.Ed.2d 763 (1970). The integrity of our criminal justice system and the

•• fairness of the adversary criminal process is assured only if an accused is

••

•

••

••

•• represented by an effective attorney. See, United States v. Morrison, 449 U.S .

361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981). Absent the effective

•• assistance of counsel "a serious risk of injustice infects the trial itself." Cuyler

•• v. Sullivan, 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980) .

•• Thus, a defendant is constitutionally entitled to have effective counsel acting in

•• . -- .. - -

the role of an advocate. See, Anders v. California, 386 U.S. 738, 743, 87 S. Ct .

•• 1396, 1399, 18 L.Ed.2d 493 (1967) .

•• The Legal Standard

•• The United States Supreme Court in Strickland v. Washington, 466 U. S .

•• 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) established the federal standard

•• for determining whether an attorney rendered reasonably effective assistance of

••

counsel. The Texas Court of Criminal Appeals in Hernandez v. State, 726 S .

W.2d 53, 57 (Tex. Crim. App. 1986) adopted the Strickland test as the proper

•• test under state law to gauge the effectiveness of counsel. Pursuant to that test

•• the defendant must show that counsel's performance was deficient; that is, a

•• showing that counsel made errors so serious that counsel was not functioning

•• as the "counsel" guaranteed by the Sixth Amendment. In addition, the

•• defendant must show that the deficient performance prejudiced the defense .

•• This requires showing that counsel's errors were so serious as to deprive the

•• defendant of a fair trial, a trial whose result is reliable .

••

•

••

••

•• Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064 .

•• The purpose of the Strickland two part test is to judge whether counsel's

conduct so compromised the proper functioning of the adversarial process that

•• the trial cannot be said to have produced a reliable result. Thompson v. State, 9

•• S.W.3d 808, 812-13 (Tex. Crim. App. 1999) (citing McFarland v. State, 845

•• S.W.2d 824, 843 (Tex. Crim. App. 1992)) .

•• The Strickland test applies to appointed and retained counsel alike. See,

•• Cuyler v. Sullivan, supra at 344, 100 S.Ct. at 1716. It also applies to all stages of

•• a criminal trial. See, Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App .

•• 1999)(Strickland applies to claim of deficient attorney performance at

•• noncapital sentencing proceeding). It applies when evaluating an attorney's

•• performance in connection with a guilty plea. See, Hill v. Lockhart, 474 U.S. 52,

•• 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)(prejudice prong of Strickland requires

•• defendant to show that but for counsel's errors he would not have entered a

•• guilty plea). It even applies to an attorney's performance in handling an appeal. .

See, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)(due

•• process requires that defendant have effective assistance of counsel on his first

•• appeal) .

••

••

••

••

••

••

•• Exceptions to Strickland

•• These are some errors that "are so likely to prejudice the accused that the

•• cost of litigating their effect in a particular case is unjustified" thus making it

•• unnecessary to establish the prejudice prong of Strickland. United States v.

•• Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984) .

Prejudice is presumed in situations where the likelihood of counsel having

•• provided effective assistance is extremely small such as where counsel failed

•• completely to subject the prosecution's case to "meaningful adversarial

•• testing." Id. at 660, 104 S.Ct. at 2047 (citing in illustration Powell v. Alabama,

•• 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). According to the Court of

•• Criminal Appeals, it is unnecessary for a defendant to meet the prejudice

•• requirement of Strickland if he was actually or constructively denied the

•• assistance of counsel altogether, if counsel was prevented from assisting the

•- accused at a critical stage of the proceedings because of some. type of state

•• interference, or if counsel was burdened by an actual conflict of interest which

adversely affected counsel's performance. Mitchell v. State, 989 S.W.2d 747,

•• 748 (Tex. Crim. App. 1999). "Apart from circumstances of that magnitude,

•• however, there is generally no basis for finding a Sixth Amendment violation

•• unless the accused can show how specific errors of counsel undermined the

•• reliability of the finding of guilt." United States v. Cronic, supra at 659 n. 26,

••

~

••

••

•• 104 S.Ct. at 2047 n. 26. In other words, in order for the presumption of

•• prejudice to apply the attorney must completely fail to challenge the

prosecution's entire case, not just elements of it. Haynes v. Cain, 298 F.3d 375,

•• 380, 382 (5th Cir. 2002) en bane; also see Bell v. Cone, 535 U.S. 685, 122 S.Ct .

•• 1843, 1851, 152 L.Ed.2d 914 (2002) (noting that difference between situations

•• addressed by Strickland and Cronic is "not of degree but of kind.") .

•• Raising Ineffective Assistance

••

•• Rule 33.1(a) of the Texas Rules of Appellate Procedure generally

•• requires that a complaint be presented to the trial court "by a timely request,

••

objection, or motion" as a prerequisite to raising the complaint on direct

appeal. TEX. R. APP. P. 33.1(a). There are, however, many practical

•• difficulties with requiring a defendant to raise the issue of ineffective

•• assistance of counsel at the time of trial or even in a motion for new trial. See,

•• Robinson v. State, 16 S.W.3d 808, 810 (Tex. Crim. App. 2000). The biggest

•• difficulty is that there is generally no real opportunity to adequately develop

•• the record for appeal at this time. !d. This creates a usually insurmountable

•• hurdle to raising an ineffective assistance claim on direct appeal. "Rarely will a

•• reviewing court be provided with the opportunity to make its determination on

•• direct appeal with a record capable of providing a fair evaluation of the merits

••

•

••

••

•• ofthe [ineffective assistance] claim ... ". Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Thus, for most ineffective assistance claims, a writ of

•• habeas corpus is the preferred method for raising the issue. Ex parte Torres, 943

•• S.W.2d 469, 475 (Tex. Crim. App. 1997). For a multitude of reasons,

•• ineffective assistance claims are excepted from the general rule of error

•• preservation set forth in Rule 3 3.1 (a) and may be raised in an application for

•• writ of habeas corpus even if not raised first in the trial court. Robinson v. State,

•• supra at 812-13 .

•• This is not to say that an ineffective assistance claim may not be raised in

•• the trial court or on direct appeal, it can. For example, such a claim may be

•• raised in a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex .

•• Crim. App. 1993) .

•• Burden of Proof

•• The burden of proving ineffective assistance of counsel rests on the

•• convicted defendant by a preponderance of the evidence. Haynes v. State, 790

•• S.W.2d 824, 827 (Tex. Crim. App. 1990). In order to determine whether the

•• defendant has met this burden, the reviewing court looks to the totality of the

•• representation and the particular circumstances of the case in evaluating the

•• reasonableness of an attorney's conduct. See, Ex parte Felton, 815 S.W.2d 733,

••

•

••

••

•• 735 (Tex. Crim. App. 1991). The review conducted of defense counsel's

•• representation is "highly deferential and presumes that counsel's actions fell

within a wide range of reasonable assistance." Mallett v. State, 65 S.W.3d 59,

•• 63 (Tex. Crim. App. 2001)(citing Tong v. State, 25 S.W.3d 707, 712 (Tex .

•• Crim. App. 2000)). It is the defendant's burden to overcome this presumption

•• by proving his ineffective assistance of counsel claim by a preponderance of

•• the evidence. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App .

•• 1992); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); also see,

•• United States v. Cronic, supra at 658, 104 S.Ct. at 2046 (the burden rests on the

•• accused to demonstrate a constitutional violation) .

•• The Court of Criminal Appeals emphasized in Thompson v. State, supra

•• that a claim of ineffective assistance of counsel must be supported by a record

•• containing direct evidence as to why counsel took the actions or made the

•• omissions relied upon as the basis for the claim. Id. at 813-14.; accord, Busby v .

State, 990 S.W.2d 263, 268-69 (Tex. Crim. App. 1999)(ordinarily the strong

•• presumption that an attorney's decisions were acceptable trial strategy cannot

•• be overcome without evidence in the record as to the attorney's reasons for the

•• decisions). While there may be some actions that unquestionably fall outside

•• the spectrum of objectively reasonable trial strategy, generally, the Court of

•• Criminal Appeals requires a defendant to offer evidence from his attorney

••

•

••

••

•• explaining his actions in order to overcome the presumption that counsel acted

••

pursuant to a reasonable trial strategy. See, Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001 )(court will not conclude challenged conduct constituted

•• deficient performance unless conduct was so outrageous that no competent

•• attorney would have engaged in it); also see, Thompson v. State, supra at 816

•• (Meyers, J., dissenting)(inconceivable that defense counsel could have had a

•• reason for failing to object to certain hearsay that would fall within the range of

•• objectively reasonable trial strategy). It should be kept in mind, however, that

•• simply labeling an attorney's actions "trial strategy" does not insulate the

•• attorney from a finding of ineffective assistance of counsel. An attorney's

•• strategy can be so ill-chosen as to render a trial fundamentally unfair. See,

••

United States v. Rusmisel, 716 F.2d 301, 310 (5th Cir. 1983). As the Supreme

Court explained in Strickland, strategy decisions should be judged by an

•• objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S .

•• 687-88; 104 S.Ct. at 2064 (emphasis added) .

•• Once a convicted defendant establishes that his attorney's actions were

•• objectively unreasonable, he must still prove that he was prejudiced by his

•• attorney's actions. To establish prejudice, he "must show that there is a

•• reasonable probability that, but for counsel's unprofessional errors, the result

•• of the proceeding would have been different." Strickland v. Washington, 466 U .

••

•

••

••

•• S. at 694, 104 S.Ct. at 2068. The focus of the prejudice component is whether

•• counsel's deficient performance renders the result of the trial unreliable or

••

fundamentally unfair. ld. at 687, 104 S.Ct. at 2064. It is not enough to argue

that the attorney's errors had some conceivable effect on the outcome of the

•• proceeding, rather the convicted defendant must establish a "reasonable

•• probability" of actual prejudice. !d. at 693, 104 S.Ct. at 2067. "A reasonable

•• probability is a probability sufficient to undermine confidence in the outcome."

•• I d. at 694, 104 S.Ct. at 2068 .

•• While a convicted defendant must establish actual prejudice from his

•• attorney's conduct, the State cannot avoid the consequences of a finding of

•• ineffective assistance by arguing that the prejudice is de minimus. For

•• example, any amount of additional time in prison constitutes prejudice. Gloverv.

United States, 531 U.S. 198,203, 121 S.Ct 696,700, 148 L.Ed2d 604 (2001).

•• This standard does not require error free or perfect counsel. Ex parte

•• Briggs, 187 S.W. 3d 458, 466-467 (Tex. Crim. App. 2005). Nor, will courts

•• isolate separate or portions of counsel's performance in assessing a defendant's

•• right to effective representation. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex .

•• Crim App. 1990); Johnson v. State, 629 S.W. 2d 731, 736 (Tex. Crim. App .

•• 1981). However, even if no one instance alone is sufficient proof of

•• ineffective assistance of counsel, counsel's performance as a whole may

••

•

••

••

•• compel such a finding. Ex parte Welborn, supra, Winn v. State, 871 S.W. 2d

•• 756, 764-765 (Tex App.-Corpus Christi; 1993, no ~.) Conversely, it is

possible that a single error of omission or commission by trial counsel

•• constitutes ineffective assistance of counsel. Jackson v. State, 766 S.W.2d

•• 504, 510 (Tex. Crim. App. 1985) (modified on other grounds on remand from

•• the United States Supreme Court, Jackson v. State, 766 S.W.2d 518 (Tex .

•• Crim. App. 1988) .

•• b. Failure to Investigate, Hire Experts, and Develop A Viable Defense

•• Counsel has a duty to make reasonable investigations or to make a

•• reasonable decision that makes particular investigations unnecessary. Ex Parte

•• Briggs, 187 S.W.3d 458, 466-467 (Tex. Crim. App. 2005). This duty requires

•• counsel to promptly investigate the circumstances of the case and explore all

avenues likely to lead to facts relevant to the particular merits of the case. I d .

•• at 467. Also, in many cases counsel must seek out experts in a given case,

•• consult those experts in preparing the case and examining expert witnesses for

•• the State, and utilizing expert testimony in defending a client. I d. at 469 .

•• Counsel also has a professional duty to fully investigate and advance a

•• client's viable defenses with or without regard to the necessity of expert

•• assistance Me Farland v. State, 928 S.W. 2d 482, 501 (Tex. Crim. App. 1996);

•• Jackson v. State, 857 S.W.2d 678, 683 (Tex. App.-Houston [14th Dist.] 1993) .

••

•

••

••

•• Furthermore, where circumstances necessitate it, trial counsel is obligated to

•• seek out expert assistance to assist in cross-examination if the State's expert

••

witnesses or secure expert testimony in order to adequately develop a client's

viable defense. Wright v. State, 223 S.W.3d 36, 43-44 (Tex. App.-Houston [1st

•• Dist.] 2006) .

•• Counsel 1n Petitioner's case rendered ineffective representation of

•• counsel. Trial counsel's performance was deficient because he did not avail

•• himself of the opportunity to explain that complainant's apparent injuries were

•• actually manifestations of a low vitamin D medical condition. Circumstances

•• suggest that complaint's medical condition constituted a viable defense in

•• Petitioner's case. The presence of this condition in complainant was attested to

•• by the comments by the prosecutor and defense counsel to the Court at the

••

pretrial hearing in the case (R.-Vol. II p. 9, 14, 17, 18). Even though the

prosecutor dismissed the viability of complainant's condition as a case of

•• injuries, trial counsel was on notice that the condition in complainant existed .

•• Nevertheless, trial counsel did not employ an expert witness to assess the

•• viability of the defense, assist counsel in cross-examining medical personnel in

•• the case, or provide an expert witness in the case to demonstrate the potency of

•• the medical cause defense. Even more unbelievable is that the complainant's

•• half-brother, Lucas Guerrero, suffered from the same medical condition that

••

•

••

••

•• Mathew Guerrero experienced. In addition, Petitioner was previously charged

•• with child abuse against Lucas but the charges were dismissed when the State

•• ascertained the apparent injuries that Lucas exhibited were a result of the

medical condition of Lucas, the same condition that Mathew suffered from (R.-

•• Vol. II p. 9, 14, 17, 18). Counsel knew about Petitioners experience with

•• Lucas, knew Mathew suffered from the same condition, knew charges

•• involving Lucas against Petitioner were dropped, and yet, never explored the

•• availability of this condition in Mathew as a defense .

•• The failure to secure expert assistance in advancing a viable defense,

•• when such assistance is necessary, constitutes deficient performance by

•• counsel. In Ex Parte Briggs, the sole issue in the case was whether the

•• complainant was murdered or if his death was a result of natural causes,

exacerbated by improper medical treatment. Ex Parte Briggs, 187 S.W. 3d at

•• 468. The Court in Ex Parte Briggs held that counsel was deficient because he

•• failed to produce an expert to resolve the cause of death issue. Id .

•• Furthermore, the Court concluded subpoena doctors who had treated the victim

•• and introduced the medical records and history through those witnesses. Id. In

•• addition, defense counsels' failure to call experts was a financial decision that

•• could have been ameliorated by an application for indigency court paid funds

•• to hire an expert. Id .

••

•

••

••

•• The courts have found counsel deficiency for failure to investigate and

•• develop a defense. In Wright v. State, the Court held that counsel was

•• deficient because he failed to advance the defensive theory of undue influence

on a child and the child's fabrication of child abuse charges. Wright v. State,

•• 223 S.W.3d at 44. In that case, the Court held counsel should have utilized an

•• expert to establish interviews deviated from standard interview protocol and

•• the potential of false allegations of child abuse in divorce proceedings. Id at

•• 45 .

•• In Jackson v. State, the Court held counsel was deficient for his failure to

•• investigate and develop his client's defense of mental illness and other

•• pertinent defenses despite knowing that the defense existed. Jackson v. State,

•• 857 S.W.2d at 683 .

••

In Petitioner's case, trial counsel was deficient because he failed to

investigate this case and did not develop viable defenses. Trial counsel had

•• notice that the complainant had low vitamin D levels, a medical condition that

•• causes bone structure to become brittle and exhibit characteristics of child

•• abuse. In fact, trial counsel had knowledge that his client was wrongfully

•• charged with child abuse involving complainant's halfbrother, Lucas Guerrero .

•• Ultimately the child abuse charges that involved Lucas were dismissed against

•• Petitioner after authorities determined that Lucas suffered from the medical

••

•

••

••

•• condition that led to a misdiagnoses of child abuse (R.-Vol. II p. 9, 14, 17, 18) .

Moreover, trial counsel had possession of a medical report prepared by Dr .

•• Suzanne DaKill that trial counsel introduced as evidence that indicated the

•• complainant had low vitamin D levels (R.-Vol. VI p. 44-46). In addition, the

•• trial court seemed to suggest trial counsel should employ a medical expert in

•• the case or petition the court for indigent funds to appoint a medical expert (R.-

•• Vol. II p. 7, 15). Trial counsel had notice of potential medical issues dealing

•• with "child abuse like" symptoms involving Lucas and Mathew Guerrero (R.-

•• Vol. II p. 13, 17, 18) .

•• During Petitioner's trial, trial counsel failed to cross-examine Dr. Jill

••

Breeze, the medical doctor that has treated Mathew Guerrero since birth (R.-

Vol. VI p. 6). During cross-examination of Dr. Breeze trial counsel never

•• questioned the doctor regarding Mathew's low vitamin D level impact on

•• Mathew's bone structure and potential for creating child abuse symptoms or if

•• the medical condition made the child susceptible to injury and fracture (R.-Vol.

•• VI p. 15-17). In addition, trial counsel never subpoenaed or introduced into

•• evidence Mathew's medical records that Dr. Breeze possessed. Also, at no time

•• did trial counsel introduce a medical expert to explain Dr. Breeze medical

•• records (R.-Vol. VI p. 15-17) .

•• The records also indicates that Dr. Suzanne DaKill concluded in her

••

•

••·,·

••,.--· medical report concemmg Mathew that his vitamin D levels were not

',.;.

·~• significantly low and had nothing to do with the child's injuries (R.-Vol. VI p.

·•·....\.

45-46). Trial counsel, despite having at least a year notice of Mathew's

medical condition, never challenged Dr. Dakill' s testimony with a defense

•• medical expert or a consulting expert to help cross-examine Dr. Dakill (R.-Vol.

•• VI p. 15-17). Also, trial counsel failed to re-cross Dr. DaKill on this issue

••

even after the testimony of Dr. DaKill regarding the effect of low vitamin D

levels ofMathew was raised on the state's re-direct (R.-Vol. VI p. 48) .

•• The failure of defense counsel to utilize an expert as a witness to counter

•• Dr. DaKill's contention that Mathew Guerrero's injuries were not a product of

•• Mathew's low vitamin D levels deprived Petitioner of a viable defense .

•• Moreover, trial counsel did not utilize a consulting expert to help develop this

•• defense relating to low vitamin D levels and assist trial counsel in cross-

•• examining Dr. DaKill and Dr, Breeze on this issue. These circumstances,

•• especially failing to petition the court for funds to pay for an expert or heed the

•• court's suggestions that an expert could be requested by the defense on an

••

indigency basis constituted a failure to investigate and develop a defense

rendering trial counsel's performance deficient. Ex parte Briggs, 187 S.W.3d

•• at 468. This deficiency in this case exacerbated by trial counsel's failure to

•• cross examine Dr. DaKill on the issue of the effect of Mathew's medical

••

••

•

, .•

••'••,.

\.·,·.,. condition on the nature of his injuries. This failure to cross-examme Dr.

DaKill was even more detrimental to Petitioner because trial counsel failed to

cross-examine Dr. DaKill after she testified Mathew's medical condition did

,.••'·!·

~~· not contribute to his injuries. The failure to impeach Dr. DaKill constituted

deficient performance. Ex Parte Ybarra, 629 S.W.2d 943, (Tex. Crim. App .

•• 1982). In essence, counsel's failure to cross-examine or offer medical expert .

•• evidence to challenge Dr. DaKill's conclusions regarding the medical

•• condition issue was tantamount to accepting the State's theory in this case that

•• Mathew's injuries were not caused in any way by his medical condition that

•• makes counsel's representation deficient. Craig v. State, 847 S.W.2d 434,

•• (Texas. App.-El Paso 1993, no pet.) .

•• Trial counsel's deficient performance prejudiced Petitioner's case to the

extent that counsel's errors were so serious as to deprive Petitioner of a fair

•• trial whose result was reliable. Where trial counsel in a given case, such as

•• Petitioner's case, fails to subpoena the treating doctors and their medical

•• records that establish a defendant's medical history that impacts or supports a

•• defense theory prejudice exists. Ex parte Briggs, 187 S.W.3d at 469-470. In

•• Petitioners case trial counsel's failure to investigate and subpoena the

•• complainant's low level vitamin D and hire experts to explain that

•• complainant's injuries, even in part, could have resulted from the existence of

••

••

••

\.·•.•

'I.1.

'

this medical condition makes counsel's deficient performance more

). prejudicial. Id. at 469. The failure to advance a viable defense or potentially

\.).\.

·~•

~··

viable defense by investigating a defendant's medical history, present that

evidence to support that defense, and utilize expert testimony or at least utilize

a consulting expert to advance a defense can be prejudicial. Wright v. State,

~·. 223 S.W.3d at 43-44.

~·

•• In short, trial counsel's failure to even request medical expert to testify at

•• trial or to serve as a consultant was ineffective assistance of counsel because

•• the medical history of the complainant may have caused the injuries Petitioner

•• was charged for committing. Given this history and the presence at trial of

•• several State experts that were not countered by defense experts defective

•• representation occurred and resulted in prejudice to Petitioner. The presence of

••

defense experts was "likely to be a significant factor" at trial. Ake v .

Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); Ex Parte

•• Flores, 387 S.W.3d 626, 634 (Tex. Crim. App. 2012); Ex Parte Jimenez, 364

•• S.W.3d 866, 876 (Tex. Crim. App. 2012) .

•• In a recent case, the Court of Criminal Appeals held that trial counsels

•• were ineffective for failure to present an available medical expert witness on

•• sodium intoxication that also contradicted the theories of the defendant's guilt

•• advanced by the State especially where trial counsel's decision not to call that

••

••

,..

,

•.•

:

expert was not a result of any thoroughly investigated trial strategy and a

• •• reasonable decision by defense attorneys. Ex Parte Overton, 444 S.W. 3d 632,

••

640 (Tex. Crim. App. 2014). Furthermore, in Overton the Court concluded

.,• that with that testimony the State's experts would have been refuted and the

cause of the complainant's death was result of a medical condition and not to

•• defendant's conduct. I d. at 641 .

•• In Petitioner's case defense counsel failed to call medical experts who

•• treated Mathew Guerrero and that evidence in all reasonable probability would

•• have resulted in a different outcome .

•• II. Improper Closing Argument

•• It is error to argue outside the record where the argument injects new and

•• harmful facts. Baker v. State, 177 S.W. 3d 113, 125-126 (Tex. App.-Houston

[1st Dist.] 2005, no pet.). Argument that injects new facts outside the record is

•• reversible where, in light of the record as a whole, the argument is extreme or

•• manifestly improper. Wright v. State, 178 S.W. 3d 905, 929 (Tex. App.-

•• Houston [14th Dist.] 2005, pet. ref' d). Comparing a defendant or his acts to a

•• notorious criminal is considered an improper and erroneous interjection of

•• facts not in the record that is harmful to the defendant. Gonzalez v. State, 115

•• S.W. 3d 278, 284-285 (Tex. App.-Corpus Christi 2003, pet ref' d). In Gonzalez

•• the prosecutor compared the defendant to Osame Bin Laden .

••

•

••

••

•• In the instant case, the prosecutor, compared Defendant to "Casey

Anthony" a well publicized case of a child abuse death that occurred at the

•• time of Defendant's trial. No objection was made and no reference to that

•• comment by the prosecutor exists in the record. However, attached affidavits

•• of witness who lead the argument and also heard the Court "strike the matter

•• from the record" .

••

••

••

••

••

••

••

••

••

••

••

••

••

••

•

••

••

•• CERTIFICATE OF COMPLIANCE

•• Pursuant to Tex. R. App. Proc. 73.1 (f), undersigned counsel certifies

•• that this petition complies with the type-volume limitations of 5th CIR. R .

•• 32.2.7(b) .

1. Exclusive of the portions exempted by Tex. R. App. Proc. 73.1, this

•• petition contains 4, 156 words printed in a proportionally spaced typeface .

•••• 2. This petition is printed in a proportionally spaced, serif typeface using

•• Times New Roman 14 point font in footnotes produced by Microsoft Word

•• software .

3. Upon request, undersigned counsel will provide an electronic version of

•• this petition and or a copy of the word printout to the Court .

•• 4. Undersigned counsel understands that a material misrepresentation in

•• completing this certificate, or circumvention of the type-volume limits in Tex .

•• R. App. Proc. 73.1 (f), may result in the Court striking this petition and

•• imposing sanctions against the person who signed it .

••

••

•• By: /S/ RALPH R. MARTINEZ

RALPH R. MARTINEZ

•• Attorney for Appellant

••

••

••

••

••

••

••

••

•• . . - ~- ·--

AFFIDAVIT OF DOCTOR

- - - --- ..... -- - ...... --

•• GOLDER WILSON

••

•• ON

•• MEDICAL CONDITION

••

•• OF MATHEW GUERRERO

••

••

••

••

••

••

••

••

•

•••

••••

,.',.

.

·-\· AFFIDAVIT

.,.~·

',.~·,.

BEFORE ME, the undersigned authority, on this day personally appeared

&o l Qet( WJ t.SvAJ , who, being by me duly sworn., deposed as follows:

"My name is (.,v t.. Qi& fA!tt.lroA f , I am of sound mind, capable of making this

affidavit, and personally acquainted with the facts he~ein stated:

•• _. _~. __ l (e,e,LM!lJID~W Qg~rr.~m "~ ..f:hlm::J2i!PJq~_§m<:ifgm~-(£!?~), .l:l IMe, . trm.Y.ti~d ~9I!c.i't~q~

with disruption of the integrity of structural proteins in skins, ligaments, cartilage, and blood

••••

vessels, leading to the fragility of connections tissues_

T do not recall seeing a vitamin D level in Matthew Guerrero; however, further

examination of Mathew may be necessary to determine if his vitamin D level are low. Patient

•• with EDS are frequently vitamin D deficient.

Specifically EDS patients may feature atrophic SCARS, multiple bruises, skin splitting

•• and the presence of blue sclerae and epicanthic folds. EDS patients may also exhibit bruising in

the body.

••

••

••

•• SWORN TO AND SUBSCRffiE. before me on the

•• My commission expires:

••

••

••

••

••

••

••

••

••

••

••

••

••

•• ,_ • -

MEDICAL CONDITION

.~·. k ·-· '··- · - • • •• :

•• OF

••

•• LUCAS GUERRERO

••

••

••

••

••

••

••

••

••

••

••

•

•.•

.

·~

•

~~~~~

~

Pediatric Genetics

••

March 22, 2014

Dr. Malgorzata Gajda

Hllltop Pediatrics

••

•

300 N Highland Ave Suite 542

Sherman, TX 75092

Dear Dr. Gajda:

RE: Lucas Guerrero BD: 9-4-1999

• I had seen Lucas Guerrero on March 17, 2014 and feel that he has a form ofEhlers-Danlos syndrome (EDS) type I characterized by

.~.~tall.stature,,hypermobility,,arthralgia;.and.some,sy.mptoms.ofparoxysmal,orthostaticJachy~ardia,syndrome.,.{EQ_I.SLJg~nt..in~l,!f,@~~" '"

information to the Gene Ox company to ascertain self-pay costs for the new exome sequencing test that examines the coding regions of

• all 23,000 genes. This would include the trio of samples from a child/adult and their two parents. I now have the response from Ms.

••

Alderdice, the genetic counselor for GeneDx that coordinates benefits and sampling for exome sequencing. Her response below

indicates a $1117 out-of-pocket costs for this $9000 test, so it may be best to wait until the exome sequencing costs dec liners since it

is new and we may not receive information that is of practical use for medical management. However, the family could contact Ms.

••

Alderdice or the patient advocate line for further discussion .

If the family wishes to proceed with testing, they could make a follow-up appointment with me so we can fill out the requisitions,

••

draw blood, and send to Gene Ox. There is also a network of GeneDx draw locations that can be helpful if relatives live out of town or

far from my office in Medical City hospital. If blood is drawn at an outside location, I can forward requisitions for testing to GeneDx.

Once the blood is drawn, there will be a 4-5 month wait for results and I will send copies to the family and their doctors as specified .

••

In many cases a follow-up appointment for discussion of these complex results should be considered, I would ask the family to contact

Ms. Alderdice or make a follow-up appointment with me to proceed with testing. As always, they should feel free to contact me with

further questions or concerns .

••

Dr. Wilson,

For Lucas Guerrero, the out of pocket cost is $3726. With the financial

••

assistance program, we could reduce this to $1117.8 which could be paid in a 12 month

payment plan if needed. Anyone with any amount out of pocket is strongly encouraged to

call out Patient Advocate Line at 1-866-383-1925. They have been bringing out of pocket

costs down quite a bit lately to make testing affordable to patients. Your patients are

••

also welcome to give me a call to discuss.Thanks!

Melissa Alderdice, MS, CGC

Gene Dx (P) 214-250-2427

Neurology Product Specialist

(F) 214-501-5395

•• Sin~t~

malderdice@genedx.com<mailto:malderdice@genedx.com>

Genetics & Metabolism

••

Personalized medicine, prenatal counsel

Dysmorphology, birth defects Development delays, mental disability

Prenatal counseling Growth, obesity, ADHD, behavior issues

Dallas: Phone 972-566-2500 Plano: Phone 972-312-0440

••GoaW1lson MD, PhD

Certified in Pediatrics & Medical Genetics

Information/questions: Phone: 214-797-0031

Medical City Hospital Suite 8311

7777 Forest Lane

Dallas TX 75230

Miranda Ramirez Pediatrics

3608 Preston Rd, Suite 125

Plano TX 75093

••

cc:

Email: TheGgnome@aol.com Fax 972-566-2505 Fax 469-467-9343

More information: www.kinderGgnome.biz

••Ralph Martinez Attny

29000 Woodridge Ste 202

Rigoberto, Raquel Guerrero

1212 S Hazelwood St

••

Houston TX 77087 Sherman TX 75090

••

•

••

••

••

•• ~

Pediatric Genetics

••

March 18,2014

Dr. Malgorzata Gajda

Hilltop Pediatrics

•• 300 N Highland Ave Suite 542

Shennan, TX 75092

••• Dear Dr. Gajda:

.RE: ..Lucas Guerrero" .. .f3.D: 9.::.f!-.,.1.995L,..

•• Thank you for referring Lucas Guerrero who I saw again on March 17, 2014 in our Medical City office for

outpatient genetic consultation. Lucas is 14 years old and came in with his grandmother for discussion of genetic

testing. My overall impression was that Lucas has a moderate form ofEhlers-Danlos syndrome (EDS) type I

•• characterized by tall stature, hypermobility, arthralgia, and some symptoms of paroxysmal orthostatic

tachycardia syndrome (POTS). I had inquired of the GeneDx company what the family self-pay would be for

exome sequencing that examines all23,000 human genes, and they responded that the family would have

•• minimal out-of-pocket costs. I will now resend their new insurance information to confirm full insurance

coverage, and we will try to arrange the exome test for Lucas, his mother in Flower Mound, and his father

who is incarcerated in Tennessee Colony Texas. I will send a follow-up letter when we have the out-of-pocket

•• estimates with potential blood draw mechanisms for the parents .

PAST MEDICAL IDSTORY: I had previously documented the history of several infantile fractures which

•• resulted in placement with his grandmother since age 1 year. He had some development delays with need for ECI

that may have reflected healing from fractures since he has done well in school until recently. He had some physical

therapy at age 8-9 years and he has had normal language. Symptoms such as joint popping, arthralgias, fractures in

••

his L foot, and stomach issues suggestive of IBS suggest the diagnosis ofEDS, and some urologic issues along with

dry eyes have suggested POTS along with dizziness on standing, hypotension, enjoyment of salty foods, occasional

fatigue and "brain fog," the latter possibly accounting for some school difficulties. He was told that he has collapsed

••

arch~s in his feet.

FAMILY IDSTORY: The previously documented family history indicates that Lucas has half-brothers Jacob and

••

Matthew, the latter with early fractures that in 2009 resulted in his father having criminal charges of child abuse

with incarceration. Grandmother (mother of the three boys' father), does not have contact with these other

grandchildren, but thinks that Jacob may have had an arm fracture. Grandmother is a nurse working in dialysis and

••

has had several symptoms ofEDS-joint pains with flexibility, migraines, menorrhagia, and endometriosis. She has

another son in addition to Lucas' father with joint issues and a daughter who has a son, age 9, with flexibility,

asthma, and eczema.

•• PHYSICAL EXAMINATION: Lucas was 6-2 'l'2(90th centile for age) and weighed 163 lbs (50th centile for age)

with a head circumference of22.5 inches (901h centile for age). He continues to grow rapidly (6-1 at his last visit)

and has a slender, fit build that will help prevent wear-and-tear joint injury.

•• H EENT: Normal hair pattern and texture with normal head shape; normal facial appearance with no subtle

anomalies of the eyes, ears, or jaw..

Back: Mild dextroscoliosis in thoracolumbar region with angle of about 5 degrees.

•• Extremities: Normal proportions with normal palmar creases. I previously documented moderately increased joint

laxity with Beighton hypermobility scale of 5-6/9). He has long fingers and the thumb-little finger overlap around

wrist (Walker-Murdoch) and thumb through fist (Hoffinan) signs were positive.

•• Skin: Soft texture with hyperelasticity sufficient to give a 1 inch fold on his forearm .

Neuro: No focal neurologic deficits. He is very interactive and conversational with obvious normal intelligence. He

has good coordination and balance as judged by tandem walk

••

•

••

••

RE: Lucas Guerrero BD: 9-4-1999

•• IMPRESSION: My impression remains that Lucas has a moderate form ofEhlers-Danlos syndrome (EDS) type I

with evidence for skeletal, gastrointestinal and vascular changes. I cannot exclude a form ofMarfan syndrome

although he has not yet had any aortic or cardiac changes, but the type IV EDS syndrome is unlikely since he does

•• not have a pinched lower face or translucent skin .

RECOMMENDATIONS: I will recontact the GeneDx company to ascertain what the self-pay costs would be for

•• exome sequencing (list price fo $9000) based on their new insurance. If covered, we can arrange blood draws for

Lucas and his parents, and have urged his grandmother to contact me (email best) with new questions or concerns .

.~,,~

•• Genetics & Metabolism

Dysmorphology, birth defects

Prenatal counseling

Personalized medicine, prenatal counsel

Development delays, mental disability

Growth, obesity, ADHD, behavior issues

. • .___ ,. .... ~- .Dallas:J?hone,9.Z2c:566.:25Q.O.~.,,"' .......J?,l;3QO:~Rh

••

Medical City Hospital Suite 8311

Certified in Pediatrics & Medical Genetics 7777 Forest Lane

Information/questions: Phone: 214-797-0031 Dallas TX 75230

••

Email: TheGgnome@aol.com Fax 972-566-2505

More information: www.kinderGgnome.biz

cc:

•• Ralph Martinez Attny

29000 Woodridge Ste 202

Houston TX 77087

Rigoberto, Raquel Guerrero

1212 S Hazelwood St

Sherman TX 75090

••

••

••

••

••

••

••

••

••

••

••

••

••••

••

•••

•••

••

~

Pediatric Genetics

December 12,2013

·-•• Dr. Malgorzata Gajda

Hilltop Pediatrics

300 N Highland Ave Suite 542

Sherman, TX 75092

··~----·-·-··-~,--~-· "~--- --·---··-·---~-=···": ··-- ........ ~-··-·

• Dear Dr. Gajda:

•• Thank you for referring Lucas Guerrero who I saw on December 12, 2013 in our Plano office for outpatient

genetic consultation. Lucas is 14 years old and came in with his grandmother for evaluation of a possible

connective tissue dysplasia. My overall impression is that Lucas has a moderate form ofEhlers-

•• Danlos syndrome (EDS) type I characterized by hypermobility, arthralgia, and some symptoms of

paroxysmal orthostatic tachycardia syndrome (POTS). I will inquire of the Gene Ox company what

the family self-pay would be for exome sequencing that examines all 23,000 human genes and has the

•• best chance to define a mutation in one ofthe >100 genes implicated in connective tissue dysplasias or

dysautonomia. I will let the family know in a week and we can arrange blood draws on Lucas and

his parents if it is feasible to proceed .

•• PAST MEDICAL IDSTORY: Lucas was a premature baby after a 34-week gestation and had transient

jaundice and hypoglycemia. He was bottle-fed with some early feeding difficulties and there was a question

•• of tears in the cornea at one point. At age 2 months he was removed from parental custody after an arm

fracture and others in multiple stages of healing were found-apparently vitamin D deficiency was also

questioned. His grandmother acquired custody at age 1 year and relates a history of hypotonia with motor

••

delay-he did not walk until age 18 months and he was in ECL However, the delays may have reflected

healing from fractures in that he has done well in school until recently, troubled more by lack of effort than

cognitive concerns according to his grandmother. He had some muscle weakness that needed physical

••

t}:lerapy at age 8-9 years and he has had nonnall~nguage .

His muscle weakness may have reflected limitation from joint pain as he has popping joints and arthralgias,

••

particularly in his shoulders. He has been in a boot twice for stress fractures in his L foot. His most severe

symptoms are likely due to ms with severe stomach issues at ages 4-5 years after GE reflux as a baby. He

has chronic constipation and Dr. Russo performed a normal endoscopy and biopsy. Also potentially related

to dysautonomia are urology issues with need for stents in his ureters and an episode of urosepsis. He also

•• has had significant vision issues with dry eyes and poor vision evaluated at age 6-7 years. He was found to

have vitamin A deficiency and now takes 25,000 units per day, also having other fat-soluble vitamin

deficiencies such as vitamin K that could reflect bowel malabsorption-he is seeing Dr. Hutchinson of

•• endocrinology and Dr. Russo of Gl for these issues. He also has symptoms of POTS with an episode of

severe shortness of breath and saw Dr. Zellers of cardiology with monitoring for arrhythmia that was

apparently negative. He has dizziness on standing, hypotension, enjoyment of salty foods, occasional

•• fatigue and "brain fog," the latter possibly accounting for some school difficulties. He has not had striae or

unusual scars and does not note TMJ pain or popping, obvious scoliosis or pectus. He was told that he has

collapsed arches in his feet.

•• FAMILY IDSTORY: Family history indicates that Lucas has half-brothers Jacob and Matthew, the latter

with early fractures that in 2009 resulted in his father having criminal charges of child abuse with

•• incarceration. Grandmother (mother of the three boys' father), does not have contact with these other

grandchildren, but thinks that Jacob may have bad an arm fracture. Grandmother is a nurse working in

dialysis and has had several symptoms ofEDS-joint pains with flexibility, migraines, menorrhagia, and

••

••

••

•• RE: Lucas Guerrero BD: 9-4-1999

•• endometriosi& ~he has another son in addition to Lucas' father with joint issues and a daughter who has a

••

son, age 9, with flexibility, asthma, and eczema. Otherwise, there are no individuals known to have

developmental disability, birth defects, or early onset cancers on either side of the family .

PHYSICAL EXAMINATION: Lucas was 6-1 and weighted 156lbs with a slender, fit build.

•• HEENT: Normal hair pattern and texture with normal head shape; normal facial appearance with no subtle

anomalies of the eyes, ears, or jaw..

Neck and chest: No webbing or sinuses; mild pectus excavatum

•• Heart: No murmurs--regular rate and rhythm

Back: Mild dextroscoliosis in thoracolumbar region with angle of about 5 degrees .

Extremities: Normal proportions with normal palmar creases. Moderately increased joint laxity with

•• Beighton hypermobility scale of 5-6/9). He has long fingers and the thumb-little finger overlap around

wrist (Walker-Murdoch) and thumb through fist (Hoffman) signs were positive .

· Skin:··so1l'feXfufe"with hyperelifstieity'Slifficientto'give·a·l inch fold on"his·forearm:~"· ·"·"···· -· -···· -· --· • · · - ~-·-" · ·--·

•• Neuro: No focal neurologic deficits. He is very interactive and conversational with obvious normal

intelligence. He has good coordination and balance as judged by tandem walk

•• IMPRESSION: My impression is that Lucas has a moderate form ofEhlers-Danlos syndrome (EDS) type

I with evidence for skeletal, gastrointestinal, and vascular changes. The latter have manifest mainly as

POTS and gastroparesis/irritable bowel syndrome, and I do not see evidence for the Chiari malformation

•• that is more common in EDS. I also cannot exclude a form of Marfan syndrome although he has not yet had

any aortic or cardiac changes, but the type IV EDS syndrome is unlikely since he does not have a pinched

lower face or translucent skin .

•• RECOMMENDATIONS: I attach information on the EDS spectrum and would suggest return to

cardiology if Lucas has more severe POTS symptoms, especially if they interfere with school. Drs. Lee

••

Ann Pearse of pediatric cardiology and Dr. Amer Suleman of adult cardiology are very familiar with

POTS. Otherwise, Lucas should follow the joint protection and nutrition approaches outlined in the

information, and I am inquiring of the GeneDx company what the self-pay costs would be for exome

••

sequencing (list price fo $9000 but often covered or discounted through insurance). I have urged his

grandmother to contact me (email best) with new questions or concerns.

Sine~ y yours

••

Genetics & Metabolism Personalized medicine, prenatal counsel

\ Oysmorphology, birth defects Development delays, mental disability

Prenatal counseling Growth, ob(!sity, ,II.DHD, behav_ior issues

Dallas: Phone 972-566-2500 Plano: Phone 972-312-0440

•• Golder N. Wilson MD, PhD

Certified in Pediatrics & Medical Genetics

Information/questions: Phone: 214-797-0031.

Medical City Hospital Suite B311

7777 Forest Lane

Dallas TX 75230

Miranda Ramirez Pediatrics

3608 Preston Rd, Suite 125

Plano TX 75093

•• Email: TheGgnome@aol.com Fax 972-566-2505 Fax 469-467-9343

More information: www.kinderGgnome.biz

••

cc:

Ralph Martinez Attny Rigoberto, Raquel Guerrero

29000 Woodridge Ste 202 1212 S Hazelwood St

••

Houston TX 77087 Sherman TX 75090

••

••

••

••

•

••

•• Ehlers-Danlos syndrome (EDS) discussion-Or. Wilson

What is EDS? Ehlers and Danlos were dermatologists who in the early 1900s descnbed a syndrome (pattern) caused by lax

•• connective tissue highlighted by patients with hyperelastic skin. In 1977, Dr. Peter Beighton organized intervening literature by

postulating 7 EDS types, with type I involving skeletal problems plus extended complications of the bowel and circulatory system,

type II showing mainly hypermobility, type III having hypermobility with many stretch marks, and type IV with tight lower facies,

•• thin aged skin, and lethal vessel ruptures. Types V-VII are more localized and rare, affecting gums or producing odd skin lesions .

Type IV was erroneously called the "vascular" type even though all forms ofEDS can have flexible and fragile blood vessels. Many

physicians and geneticists continue to view EDS as a group of rare specific types, but my experience teaches that hypermobility

•• disorders and EDS comprise a spectrum that is as common as diabetes. Most individuals have only hypermobility, a trait that they

take for granted and become aware of only when they have frequent sprains or wear-and-tear arthritis. Others have more severe

symptoms that can be disabling but not life-threatening, and the clinical diagnosis ofEDS emphasizes that patients have a true

•• condition and that their anxiety, fatigue, and chronic pain are real symptoms rather than "in their minds" or branding them as

hypochondriacs. The Inspire website (https://www.inspire.com/groups/ehlers-danlos-national-foundationl) is an excellent and patient-

oriented source of information.

•• Rarer, extreme'forms·'ofEDS-reflect single gencf(autosoin'al dominant)inheritante:-The severe types ofEDS along with other

members of the connective tissue dysplasia category like Marfan syndrome (exemplified by an Abe Lincoln build) or osteogenesis

--

••

imperfecta (OI or brittle bone disease) exhibit autosomal dominant inheritance, meaning that affected individuals have one normal and

one abnormal gene. The abnormal gene dominates to cause connective tissue laxity-both genes make protein with the abnormal gene

making a deformed protein that interacts with the normal protein like bricks in a wall. The deformed brick (protein) makes the wall

wobbly and weak, translating to weaker and flexible skin, joints, and blood vessel walls. Severe forms ofEDS and related conditions

•• can be diagnosed by targeted DNA testing-fibrillin gene testing for those with obvious Marfan syndrome, collagen type ill testing

for those with obvious EDS type IV. collagen I testing for those with obvious 01.

•• Most EDS cases are cause by multiple genes and comprise a spectrum: Most patients with EDS exhibit overlapping symptoms of

joint popping/dislocation/injury with later arthritis, soft and elastic skin with unusual scars and bruising, migraines, heavy periods with

endometriosis, and dysautonomia (altered function of the autonomic nervous system) with irritable bowel syndrome (IBS) and

•• paroxysmal orthostatic tachycardia syndrome (POTS). In EDS, POTS is due to pooling of blood in lower extremities when standing

with dizziness, fainting, fatigue, and "brain fog" (intervals of decreased focus and memory). Diagnosis ofEDS among many causes of

dysautonomia allows therapy by increasing intravascular volume with hydration and salt to increase brain perfusion. Patients with

•• broader symptoms are likely to have multiple gene changes compatible with multifactorial causation.

EDS remains a clinical diagnosis: As of now the diagnosis ofEDS is clinical in most cases, meaning documentation of typical

•• histories and physical findings (tall stature, lean build, hypermobility, skin elasticity). Patients can be grouped as hypermobile EDS

(REDS) or classical (CEDS with broad symptoms) but this is greatly oversimplified, as are the 7 types described by Beighton. I tend

to group patients with only skeletal symptoms as type II or ill (with associated stretch marks/scarring) and those with broader

••

symptoms as type I. Since over 40 genes have been implicated in EDS, we can anticipate over 40 types with overlapping symptoms

when DNA testing of multiple genes becomes routine. At present the clinical diagnosis of connective tissue dysplasia or EDS

spectrum disorder is reasonable since it will guide patients and physicians to anticipate a broad range of medical complications and

••

refute assumptions about mental illness or hypochondriasis .. The many possible gene changes make single gene (DNA) testing oflow

yield except in cases with obvious Marfan or EDS IV.

••

Gene testing for EDS: Three levels of gene (DNA) testing include I) testing for Marfan and related Loeys-Dietz syndromes through

LabCorp (-$1600 and usually covered by insurance), 2) a 12-gene panel including Marfan, EDS type IV, and other rare forms ($3600

with guaranteed maximal $100 self-pay over insurance through the GeneDx company), and 3) exome sequencing examining the exons

(protein-coding regions)ofall23,000 genes in our genome (rapid parallel/(NextGen sequencing of parent-child trios for $9000

•• through GeneDx with guaranteed max of$1000 self-pay over insurance). For the latter test, I can send insurance information to

GeneDx to ascertain each family's self-pay amount which sometimes is much less than $1000. Sadly, most genetic testing is not

covered by Medicaid or Medicare. Even a positive gene test may not lead to different therapy or management.

•• EDS therapies: Arthritis is due to joint hypermobility with wear-and-tear injury (osteoarthritis), not from inflammation like

rheumatoid arthritis or that due to lupus and other rheumatic diseases. Thus therapy is preventive with common sense

•• recommendations for joint protection, favoring activities like swimming and avoiding those like long distance running, gymnastics,

etc. Patients should remain active with moderate weight-lifting and other reasonable activities to build muscles aronnd the joints,

preventing cycles of inactivity with increasing joint stiffuess and pain that present as chronic fatigue syndrome or fibromyalgia. The

•• RICE (Rest, Ice, Compression, Elevation) approach to injury can minimize ongoing joint damage, and susceptibility to injury plus

slow healing should prompt early orthopedic evaluation to exclude tears and fractures. POTS benefits from hydration (8 glasses fluid

per day), salt in the absence ofhypertension, and vitamins (C--2g per day, D >1000 units per day, Bl2-2.5 mg per day, daily

•• multivitamin and mineral preparation). ms can be helped by avoiding fluids before meals with small feeds and, for some, low gluten.

•

•• Jt".-31-2013 WED 05:35AM

I

Rece lued:

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May 22 2013 05:33Pm

r. uc:.

•• MF 22-2013 WED 05:17PM FAX NO. ?. 02

•• PHYSICIAN REFERRAL

•• NOTE: Application cannot be processed without physician referral

A TIENTION: Referring Physician -the following is REQUIRED data:

1) Child's Nama and Dilte of Birth

•• 2) SgctiQLl.A and/or Section B completed in its ENTIRETY for determination of child's eligibility

3) Phvsician Signature, Date, Medical License Number, and Demographics

•• If you have any questions regarding the referral an~/or services that TSRHC provides, please contact the Pa1ient

Access RN at (214) 559~7559 or 1 {800) 595-7604 .

Gl1~ {{~J() -~ uf? bet"\

•• Child's name

Last

1

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First Middle (SUfflk)

Dat13 of birth CPL l

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•

Section A- REQUEST FOR ORTHOPEDIC/MUSCULOSKELETAL

, EVALUATION (completed by MD)

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•• --;:;;..,(<...-..'--r-~J'­

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MEDICAL WCENSl: # /,'?-1_ i-f::;--

•• PtiYSICIAN'S ADDRESS-...,,..,..-----------------------;:::--::--::-----

Straar Suite #

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~REQUEST FOR LEARNING DISABILITY EVALUATlON (completed by MD)

•• NOTE: The enclosed Educational Background form MUST be ccmplered for application to be processed.

·Grade level School name School d i s t r i c t - - - - - - -

•• Special Education Placement? Cl No 0 Yes

Purpose of referraL-----------~-~--------------

•• Describe leamlng prcblem(s)l_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- - - : - - - - - - -

••

Has previous testing been clone? CJ No 0 Yes (if yes, note date, place of testing and attach records)

•• MED~20 REV 4/2008 Page 4 of 4 Application

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•

••• Ju1. 29. 2013 9: 21 AM HUo liVL • • .,

••

••

:.••

•• Guerrero, Lucas Rueben (MR.# 1031 083)

••,.•• 'VITAMIN D 25 'HYDROXY .

.:-~8-&utte

Reautt Nbtes

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· Status: Ftrilf ':'ftUit . : . . .'

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"". .':

•• Notes Recorded by Michele R. J.futchlson, MD on 51712013 at 2:43 PM

Donna,

· · -Now thatlu~:;as• tabs are baCk, looks like we need to rrtike .some ohanges: 1-

•• ,. VItamin A Is good. no change to that dose.

2. Vitamin 0 could .stand to be lncteased, He is taking 4000 units/day - of mom has the 2000 unit c;apsules,

,.

••

a

then she should Increase to capsules a day (6000 units/day). i

3. VItamin K -Not SIJre why this one is so much higher than usual. He takes 1/4 tab 3 times a week. Reduce .

the trequeney to twice a ~k.

1,

••

4. VItamin E - This is the one we were COflfused about I think you determined that he Is laking 400 units 5

daya a week. His levei was tow, so we need to Increase the dose. I don't think 400 7 day~ a week will do It- I 1

would give him two capsules 6 days a week. ·

•• Because we are changing so many of the e20sages, I would feel better if we repeated the labs In 6-8 week.9 .

(Don't need to repeat the Vlt A, a& that W8$ normal.)

Thanks

•• MH

•• Guerrero, Lucas ltueben (.MR # 1031083)

•• V.ITAMIN D.26 HYDROXY ·.

Resuite

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Result Notes

Notee Recorded by Mlchllo lt. Hutchison, MD on 7/1312013 at 4:03PM

••

lucae is our young man wilh the fat-soluble vitamin deficiencies. Please let mom (GM) know abOut the

results: .I

The Vlt 0 level is perfect, no change to dose. I

•• Th~ Vit E level is good • no change to aose.

The Vlt A IG\Iel was not done for 80me reason. However, aU or his previous levels have been normal on the

current dose, ao I think we are OK there. ·

•• The Vit K Is just a bit high, at~gh much better than at lhe fast check. 1would like to leave the dose Where tt

is ror now, and If It Is stul slightly hiUh at the neld check we \VHI decrease It a bll

Thanks

•• MH

•·•

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• 07-28-'15 14:15 FROM- Dav!~~ Denison 9034636830 ,.----...... T-514 P0002/0012 F-952

~

Pediatric Genetics

July 25, 2015

Dr. Malgorzata Gajda

Hillt0p Pediatrics

300 N Highland Ave Suite 542

Sherman, TX 75092

RE: Lucas Guerrero BD: 9-4-1999

Dear Dr. Gajda:

I had seen Lucas Guerrero on March 17, 2014 and felt that Lucas has a moderate fonn ofEhlers~Danlos

syndrome (EDS) type I characterized by tall stature, hypennobility, ruthralgia, and some symptoms of

•• postural mthostatic tachycardia syndmme (POTS}-I now refer to this spectrum as articulo-autonomic

dysplasia-EDS (AAD-EDS, see attachment and below). I was able to obtain whole exome sequencing

(WES) that examines all 23,000 genes and I now attach results of this testing that show a mutation

•• affecting the mitochondrial MT-COl gene that encodes one of many proteins that constitute a subunit of

cytochrome C oxidase, also known as Complex IV. The mutation changes the amino acid threonine (T)

••

to methionine: (M) at position 31 of the MT-CO 1 protein (p. T31 M), and is present in 40% of Lucas'

mitochondria (he thus has mixtures ofmutant and normal mitochondria in his cells, something called

heteroplasmy). This mut..1.tion was present in Lucas' mother at a lower level ofheteroplasmy. and has not

•• been observed in DNA databases from nonnal individuals-it is thus is not a common benign variation .

The report classifies it as a variant of unk11own significance. but I have now seen at least 6 patients with

EDs-dysautonomia symptoms that have mitochondrial mutations, and the essential role of mitochondrial

•• complexlY in energy metabolism, particularly important in the brain, l1eart, nerve, and muscle, leads me

to suspect that such mitochondrial mutations a1·e a cause of AAD-EDS symptoms.

•• It is likely that Lucas' half-brothers, at least one having early fractures that can occur with AAD-EDS,

have the same mitochondrial mutation from their mother since women pass on the mitochondria to all

•• children. We cannot predict the fraction of their mutant mitochondria compared to the 40% in Lucas .

Supporting the relevance ofthe mitochondrial MT-COl mutation to'AAD-EDS symptoms is the fact

that the matemal grandmother has some of these symptoms, likely havil1g the same MT-C01 mutation

•• and passing it on to her daughter. Relatives could have testing for the particular MT-COI mutation at a

cost of $350 each, and this could be coordinated by Ms. Alderd1ce of the GeneDx company.

•• These results do exclude severe forms·of cmmective tissue dysplasia such as Marfau syndrome, Ehlers-·

Danlos: syndrome type IV, or osteogenesis imperfecta since those genes were well-covered by the exome

•• technology. The results also excluded mutations in 56 genes such as the breast-ovarian cancer/BRCA

genes, tenned incidental findings because they may not be related to the indication for testing. The latter

genes were screened in Lucas but not in his mother since only mutations found in his mother would be

•• examined in her relatives .

I would emphasize that the there could be additional gene mutations contributihg to AAD.:.EDS

•• symptoms in Lucas and his half. brothers that were not recognized by-this new WES teclmology. If

••

•

• 07-28-'15 14:15 FROM- Davi~a Denison 9034636830

RE: Lucas GuetTero BD: 9-4-1999

T-514 P0003/0012 F-952

several genes interact to cause the AAD-EDS symptoms, then the software will not recognize a change

in any one of them as pathogenic. There are also many human genes that do not have known functions

and/or have not been correlated with human disease~·-mutations in these genes may not be called as

disease. related by the computer software that examines the over 600 million DNA nucleotides (AGCT

letters) documented by whole exome sequencing. Finally, although most genes are covered from 90 to

97% of their length by the sequencing, some gene regions are not examined and thus mutations can be

missed. Because WES is a recent advance, additional studies on patients with connective tissue laxity

are certain to uncover more genes related to this disease spectnun. That 1s why GeneDx keeps a

database of new gene discoveries, updating prior patient repm1s if they have such mutations. The

company also offers to reanalyze the sequencing results every 3.4 years so that new gene discoveries

can be incorporated into the computer software.

I would still consider Lucas to have a diagnosis ofEDS-dysautonomia, now better described as AAD-

EDS because my genetic data is showing that any part of the joint (articulation)--skin, nerve, muscle,

bone, joint tissue, blood vessel~~can be impacted to cause the same pattem of symptoms (see

attachment). His clinical profile would fit with EDS type I or classic type since his hype1mobility is not

!. as dramatic as with EDS type III, although the types are being outdated by the new sequencing results.

Most importat1t is for Lucas and by implicatio11 his half:.brothers to follow joint protection and 11utrition

•: strategies in the attaclm1ent. I am also attaching general infom1ation on mitochondrial diseases, with

supplements that can help and medications to avoid. We do not know for sure tl1at Lucas has significant

mitochondrial dysfunction, but the supplements are hannless vitamins and can be tried without concern

for side effects.

:• I would be happy to see the family in follow-up if they would like to discuss these results, and would

urge them as before to contact me (email best) with new questions or concems .

•• sm-t~~

Genetics & Metabolism

Dysmorphology, birth defects

Prenatal tounselihg

- Personalized medicine, prenatal coun5el

Development delays, mental disability

Growth, obesity, ADHD, behavior Issues

•

••

GolderN. Wilson MD, PhD

Certified in Pediatrics & Medical Genetics

Email: TheGgnome@aol.com

Medical City Hospital Suite B311

7777 Forest Lane

Dallas TX 75230

Phone 972-566-2500 Fax 972-566-2505

•

More information: www. kinderGgnome.biz

cc:

Ralph Martinez Ath1y Rigobe:tto, Raquel Guerrero

~

••

29000 Woodridge Ste 202 1212 S Hazelwood St

Houstoq TX 77087 Sherman TX 75090

••

••

••

••

••

• 07-28-'15 14:16 FROM- Dav_d:.a

'#

I

. \

Den i son

I

9034636830

http://www.umdf.org/site/c.8qKOJOMvF7LUG/b.7934627/k.3711/\Nhat_is_Mitochondriai_Disease;h

T-514 P0004/0012 F-952

tmAvoidance of Toxins

Alcohol & Cigarettes

Alcohol has been known to hasten the progression of some mitochondrial disorders. Cigarette smoke, probably due to

the carbon monoxide, is known to hasten the progression of some conditions. Remember that carbon monoxide kills

by inhibiting complex IV of OXPHOS, why make it worse? Cigarette smoke will make it worse.

MSG

MSG (monosodium glutamate) has for years been known to cause migraine headaches in otherwise healthy

individuals, and may trigger these events in susceptible people with mitochondrial disease. MSG is frequently added

to Chinese (and other Asian) foods, and is also found in high levels of dried and canned soup. Read the label and

avoid MSG if there is any sensitivity.

"'Back to Top*

Vitamins and Cofactors

Vitamins and cofactors are compounds that are required in order for the chemical reactions, which make energy, to run

efficiently. By definition, a cofactor can be made by the body, whereas a vitamin cannot, and therefore must be eaten.

For most people, a regular diet contains aU the vitamins one could possibly need and their bodies can make as much

of any specific cofactor that it needs. For those with mitochondrial disorders, added vitamins and cofactors may be

useful. ·

The use of supplemental vitamins and cofactors is largely unproven and their use is therefore controversial in patients

with mitochondrial diseases. For disorders of OXPHOS, coenzyme 010 is considered as a generally accepted

:

effective therapy, although it may not ultimately be effective for an individual patient. Other treatments may be effective

in one disorder but not in others. Because of the varied nature of mitochondrial diseases some therapies may be

helpful in many, but not in all patients and therefore cannot be considered as ''proven and effective." Some treatments

should only be undertaken under the specific guidance of your physician. For specific information about the

•'•

controversy, as it relates to your or your child's situation, ask your physician. Most of these vitamins can be purchased

fror.n many sources, including the drugstore .

These supplemental compounds can serve two functions:

••

• possibly enhance enzyme function and result in improved efficiency of energy generation

• serve as antioxidants, which may slow the progression of the disease

*Back to Top*

••• Vitamins and Supplements That May be Hetpfulf<r.

**Consult your physician before starting any of the foflowing possible treatments*A

:. i=irst fi~r $upjJJem~~ts ·· · ' ·, ' · . · ·· ·

••

Supplement Dose Range

C()Qj o:. · · 5 =:.J5 m9/kgiiJay. .· .. . . . . . . .. ....... · . .. .

Levo-camitine Variable, starting dose of 30 mg/kg/day, typical maximum of 1 00

••

(Carnitor) mg/kg/day .

·Ri~6tlavin.{B2) 190~:4.00 mg a d~Y

'$e.c.oridfier Supplernii'nt ·

•• E)applement .

· A¢etYI"L-Carnitine

. T~iamine (B1)

DoseRange ..

2~0 ~ 1000 mg per day

50 - 100 mg a day

•• :NiaCin (B3)

·Vitamin E

'Yit~hlihC

· · so;;·:1oo·mga,day.·····

200 - 400 IU; 1 - 3 times a day

··1oo--' 50() mg; 1 ~ 3times a day

•• Lipoic Acid

(~ ~lipoate)

S$le.niUm

60 - 200 mg; 3 times a day

. 29 .~ Sb micr()gr~m~ a day .

••

b -carotene 10,000 IU; every other day to daily

,·~.i9tln: 2.5 ~. 1o m9 a.day. · .·.· · · ··

Folic Acid 1 -10 mg a day

••

*Back to Top*

Medication, Minerals, Vitamins and Substrates that May be Helpful*f<

**Any use of the following medications, minerals, vitamins and substrates MUST be made only under a physiciads

••

direction.**

Supplement Dose Range

••

• 07-28-' 15 14:18 FROM- Dav iJ:a Denison

· · GalciL.Jlil Vari~ble

9034838830 T-514 P0005/0012 F-952

Magnesium Variable

·phosphOrus .· • vari~bl$.· ....,;.

Succinate _6 gm per day

... 5 9m bi~ ~ftl3r initi~t load (ac;JultM.

':,.·

:Creatine

Uridine To be determined

.i citrate~. varjabi~· :

Prednisone Variable

·.· . Vilari1Jn.K3 ·• .5"30 009 per day.

'"Back to ToJL'

Avoidance of Physiologic Stress

Physiologic stress is triggered by external factors that may result in worsening the metabolic situation, which may

result in temporary or permanent worsening of the condition_ It is impossible to avoid all physiologic stressful

conditions, so one should not attempt t() do so. However, recognizing what may be stressful for patients allows one to

adjust the lifestyle. Many patients and their parents have already identified these stresses, despite not knowing why

the stresses were important, and avoid them_

Cold Stress is extremely important. Thermal regulation (temperature control) is not always normal in people with

mitochondrial diseases and exposure to cold can result in severe heat loss and trigger an energy crisis. When going

out. into the cold, all exposed body parts should be covered, and exposure to extreme cold should be avoided for

anything more than a short period. Over bundling can be a problem too (see below).

Heat Stress can be a problem in some people. This is especially true of those with an inability to sweat normally_ Heat

exhaustion and heat stroke may occur on hot days. It is typical for parents to describe that their child seems to ''wilt" in

situations like hot classrooms or direct sunlight, whereas the other children function normally_ Light clothing is

important Patients should avoid direct sunlight on hot days and stay indoors if it is too warm outside_ An air·

conditioned environment may be needed.

: Starvation -avoid fasting_

Lack of sleep may possibly be harmful.

*Back to Top·~

! http://'Www.mitoaction.org/files/MitoToxins O.pdf

Pharmacologic Category Toxin Action Symptoms 1

. Anticonvulsants Valproate (Depakote) Sequesters camitine~ decreases fatty acid oxidation, Krebs, ETC

activity and oxidative- phosphorylation; complex N inhibition Hepatopathy

:'

I

2. Psychotropic

a. Antidepressants Amitriptyline (Elavil) Causes autonomic dysfunction Amoxapine Fluoxetine (Prozac)

Citalopram (Cipramil)

b_ Antipsychotics Chlorproma~ine (Thorazine) Fluphenazine (Prolixin) Haloperidol (Haldol) Resperidone

(Risperdol)

c. Barbituates Phenobarbital Reduces mito protein synthesis; dec # and size of mitochondria Secobarbital

(Seconal) Inhibits NADH dehydrogenase (complex I) Butalbital (Fiorinal) Amobarbital (Amytal)

Pentobarbital (Nembutal)

d_ Anxiety meds Alprazolam (Xanax) Diazepam (Valium, Diastat)

4_ Cholesterolmeds Statins Reduce endogenous coenzyme QlO Myopathy Bile acids-cholestyramine

Inhibits. ETC Ciprofibrate Inhibits complex I

• 07-28-'15 14:18 FROM- Dav :..L,'l. Denison

'

9034838830 T-514 P0008/0012 F-952

Genetic Testing Report

Patient Name: GUERREROt Lucas GeneDx Accession No; 1436501

Date of Birth: 9/4/1999 Date Spet'imcn Obtained: 8/20/2014

Specimen Type: Blood in EDTA Date StJecimcn Received: 8/21/2014

Submitters ID No: None Date 'fest(s) Started: 8/28/2014

~ .?~·~~~~~~-~~= ..........................~.r.: . ~.?.~~-~r...~~~-~.................... .. Date of Repot·t: 11/25/2014

~

•• Test(s) requested: Mitochondrial Disorders/ Sequence Analysis and Deletion Testing of the Mitochondrial

Genome

•• Additional relatives

tested:

Maternal sample (GeneDx·# 1437389) was also submitted for analysis .

•• Result: SEE INTERPRETATION

jdene··········-----...... ··jmtriNA................. ·rv~i~~! ............ · · . . --~H~t~~·~i)iasm·:Y·· ··--·!ci~ssi.ricatio~---------1

\ i l l(%) i ~

••

t" . . . . . . . .~. . ":'"'""""'"""'"~ ,.......... """"""'"""""""' ,~, . . . . . . . . . . . . _..~'·"',....................,. .,. . . . . . . . . . . . . . . . f-.. . .,"'''. . . . . . . . . . . . . . ,. . . . . . . . . . . . . . " . . . . . . . . . . . . ,1~""'' """"\"'""'""""' ............................................. "'~ ' . . ~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .,. . . . . . . ' '·" ,. .,. . . . . . . . . . .~

jMT-COl MRNA jm.5995 C>T (P.Thr31Met \Approximately jVanantof 1

j ((C5995T) ((T31M) ~40% iunknown \

•••

l : j ; !significance i

:.........,.,.,.,_.,..,,.,..,.,_.._., .......,....... ,,,~\.··\.\."'"""'""'""""l""""""""' ....... """'·'''·'-"''-'•'"'"""'"'""'"'""""""=",....."'"'"""'""'""~~"""""".,.."...._""....,'"""""'"""(""""'""""'"·'"'"~'"""""'"'"'"'"""""'"""'""'""~"~"''-"'""'"'"'""""...._'"''"""'"'"""'""'!'f•1 ,,.,..,.~

A definitive mitochondrial DNA mutation was not identified. Subsequent testing L)f this

individual's mother (GcneDx# 1437389) by Sanger sequencing found that she harbors the

m.5995 C>T variant of unknown significance in the MT-COl gene at a level of

•• heteroplasmy that appears to be lower than that found in her child .

This individual's haplogroup and a table of observed polymorphisms are also provided.* The

•• observed polymorphisms have not been reported to be associated with a disorder of

mitochondrial metabolism when present in association with this individual's specific

haplogroup .

•• 1nterpretation; A variant of unknown significance has been identified in the MT-COl gene. The m.5995

C>T variant has not been reported in Mitomap (www.mitomap.org) as a n'lutation or a benign

••

polymorphism, and it has not been reported in the general population [0 of 2704 individuals

in mtDB www.genpat.uu.se/mtDB); 0 of 3735 individuals in MitoWheel

(http://mitowheel.org/mitowheel.html); 0 of 6391 individuals in GeneDx mtDNA variant

••

database]. The p.T31M variant is a non-conservative amino acid substitution, which is likely

to impact secondary protein structure as these residues differ in polarity and size. This

substituti"m occw·s at a position where amino acids with similar prope1ties as Threonine are

•••

conserved across species. In silico analysis is inconsistent in its predictions as to whether

or not the variant is damaging to the protein structure/function. Therefore, based on the

currently available information it is unclear whether this variant is a disease-causing

••

mutation or a rare benign variant.

If this individual's mother does not have symptoms of a mitochondria] disorder or has less

•• severe symptoms than that of her child, the presence of the m.5995 C>T variant at an

~4.pparently lower level of heteroplasmy than her child supports this variant being a

pathogenic mutati.on. If the mother has similar symptoms as her child, no further

•• Recommendation:

interpretation is possible .

Clinical correlation and genetic counseling is recommended .

•• GeneDx • 207I'orry Parkway • Gailhersbure, MO 20877 . Tel (30l) Slll·2100 - Fax {301) 519-2892 · www.grnedx.com • l'age 1 of 2

••

,.•

~·

07-28-'15 14:18 FROM- Dav:~~

' \

Denison 9034838830 T-514 P0007/0012 F-952

•• Genetic Testing Report

•• Patient. Name:

Date of Birth:

GUERRERO, Lucas

9/4/199~

GeneDx Accession No:

Date Specimen Obtained:

1436501

8!20/2014

••

Specimen Type: Blood in EDTA Date Specimen Received: 8/2U2014

Submitters ID No: None Date Test(s) Stat·ted: 8/28/2014

Ot·dered By: Dr. Golder Wilson Date ~f Repot·t: 11/25/2014

•• Methods: The entire mitochondrial genome from the submitted sample was amplified and sequenced

using a solid state sequencing by-synthesis process. DNA sequence was assembled and

•• analyzed in compm·is.on with the revised Cambridge Reference Sequence (1"CRS) and the

reported mutations and polymorphisms listed in the MlTOMAP database

(http://www.mitomap.org). The presence of a disease associated sequence variant, if

•• present, is confirmed by conventional dideoxy sequence analysis or other methods. A

reference library of more than6000 samples from different ethnic groups and online

databases for mtDNA va.riations is used to evaluate variants of unknown clinical

•• signit1cance. In some cases, additional testing may be recommended to elucidate

pathogenicity. For mtDNA deletions, levels of heteroplasmy of 15% or lower may not be

detected and for mtDNA point mutations, novel mutations with a heteroplasmy of lower

•• than 5% may not be detected by Next-Generation sequencing .

Reportable variants of potential pathogenicity were evaluated in the maternal sample by

•• PCR-amplit1cation of the relevant portion(s) of the mitochondrial genome from genomic

DNA. Bidirectional sequence was obtained and DNA sequence was analyzed and compared

to the published gene sequence. The methods used by GeneDx are expected to be greater

•• than 99% sensitive in detecting mutations identifiable by sequencing. Levels of mutant

heteroplasmy 25% or lower may not be detected, and levels of mutant heteroplasmy 75% or

higher may appear to be homoplasmic by Sanger sequencing .

••

••

••

••

•• Report electronically signed by:

Renkui Bai M.D., Ph.D., FACMG

Report electronically signed by:

Ed~n Haverfield Ph.D., FACMG

•• Director, Genetic Testing for Mitochondrial Disorders

~X~IDNA RdSeq: NC_Ol2920.1

Director, Whole Exome Sequencillg Program

:

;r;,;~;;;~~I;;'~di;;eill;~-;-;;;;~;~~~~;r(;;.~ci";~;n:To;t;;;p,;~;;;;;,;r-;dei.tiryi~gq;;-:ility d~r~~w(irt"~.;;;i~&'P-;;i;i;tio;s:;;;iii;~;;i;~'d~~~7,~-

well ~s large sinele dt:l~lions) in mtDNA. For mtOI'lA deletions. this test will detect almost all disea5e-associated h~l2raplasmy n>ported to date (Bm1let ei al., 1992 Am J

Hum Genet 51 :1187-1200; Sciacco et aL, 1994 Hum Mal Geoet3: 13-19); levels of heteroplasrny ot· 15% or lower may not be detected and the standard deviatil)n for

heteroplasmy of large dele.tions is estimated to be 5%. Far mtDNA point mutat..ion~, novel mutations wilh a hettrophsmy of lower than 5% may not be detected. Nortnol

findings do not rule out th~ diagnosi> of a nlitocl\cmdrial disordt:r. The dinical implicati01ls of some variaticms may be u>1lnown atlhe lime of lhi~ report. Thi~ test is used

fm Clinic~! puq>oses, 1\ has not been cleared or approved by the FDA. The FDA has determined that •uch cleat:ll\C-' or approv~l i~ notn•c~ssary, Pun;uanl to the.

.

:e_'l_ui_r_e".'e.!IIS .~f _q,r_A. _:~ ~, _th~~-~-~~()ra_lo_r~ _h_a_s. ~.s!a.~.l \S~~~..~~1~.Y.~.r.\ ~!~~. \~!:. ~~.t:. ~ ~~~~=-~~r, .~!' ~ _P,~~i_si ~~:.<:;.'::~~-_I'[)_~;.~-~ 1:)0.9.~_99.?..1. :.MI?. .'-:! ~~-1)~~:..9.~:3: ......... _., .. ,... ,,., .... ,_........ _

Gent OX • ~01 l'~rry l'arkway - Gaithersburg, MD 10577 - Tel (301) 519-2100 · Fax (30J.) Sl.9·Z!l9~ • W>"'W.gtncdx.com - Page 2 of 2

•• 07-28-'15 14:16 FROM- Davit.9- Denison 9034636830 T-514 P0008/0012 F-952

••

•• Genetic Testing Report

•• Patient Name: GUERRERO, Lucas GeneD:x Accession No: 143M;ol

Sub!JliUers ID No: None Pr_o=-:v:..::id:::e:::d:::_____________ ------=D~a0;..;:teo:....::.of::....::.:R::::e..o::po.::.r::.;t~:•.: 0.: .9: . :/l=-=8.:. :/2: .;0:.: 1'--'-4· _ _ _ _ __

•• •MII)NA Polymorpllisms

.I••

Nucleotide Pooitlon Func!S(lllal Loc:ltion Nucleotiole Change Codoll Ch:mge An'lino Acid Ch:ongt. :Frequ~.:nc:y (Gen. Pop)

146 MT·DLOOP. T::-C 899/5453

263 MT-DLOOP A,.G 5371/5453

315 MT-DLOOP 315dupC common

!!860 MT·ATf'6 mANA A>G ACA-,.GCA Ti12A 6370/63..'}1

1: 15326

16291

MT-CYB mANA

M~:DLOOP

A>G

C>T

ACAo.GCA

'""

T194A

'"

631216391

118/5453

••

Haplogroup (liG): Wai.b

••

••

••

••

••

••

••

••

••

••

••

•• -----------~---~~~~~~~-~~---~~~:~~~-~~~~~.-------------

Geii~Dx 2(f1 Perry Parkway Gaithersburg, MD 20877 Thl (301) 519-2100 Fax (30l) 519-2892 WW».genedJ<.com

••

•• 07-28-'15 14:17 FROM- Dav:""-3. Denison 9034838830 T-514 P0009/0012 F-952

••

•• Genetic Testing Report

•• Patient Name:

Date of Bi£1h:

Specimen Type:

GUERRERO, Lucas

9/4/1999

Blood in EDTA

GeneDx Accession No:

Date Specimen Obtained:

Date Specimen Received:

1436501

8/20/2014

8/2112014

•• Submitters ID No: None Date Test(s) Started: 8/28/2014

.?..~.~.~~~~-:O,r.:........................~r.:. ~~~~~~:. ~~~~-~.............................................1?.~·~-~-r. ~~.P.?.r.~:: .......................•Y~S.!2.0.~.~....................................... .

• •I

Test(s) Requened:

Clin.icallru:lication:

Diagnostic Testing 1XomeDxPJus I Whole Exome Sequence Analysis

Male with a history of tall stature, joint laxity, and irritable bowel syndrome. The family history is significant

•• for fractures. A differential diagnosis of Ehlcrs-Danlos syndrome was given .

A sample from this individual's mother (GeneDx# 1437389) was also submitted for variant segregation

••

analysis by whole exome sequencing .

Intt!rpretllti.on: I. Causative Mutations in Disea~>e Genes Associated with Repo1·ted Phenotype:

None identified .

••

This text is long and has been trimmed here. Open the source document for the complete record.