Robbins, Neal Hampton ( 2015 )

WR-73,484-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
June 2, 2015 Transmitted 6/1/2015 5:22:49 PM
Accepted 6/2/2015 8:06:32 AM
ABEL ACOSTA
IN THE CLERK
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE §
§
§ NO. WR-73,484-02
§
NEAL HAMPTON ROBBINS §
____________________________________________________
AMICUS CURIAE BRIEF
OF THE INNOCENCE PROJECT
____________________________________________________
BARRY C. SCHECK
NY Bar Number: 1634765
BRYCE BENJET
TX Bar Number: 24006829
THE INNOCENCE PROJECT
40 WORTH STREET
SUITE. 701
NEW YORK, NEW YORK 10013
(212) 364-5340
(212) 364-5341 FAX
Attorneys for Amicus Curiae
TABLE OF CONTENTS
Page
Table of Contents ............................................................................................i
Index of Authorities ...................................................................................ii-iv
Interests of Amicus Curiae .............................................................................2
A. Article 11.073 Creates a Needed Remedy Where a Criminal
Conviction Is Based on Unreliable Scientific Evidence ......................3
1. Unreliable Scientific Evidence Is a Leading Cause of
Wrongful Convictions ...............................................................3
2. Article 11.073 Represents a Broad Legislative
Response to the Problem of Unreliable Scientific
Evidence ....................................................................................7
B. Article 11.073 Applies to Dr. Moore’s Changed Medical
Opinion ................................................................................................9
C. Article 11.073 Balances the Interests of Finality and
Accuracy in Criminal Cases ...............................................................14
Conclusion and Prayer .................................................................................15
Certificate of Service ...................................................................................17
Certificate of Compliance ............................................................................18
i
INDEX OF AUTHORITIES
Cases Page
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) .......................................................7
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ..........................................................................8
Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010) .......................................................5
Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579 (1993) ...................................................................................6, 8
Dist. Attorney's Office for Third Judicial Dist. v. Osborne,
557 U.S. 52 (2009) .......................................................................................15
Ex Parte Brooks,
219 S.W.3d 396 (Tex. Crim. App. 2007) .................................................7, 15
Ex Parte Calderon,
309 S.W.3d 64 (Tex. Crim. App. 2010) .......................................................11
Ex Parte Robbins, No. WR-73,484-02, 2014 WL 6751684,
(Tex. Crim. App. November 26, 2014) .................................................Passim
Ex Parte Coty,
418 S.W.3d 597 (Tex. Crim. App. 2014) .......................................................4
Jelinek v. Casas,
328 S.W.3d 526 (Tex. 2010) ..........................................................................8
Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992) .......................................................8
Rosen v. Ciba Geigy Corp.,
78 F.3d 316 (7th Cir. 1996) ............................................................................8
ii
Schlup v. Delo,
513 U.S. 298 (1995) .....................................................................................15
Watson v. State,
204 S.W.3d 404 (Tex. Crim. App. 2006) .......................................................7
Winfrey v. State,
323 S.W.3d 875 (Tex. Crim. App. 2010) .......................................................8
Codes and Rules
Tex. Code Crim. Proc. Art. 11.073 .......................................................Passim
Tex. R. Evid. 702 .....................................................................................8, 14
Legislative History
House Comm. On Crim. Jurisprudence, Bill Analysis,
84th Leg. R.S. (bill heard on April 22, 2015) ................................................13
H.J. of Tex. 83rd Leg., R.S. 3407-08 (2013) .................................................12
H.J. of Tex. 84th Leg., R.S. 2984 (2015) ......................................................13
S.J. of Tex. 83rd Leg., R.S. 588 (2013) .........................................................12
S.J. of Tex. 84th Leg., R.S. 1884 (2015) .......................................................13
Senate Research Center, Bill Analysis,
Tex. H.B. 3724, 84th Leg. R.S. (May 15, 2015) ...........................................13
Witness List, Senate Committee on Criminal Justice,
Tex. S.B. 344, 83rd Leg. R.S. (March 12, 2013) ..........................................11
Published Reports and Articles
Brian Rogers, Ex-Crime Lab Analyst Told HPD Colleagues of
Wrongdoing, Houston Chronicle (June 25, 2014) .........................................4
iii
David L. Faigman, The Daubert Revolution and the Birth of
Modernity: Managing Scientific Evidence in the Age of Science,
46 U.C. Davis L. Rev. 893, 928 (2013) .........................................................8
Hon. Donald E. Shelton et. al., A Study of Juror Expectations
and Demands Concerning Scientific Evidence: Does the
"CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006) ..................5
Michael R. Bromwich, Final Report of the Independent Investigator
for the Houston Police Department Crime Laboratory and
Property Room (June 13, 2007) .....................................................................4
National Research Council of the National Academies, Strengthening
Forensic Science in the United States: A Path Forward (2009) ................3, 6
Simon A. Cole & Rachel Dioso-Villa, Investigating the
"CSI Effect' Effect: Media and Litigation Crisis in Criminal Law,
61 Stan. L. Rev. 1335, 1351-52 (2009) ..........................................................5
Strengthening Forensic Science, NACDL Austin, Texas (2010) ...................6
Texas Criminal Justice Integrity Unit 2009 Annual Report of Activities.......5
iv
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE §
§
§ NO. WR-73,484-02
§
NEAL HAMPTON ROBBINS §
____________________________________________________
AMICUS CURIAE BRIEF
OF THE INNOCENCE PROJECT
____________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
NOW COMES The Innocence Project and submits this Amicus
Curiae Brief in the above styled and numbered case. The Innocence Project
submits this Brief in support of the Applicant Neal Robbins because the
proper construction of Article 11.073 is vital to ensuring an avenue for relief
where faulty scientific evidence has led to a wrongful
conviction. Consistent with the clear legislative history and the plain
language of the statute, this Court should confirm that Article 11.073 applies
to cases, like Robbins, where the scientific evidence relied on by the State is
contradicted by a new and credible scientific opinion.
1
Interest of Amicus Curiae
The Innocence Project, Inc. is a nonprofit legal clinic and resource
center created by Barry C. Scheck and Peter J. Neufeld. Founded at the
Benjamin N. Cardozo School of Law in 1992, the Innocence Project
provides pro bono legal services to indigent prisoners for whom post-
conviction DNA testing of evidence can yield conclusive proof of
innocence. The Innocence Project pioneered the post-conviction DNA
litigation model that has to date exonerated 329 innocent persons, and served
as counsel or provided critical assistance in a majority of these cases.
The advent of forensic DNA testing and the use of such testing to
review criminal convictions have provided scientific proof that our system
convicts innocent people, and that wrongful convictions are not isolated or
rare events. DNA testing has, thus, opened a window into wrongful
convictions so that we may study the causes of this injustice and recommend
practices to minimize the chance of its occurrence. In roughly half of the
329 recognized DNA exonerations, the misapplication of forensic science
has played a role in convicting the innocent. In these cases, forensic
scientists presented fraudulent, exaggerated, or otherwise unreliable
scientific evidence which was relied on by the judge or jury resulting in a
wrongful conviction. Because of this background, the Innocence Project
2
has a particularly strong interest in ensuring that forensic evidence used to
obtain convictions is both accurate and reliable. This interest is directly
implicated in the construction of Article 11.073 of the Texas Code of
Criminal Procedure at issue in Mr. Robbins’s case.
A. Article 11.073 Creates a Needed Remedy Where a Criminal
Conviction is Based on Unreliable Scientific Evidence.
1. Unreliable Scientific Evidence Is a Leading Cause of
Wrongful Convictions.
The Texas Legislature enacted Article 11.073 against the backdrop of
a growing recognition that unreliable scientific evidence has led to wrongful
convictions. See Ex parte Robbins, No. WR-73,484-02, 2014 WL 6751684,
* 14-17 (Tex. Crim. App. November 26, 2014) (Cochran, J., concurring)
(Robbins II).1 In some cases, entire scientific disciplines have been either
superseded or discredited by advancements in science. See id. (discussing
discredited disciplines including arson investigation, toolmark evidence,
bullet lead analysis, microscopic hair analysis, forensic odontology); see
also generally National Research Council of the National
Academies, Strengthening Forensic Science in the United States: A Path
Forward (2009) (“NAS Report”). However, Texas has also been plagued by
instances in which forensic experts employed by government crime
1
Page references in the Robbins II opinion will be made to the Westlaw publication, a copy of which is
attached as an appendix to this Brief.
3
laboratories provided unreliable scientific evidence arising from perfectly
valid scientific disciplines. These cases have ranged from instances of
incompetence and sloppy forensic work to outright fraud. See e.g. Michael
R. Bromwich, Final Report of the Independent Investigator for the Houston
Police Department Crime Laboratory and Property Room (June 13, 2007)
(discussing pervasive problems in HPD crime lab, particularly systemic
misapplication and misunderstanding of serology tests); Brian Rogers, Ex-
Crime Lab Analyst Told HPD Colleagues of Wrongdoing, Houston
Chronicle (June 25, 2014) (HPD lab analyst who worked on 51 murder cases
accused of lying, improper procedure, and tampering); Ex parte Coty, 418
S.W.3d 597, 598 (Tex. Crim. App. 2014) (describing misconduct by DPS
crime lab employee in falsifying drug test).
This Court has also acknowledged the great weight jurors place on
scientific evidence (especially from medical doctors), and that jurors tend to
defer to an expert’s credentials rather than content when the scientific
opinions offered are complex:
studies have shown that juror reliance on an expert's credentials
is directly proportional to the complexity of the information
represented: the more complex the information, the more the
jury looks to the background, experience, and status of the
expert himself rather than to the content of his testimony. There
4
is also some evidence that jurors value medical expertise higher
than other scientific expertise . . . .
Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010). Studies also
show that jurors have grown to expect scientific evidence in criminal cases,
thus adding pressure on prosecutors to present scientific evidence even when
its reliability may be in question. See Hon. Donald E. Shelton et. al., A
Study of Juror Expectations and Demands Concerning Scientific Evidence:
Does the "CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006)
(discussing high expectation of jurors for scientific evidence); Simon A.
Cole & Rachel Dioso-Villa, Investigating the "CSI Effect' Effect: Media and
Litigation Crisis in Criminal Law, 61 Stan. L. Rev. 1335, 1351-52 (2009)
(describing survey showing prosecutors requested additional forensic tests
based on the perception that jurors have heightened expectations for forensic
proof).
Despite the importance of scientific evidence to juries and its role in
wrongful convictions, this Court’s Criminal Justice Integrity Unit reported in
2009 that half of the criminal law judges in Texas—the gatekeepers for
reliability— “received zero hours of forensic science training last year, and
many judges requested additional training on the standards for reliability of
scientific evidence.” See Texas Criminal Justice Integrity Unit 2009 Annual
Report of Activities at 6. The same deficiencies were recognized by the
5
National Association of Criminal Defense Lawyers in a 2010 report issued
from Austin, Texas which acknowledged that all legal professionals,
including defense lawyers who are tasked with challenging unreliable
scientific evidence, “generally lack the scientific expertise necessary to
comprehend and evaluate forensic evidence in an informed manner.”
Strengthening Forensic Science, NACDL Austin, Texas (2010); see also
NAS Report at 12.
The Supreme Court acknowledged the double-edged character of
scientific evidence which can both illuminate and confuse:
Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786,
2798, 125 L. Ed. 2d 469 (1993). Considering the importance placed on
scientific evidence by juries and the risk that such evidence can be
misleading, it is no wonder that unreliable scientific evidence has lead to
wrongful convictions. A review of the 329 recognized DNA exonerations
shows that unreliable forensic science contributed to 47% of wrongful
convictions.2 Among the 1606 exonerations recognized by the National
2
http://www.innocenceproject.org/causes-wrongful-conviction (last visited 5/28/15)
6
Registry of Exonerations, 23% involved false or misleading forensic
science.3
2. Article 11.073 Represents a Broad Legislative Response to
the Problem of Unreliable Scientific Evidence.
Judge Cochran’s concurring opinion identifies two cases which led to
the enactment of Article 11.073 by the 83rd Legislature. In Robbins I and
Ex parte Henderson, seven members of this Court agreed that “Texas law
lacked clarity in dealing with instances in which critical scientific evidence
supporting the conviction—either the scientific filed itself or the expert’s
original opinion—had been discredited.” Robbins II at *19. In addition to
the specific calls for reform in the cases dealing with unreliable scientific
evidence identified by Judge Cochran above, members of this Court also
anticipated Legislative action where this Court’s dedication to jury deference
and “hard minded application of standards of review”4 could result in
wrongful convictions. See Watson v. State, 204 S.W.3d 404, 449 (Tex.
Crim. App. 2006) (Cochran, J., dissenting joined by Keller, C.J., and JJ.,
Keasler and Hervey) (advocating for abandonment of factual sufficiency
3
https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last
visited 5/28/15).
4
Brooks v. State, 323 S.W.3d 893, 923 (Tex. Crim. App. 2010) (Cochran, J., concurring).
7
review and explaining that concerns about manifestly unjust convictions
could be handled through legislative action).5
While our rules of evidence encourage the consideration of relevant
and reliable scientific evidence pursuant to Rule 702, courts have also noted
that judges are not well equipped to correctly evaluate difficult issues of
science. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599
(1993) (Rehnquist, C.J., and Stevens, J., concurring and dissenting)
(Daubert factors involve consideration of issues “far afield from the
expertise of judges”); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir.
1996) (“it is a daunting task for judges who do not have a scientific
background (and most do not) to decide whether a scientist's testimony is
real science or not”); Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim. App.
5
The need for a safety valve to remedy invalid scientific evidence in criminal cases is highlighted when
contrasted to the greater scrutiny afforded to such evidence in the civil context. Studies have documented
that civil courts are generally more rigorous in screening out questionable scientific proof. See David L.
Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of
Science, 46 U.C. Davis L. Rev. 893, 928 (2013) (reviewing research comparing civil and criminal court
decisions on admissibility of scientific evidence). This different approach is evident in Texas law as well.
For example, the Texas Supreme Court has barred any consideration of unsupported scientific evidence
even absent an objection:
[I]f no basis for the opinion is offered, or the basis offered provides no support, the
opinion is merely a conclusory statement and cannot be considered probative evidence,
regardless of whether there is no objection. ‘[A] claim will not stand or fall on the mere
ipse dixit of a credentialed witness.’ ”
Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010); see also City of Keller v. Wilson, 168 S.W.3d 802, 812-
13 (Tex. 2005) (invalid expert testimony “incompetent” and should be disregarded in sufficiency of the
evidence analysis). By contrast, this Court’s review of judgments based on unsupported expert testimony
has been more lenient, even when finding the evidence to be insufficient. See, e.g., Winfrey v. State, 323
S.W.3d 875, 885 (Tex. Crim. App. 2010) (declining to examine validity of dog scent lineup absent
objection at trial and finding such evidence to raise “strong suspicion of guilt” that, despite its unproven
reliability, can support a conviction when corroborated by other evidence).
8
1992) (Clinton, J., dissenting) (expressing concern that incorrect decision
admitting unreliable science will result in injustice and that Texas criminal
justice system lacks procedures to meaningfully test scientific evidence). In
recognition of this unique vulnerability in cases involving scientific
evidence, Article 11.073 creates a safety valve for criminal convictions
based on scientific evidence presented at trial that is now undermined by
either advancements in science or additional scientific evidence that
contradicts that relied on by the State.
B. Article 11.073 Applies to Dr. Moore’s Changed Medical Opinion.
Consistent with the two-fold problem of “bad science” and “bad
scientific testimony”6 which has led to wrongful convictions, the lead
section of Article 11.073 identifies two distinct types of evidence that can
form the basis for relief under this statutory new trial remedy:
(1) scientific evidence that was not available to be offered at trial; or
(2) scientific evidence that contradicts the scientific evidence relied on by
the State at trial.
Section (a)(1), which focuses on evidence unavailable at trial, encompasses
the “bad science” category. For example, advancements in scientific
technology such as the advent of forensic DNA testing and other more
6
Robbins II at *15 (“it is not surprising to see ‘bad’ science and ‘bad’ scientific testimony in our
courtrooms”)
9
powerful modern forensic tools developed after a conviction would fall into
this category. This category would also include advances within a scientific
field such as the methods of arson investigation or the understanding of
biomechanics.
Section (a)(2) encompasses a separate category of evidence, scientific
evidence which “contradicts” the scientific evidence relied on by the State at
trial. Tex. Code Crim. Proc. Art. 11.073 § (a)(2). The Legislature’s use of
“or” indicates that the contradicting evidence discussed in section (a)(2)
means something different from that referred to in section (a)(1). Although
the full breadth of section (a)(2) need not be determined in this case, Dr.
Moore’s changed medical opinion clearly falls within it because her current
opinion contradicts, and, so necessarily discredits, the expert opinion she
offered at trial.
Dr. Moore’s changed medical opinion likewise meets the requirement
under section (b)(1)(A) that the scientific evidence was “not ascertainable
through the exercise of reasonable diligence by the convicted person.” At
Mr. Robbins’s 1999 trial, Dr. Moore testified that it was her medical opinion
that Tristen Rivet died from compression asphyxia—a homicide. See
Robbins II at *3. Because Tristen was in Mr. Robbins’s sole care at the
10
time, he was convicted of murder. Id. at *4. In 2007, Dr. Moore
contradicted this opinion to acknowledge that the cause of death was
“undetermined.” See id. *5. This was the first time that Dr. Moore had
expressed her changed opinion, and Mr. Robbins acting with reasonable
diligence could not have ascertained that Dr. Moore would change her
opinion prior to the time that she expressed this opinion. Cf Ex parte
Calderon, 309 S.W.3d 64, 70 (Tex. Crim. App. 2010) (witness recantation
not available through exercise of due diligence where recantation was
unknown to defendant).
This construction of the plain language of the statute is supported by
the legislative history of Article 11.073 in the 83rd Legislature. The need for
a law to address Mr. Robbins’s case was discussed in committee by counsel
for Mr. Robbins as well as the former Montgomery County District Attorney
who handled the Robbins prosecution and initial post-conviction. See
Robbins II at *27 (Keasler, J., dissenting). There was no opposing view
expressed at that hearing or any other legislative forum, despite the presence
of a representative of the Texas District and County Attorneys Association
who registered “on” the bill but did not testify. See Witness List, Senate
Committee on Criminal Justice, Tex. S.B. 344, 83rd Leg. R.S. (March 12,
2013). No representative of Montgomery County voted against the bill,
11
which passed unanimously in the House and with only three “nays” in the
Senate. See S.J. of Tex. 83rd Leg., R.S. 588 (2013); H.J. of Tex. 83rd Leg.,
R.S. 3407-08 (2013).
Any question as whether the 83rd Legislature intended for Article
11.073 to apply to the facts of Mr. Robbins’s case has been resolved by the
84th Legislature’s recent passage of a bill intended to codify this Court’s
decision which is currently on rehearing. HB 3724 was expressly intended
to codify this Court’s November 26, 2014 decision in Mr. Robbins’s case.
The Bill Analysis produced in the Senate makes this unmistakably clear:
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
H.B. 3724 codifies a recent Court of Criminal Appeals decision
within the discredited Forensic Science Law that I authored and
we passed last session. The decision held that a defendant may
have their convictions reexamined if an expert who testified at
the defendant's trial later rejects the testimony, casting doubt on
the integrity of the conviction.
• This addition is to the current law allowing an individual to
challenge their convictions if they are based on debunked or
otherwise discredited scientific evidence that was used in their
trial. It was passed after an alarming number of wrongful
convictions that resulted from "junk science" and "junk
scientists."
• A recent case in the Court of Criminal Appeals tested
whether the law applies in cases where a scientific expert
sincerely thought something was true at the time the expert
testified, but the expert's understanding and opinions changed
12
after trial based on new knowledge and improvements to the
science that had supported the expert’s former opinion.
H.B. 3724 simply codifies the recent court decisions and
clarifies that the legislative intent in enacting Article 11.073
included not only discredited science but also the testimony that
was based on discredited science.
Senate Research Center, Bill Analysis, Tex. H.B. 3724, 84th Leg. R.S. (May
15, 2015). The Bill Analysis by the House Committee on Criminal
Jurisprudence likewise expresses the original intent of Article 11.073 to
encompass the facts of Mr. Robbins’s case:
BACKGROUND AND PURPOSE
Informed observers note that current law allows for the
reexamination of certain cases based on new scientific evidence
and requires a court, in finding whether new scientific evidence
exists, to consider whether the scientific knowledge or method
on which the relevant scientific evidence is based has changed.
The observers contend that a recent Texas Court of Criminal
Appeals opinion held that a change in the scientific knowledge
of a testifying expert would be a basis for habeas relief under
the law. C.S.H.B. 3724 seeks to codify this decision.
House Comm. On Crim. Jurisprudence, Bill Analysis, 84th Leg. R.S. (bill
heard on April 22, 2015). With this unambiguous statement of legislative
intent, HB 3724 was passed unanimously in the Senate and with only three
“nay” votes in the House. See S.J. of Tex. 84th Leg., R.S. 1884 (2015); H.J.
of Tex. 84th Leg., R.S. 2984 (2015). All of the elected representatives of
Montgomery County voted in favor of the bill. See id.
13
Considering (1) the plain language of Article 11.073, (2) the
unambiguous statement of the legislative intent in the Senate committee
hearing on SB 344 before the 83rd Legislature, and (3) and the passage of
HB 3724 by the 84th Legislature, there is simply no question that the statute
applies to Dr. Moore’s changed testimony in Mr. Robbins’s case.
C. Article 11.073 Balances the Interests of Finality and Accuracy in
Criminal Cases.
The Legislature’s decision to provide a remedy in cases involving
both changed science and the changed opinion of a scientist strikes a balance
between the interests in the finality of criminal convictions and the need to
remedy wrongful convictions. The statute applies to a broad category of
scientific evidence, but that scientific evidence has to be admissible. See
Tex. Code Crim. Proc. Article 11.073(b)(1)(B). This admissibility
requirement carries with it an independent gate-keeping inquiry by the trial
court to ensure that any new scientific evidence presented under the law is
reliable and relevant to the case. See Tex. R. Evid. 702. Thus, an expert
can’t simply change her opinion on a whim—there must be a valid scientific
underpinning to the new opinion or other scientific evidence. A changed but
unreliable new opinion from an expert could hardly be the basis for
changing the outcome of a case.
14
Furthermore, the statute limits relief to those few cases in which the
new scientific evidence would “probably” change the outcome of the case.
Although this standard is short of the Elizondo “clear and convincing” test
for innocence, evidence establishing that a person would probably not have
been convicted is universally equated with a miscarriage of justice. See
Schlup v. Delo, 513 U.S. 298, 315 (1995) (evidence that defendant probably
would not have been convicted brings case within narrow class of cases
implicating miscarriage of justice); Ex parte Brooks, 219 S.W.3d 396, 400
(Tex. Crim. App. 2007) (same). Accordingly, Article 11.073 will not result
in the reversal of every conviction involving discredited scientific evidence.
The finality of a conviction is only disturbed in the rare instances when
unreliable scientific evidence was “probably” the reason a defendant was
convicted.
Conclusion and Prayer
Advancements in science have, in large part, brought greater
reliability to the criminal justice system both in convicting the guilty and
exonerating the innocent. See Dist. Attorney's Office for Third Judicial Dist.
v. Osborne, 557 U.S. 52, 55 (2009). But experience shows that scientists
can and do get it wrong. The recent passage of HB 3724 by supermajorities
in both the Texas House and Senate confirms the intent that Article 11.073
15
encompass a scientist’s changed opinion when (1) the retracted opinion is
reliable and (2) the retracted scientific evidence was the primary evidence of
a person’s guilt, is consistent with the stated legislative intent of Article
11.073. The Innocence Project therefore asks this Court to uphold the intent
of the People of Texas to ensure that only the best available science is used
to convict; and where convictions are found to have been based on
unreliable scientific evidence, courts have the tools necessary to remedy a
miscarriage of justice.
Respectfully submitted,
______________________________
BARRY C. SCHECK
NY Bar Number: 1634765
BRYCE BENJET
TX Bar Number: 24006829
THE INNOCENCE PROJECT
40 WORTH STREET
SUITE. 701
NEW YORK, NEW YORK 10013
(212) 364-5340
(212) 364-5341 FAX
16
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the
foregoing Amicus Curiae Brief by the Innocence Project was mailed by
Federal Express to the Montgomery County District Attorney’s Office,
207 W. Phillips Flr. 2, Conroe, Texas 77301, and Brian Wice, Attorney for
Applicant Neal Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite
900, Houston, Texas 77002-1635, on this the 1st day of June, 2015. This
brief was also e-filed pursuant to the applicable rules of the Court of
Criminal Appeals.
/s/ Bryce Benjet_________________
BRYCE BENJET
17
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. Proc. 9.4(e)(i)(2), undersigned counsel
certifies that this brief complies with the type-volume limitations of Tex. R.
App. P. 9.4(e)(i)(2).
1. This brief complies with the type-volume limitation of Tex. R. App.
P. 9.4(e)(i)(2) because this brief contains 3,732 words, excluding the parts of
the brief exempted by Tex. R. App. P. 9.4(e)(i)(2).
2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) and the type style requirements of Tex. R. App. P. 9.4(e) because this
brief has been prepared in a proportionally spaced typeface using Microsoft
Word in 14 point Times New Roman.
/s/ Bryce Benjet_________________
BRYCE BENJET
18
APPENDIX A
Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
Price, JJ., joined.
2014 WL 6751684
Only the Westlaw citation is currently available. Keller, P.J., filed dissenting opinion in which Hervey, J.,
joined.
NOTICE: THIS OPINION HAS NOT BEEN
RELEASED FOR PUBLICATION IN THE Meyers, J., filed dissenting opinion.
PERMANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAWAL. Keasler, J., filed dissenting opinion.
Court of Criminal Appeals of Texas.
Ex Parte Neal Hampton Robbins, Applicant
West Headnotes (5)
NO. WR–73,484–02 | Delivered November 26, 2014
| Rehearing Granted May 13, 2015
[1]
Habeas Corpus
Synopsis Newly discovered evidence
Background: After conviction and life sentence for capital
murder were affirmed on direct appeal, 88 S.W.3d 256, Medical examiner’s post-trial reconsideration of
and initial application for writ of habeas corpus was initial conclusion from autopsy that cause of
denied, 2013 WL 6212218, defendant filed second child victim’s death was asphyxia by
application for habeas relief, based on new scientific strangulation and that manner of death was
evidence that was not available at time of trial. The 410th homicide, following which she concluded that
District Court, Montgomery County, recommended the cause and manner of death were “undetermined,”
grant of new trial. was new scientific evidence that contradicted
scientific evidence relied upon by State at trial
which was not available at time of original
application, as basis for obtaining successive
Holdings: The Court of Criminal Appeals, Womack, J., habeas review. Tex. Crim. Proc. Code Ann. art.
held that: 11.073(a)(2).
[1]
medical examiner’s revised opinion that cause and Cases that cite this headnote
manner of child victim’s death were “undetermined,” was
new scientific evidence that contradicted scientific
evidence relied upon by State at trial;
[2]
[2]
medical examiner’s revised opinion was new scientific Habeas Corpus
evidence based on change of scientific knowledge that was Change in facts or law; new evidence
not available at time of original habeas application; and
The Court of Criminal Appeals may consider a
[3]
defendant would not have been convicted of capital subsequent habeas application only if the current
murder if new evidence had been made available at trial, as claims and issues have not been and could not
grounds for successive habeas relief. have been presented previously in an original
application or in a previously considered
application because the factual or legal basis for
Writ issued; judgment of conviction and sentence vacated; the claim was unavailable on the date the
remanded. applicant filed the previous application.
Johnson, J., filed concurring opinion. Cases that cite this headnote
Cochran, J., filed concurring opinion in which Johnson and
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
been made available at trial, as grounds for
habeas relief, setting aside conviction and
[3]
Habeas Corpus sentence, and remanding for new trial, where
Newly discovered evidence medical examiner’s trial testimony was only
evidence presented by State to show that victim’s
An applicant seeking habeas relief based on death was homicide. Tex. Crim. Proc. Code Ann.
newly available scientific evidence that was not art. 11.073.
available at trial must establish that the facts he
alleges are at least minimally sufficient to bring Cases that cite this headnote
him within the ambit of that legal basis for relief.
Tex. Crim. Proc. Code Ann. art. 11.073.
Cases that cite this headnote
ON APPLICATION FOR A WRIT OF HABEAS
CORPUS FROM MONTGOMERY COUNTY
[4]
Habeas Corpus Attorneys and Law Firms
Newly discovered evidence
Brian W. Wice, Attorney at Law, Houston, TX, for
Medical examiner’s post-trial revision of her Applicant.
original conclusion to which she testified at trial
William J. Delmore III, Assistant District Attorney,
for capital murder that cause of child victim’s
Conroe, TX, for the State.
death was asphyxia by strangulation and that
manner of death was homicide to state that, while Opinion
suspicious, both cause and manner of victim’s
death were “undetermined,” which revised Womack, J., delivered the opinion of the Court, in which
opinion was based on review of medical evidence Price, Johnson, Cochran, and Alcala, JJ., joined. Johnson,
and more experience in field, was new scientific J., filed a concurring opinion.
evidence based on change of scientific
knowledge that was not available at time of
original habeas application, as grounds for *1 The applicant, Neal Hampton Robbins, was convicted
obtaining successive habeas review. Tex. Crim. in 1999 of the capital murder of his girlfriend’s
Proc. Code Ann. art. 11.073. seventeen-month-old daughter, Tristen Rivet. The State
did not seek the death penalty, and upon conviction the
Cases that cite this headnote applicant was sentenced to life in prison. We affirmed the
judgment and sentence on direct appeal.1
The applicant filed his first application for a writ of habeas
[5] corpus in 2011, alleging actual innocence based on new
Habeas Corpus evidence and due process claims for the use of false
Newly discovered evidence testimony, which we denied.2
Medical examiner’s post-trial revision of her The applicant filed this subsequent application for a writ of
original conclusion to which she testified at trial habeas corpus on September 3, 2013, pursuant to article
for capital murder that cause of child victim’s 11.073 of the Texas Code of Criminal Procedure. Article
death was asphyxia by strangulation and that 11.073 was passed during the 2013 legislative session and
manner of death was homicide to state that, while became effective on September 1, 2013. There are no
suspicious, both cause and manner of victim’s factual changes in the applicant’s case since the filing of
death were “undetermined,” was sufficient to his first application. In both applications he argued he was
show that defendant would not have been entitled to a new trial because the medical examiner who
convicted of capital murder if such evidence had testified for the prosecution, Dr. Patricia Moore, could no
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
longer stand by her trial testimony regarding the cause of type of relationship.
death. The only difference between the two applications is
the enactment of the new law upon which the applicant *2 On the morning of her death, Tristen was suffering
now relies. Based on article 11.073, the applicant argues he from a cold but was otherwise in good health. Hope,
is entitled to relief because scientific evidence relied on by accompanied by Morris, left the house at approximately
the State at trial has been contradicted by relevant 11:30 a.m. to attend appointments and run errands.
scientific evidence that was unavailable at trial, and if it Applicant was entrusted with Tristen’s care. Applicant’s
had been presented at trial he would not have been parole officer, Tim Hurst, visited Applicant between
convicted. 1:26 p.m. until 2:00 p.m. Hurst testified that he observed
Tristen walking around and eating animal crackers, and
We shall grant the applicant’s request for relief. Tristen asked for some red punch, which Applicant gave
her from his own glass. Applicant’s brother arrived for a
visit at approximately 1:45 p.m. and remained at the
home until about 2:20 p.m.
Background Applicant paged Hope between 3:30 and 4:00 p.m.
When Hope called, Applicant sounded “shaky” and
The relevant facts and procedural background have not “excited” and told her to hurry back to the house because
changed since the applicant’s first application for habeas he “had to go and had things to do.” When Hope and
corpus was denied by this Court in 2011. As we Morris arrived home between 4:00 and 4:30 p.m.,
summarized previously, the facts as developed at trial and Applicant told them that he had laid Tristen down for a
during original habeas proceedings are as follows: nap shortly after they spoke on the telephone. Applicant
stated that he had to leave, and an argument ensued with
The victim resided with her mother, Barbara Hope, and Hope about Applicant’s frequent absences. Applicant
her mother’s boyfriend, Applicant, at the home of and Hope walked to the store a couple of blocks away
Applicant’s mother, Bonni Morris. Applicant and Hope and then returned home. During that time, Morris was
had a volatile relationship, frequently separating and alone with Tristen. She testified that she was going
reuniting. Witnesses suggested that both suffered from through bills and talking on the phone, as could be
depression. When seeking group-type counseling, supported by phone records.
Applicant told a counselor that he did not know what he
would do if things got worse, and he feared he would After Applicant departed, Hope watched a news
hurt Hope if they stayed together. broadcast on television. At about 5:40 p.m., Hope
checked on Tristen and thought that the child was
Testimony indicated that Tristen and Applicant had a sleeping. At 6:00 p.m., Hope returned to Tristen’s room
good relationship, but that changed in the months to wake her up. She saw that the baby was lying in her
leading to Tristen’s death. Applicant’s personality began bed with a pillowcase covering one eye, part of her nose,
to change after he started taking pain medication for and her mouth. When Hope moved the pillowcase, she
injuries received in a serious car accident. Then, saw that Tristen’s lips were blue. Upon picking her up,
beginning in November 1997, Tristen suffered injuries Hope found that Tristen’s body was cold and that she
on three separate occasions while being cared for by was not breathing.
Applicant: a bruise under the eye, an injury to her leg or
ankle, and finally, a series of bruises across her face. Hope cried for Morris to call 9–1–1 for assistance and
Also, testimony suggested that in early 1998, Tristen carried Tristen into the living room. There she held
became afraid of Applicant. Hope stated that Tristen Tristen on her lap and tried to breath into her mouth. A
“didn’t seem to care too much for [Applicant] anymore” pink fluid gurgled up from Tristen’s mouth and nose,
and seemed afraid of him. Tristen’s injuries and change and Hope inserted a finger into Tristen’s throat to
in behavior led neighbor Rhonda Bethune and babysitter attempt to dislodge any object stuck in her throat. Hope
Helen McDaniel3 to express concern that Applicant was then carried Tristen outside, where she yelled for
hurting Tristen. However, the defense presented several someone to assist her and placed the child on a patch of
witnesses, including Morris and Applicant’s well-groomed lawn near the front door. Morris and a
grandmother, brother, and sister-in-law, who stated that neighbor’s daughter, Pamela Garrison, attempted to
Tristen and Applicant had a very loving, father-daughter perform CPR on Tristen. Morris blew into Tristen’s
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
mouth while Garrison pushed with very little force upon specifically assistant medical examiner Dr. Patricia
the child’s abdomen three or four times, using the palm Moore. Moore noted six or seven contusions on
of her hand. Garrison testified that Tristen’s skin felt Tristen’s legs, which were consistent with normal
very cold, and she did not hear any air coming out of the childhood injuries. She also observed five irregularly
baby. Another neighbor, Jackie Sullivan, who had shaped, purple bruises on Tristen’s back, ranging from
previously worked as an emergency medical technician, one-eighth to one-quarter inch in width; bruises on the
approached and told Morris and Garrison to stop right side of her neck; and areas of discoloration on her
because they were performing CPR too forcefully, given face and left arm. Moore incised the bruises on Tristen’s
the size of the child. Sullivan made a statement to the back with a scalpel and found hemorrhages down to the
effect that they would kill the child if she was not dead level of deep subcutaneous tissue. When examining
already. She observed that Tristen was not breathing, Tristen’s internal organs, Moore discovered petechiae
that her body was cold, and that her lips were (small areas of hemorrhage) on the thymus and the
bluish-purple, circumstances leading her to believe that lungs, a small hemorrhage on the kidney, a recent
Tristen was dead at that time. Still, Sullivan started to hemorrhage between the intracostal muscles of the
perform infant CPR with two fingers. eleventh and twelfth ribs on each side, and a hemorrhage
of the tonsils. Moore stated that Tristen’s heart appeared
An ambulance arrived at 6:08 p.m., and paramedic “pretty good” and the lungs contained “some mucus in
Elizabeth Fredregill placed Tristen on a stretcher. After the bronchi,” which probably resulted from a cold. Upon
several unsuccessful attempts, a breathing tube was further examination the next day, Moore found two
inserted into Tristen’s larynx. Fire department personnel additional bruises behind Tristen’s right ear and another
performed CPR and administered epinephrine during bruise on the right side of her neck.
the trip to the hospital. Fredregill observed that Tristen
was pale and cold to the touch, that her neck was stiff, At trial, Moore, as the State’s expert witness, testified
and that there was vomit in her airway, and she formed that the cause of Tristen’s death was asphyxia due to
an opinion that Tristen was dead based on her compression of the chest and abdomen and that the
observation of fire department personnel performing manner of death was homicide. She explained that the
CPR. The first base-line EKG was taken in the presence of petechiae on the back of the thymus and
ambulance at 6:16 p.m. lungs indicated an asphyxia-related death. Moore ruled
out CPR as the cause of death because the injuries to
*3 Tristen arrived at the hospital at 6:36 p.m., and she Tristen’s back were inconsistent with the administration
was immediately examined by Dr. John Conner, who of adult CPR and the injury to the kidney was deep
determined that Tristen was “asystole” and without down, requiring a lot of force. She also excluded sudden
respiration, was cool to the touch, and displayed some infant death syndrome (SIDS) because of the child’s age
dependent lividity, all indicating that she “had been dead “and the story doesn’t fit the picture of a SIDS baby
for some time.” Tristen was placed on monitors to assess death.” Additionally, Moore stated that Tristen may
her condition, but Conner believed that there was no have been dead for at least three hours before her
chance of successful resuscitation. A nurse attempted to temperature was taken at the hospital, based upon an
determine Tristen’s temperature with a rectal approximate post-mortem cooling rate of 1.5 degrees
thermometer, which continued to display its lowest per hour, and that Tristen’s body would not have
possible reading of 94 degrees Fahrenheit, thereby sustained bruises as the result of the application of CPR
signifying that the child’s temperature was actually that long after her death.
lower than the minimum displayed by the digital
thermometer. Conner pronounced Tristen dead at 6:53 On cross-examination, Moore testified that she was
p.m. He broke the news to Hope, who was distraught assuming that the CPR took place on the floor, so
and cried that she did not want to live. Conner testified Applicant asked her to imagine that it took place on a
that Applicant’s behavior was unusual in the situation floor with sticks and rocks scattered around and that the
because he attempted to fondle Hope, but other adults performing CPR were doing so as if Tristen was a
witnesses disputed this testimony. strong adult and were applying heavy force on her chest
and abdomen. Moore responded that such circumstances
Subsequently, Justice of the Peace Edie Connelly could explain the bruises on the back but not the rib
ordered an autopsy that was performed by the Harris injury (although she also acknowledged that if enough
County Medical Examiner’s Office (HCMEO), pressure was applied to the abdomen, the kidney and
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
ribs could bruise). Moore also asserted that she was not organized activity was represented and not all of the
completely excluding other reasonable hypothesis by leads showed it. One reading did show some movement,
which Tristen died. Still, it was her opinion that Tristen but she attributed it to the CPR that was in progress, not
was asphyxiated, and she believed that beyond a heart activity. Finally, Carl Ulbrich, a physician who
reasonable doubt. was working in the emergency room at the same time as
Dr. Conner but was not the primary physician on
*4 To contravene Moore’s testimony, the defense called Tristen’s case, reviewed the records and testified that the
Dr. Robert Bux, the deputy chief medical examiner for EKG readings indicated no electrical activity except for
Bexar County, Texas.4 Bux testified that the cause of mild interference. He noted that the up-and-down
Tristen’s death could not be determined and that no pattern on one of the EKG charts was consistent with
anatomical reason demonstrated during the autopsy CPR.
could have led to a specific cause of her death. Relying
on a treatise, Bux explained that death from asphyxia by Applicant testified in his defense. He stated that Tristen
compression would have resulted in abundant petechiae was affectionate toward him and that on the day of her
above the level of compression (including on the death, he did nothing to harm Tristen. In fact, he claimed
forehead, cheeks, and eyes) as well as abrasions and that he had never struck her, abused her, disciplined her,
bruises around the front of Tristen’s body that would or even raised his voice to her. Yet he admitted causing
have occurred during the struggle. But Moore observed the three injuries to Tristen, blaming the incidents on his
none of these during the autopsy. Bux also stated that the “carelessness.” When asked about his turbulent
occasional petechiae on internal organs observed were a relationship with Hope, Applicant denied that any stress
“non-specific finding” and could have resulted from resulted from the fact that Hope came in and out of his
other causes. That is, “[e]ven the presence of abundant life, and although he participated in group counseling
petechiae is not a hallmark” and was not “specific for with her, he denied being depressed, claiming he
asphyxia.” Regarding the time of death, Bux stated that attended merely out of concern for Hope. Applicant
pulseless electrical activity on Tristen’s EKG charts further commented that he would overlook a lot of
could have occurred 30 to 40 minutes after her death, things because of his love for Tristen. In addition,
indicating that Tristen’s death occurred after 5:30 p.m. Applicant was questioned about the testimony of
when Applicant was not with the baby. When asked Bethune that in the month following Tristen’s death,
about the role of CPR in the injuries, Bux asserted that Applicant took all of the batteries out of Tristen’s toys
the bruises on Tristen’s back were consistent with the and then explained to her that “it hurt too much; he
administration of CPR while the child was lying on a couldn’t handle the guilt.” Applicant responded that he
lawn that was not prepared for that purpose. Similarly, removed the batteries because it hurt him to hear them
Bux testified that the rib and kidney injuries could have go off, not due to a feeling of guilt from something that
been caused by frontal pressure during CPR, although he had done.
he admitted that he had not personally seen a kidney
injury due to such occurrence. Bux claimed that bruises During closing arguments, the State emphasized
can occur after death, explaining that it is possible for Moore’s testimony in arguing that it was Applicant, and
there to be a distribution of blood vessels and then the only Applicant, who could have caused the
blood runs out and pools because of gravity. asphyxia-related death of Tristen. For his part, Applicant
argued that if “anything, he is guilty of the offense of
In its rebuttal case, the State offered evidence to loving a child.” Applicant put forth the SIDS scenario
contradict Bux’s EKG testimony. Fredregill described and emphasized that the bruises on Tristen’s body could
how the electrodes are attached and the advantages of have been caused by incorrectly performed CPR efforts
electrodes over other types of monitors. Kelly Curry, to save her life. He also pointed to the testimony of the
Fredregill’s supervisor and the clinical manager for two medical examiners, arguing that Bux’s was the
EMS at Montgomery County Hospital District who was more credible opinion.
trained in and also taught how to read EKGs, testified
about interference and artifacts in EKG readings. She On February 22, 1999, the jury found Applicant guilty
explained that the three electrode leads attached to of capital murder, and Applicant was sentenced to life
Tristen looked at different directions of the heart and imprisonment. Approximately a month later, Applicant
were to be read simultaneously. She dismissed as filed a motion for new trial, arguing that evidence was
artifacts any activity on the EKG charts because no legally and factually insufficient to establish that
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
Tristen’s death was a homicide, but the trial court denied information that suggested that the bruises could have
the motion. resulted from aggressive CPR and other efforts to assist
the child.5 She emphasized that it was significant that
*5 ... aggressive adult-type CPR by untrained persons was
performed on Tristen, a 17–month–old child.
D. Reevaluation of Autopsy Findings
E. [Original] Habeas Application and Proceedings
In March 2007, an acquaintance of Applicant contacted
the HCMEO and asked it to review Moore’s findings On June 4, 2007, Applicant filed his original application
regarding the cause of Tristen’s death. The deputy chief for a writ of habeas corpus alleging, “Newly discovered
medical examiner for Harris County, Dr. Dwayne Wolf, evidence shows that no rational juror would find
undertook a re-evaluation of the autopsy findings. After Applicant guilty beyond a reasonable doubt of the
reviewing the testimony adduced during Applicant’s offense for which he was charged and convicted.” About
trial, the autopsy report, the EMS and medical records, a month later, Applicant filed a supplemental
and the police offense report, Dr. Wolf concluded that application alleging that his “right to a fair trial by a fair
Moore’s observations during the autopsy did not support and impartial jury ... was violated because his conviction
a finding that the death resulted from asphyxiation by was based on testimony material to the State’s case that
compression or from any other specific cause. has now been determined to be false.”
Consequently, on May 2, 2007, Wolf amended Tristen’s
autopsy report to reflect that both the cause and manner In its original response on June 25, 2007, the State
of death was “undetermined.” And so on the following recommended that Applicant be granted a new trial
day, Justice of the Peace Edie Connelly formally because his due process rights to a fair trial and impartial
reopened the inquest into Tristen’s death. jury were violated. The State claimed that because it
relied on Moore’s original opinion in presenting its case,
Shortly thereafter, former Harris County Medical which has now been recanted, confidence in the
Examiner Joye Carter was asked by the Montgomery outcome has been undermined. Citing Ex parte
County District Attorney’s Office to review Moore’s Carmona, 185 S.W.3d 492 (Tex.Crim.App.2006), the
autopsy report. Carter had been Moore’s supervisor and State wrote, “While Dr. Moore’s testimony is not
had agreed with Moore’s original opinion. In a May 10 perjured testimony, the effect of the change in her
letter to the district attorney, she wrote, “Upon my opinion is the same—the jury was led to believe and
review of this case I would not concur with the opinion credit facts that were not true.”
on the manner of death as a homicide but would
reconsider this case as an undetermined manner,” and *6 The same day, Applicant and the State filed agreed
“If the Harris County Medical Examiner intends to findings of fact and conclusions of law. But instead of
re-rule this case as an undetermined manner of death I signing them, on August 22, 2007, the trial court
would agree with that change.” appointed Dr. Thomas Wheeler, the Chairman of the
Department of Pathology at Baylor College of
Moore, too, was asked by the Montgomery County Medicine, with the task of conducting an independent
District Attorney’s Office to review her autopsy report. pathological examination to address the following
In a May 13 letter to the district attorney, she stated, issues: (1) What is the manner of Tristen Rivet’s death?
(2) What is the means of Tristen Rivet’s death? (3) Are
I believe that there are unanswered questions as to the manner and means of Tristen Rivet’s death able to be
why the child died, and I still feel that this is a determined? (4) Does a change in the medical
suspicious death of a young child. Given my review examiner’s opinion about the manner and means of
of all the material from the case file and having had Tristen Rivet’s death entitle Applicant to a new trial?
more experience in the field of forensic pathology, I After reviewing the autopsy file of the victim, trial
now feel that an opinion for a cause and manner of testimony, and exhibits, Wheeler concluded in a
death of undetermined, undetermined is best for this September 18, 2007, letter to the trial court that the
case. cause and manner of Tristen’s death were undetermined.
Wheeler asserted that “[a]lthough the autopsy
Moore explained that since her original opinion, she has performed by Dr. Moore was thorough and well
had more experience, and she has reviewed additional documented, her conclusion that the death of Tristen
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
Rivet was caused by asphyxia secondary to chest on May 6, 2008, that no markings of any kind could be
compressions was not justified by the objective facts and identified due to the poor condition of the paper.
pathological findings in this case.” He could not rule out
suffocation or asphyxiation as the cause of death, but he Judge Connelly amended Tristen’s death certificate on
did not see any physical findings that would support any May 13, 2008, to correspond with Norton’s opinion that
particular conclusion as to the cause of death. Tristen’s death was caused by asphyxia due to
suffocation, rather than asphyxia by compression; the
In October 2007, Judge Connelly ordered that homicide finding was not changed. The following day,
pathologist Linda Norton conduct an independent Norton executed an affidavit incorporating her
forensic examination of the evidence and submit a conference discussion. In its May 27, 2008,
written report of her findings and opinion on the cause supplemental response, the State was no longer willing
and the manner of Tristen’s death.6 On March 28, 2008, to recommend a grant, but it agreed not to oppose
Norton reported the results of her review during a Applicant’s request for a new trial. It wrote that the
recorded telephone conference call, in which Judge “cause of death remains asphyxiation, albeit by
Connelly and counsel for Applicant and the State suffocation rather than compression, and the manner of
participated. Norton stated that it was her opinion that death a homicide as presented by the jury at Applicant’s
Tristen’s death was a homicide and that the manner of trial.” On August 6, Wheeler submitted a sworn
death was asphyxia by suffocation. She explained that affidavit, repeating what he had said in his September
her conclusion was supported by the petechial letter to the trial court, adding that he disagreed with
hemorrhages on Tristen’s lungs and thymus, combined Norton’s opinions. That same day, Applicant filed a
with the other evidence of trauma, and in the context of memorandum on why Moore’s amended autopsy should
the other circumstances of Tristen’s death. In addition, not be found credible.
Norton stated that the correct rule of thumb for assessing
temperature loss in a child’s body after death is an *7 On August 13, 2008, Applicant, joined by the State,
approximate loss of three degrees per hour, depending filed proposed joint findings of fact and conclusions of
upon ambient temperature and other environmental law, which recommended that Applicant be granted a
facts. Thus, combining that with Tristen’s maximum new trial based on due process grounds and the fact that
rectal temperature of 94 degrees at the hospital and the he was denied a “fundamentally fair trial and an accurate
descriptions of Tristen’s condition by Sullivan and result.” On August 25, Moore’s sworn affidavit was
others, she believed that Tristen’s death occurred filed, incorporating much of her prior letter to the district
between 2:30 and 5:00 p.m. Consequently, because the attorney. The next day, Applicant, again joined by the
child had been dead for at least an hour before CPR was State, filed another set of proposed findings and
attempted, the external bruises observed during the conclusions. Instead of signing it, the trial court ordered
autopsy could not have been inflicted during the CPR. that the parties engage in discovery. Moore was deposed
Nonetheless, Norton acknowledged that she could not on December 10, 2008; Wheeler on December 19, 2008;
conclude beyond a reasonable doubt that Applicant and and Wolf on February 10, 2009. The trial court
Applicant alone committed the homicide. appointed John Milutin, an attorney experienced in the
deposition of medical experts, to depose these witnesses.
Norton also recommended that authorities investigate Norton was subpoenaed so she, too, could be deposed,
reports that Applicant had written something on a dollar but she could not be located. When the trial court
bill and placed it in Tristen’s casket at the funeral home granted the State’s motion to depose Norton at the
on the date of Tristen’s funeral. Ruth Hope (Barbara location of her choosing, she could not be deposed due
Hope’s mother) and Shelby Becker (Barbara Hope’s to medical problems.7 Instead, on December 17, 2009,
sister) had executed affidavits indicating that they saw Norton submitted a second affidavit in which she
Applicant writing something on a money bill and then confirmed that she was incapable of preparing for or
placing it in Tristen’s coffin. On April 4, 2008, Judge participating in a deposition, and she adopted and
Connelly signed an order directing that Tristen be ratified under oath the statements and opinions she
exhumed for the purpose of retrieving any evidence that expressed during the previous telephone conference,
might be found in the casket. Six days later, Tristen’s including that she believed Tristen died from suffocation
remains were exhumed and remnants of a piece of paper and that her death was homicide. Based largely on
resembling United States currency were recovered from Norton’s opinion, on December 22, the State filed its
the casket liner. Document preservation experts reported second supplemental response and recommended that
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
relief be denied. Shortly thereafter, Applicant filed an established by evidence that an expert opinion may have
objection to Norton’s affidavit, arguing that, given her been correct or it may have been incorrect.”
unwillingness to be deposed, the trial court should not The trial court made twenty-two pages of detailed
consider her affidavit. findings of fact, much of which is summarized above,
and five pages of conclusions of law. The trial court
On December 29, 2009, Judge Connelly conducted an recommended that we grant Applicant a new trial
evidentiary hearing on Applicant’s motion to reopen the because his due process and due course of law rights
inquest into Tristen’s death to allow consideration of were violated, as was his right to an impartial jury. 9
additional expert medical testimony. Applicant also
filed a motion to reopen the inquest into Tristen’s death *8 This Court denied the applicant’s original application
after her death certificate was amended to show she died for writ of habeas corpus.10 On September 3, 2013, the
of suffocation, but this motion was denied because “on applicant filed a subsequent application for writ of habeas
the basis of examination and investigation, in the corpus pursuant to article 11.073 of the Texas Code of
opinion of this Court, the cause and manner of the death Criminal Procedure. The trial court recommended that
of Tristin Skye Rivet, as shown on the amended death relief be granted, and the State objected to its findings and
certificate ..., is cause: asphyxia due to suffocation, recommendations. We ordered that the application be filed
manner: homicide.” and set for submission.
On January 15, 2010, the State filed its proposed
findings of fact and conclusions of law, which
recommended that relief be denied. Days later,
Applicant filed his proposed findings and conclusions. Subsequent Application for Writ of Habeas Corpus
On January 21, the State filed its first supplemental brief
[1] [2]
in support of its proposed findings and conclusions. This Court may consider a subsequent application only
While not willing to concede that Applicant properly if “the current claims and issues have not been and could
raised a due process claim in his supplemental ground not have been presented previously in an original
for relief, the State argued that, even if he did raise due application or in a previously considered application filed
process, the Court “has not yet held—and it seems under this article because the factual or legal basis for the
unlikely that it will ever hold—that the Due Process claim was unavailable on the date the applicant filed the
Clause is violated when a witness provides, in good previous application....”11
faith, an opinion that is believed to be true by both the
witness and the prosecution at the time of trial, even if As stated previously, no new factual bases for a claim have
that opinion is subsequently challenged by other experts emerged since the applicant filed his original application.
or reconsidered by the witness who offered it.” The question remains whether the enactment of 11.073
created a new legal basis for a claim.
The next day, on January 22, 2010, the trial court
permitted oral argument. Applicant argued that Moore’s Article 11.07 defines what makes a legal claim
re-evaluation was newly available evidence and that Ex unavailable:
parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996), For purposes of Subsection (a)(1), a
requires that the newly available evidence be evaluated legal basis of a claim is unavailable
within the four corners of the trial transcript. 8 Further, on or before a date described by
Applicant asserted that due process and fairness require Subsection (a)(1) if the legal basis
that the jury have the opportunity to re-weigh the was not recognized by and could not
evidence. In contrast, the State contended that Applicant have been reasonably formulated
could not establish that he was actually innocent because from a final decision of the United
the evidence is not newly discovered, the re-evaluation States Supreme Court, a court of
was not indisputable, and there was other evidence of appeals of the United States, or a
Applicant’s guilt. Regarding the due process claim, the court of appellate jurisdiction of this
State argued that Applicant had failed to raise it as a state on or before that date.12
supplemental ground, and it doubted whether there was
a legal and factual basis for his due process claim: “It’s Article 11.073 was enacted on September 1, 2013, six
hard to believe that a violation of due process is years after the applicant filed his original application. Prior
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to the enactment of article 11.073, newly available relied on by the State at trial: Moore’s testimony. During
scientific evidence per se generally was not recognized as the applicant’s trial, the State repeatedly emphasized
a basis for habeas corpus relief and could not have been Moore’s testimony that this was homicide by asphyxiation.
reasonably formulated from a final decision of this Court
or the United States Supreme Court, unless it supported a We hold that article 11.073 applies to this evidence under
claim of “actual innocence” or “false testimony.”13 This section (a)(2).16
Court held in the applicant’s first habeas proceeding that
his claim did not satisfy the requirements for either actual
innocence or false testimony.14
Article 11.073 provides a new legal basis for habeas relief Availability of Scientific Evidence
in the small number of cases where the applicant can show
by the preponderance of the evidence that he or she would In order to obtain relief, the applicant must include in his
not have been convicted if the newly available scientific application specific facts showing the “relevant scientific
evidence had been presented at trial. evidence is currently available and was not available at the
time of [his] trial because the evidence was not
[3]
An applicant also must establish “that the facts he alleges ascertainable through the exercise of reasonable diligence
are at least minimally sufficient to bring him within the by the convicted person before the date of or during [his]
ambit of that new legal basis for relief.”15 In this case the trial.”17Article 11.073 (d)(1) and (2) provide guidance to
applicant has alleged prima facie facts in his application the Court in how to make this determination:
sufficient to invoke the new law—there is arguably
In making a finding as to whether relevant scientific
relevant scientific evidence that contradicts scientific
evidence was not ascertainable through the exercise of
evidence relied on by the state at trial, and that evidence
reasonable diligence on or before a specific date, the
was not available at trial because Moore re-evaluated her
court shall consider whether the scientific knowledge or
opinion after trial. Although similar information was
method on which the relevant scientific evidence is
presented by a defense expert at trial, Dr. Bux, the
based has changed since:
evidence at issue is the State’s evidence regarding cause of
death, which has been contradicted. (1) the applicable trial date or dates, for a
determination made with respect to an original
*9 The applicant has met the requirements for submission application; or
of a subsequent application, and we now proceed to
consider the merits of this application. (2) the date on which the original application or a
previously considered application, as applicable, was
filed, for a determination made with respect to a
subsequent application.
Article 11.073
Article 11.073 requires the Court to consider “whether the
scientific knowledge or method on which the relevant
scientific evidence is based has changed.” Scientific
The applicant argues he is entitled to relief under article method is defined as “[t]he process of generating
11.073 because Dr. Moore, the medical examiner who hypotheses and testing them through experimentation,
performed the autopsy and testified for the State, has publication, and republication.”18
re-evaluated her testimony and opinion and can no longer
[4]
stand by her trial testimony that Tristen’s death was a The process used by Moore did not change, and there is
homicide. Moore now believes, as stated in her May 13, no argument from either the applicant or the State that
2007, letter to the district attorney, “that an opinion for a methods for analyzing the cause of child death in a case
cause and manner of death of undetermined, undetermined like this have changed in the scientific community, as have
[sic ] is best for this case.” other areas of science recently considered by this Court.19
The remaining question before this Court is whether the
This evidence regarding the cause of death is relevant “scientific knowledge ... on which the relevant scientific
scientific evidence that contradicts scientific evidence evidence is based has changed” (emphasis added).
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Moore’s conclusion certainly has changed, but does appropriate validation based on the scientific method.
“scientific knowledge” apply to the knowledge of an Moore’s revised opinion on the cause of death satisfies the
individual? requirements to be called “scientific knowledge,” and thus
falls within the language of article 11.073. Moore’s
*10 The United States Supreme Court defined scientific opinion labeling cause of death as “undetermined” was not
knowledge when explaining what constitutes admissible available at the time of trial because her scientific
“scientific knowledge” testimony from an expert witness. knowledge has changed since the applicable trial date.
The adjective “scientific” implies a grounding in the
methods and procedures of science. Similarly, the word The State argues Moore’s re-evaluated opinion was
“knowledge” connotes more than subjective belief or available at trial because the same information was
unsupported speculation. The term “applies to any body presented by the defense through Dr. Bux. We disagree.
of known facts or to any body of ideas inferred from The relevant evidence is the State’s evidence on Tristen’s
such facts or accepted as truths on good grounds.” Of cause of death. It has changed. Moore’s re-evaluated
course, it would be unreasonable to conclude that the opinion on cause of death contradicts the evidence relied
subject of scientific testimony must be “known” to a on by the State at trial and was not available at that time
certainty; arguably, there are no certainties in science. because she re-evaluated years after the trial ended.
But, in order to qualify as “scientific knowledge,” an
inference or assertion must be derived by the scientific
method. Proposed testimony must be supported by
appropriate validation—i.e., “good grounds,” based on
what is known.20 Admissibility and Probable Outcome
The Supreme Court laid out several factors for determining Both the State and the applicant agree that, if it had been
whether something qualifies as scientific knowledge under available at trial, Moore’s opinion regarding the cause of
its definition, which are incorporated into the definition of death would be admissible under the Texas Rules of
“scientific knowledge” provided in Black’s Law Evidence.
Dictionary:
Knowledge that is grounded on *11 [5]Finally, we find on the preponderance of the
scientific methods that have been evidence that, had this evidence been presented at trial, the
supported by adequate validation. applicant would not have been convicted. Moore’s original
Four primary factors are used to trial testimony was the only evidence presented claiming
determine whether evidence conclusively that Tristen died as the result of a homicide.
amounts to scientific knowledge: The State also emphasized her testimony in its closing
(1) whether it has been tested; (2) statement when arguing to the jury that the applicant
whether it has been subjected to caused Tristen’s death. It is hard to imagine any reasonable
peer review and publication; (3) the jury’s returning a conviction when no one can even say
known or potential rate of error; and confidently that a murder has been committed.
(4) the degree of acceptance within
the scientific community.21
Moore’s opinion at trial on the cause of death was
admissible scientific evidence, based on inferences derived Conclusion
from the scientific method. Dr. Wheeler, Chairman of the
We grant the applicant’s request for relief, set aside the
Department of Pathology at Baylor College of Medicine,
applicant’s conviction in cause number 98–06–00750–CR,
stated in his letter to the trial court that “the autopsy
and order that the applicant be remanded to the Sheriff of
performed by Dr. Moore was thorough and well
Montgomery County to answer the charges against him.
documented,” but her original conclusion was not
supported by the autopsy.22
Her new opinion that the cause of death is “undetermined,”
which the applicant argues is the “change in scientific Johnson, J., filed a concurring opinion.
knowledge,” is also an inference or assertion supported by
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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Cochran, J., filed a concurring opinion, in which Price and dummies.
Johnson, JJ., joined.
The words of Article 11.073 state that it “applies to
Keller, P.J., filed a dissenting opinion, in which Hervey, J., relevant scientific evidence ... that was not available to be
joined. offered ... at the convicted person’s trial; or ... contradicts
scientific evidence relied on by the state at trial.” Relief
Meyers, J., filed a dissenting opinion. may be granted if “relevant scientific evidence is currently
available and was not available at the time of ... trial
Keasler, J., filed a dissenting opinion. because the evidence was not ascertainable through the
exercise of reasonable diligence by the convicted person
Johnson, J., filed a concurring opinion.
before the date of or during the convicted person’s trial.”
The various positions on statutory interpretation seem to
*12 “Evidence” is what is presented at trial in support of
agree that the legislative history indicates that the intent of
the litigants’ positions. “Scientific evidence” is presented
this statute is to provide relief to those who were convicted
by scientists, and the content of that evidence depends on
on science or scientific methodology that is now known to
the knowledge of that particular witness about the science
be unsound.
at issue. “Bad science” and “bad scientists” are
inseparable. A scientist may not intend to present bad
My first observation is that “scientific method” and
science, nor must that scientist be a bad scientist in every
“scientific methodology” are not the same. “Scientific
situation. Linus Pauling won a Nobel Prize in chemistry
method” is the observation of some phenomenon in the
and would certainly be a good scientific witness if he
world, the formulation of a theory-a possible explanation
testified about his work in chemistry. However, he would
of that phenomenon-and testing of that possible
be a bad scientist presenting bad science if he were called
explanation to see if the phenomenon is indeed explained
as a witness to the unlimited powers of vitamin C.
by that theory. For example, in the 18 th century,
inoculation against smallpox used the live smallpox virus
Because evidence is what is presented at trial by a witness
itself, producing a high risk of contracting the disease and
and is therefore limited by the personal knowledge of that
dying. Dr. Edward Jenner, among others, observed that
witness, logically the statute must be intended to address
milk maids who had suffered through cowpox, a relatively
the personal knowledge of scientific witnesses. Personal
mild disease, did not contract small pox. His theory was
knowledge increases over time as one gains new
that having had cowpox protected one against smallpox.
knowledge and refines one’s understanding of one’s older
He tested his theory by inoculating 24 subjects with pus
knowledge. New law graduates may know book law, but
from the cowpox blisters on a local milkmaid and then
most have not yet learned how to integrate book law with
exposing those persons to smallpox. None of his subjects
trial tactics. And some skills simply cannot be learned
developed smallpox, thus verifying his theory. A quirk of
anywhere except in the crucible of practice in the real
the scientific method is that, even after the theory has been
world. New lawyers are likely to lose trials that a more
thoroughly tested and proven to be an accurate explanation
experienced lawyer would not, merely because they have
of the observed phenomenon, it is still referred to as a
not yet developed the interpretive skills of that more
theory, as in “the theory of gravity,” even though the
experienced lawyer. Or they might choose to try a case that
“theory” has become universally accepted as fact.
a more experienced lawyer, after careful consideration of
the facts, would choose to settle.
“Scientific methodology,” on the other hand, is the means
by which a theory is tested. In Jenner’s cases, the
The same is true of physicians. Because of inexperience, a
methodology was to scrape pus from a human who had
resident may miss a diagnosis that a more experienced
active cowpox and using that pus to inoculate other
doctor would have made, merely because the older doctor
humans, then exposing them to smallpox to confirm that
had seen the grouping of apparently unrelated symptoms
the inoculation with cowpox provided immunity to
before or was knowledgeable about uncommon diseases or
smallpox. If the theory being tested is that blood is thicker
just knew more about what questions to ask the patient.
than water, the methodology is likely to involve measuring
Some practitioners, of law or medicine, may not keep up
the viscosity of blood and water and comparing the results.
with the current literature. The result of inexperience or
Automobile manufacturers constantly test new theories
out-dated knowledge may be testimony that may rightfully
about injury prevention and mitigation with crash-test
be called bad science, even if not intentionally so, and that
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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testimony may persuade a jury to convict when it should knowledge, and thus in scientific testimony from
not. individuals, should also be available as bases for
re-examination of convictions.
This is just such a case. Testimony indicated that the
child’s injuries could have been inflicted intentionally, but I join the opinion of the Court.
it also indicated that the injuries could have resulted from
improper CPR;1 how much of the general public knows
that CPR on infants is done with two fingers and at 100
beats per minute?2 Only Dr. Moore testified at trial that the Cochran, J., filed a concurring opinion in which Price and
cause of death was homicide. Experienced pathologists Johnson, JJ., joined.
testified that the cause of death could not be determined. At I join the majority opinion. I write separately to
the time of the original trial, Dr. Moore had only 18 months respectfully disagree with the State’s contention that the
of experience as an associate medical examiner and had plain language and legislative history of Article
been cited for defective and improper work. With eight 11.073“demonstrate a legislative intent to provide a
more years of experience, she testified that she believed remedy when there is a generally accepted scientific
that the cause of the child’s death could not be determined. advance or breakthrough in a discipline of forensic
That “relevant scientific evidence ... was not available at science,” rather than a change in the State’s scientific
the time of the convicted person’s trial,” and it “was not expert’s opinion.1 I think that providing relief from “bad”
ascertainable through the exercise of reasonable diligence scientific testimony and righting the wrong of Robbinswas
by the convicted person before the date of or during the “the tipping point” for passing the statute.2
convicted person’s trial;....” The only person who now
clings to a firm opinion of homicide is Dr. Norton, who
closed her practice, moved from her home, and declined to
be deposed for a habeas hearing. A. Our Prior Decision in Robbins was the Poster Child
for Enacting Article 11.073.
*13 As has been noted, some examples of “contradicted
scientific evidence relied on by the state at trial” include 1. The scientific and legal landscape before passage of
arson, infant trauma, bullet-lead analysis, bite marks, some Article 11.073.
ballistics tests, blood-spatter patterns, and scent line-ups.
Over the past decade, Texas has been a national leader in
Some such evidence has involved misinterpretation based
addressing wrongful convictions and recognizing how bad
on out-dated knowledge, some are simply junk science that
science can lead to bad convictions. During the past ten
has never been subjected to any kind of scientific
years, all three branches of Texas government have worked
investigation. Whether “debunked” or “refined” for
to ensure the scientific integrity of Texas criminal
increased accuracy, changes in scientific knowledge in
convictions and to reassure our citizens that Texas criminal
general, and therefore changes in scientific testimony by
trials are fundamentally fair and reach accurate results.
individuals, must be acknowledged and addressed. As
Judge Cochran noted in her dissent in applicant’s original
In 2001, the Texas Legislature enacted Chapter 64, 3 which
application for habeas corpus,
set up a procedure for post-conviction DNA testing. Then
When scientific experts honestly and sincerely thought the Dallas District Attorney’s Conviction Integrity Unit
“X” was true at the time they testified, but the science began testing stored DNA from old rape convictions and
has changed or the experts’ understanding of the science assisting in the legal exoneration of those defendants
has changed and their opinions have changed, what whose DNA did not match that found at the crime scene. 4
cognizance of that change should the criminal justice
system take long after a person has been convicted? *14 Those developments, plus the concern over “bad”
arson science,5 led the Legislature to create the Texas
Ex parte Robbins, 360 S.W.3d 446, 469 Forensics Commission in 2005 to strengthen the use of
(Tex.Crim.App.2011)(Cochran, J., dissenting). “good” science in criminal proceedings and to investigate
“allegations of negligence or misconduct” in forensic
The legislature has made it clear that advances in DNA sciences.6 The increasing number of Texas exonerations
technology may be the basis for re-examining convictions. led to the formation of (1) the Texas Innocence Project in
Advances and changes in other forms of scientific 2007 by non-profit organizations working with students,
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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and (2) the Texas Criminal Justice Integrity Unit in 2008 science and “bad” scientific testimony in our courtrooms.
by the Court of Criminal Appeals to “review the strengths
and weaknesses of the Texas criminal justice system” and Meanwhile, Texas has continued its push to ensure that
to “bring about meaningful reform.”7 In 2011, the state-of-the-art science would assist in seeing that the
Legislature passed Article 38.20 to improve the reliability guilty were convicted and the innocent were not, especially
of photographic and live line-up procedures,8 based, in because more than half of all DNA exonerations involved
part, on the recommendations of the Criminal Justice unvalidated or improper forensic science.19 But as the
Integrity Unit.9 Supreme Court has explained, the problem is not just that a
general forensic field may be “bad” science, the problem
In 2009, the National Research Council, an arm of the also includes “bad” scientists.
National Academy of Sciences, published Strengthening Prosecution experts, of course, can sometimes make
Forensic Science in the United States: A Path Forward, its mistakes. Indeed, we have recognized the threat to fair
exposé of the shoddy forensics used in criminal criminal trials posed by the potential for incompetent or
proceedings.10 This report concluded that, with the fraudulent prosecution forensics experts, noting that
exception of DNA, “no forensic method has been ‘[s]erious deficiencies have been found in the forensic
rigorously shown to have the capacity to consistently, and evidence used in criminal trials.... One study of cases in
with a high degree of certainty, demonstrate a connection which exonerating evidence resulted in the overturning
between evidence and a specific individual or source.”11 In of criminal convictions concluded that invalid forensic
other words, courts and juries were frequently relying on testimony contributed to the convictions in 60% of the
“junk” science in criminal proceedings.12 The NAS report cases.’20
stated that “[n]ew doubts about the accuracy of some
forensic science practices have intensified with the The DNA exonerations have shown that faulty
growing numbers of exonerations resulting from DNA forensic-science testimony may be due to either (1)
analysis (and the concomitant realization that guilty parties insufficiently reliable forensic-science disciplines, such as
sometimes walk free).”13 toolmark and firearm evidence, bullet-lead analysis,
analysis of hair or fibers, analysis of paint or explosives
*15 One of the report’s chapters dealt with concerns about evidence, forensic odontology, and bloodstain analysis;21
medical examiners and coroners. It noted numerous or (2) insufficiently reliable expert testimony about an
deficiencies in the system14 and concluded, “It is clear that otherwise reliable forensic-science discipline.22 This
death investigations in the United States rely on a second group may include incompetent experts, scientific
patchwork of coroners and medical examiners and that charlatans, and experts who intentionally withheld
these vary greatly in the budgets, staff, equipment, and scientific evidence, but an empirical study of the DNA
training available to them, and in the quality of services exoneration cases shows that the majority of unreliable
they provide.”15 Part of the problem noted in the NAS expert testimony falls into one of six categories:
Report was that there is very little forensic pathology • Non–Probative evidence presented as probative;23
research, especially research conducted in collaboration *16 • Exculpatory evidence discounted;24
with universities and medical schools.16 This led to an
unhealthy reliance on law enforcement and prosecution • Inaccurate frequency or statistic presented;25¿
policies and procedures rather than the best medical • Statistic provided without empirical support;26
practices. Medical examiners, like other forensic experts,
should not become the “handmaiden” of the legal system • Non-numerical statements provided without
with “no significant uses beyond law enforcement.”17 empirical support;27 and
• Conclusion that evidence originated from
In 1989, just as DNA testing arrived in criminal cases, one defendant.28
prominent scientist noted, “At present, forensic science is
virtually unregulated-with the paradoxical result that In general, the problem with these experts was one of
clinical laboratories must meet higher standards to be “over-claiming” or scientific puffery.
allowed to diagnose strep throat than forensic labs must
meet to put a defendant on death row.”18 Twenty-five years *17 As the Supreme Court has noted, what the government
later, our forensic laboratories and scientists have not calls “neutral scientific testing” is not always as neutral or
changed much. Because they are not subject to significant scientific as the government suggests.29 “Forensic evidence
oversight or accreditation, it is not surprising to see “bad” is not uniquely immune from the risk of manipulation.... A
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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forensic analyst responding to a request from a law because “the science surrounding arson investigations has
enforcement official may feel pressure—or have an changed dramatically in recent years” and “a technique
incentive—to alter the evidence in a manner favorable to used by the FBI to match the chemical signature of bullets
the prosecution.”30 has been discredited.” Thus, “[d]efendants who were
wrongly convicted using these and any debunked science
In sum, the forensic-science problems that have led to deserve a way to raise their claim before a court.” 48 The
wrongful convictions include both “bad” science and bill’s emphasis was based entirely upon general changes or
“bad” (although perhaps sincere and well-intentioned) advances in forensic sciences-bad science, not bad
scientists.31 scientists.
Although Daubert,32Kelly,33 and Nenno,34 have brought *19 In the next legislative session, Senator Whitmire again
judicial gatekeeping and oversight to some of the introduced his bill to enact a new Article 11.073.49 During a
underlying forensic-science disciplines, courts do not House Committee on Criminal Jurisprudence hearing on
typically examine the specific opinions and conclusions the companion bill, HB 220, witnesses testified that
that testifying experts reach or whether their inferences are molecular evaluation of paint chips, blood spatter
supported by their data.35 There is no screening of the testimony, arson, “dog bark cases,” and “satanic ritual
expert’s case-specific inferences and opinions before the abuse of children” might all be areas of debunked scientific
jury hears them. Yet it is precisely while the expert testifies expertise subject to possible relief under the proposed bill.
that “the rubber meets the road,” and the jury hears claims Once again, the onus was on bad forensic-science
about the purported scientific significance of the evidence disciplines, not specific bad scientific testimony. Once
in the particular case.36 again, the bill did not pass.
This Court has expressed its concerns about “junk” science
in such cases as Jordan v. State,37 and Tillman v.
State38dealing with the unreliability of eyewitness 2. Tipping point: the two events that led to the passage of
identifications and the psychological factors that cause Article 11.073.
inaccurate identifications;39 in the Winfrey40 dog-scent
line-up cases; in the context of psychologists testifying to a Two important developments occurred after the legislative
capital defendant’s future dangerousness based on session ended in May of 2011. First, we denied applicant
unreliable methods;41 in the admission of polygraph tests;42 relief on his original habeas corpus claim, which was based
and in the use of comparative bullet-lead analysis.43 We on the medical examiner’s change of opinion from
have also recognized that sometimes the science is good, Tristen’s death being “homicide” to her death being
but the individual scientific testimony is “bad.”44 “undetermined.”50 The legislative session ended on May
30, and we delivered our 5–4 opinion denying applicant
*18 By 2009, the Texas Legislature, at the urging of the relief on June 29. I wrote a dissenting opinion, lamenting
Innocence Project of Texas, began reacting to the problems that “[o]ur criminal justice system does not currently have
of prior convictions based on bad scientific evidence. any legal doctrine, much less a constitutional doctrine, into
Senator John Whitmire sponsored Senate Bill 1976, a bill which this situation falls comfortably.”51 I suggested that
(after amendments) that is remarkably similar to the changes needed to be made to accommodate the situation
current Article 11.073 statute.45 Although that bill was left in such cases:
pending in the House at the end of the session, 46 the bill Given the current legitimate
analysis stated that Article 11.073 concerns about the scientific
would authorize courts to grant reliability of forensic science used
relief on writs of habeas corpus that, in American courtrooms, I think
subject to criteria in the bill, raised that the criminal justice system
relevant scientific evidence that was needs some jurisprudential
not available at the time of a trial or mechanism to deal with cases in
that discredited scientific evidence which a prior conviction was based
relied on by the prosecution at a upon scientific evidence that has
trial.47 subsequently been found to be
unreliable, in whole or in a specific
The Bill Analysis also noted that this statute was needed case.52
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manner of death, without which it
The second development was our grant of relief in Ex parte would not have obtained a
Henderson,53 under circumstances that were very similar to conviction. The Texas Court of
those in applicant’s original habeas case.54 Just eighteen Criminal Appeals voted against
months after denying relief in applicant’s case when the granting a new trial, with the
medical examiner changed her opinion from “homicide” to majority finding no path to habeas
“undetermined,” we granted Cathy Lynn Henderson relief relief under current law. The
on her claim when the medical examiner changed his question was raised as to how the
opinion from “homicide” to “undetermined.” In that case, criminal justice system should
the dissent justly criticized the majority for failing to address scenarios in which the
articulate a clear legal basis for granting a new trial. 55 The scientific experts sincerely thought
three dissenters in Henderson echoed the four different something was true at the time they
dissenters in Robbins in agreeing that current Texas law testified, but the science and the
lacked clarity in dealing with instances in which critical experts’ understanding and opinions
scientific evidence supporting the conviction-either the had changed.59
scientific field itself or the expert’s original opinion-had
been discredited. It cannot be doubted that the Legislature had this very case
in mind when it debated and enacted what is now Article
11.073. And, during the legislative session, Senator
Whitmire told the Texas Tribune that “several recent Court
3. The 2013 Legislative Enactment of Article 11.073. of Criminal Appeals decisions may make [SB 344] more
likely to pass.”60 The Robbins and Henderson cases raised
*20 The Robbins and Henderson decisions were the “a novel and difficult issue for the criminal-justice
judicial landscape in which Senator Whitmire system”:
introduced—“once more unto the breach, dear friends, When scientific experts honestly
once more”56—his same habeas corpus bill to establish a and sincerely thought ‘X’ was true
legal mechanism to address claims of “false and at the time they testified, but the
discredited forensic testimony”57 in 2013. The third time science has changed or the experts’
was a charm. And part of its charm may be attributable to understanding of the science has
(1) applicant’s post-conviction lawyer testifying to the changed and their opinions have
Senate Criminal Justice Committee about the 2011 changed, what cognizance of that
Robbinsdecision, and (2) testimony by the original District change should the criminal justice
Attorney who had prosecuted applicant and who, after Dr. system take long after a person has
Moore changed her opinion concerning Tristen’s cause of been convicted?61
death, agreed with the defense and the trial judge that
applicant was entitled to a new trial.58 The Bill Analysis to In Robbins, this Court chose finality over accuracy; in
the 2013 bill, SB 344, emphasized this Court’s decisions Henderson we did the opposite, and in 2013, the Texas
and referenced applicant’s case: Legislature also chose accuracy over finality by enacting
Recent case law and judicial Article 11.073.
opinion[s] have identified
weaknesses in the current habeas
corpus statute, noting issues that
include the absence of statutory B. The term “scientific knowledge” in Article 11.073
grounds upon which to grant relief, includes both general scientific advances and specific
the speed of changing science that scientific testimony.
serves as the foundation of a
conviction, and technical testimony As noted above, wrongful convictions have been based on
that may change with scientific both a “bad” forensic-science discipline, e.g., bullet-lead
discovery. In one case, recanted analysis, and “bad” scientific testimony within a good
testimony by a medical examiner forensic discipline. As Justice Scalia has stated, “[f]orensic
established the basis of the state’s evidence is not uniquely immune from the risk of
case with respect to the cause and manipulation,”62 or incompetence, or innocent errors, or
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cognitive bias. All of these problems are flaws relating to reliability of general fields of forensic science, but
“bad” scientific testimony that may exist within a good unconcerned about the reliability of a forensic scientist’s
forensic discipline. specific testimony. Regardless of whether a conviction is
based on an unreliable field of science or unreliable
*21 This case involves “bad” scientific testimony based on scientific testimony, the result is the same: an unreliable
insufficient experience.63 The trial and habeas judge verdict that cannot stand the test of time. It is built upon the
explicitly found that Dr. Moore shifting sands of “junk” science or a “junk” scientist, and it
is the purpose of Article 11.073 to provide a statutory
was not competent at the time of mechanism for relief and a retrial based upon “good”
trial to offer objective and science and “good” scientific testimony.
pathologically sound opinions as to
cause and manner of death in this *22 With these additional comments, I join the majority
case. Her level of inexperience at opinion.
the time of trial and her bias at that
time toward the state are now
evident. Moore’s admissions that
near the time of trial she was cited Keller, P.J., filed a dissenting opinion in which Hervey, J.,
for defective and improper work joined.
and was evaluated as being biased
in favor of the prosecution,64 as well The legislature passed Article 11.073 to allow a defendant
as Dr. Carter’s statements to obtain habeas relief on the basis of new scientific
concerning the turbulence in the ME evidence.1 In a nutshell, the question before us is whether
office in 1998, the concern about the statute contemplates granting relief on the basis of (1) a
Moore being perceived as a witness change in the science, or (2) a change in the opinion held
for one particular side, and that (at by a particular expert in the science. Judge Keasler’s
that time) Moore was making the position is that the scientific evidence is new only if there
transition to the neutral position of a has been a change in the relevant body of scientific
forensic pathologist cast grave knowledge or in the accepted method by which a particular
doubt on Moore’s opinions at trial scientific inquiry is conducted. The Court’s position is that
and the reasons she gave them. This the change can be the expert’s own testimony, even if that
is newly discovered evidence that change in testimony is based merely on the expert
could not have been previously becoming more educated in the relevant field of study. I
discovered by applicant. agree with Judge Keasler that the statute contemplates
granting relief only on the basis of a change in the science.
Dr. Moore’s later re-evaluation of her opinion-putting
aside advocacy for one party and seeking more information Subsection (b) of the statute creates a claim for relief on the
to reach a more accurate result-is the hallmark of “good” basis of new scientific evidence.2 To obtain relief under
scientific methodology: Subsection (b), the applicant must show, among other
Scientists continually observe, test, things, that “relevant scientific evidence is currently
and modify the body of knowledge. available and was not available at the time of the convicted
Rather than claiming absolute truth, person’s trial because the evidence was not ascertainable
science approaches truth either through the exercise of reasonable diligence by the
through breakthrough discoveries or convicted person before the date of or during the convicted
incrementally, by testing theories person’s trial.”3 In Subsection (d), the legislature defines
repeatedly.65 what it means to say that scientific evidence was not
ascertainable through the exercise of reasonable diligence:
It is not surprising, then, that the Texas Legislature would
authorize this court to review convictions based upon an (d) In making a finding as to whether relevant scientific
expert’s “scientific knowledge” that the expert has since evidence was not ascertainable through the exercise of
repudiated or contradicted based on her further testing, reasonable diligence on or before a specific date, the
review, and experience. Indeed, what would not make court shall consider whether the scientific knowledge or
sense is for the Legislature to be concerned about the method on which the relevant scientific evidence is
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based has changed since: of the legislature and, although they may never suspend the
right, the legislature may enact “laws effecting the
(1) the applicable trial date or dates, for a determination implementation of the right to writ of habeas corpus.”
made with respect to an original application; or TEX. CONST. art. I, § 12; Ex parte Davis, 947 S.W.2d
(2) the date on which the original application or a 216, 219 (Tex.Crim.App.1996). However, the way we
previously considered application, as applicable, was have traditionally treated any writs under Chapter 11 is to
filed, for a determination made with respect to a measure the facts of the application against constitutional
subsequent application.4 provisions to determine whether the facts have offended
either the United States or Texas constitutions. Over the
I agree with Judge Keasler that the phrase “the scientific years, based upon this method, we have built a body of law
knowledge or method on which the relevant scientific that sets the standards by which we analyze each type of
evidence is based” refers to general science, not an expert’s writ and establishes the specific criteria each applicant
particular knowledge or method of doing things. That is the must meet in order for relief to be granted. In every case we
natural understanding of the words in the sentence, and have decided, we have relied on those standards and
Judge Keasler explains in detail why the Court’s contrary criteria to determine whether the facts in the applicant’s
construction of that phrase is untenable. So, to satisfy case have offended constitutional provisions, and thereby
Subsection (b)’s requirement that “the evidence was not warrant relief.
ascertainable through the exercise of reasonable diligence
by the convicted person before the date of or during the *24 In the present case, Applicant was convicted of capital
convicted person’s trial,” the applicant must show that the murder based in part on the testimony of medical examiner
body of scientific knowledge or the accepted methodology Dr. Patricia Moore, who testified that the victim’s death
has changed since the trial. was a homicide caused by asphyxia due to compression of
the chest and abdomen. Moore, however, due to her
*23 While I fully agree with the first two sections of Judge additional years of experience, no longer stands by her
Keasler’s opinion, I would analyze the issue in the third testimony and now believes that the child’s cause and
section differently. That section argues that applicant is manner of death cannot be determined. In 2011, Applicant
barred from filing this application because the science has sought his first writ of habeas corpus under Texas Code of
not changed since his prior application. It is true that, in Criminal Procedure art. 11.07, alleging actual innocence
order to take advantage of Subsection (c) of Article 11.073, and that his right to a fair trial was violated because he was
an applicant who files a subsequent application must show convicted based on false testimony. Ex parte Robbins, 360
that the body of scientific knowledge or the accepted S.W.3d 446, 458, 459 (Tex.Crim.App.2011);
methodology has changed since his prior habeas seeTEX.CODE CRIM. PROC. art. 11.07. We ultimately
application. Subsection (c) allows a subsequent application denied his application because Moore’s reevalution simply
when a change in science occurs after the filing of the prior stated that the manner and cause of death was
application.5 But Article 11.073 did not exist when “undetermined,” not that Applicant could not have caused
applicant filed his original application, so Subsection (b) of the victim’s death. We held that this reevaluation did not
that article qualifies as a new legal basis under Article meet the requisite showing for actual innocence and did
11.07, § 4(a)(1) and (b).6 Consequently, applicant’s claim not prove Moore’s trial testimony to be false. Id. at
is authorized by Article 11.071, § 5. 458–59, 460–63.
Nevertheless, in order for applicant to obtain relief, his In 2013, the Texas Legislature decided to develop a brand
claim must qualify under Article 11.073, Subsection (b). new avenue for habeas relief based on developing nature of
To so qualify, applicant must show that the science has science and passed article 11.073 of the Texas Code of
changed since his trial. Because he has not done so, his Criminal Procedure. In propagating this provision,
claim does not qualify, and this application should be however, the legislature set out the criteria that make an
dismissed.7 applicant eligible for relief, but it did not set forth any
standard by which to judge an application. That is to say
that there is no set constitutional provision against which
we are to measure particular facts to determine whether to
Meyers, J., filed a dissenting opinion. grant relief. Every writ this court has dealt with since
Chapter 11 of the Texas Code of Criminal Procedure is Chapter 11 has been in effect has been based on analyzing
devoted to writs of habeas corpus. The chapter is a creature whether constitutional provisions have been offended.
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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That is the way we have always analyzed and should left unsaid, the Court appears to finds section (d)
always analyze applications for writ of habeas corpus. unambiguous and attempts to define “scientific method”
Obviously my colleagues are not offended by the through a dictionary definition. Dictionary definitions are a
legislature’s intrusion on our authority, but I find the fine way to define terms because they are ordinarily a
passing of article 11.073 to be a clear attempt at a power reliable and readily available source for a term’s plain and
grab and believe their intent was to tell us how we should ordinary meaning.3 But the Court’s use of the Black’s Law
rule on these types of matters. But if the legislature wants Dictionary definition of scientific method leads to an
to establish non-constitutional means for relief, it needs to absurd result that the Legislature could not have intended,
arrange for the appropriate agency to handle it, such as the and from my reading of the statute, did not intend.
Board of Pardons and Paroles. In our court, we judge relief
dependant upon our constitutions, and article 11.073 does *25 To hold that “scientific method,” as used in the statute,
not provide for relief based upon any constitutional refers to the universally employed “process of generating
criteria. Because I do not believe our court is the hypotheses and testing them through experimentation,
appropriate avenue for relief and Applicant’s present publication, and republication” undermines the statute’s
application does not allege any new facts or rulings on clear intent that the object of the change actually be subject
constitutional law, I would deny relief. Therefore, I to change. Section (d) requires a change in either the
respectfully dissent. scientific knowledge or method: “whether the scientific
knowledge or method on which the relevant scientific
evidence is based has changed....” The scientific method
generally—“the principles and procedure for the systemic
Keasler, J., filed a dissenting opinion. pursuit of knowledge”4 that instill the necessary rigor of
We filed and set Neal Robbins’s writ application to valid discovery—is itself unchanging. Science inevitably
consider how Texas Code of Criminal Procedure Article changes; the process by which that change occurs does not.
11.073 applies to the facts of his case. The case presents an Under this definition, the Court frustrates the legislative
issue of statutory construction defined by established intent and the purpose of the clear statutory scheme by
guidelines to an admittedly awkward statute. However, the requiring an inherently static concept to change before
Court applies precedent questionably and reaches an relief may be given. This is clearly not what the Legislature
incorrect result. The Court interprets the terms “scientific intended. The Court’s definition of the term drains it of any
method” and “scientific knowledge” in a manner that substantive meaning and renders it a useless term, an
reaches an absurd result and relies upon a United Stated interpretative result we historically are loathe to reach.5
Supreme Court case that contradicts legislative intent. When section (d) is read as a whole, the more accurate
Article 11.073’s legislative history suggests that its aim is definition of scientific method (and the more consistent
to provide an avenue of relief for those convicted on with the apparent legislative intent) is the scientific
science or scientific methodology subsequently found to be methodology used in a particular area of scientific study. I
unsound, not an individual expert’s changed testimony do agree with the Court’s conclusion that there is no
when the underlying science or methodology of that evidence to suggest that the methods for analyzing the
opinion remains valid. The Court’s opinion also overlooks cause of child death have changed in the scientific
a potential substantive and procedural obstacle for community. In other words, the accepted science and
Robbins’s application, the resolution of which is necessary methodology have not changed.
to grant him relief. For these reasons, I dissent.
Scientific Knowledge
Scientific Method
The Court next sets upon determining whether Dr.
In construing a statute, we limit our analysis to the plain Moore’s new opinion qualifies as “scientific knowledge ...
meaning of the text, unless the language is ambiguous or on which the relevant scientific evidence is based has
the plain meaning leads to absurd results that the changed.” The question posed by the Court is, “Moore’s
Legislature could not have possibly intended.1 When we conclusion certainly has changed, but does ‘scientific
are called upon to go beyond the plain meaning of the text, knowledge’ apply to the knowledge of an individual?” 6 It
we may consider various extratextual factors.2 Although finds that it does, but it is unclear what path the Court has
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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taken on our established statutory-interpretation roadmap: for purposes of this article refers to the collective
holding that the term is unambiguous and the common knowledge within a field of study, not an individual’s
understanding and usage ought to apply, or holding that the opinion. Judge Cochran’s concurrence too looks to the
term is ambiguous and turning to case law, as an statute’s legislative history, but its conclusion is not
extratexual source, to define the term. Either way, I find supported by that history.
the analysis flawed in several respects and disagree with
the Court’s result. In 2009, Senator Whitmire first introduced a bill that was
substantively identical to the language found in Article
The Court finds instructive the United States Supreme 11.073.10 The bill contained the phrase in question—“the
Court’s definition of “scientific knowledge” in its Daubert court shall consider whether the scientific knowledge or
opinion.7 The majority then summarily concludes that Dr. method on which the relevant scientific evidence is based
Moore’s new opinion “satisfies the requirements to be has changed.” The Senate Research Center’s Bill Analysis
called ‘scientific knowledge’ ” because her new opinion is stated Senator Whitmire’s intent was to “prohibit[ ] a
“an inference or assertion supported by appropriate convicting court from denying relief on an authorized
validation based on the scientific method.”8 application based solely on the applicant’s plea,
confession, or admission .... [and] authorize[ ] a court to
The Supreme Court’s opinion has no value in defining any grant relief on the basis of relevant scientific evidence not
of Article 11.073’ s terms. Not only is there no explicit or available at the time of the convicted person’s trial.”11
implicit reference to Daubert in Article 11.073’s language,
Daubert itself does not stand for the proposition that expert The House Research Organization’s Bill Analysis echoed
testimony is necessarily “scientific knowledge” in and of the same sentiment. However, it went further and
itself. The Court’s Daubert quotation ends too soon; it expressed the view of the supporters of that bill, who
should continue as it does in that opinion: “In short, the believed that the statute was necessary because
requirement that an expert’s testimony pertain to ‘scientific “defendants who were wrongfully convicted using these
knowledge’ establishes a standard of evidentiary and any debunked science deserve a way to raise their
reliability.” On a more fundamental level, the majority claim before the court[,]” specifically citing changes in the
presumes the answer of the question it seeks to underlying science of arson investigation and matching
resolve—whether this term refers to an individual’s chemical signatures of bullets.12 To the extent that it is
personal knowledge or the collective knowledge of the relevant, even the bill’s supporters believed that the
larger scientific community. Comparing Dr. Moore’s “scientific knowledge or method” addressed a broader,
individual opinion to what the Supreme Court stated was fundamental change in the underlying science. I agree with
“scientific knowledge” and finding it satisfied merely Judge Cochran that the bill’s emphasis was on “bad
assumes that scientific knowledge means an individual science.”13
opinion.
After the 2009 bill failed to pass, Senator Whitmire filed
Applying Daubert ‘s definition of scientific knowledge the same bill again in 2011,14 but no testimony nor
may speak to whether Dr. Moore’s new opinion would be committee action was taken on it. Action was taken,
admissible under the Texas Rules of Evidence at a trial on however, on Representative Pete Gallego’s identical
the date of Robbins’s application—a finding a court must companion bill in the House.15 In taking testimony before
make under section (b)(2)—but it does nothing to define the House Criminal Justice Committee, Representative
the statutory phrase in section (d). The inclusion of section Gallego laid out his bill stating that the legislation’s intent
(b)(2)’s requirement that the relevant scientific evidence be is to address science as it moves forward and to “keep up
admissible counsels against defining scientific knowledge with the times.”16 In his discussion with other committee
in this manner. We presume that the Legislature intended members, Representative Gallego specifically identified
each part of a statute to be given effect.9 Not only has the the advancement of arson science and blood-spatter
Court strayed from our statutory-interpretation analysis and explained that this legislation would give the
presumptions, its analysis gets us no closer to a definition. court the ability to look at new science.17 There was no
discussion from either the committee members or
*26 I would expressly find the term ambiguous because the witnesses supporting the bill that the design of the
term’s common understanding and usage offers little legislation was to grant relief based on the change of an
guidance or limitations. Based on Article 11.073’s expert’s opinion absent any significant change in the
legislative history, I would hold that scientific knowledge underlying science or accepted methodology. Again, I
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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agree with Judge Cochran that the bills’ emphasis was still conclusion that the Legislature intended the statute to
on “bad science, not bad scientists.”18 apply to a changed individual’s opinion.
*27 In 2013, Senator Whitmire once more introduced the Unfortunately, in the Senate, the lack of debate and
bill (in addition to Representative Sylvester Turner’s discussion among the committee members, probing
identical companion bill) that ultimately created what is questions directed at the testifying witnesses, and any floor
now Article 11.073.19 However, the previous four years debate substantially hinders our ability to glean real,
produced little change to the bill’s text, and Article 11.073 definitive insight on the Legislature’s intent. Judge
contains the same substantive provisions as the first bill Cochran’s concurrence relies in significant measure on the
filed in 2009. At the urging of the Harris County District bill’s supporters’ opinions. Reviewing witness testimony
Attorney’s Office, there were only two changes from the can, in some instances, serve as a useful source in
2011 version: (1) changing “discredits” to “contradicts”; deciphering legislative intent. Experts in a particular field,
and (2) changing “reasonably probable” to the more or area of the law, can assist committee members in airing
familiar “upon a preponderance of the evidence” issues of concern, providing guidance, and suggesting
standard.20 The Senate Research Center’s Bill Analysis changes to a pending bill’s language. It is not unusual for a
summarized the bill’s intent as “amend[ing] the Code of committee to take testimony from many witnesses
Criminal Procedure relating to applications for writs of testifying for or against a particular bill offering a number
habeas corpus relief based on relevant scientific evidence of opinions and concerns. But there is no inherent link
of false and discredited forensic testimony.... Recent between what a witness says about a bill and what the
examples of such evidence include dog-scent lineups, Legislature intends in passing it. I am less inclined to find
misinterpreted indicators of arson, and infant trauma.”21 such testimony helpful from a statutory-interpretation
standpoint when the absence of committee members’
Judge Cochran’s concurring opinion quotes from the substantive questions offers no insight on collective
“Supporters Say” section of the House Research legislative concerns and the testimony has no appreciable
Organization’s Bill Analysis of S.B. 344: “Recent case law effect on the bill’s language.
and judicial opinion[s] have identified weaknesses in the
current habeas corpus statute, noting issues that include the *28 The most compelling sources available regarding
absence of statutory grounds upon which to grant relief, the Article 11.073’s enactment are the authors’ own
speed of changing science that serves as the foundation of a statements and the committee members’ questions and
conviction, and technical testimony that may change with statements when discussing the bills. It carries much more
scientific discovery.”22 Without naming the case weight than the witnesses’ opinions expressed in their
specifically, the Bill Analysis clearly references Robbins testimony. In a committee hearing, Senator Whitmire
I23 by describing a case involving a medical examiner’s began by stating that S.B. 344 “will amend the Code of
recantation of her trial testimony and this Court’s denial of Criminal Procedure relating to procedures for applications
relief. for writs of habeas corpus based on relevant scientific
evidence of false and contradicted forensic testimony
Several witnesses testified before the Senate Criminal utilized in trial to convict an individual.” He continued:
Jurisprudence Committee in support of the bill. Judge “Scientific evidence, such as DNA, was not always a factor
Cochran’s concurrence points out two: Robbins’s counsel in determining guilt or innocence. Today, scientific
on his original writ application and current counsel, and the evidence has been the sole determinant of restoring liberty
former District Attorney who prosecuted Robbins and to an innocent person. The writ of habeas corpus is a
agreed with granting him relief in Robbins I. Robbins’s remedy to be used when any person is restrained of their
counsel was the only witness who directly opined that the liberty. The Texas Department of Criminal Justice houses
statute would apply to a change in an individual expert’s almost 152,000 inmates, and unfortunately some were
opinion. It is also notable that counsel did not reference wrongly convicted.”24 With the exception of the number of
Robbins I. Whatever the effect of committee testimony inmates, the second part of Senator Whitmire’s statement
regarding what a witness believes the bill does and does was a verbatim restatement of how the Senate Research
not do has on a proper legislative-intent analysis, it is Center’s Bill Analysis described his intent in proposing
undoubtedly at its weakest when the testimony we are S.B.1976, the original bill he filed in 2009. The Senator’s
asked to consider is from an interested party’s own comments do not indicate that he held the same concerns
representative. Not surprisingly, it is unsatisfying to rely that Judge Cochran ascribes to him.
on Robbins’s counsel’s own testimony to support the
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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In support of H.B. 967, an identical companion bill to S.B. dog-scent line-ups—and permit relief in future cases
344, Representative Turner was more detailed in his contesting convictions based on antiquated methodology
explanation of the bill’s intended purpose. He began by and science. This motivation resulted in the passage of a
stating that when an individual is “convicted based on junk bill that emphasized changing methodology and science,
science or critical forensic testimony that is disproved by not an individual’s singular opinion.
later scientific advancements, the courts cannot presently
agree whether or not the existing law provides a basis for *29 From the supporters’ opinions, Judge Cochran
relief.”25 As examples of disproved science, he specifically concludes that, “It cannot be doubted that the Legislature
identified discredited dog scent line-ups, misinterpreted had this very case in mind when it debated and enacted
indicators of arson, and mistaken assumptions about infant what is now Article 11.073.”28 There was no public debate
trauma. After Representative Turner’s introduction of the in the true sense, and the conclusion that the bill’s passage
bill, there was an exchange between Representatives was a result of this Court’s previous cases is rank
Turner and Hughes in which Representative Hughes speculation. But if the Legislature was spurred into action
expressed his understanding that the admission of the by the bill supporters’ opinions and Judge Cochran’s
faulty science may not have been error at trial, but the bill dissenting opinion in Robbins I and concurring opinion in
addresses the scenario when “better technology comes Ex parte Henderson,29 why did the Legislature fail to
along.”26 The hearing also contained poignant questioning change the bill’s four-year-old text—which pre-dated both
of testifying witness Jeff Blackburn of the Innocence Robbins I and Henderson—to specifically provide a clear
Project of Texas. Representative Carter sought his insight “jurisprudential mechanism”30 to address the issue we face
on what section (d)’s “ascertainable through the exercise of today?
reasonable diligence” language means and how it would
practically apply. Blackburn responded that it would not If Article 11.073 was intended to be a response to Robbins
open the flood gates and burden the courts, that it would I, it is not very responsive. If we accept the argument that
“kill a lot of fake claims,” and “ensure[s] that this law the Legislature was trying to change the result in Robbins I,
would only apply to new science.”27 As an example, he it would have understood the change involved was a
cited the “huge changes” in arson science, where before, in subsequent change in the expert’s trial testimony, not a
his view, it was not even a science. From Representative change in her field of study. It is reasonable to expect a
Turner’s express intent and the comments and questions legislative response to an opinion of this Court based on a
from the committee members and witnesses alike, it is particular set of facts to come with equally particular
clear that, while this particular bill was left pending in provisions providing an avenue for relief. Explained in
committee, the proposed legislation targeted past scientific more detail below, it is uncertain that the statute even
evidence undermined by subsequent advances in the avails Robbins of relief based on the timing of the alleged
particular field. change in scientific knowledge or method in relation to his
previously considered application. What is more, if the
Judge Cochran’s belief that S.B. 344 aimed to tackle “bad intent of Article 11.073 was to redress a perceived wrong
scientific testimony” is contradicted by both Senator in Robbins I or more broadly grant relief based on an
Whitmire and Representative Turner’s statements, the expert’s changed testimony without a change in the
bill’s unchanged language for the past four years, and her underlying science, it is also reasonable to expect the bill’s
own opinion that the 2009 and 2011 bills’ emphasis was on author to say so in laying out the bill in the committee
“bad science.” I find unconvincing Judge Cochran’s hearing. Neither Senator Whitmire nor Representative
declaration that the Legislature’s intent and the bill’s Turner mentioned any of these alleged intentions. Instead,
emphasis shifted from “bad science” to now include “bad both authors expressed the concern Senator Whitmire
scientist testimony” without a corresponding change in the harbored in 2009—“bad science.”
bill’s language. We can glean something about the
Legislature’s motivation in the language previously
proposed and ultimately passed. If the Legislature intended
to enable a court to grant relief on changed expert
testimony alone, it could have easily said that. Instead, the Potential Implications of Robbins’s Original Writ
legislative history suggests the Legislature’s motivation Application
was to provide a clear path to relief from convictions based
on methodology and science that were already Aside from the definition of “scientific knowledge or
discredited—advancements in arson detection and method,” the statute’s text poses greater uncertainty in the
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Ex Parte Robbins, --- S.W.3d ---- (2014)
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statute’s application and possibly grave consequences for denied June 29, 2011. He filed the present application on
Robbins’s current application. The majority concludes September 3, 2013. Under our current jurisprudence, the
“Moore’s opinion labeling cause of death as present application would be considered a subsequent
‘undetermined’ was not available at the time of trial application. To find that the relevant scientific evidence
because her scientific knowledge has changed since the was not ascertainable through the exercise of reasonable
applicable trial date.”31 But this conclusion does not diligence, a court would have to find that the change in
consider section (d) in its entirety. For the reader’s benefit, scientific knowledge or method (however that term may be
I reproduce section (d): defined) on which the relevant scientific evidence is based
has changed after the date he filed his original
(d) In making a finding as to whether relevant scientific application.32 Even if we accept that Dr. Moore’s changed
evidence was not ascertainable through the exercise of individual opinion meets the definition of scientific
reasonable diligence on or before a specific date, the knowledge or method, it appears that such a change would
court shall consider whether the scientific knowledge or not satisfy section (d) because it occurred after Robbins’s
method on which the relevant scientific evidence is trial and before Robbins’s original application, not after.
based has changed since: And because a finding on “relevant scientific evidence that
was not ascertainable through the exercise of reasonable
(1) the applicable trial date or dates, for a diligence” is necessary to both the jurisdictional issue to
determination made with respect to an original address the merits of a subsequent application under
application; or section (c) and to grant relief under section (b)(2), it is an
issue that the Court must answer before granting relief. The
(2) the date on which the original application or a very presence of this issue questions the Court’s holding
previously considered application, as applicable, was that Robbins has alleged sufficient facts to bring him
filed, for a determination made with respect to a within the ambit of Article 11.073.33
subsequent application.
The statute provides that, to be eligible for relief on an
original writ application, the scientific knowledge or
method on which the relevant scientific evidence is based Conclusion
must have changed since trial. However, when a court is
considering a previously considered application (or any *30 Because I find the Court’s statutory interpretation
subsequent application), the change must occur after the flawed and question its omission of any discussion of the
last application was filed. potentially fatal substantive and procedural issues for
Robbins’s application, I dissent.
Robbins’s original writ application was filed on June 4,
2007, in which he claimed that Dr. Moore’s testimony
changed on or about May 13, 2007. This application was
Footnotes
1 Robbins v. State, 88 S.W.3d 256 (Tex.Cr.App.2002).
2 Ex parte Robbins, 360 S.W.3d 446 (Tex.Cr.App.2011), cert. denied,––– U.S. ––––, 132 S. Ct. 2374, 182 L. Ed. 2d 1016
(2012).
3 McDaniel testified that she called CPS regarding Tristen’s injuries, but the agency did not follow up on the case. She also
claimed that she left town because she was so scared of Applicant.
4 Bux agreed that SIDS does not apply to this case. He also noted that Tristen did not die from poisoning, as per the
toxicology report.
5 Although Moore claims that she was previously unaware that “ ‘aggressive’ adult type CPR was performed by persons
untrained in CPR (infant) on this 17 month child” and that “CPR was performed on a manicured lawn,” she was
cross-examined about such circumstances at trial. Similarly, she asserted that she has learned since her original opinion
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Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
that “a finger was placed in the child’s mouth to possibly clear the airway and that back blows were done on the child prior
to EMS arrival,” but these facts were available to Moore, as they were facts obtained during the investigation into
Tristen’s death and were presented at trial.
6 Norton was paid $22,907.50 from Montgomery County general funds, the district attorney’s forfeiture account, and funds
budgeted to the sheriff’s cold case investigation squad.
7 Norton’s daughter informed the State that Norton’s office administrator and close personal friend had died of an apparent
self-inflicted gunshot wound at the residence she shared with Norton. Subsequently, Norton suffered from an unspecified
health problem that required a “leave of absence” from her medical practice. When the court ordered that the parties take
the deposition at a location of Norton’s choosing, Norton had closed her office and vacated her home, so she could not be
located by the investigator who sought to serve her with a copy of the court order. Norton then informed counsel by
telephone that she was under a doctor’s care and could not currently be medically cleared to participate in a deposition.
8 Applicant stated that by “false evidence,” he meant evidence that is “interchangeable with discredited, inaccurate,
incorrect, unvalid, unfounded, whatever term of art this Court chooses to use.” He further noted that Moore’s change of
opinion was not a recantation but instead a reevaluation, so it deserved more deference.
9 Robbins, 360 S.W.3d at 448–57.
10 Robbins, 360 S.W.3d at 463.
11 TEX.CODE CRIM. PRO. 11.07, § 4(a)(1).
12 TEX.CODE CRIM. PRO. 11.07, § 4(b).
13 SeeEx parte Binder, 660 S.W.2d 103, 106 (Tex.Cr.App.1983) ( “the mere raising of a claim of newly discovered evidence
is, standing alone, not a fit subject for the exercise of state or federal habeas corpus powers”). See alsoEx parte Elizondo,
947 S.W.2d 202, 205 (Tex.Cr.App.1996) (articulating the standard for a bare claim of actual innocence in post-conviction
habeas proceedings); Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex.Cr.App.2011) (false testimony can constitute a
violation of due process whether used by the State knowingly or unknowingly when there is a “reasonable likelihood” that
the false testimony affected the outcome).
14 Robbins, 360 S.W.3d at 460, 463.
15 Ex Parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Cr.App.2013) (expanding the requirement that a subsequent writ
application must allege facts sufficient to make out a prima facie case for relief under the new law the applicant is
attempting to invoke to avoid dismissal under Section 4, art. 11.07).
16 “This article applies to relevant scientific evidence that: ... (2) contradicts scientific evidence relied on by the state at trial.”
17 Article 11.073(b)(1).
18 BLACK’S LAW DICTIONARY 1547 (10th ed.2014).
19 See, e.g.,Ex parte Henderson, 384 S.W.3d 833, 833–34 (Tex.Cr.App.2012) (remanding for a new trial where new
developments in the science of biomechanics led the medical examiner who testified at trial to testify at the evidentiary
hearing that he now believed “there is no way to determine with a reasonable degree of medical certainty whether [his]
injuries resulted from an intentional act of abuse or an accidental fall”).
20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
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21 BLACK’S LAW DICTIONARY 1004 (10th ed.2014).
22 Seesupra p. ––––.
1 Q. Now, I’ll give you another situation. An E.M.T. comes up to the location where the adults are trying to do CPR and they
are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, “If she’s not already
dead, you’re going to kill her; stop that,” and proceeded to show them the proper way. Would you say that some of that
could have led to injuries to the child, adults putting their full weight down and trying to revive that child?
A. You should see it more anteriorly than posteriorly.
Q. Pardon?
A. You should see it more the front to the back, the injuries.
Q. If you’ve got your palms on the front and you’ve got little rocks and sticks on the back, you’ll see it on the back, you’ll
see it on the back, won’t you?
A. Yes. You’d see bruises on the back.
Q. But you wouldn’t necessarily see them on the front if they’re pushing with their palms, would you?
A. No.
Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that sort of
damage without any noticeable trauma from looking at the skin, couldn’t they?
A. If they’re pushing down lower, yes.
Robbins v. State, 88 S.W.3d 256, 258 (Tex.Crim.App.2002).
2 “Give 30 gentle chest compressions at the rate of at least 100 per minute. Use two or three fingers in the center of the
chest just below the nipples. Press down approximately one-third the depth of the chest (about 1 and a half inches).”
http:// depts.washington.edu/learncpr/index.html (University of Washington)
“Place 2 fingers on the breastbone-just below the nipples. Make sure not to press at the very end of the breastbone.
Keep your other hand on the infant’s forehead, keeping the head tilted back. Press down on the infant’s chest so that it
compresses about 1/3 to 1/2 the depth of the chest. Give 30 chest compressions. Each time, let the chest rise
completely. These compressions should be FAST and hard with no pausing. Count the 30 compressions quickly:
‘1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,1, off.’ ” http:// www.nlm.nih.gov/medlineplus/ency/article/000011.htm
(National Institutes of Health)
1 State’s Brief at 11–12.
2 See Jani Jo Maselli, Junk Science and the New Habeas Law, 51 HOUS. LAWYER 16, 16 (Feb.2014) (“The tipping point
in the passage of the statute was most likely the procedurally-complex case of Neal Hampton Robbins.”).
3 TEX.CODE CRIM. PROC. arts. 64.01–64.05.
4 See, e.g.,Ex parte Wallis, No. AP–75586, 2007 WL 57969, at *1 (Tex.Crim.App. Jan. 10, 2007) (not designated for
publication); Ex parte Smith, No. AP–75573, 2006 WL 3691244, at *1 (Tex.Crim.App. Dec. 13, 2006) (not designated for
publication); Ex parte Henton, No. AP–75344, 2006 WL 362331, at *1 (Tex.Crim.App. Feb. 15, 2006) (not designated for
publication) (based on exculpatory DNA test results, granting habeas relief to Dallas inmate who had been wrongly
convicted of sexual assault).
5 Arson science came to the public’s attention after the execution of Cameron Todd Willingham and the concern that he
may have been convicted of the capital murder of his three children based on outmoded arson theories and techniques.
See Hon. Juan Hinojosa & Lynn Garcia, Response,Improving Forensic Science Through State Oversight: The Texas
Model, 91 TEX. L.REV.SEE ALSO 19, 32 (2012) (noting that “the recommendations generated in the final report of the
Willingham case have positioned Texas as a leader in improving the quality and reliability of fire and arson investigation.
The discipline of arson investigation has undergone significant transformation over the last two decades as experts have
learned more about the way fire behaves. This phenomenon has affected arson investigators in every state. However, no
other state is taking such proactive measures as Texas.”); see alsoPeter A. Chickris & Mykal J. Fox, Present Danger:
Preventing Wrongful Convictions by Resolving Critical Issues Within Texas’s Criminal Justice System, 52 S. TEX.
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L.REV. 365, 405 (2011) (recounting the facts leading to the conviction and execution of Willingham-as well as the
subsequent exoneration of Ernest Willis-who was convicted on the basis of “faulty” arson science).
6 Texas Forensic Science Commission, About Us, http:// www.fsc.texas.gov/about.
7 Texas Court of Criminal Appeals, Texas Criminal Justice Integrity Unit,
http://www.txcourts.gov/cca/texas-criminal-justice-integrity-unit.aspx.
8 TEX.CODE CRIM. PROC. art. 38.20 (“Photograph and Live Lineup Identification Procedures”).
9 Texas Criminal Justice Integrity Unit, 2007 Annual Report of Activity,
http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU–2009–report.pdf at 7 (“The TCJIU encourages law enforcement
entities to follow the lead of Richardson, Dallas, and other jurisdictions that have voluntarily reformed their eyewitness
identification procedures. The TCJIU is collaborating with other members of the criminal justice system to develop
legislation that will address this issue statewide.”).
10 NATIONAL RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH
FORWARD (National Academies Press 2009) (“NAS Report”).
11 Id. at 7.
12 According to the NAS Report, the situation is “different in civil cases. Plaintiffs and defendants, equally, are more likely to
have access to expert witnesses in civil cases, while prosecutors usually have an advantage over most defendants in
offering expert testimony in criminal cases. And, ironically the appellate courts appear to be more willing to second-guess
trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases.” Id. at 11.
13 Id. at 37.
14 These deficiencies included, among others,
• “inadequate expertise to investigate and medically assess decedents;”
• “inadequate technical infrastructure (laboratory support);”
• “inadequate training of personnel in the forensic science disciplines;”
• “lack of best practices and information standards;” and
• “lack of quality measures and control[.]”
Id. at 250–51.
15 Id. at 250.
16 Id. at 261–62.
17 Id. at 52.
18 Eric S. Lander, DNA Fingerprinting on Trial, 339 Nature 501, 505 (1989).
19 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 319, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (citing Garrett & Neufeld,
Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009)).
20 Hinton v. Alabama, ––– U.S. ––––, 134 S. Ct. 1081, 1090, 188 L. Ed. 2d 1 (2014) (citation omitted).
21 See generally The NAS Report, supra note 10, at 127–83 (setting out and describing various forensic-science disciplines
whose reliability has not been systematically established). The problem with most of these fields, according to the report,
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is that
they are based on observation, experience, and reasoning without an underlying scientific theory, experiments
designed to test the uncertainties and reliability of the method, or sufficient data that are collected and analyzed
scientifically.
Id. at 128.
22 See Margaret A. Berger, The Impact of DNA Exonerations on the Criminal Justice System, 34 J.L. MED. & ETHICS 320,
322 (2006) (noting investigations of forensic science “mistakes due to the incompetence or fraud of particular analysts,”
some of which “have gone on for years,” concluding that “these alarming reports about the erroneous results issuing from
crime laboratories reflect pervasive problems with regard to the hiring, training, supervision, and review of personnel”);
see alsoPaul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C.
L.REV. 163, 165–69 (2007) (describing news reports of the Houston Police Department Crime Lab scandal and other
forensic-evidence scandals and insufficient oversight efforts in various jurisdictions; “[s]ome of the crime lab failures
involved incompetence and sloppy procedures, while others entailed fraud, but the extent of the derelictions-the number
of episodes and the duration of some of the abuses, covering decades in several instances-precludes dismissal of the
controversy as the errant work of only a ‘few bad apples’ ”).
23 Garrett & Neufeld, supra note 19, at 16–17 (this category includes the inaccurate use of population data, suggesting that
the rarity of finding “X” is much greater than it is; for example, an expert witness might testify that the rapist was blond, this
defendant is blond and only an infinitesimal percentage of the population is blond, therefore the defendant probably is the
rapist).
24 Id. at 18 (for example, the expert suggests that when blood found at the scene does not match that of the defendant, it
must not have been left there during the crime itself).
25 Id. (for example, the expert inadvertently divides the frequency of finding “X” in half, suggesting that his finding has more
significance than it actually does).
26 Id. (for example, the expert just “makes up” a statistical probability, such as the likelihood of this hair coming from
someone other than the defendant is 1 in 10,000).
27 Id. at 19 (for example, using such terms as “highly likely,” “very probably,” “consistent with,” when there was no empirical
data to support any such conclusion).
28 Id. at 20 (for example, an expert states that the bitemark on the victim was made by the defendant when there is no
empirical data to support such a finding).
29 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
30 Id.
31 If the science is valid and reliable, but the scientist is not up to the task at hand, the problem is with his testimony, not with
the science itself. See Simon Cole, Where the Rubber Meets the Road: Thinking About Expert Evidence as Expert
Testimony, 52 VILL. L.REV.. 803, 819–24 (2007) (“Judges assume that their work is done once they have ruled proffered
evidence admissible or inadmissible” instead of assessing whether the expert’s testimony fits the task at hand).
32 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
33 Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).
34 Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998).
35 Cole, supra note 31, at 819–24.
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36 Id.
37 928 S.W.2d 550 (Tex.Crim.App.1996) (discussing the importance of assessing the reliability of scientific evidence and
how trial judges must act as gatekeepers to weed out “junk” science; concluding that the scientific testimony of a
psychologist on the reliability of eyewitness identification is relevant and may be admissible).
38 354 S.W.3d 425, 435–36 (Tex.Crim.App.2011) (holding that psychologist’s testimony on the reliability of eyewitness
testimony was both relevant and reliable, and thus should have been admitted); see alsoState v. Esparza, 413 S.W.3d
81, 94 (Tex.Crim.App.2013) (Hervey, J., concurring) (expressing concern that defendants may be convicted on the basis
of “junk” science if trial judges do not have the authority to sua sponte conduct a gatekeeping hearing into the scientific
reliability of offered evidence; “The real losers of this decision will be criminal defendants convicted on “junk” science; the
residents of the convicting county; the people that expended time, effort, and money at the original trial; and the State of
Texas.”).
39 According to the Innocence Project, “[e]yewitness misidentification is the single greatest cause of wrongful convictions
nationwide, playing a role in 72% of convictions overturned through DNA testing.” Innocence Project, Eyewitness
Misidentification, http:// www.innocenceproject.org/understand/Eyewitness–Misidentification.php. According to one law
review article, 82% of the first 38 Texas convictions that DNA exonerated were based on erroneous eyewitness
identification. Chrickras & Fox, supra note 5, at 369.
40 MeganWinfrey v. State, 393 S.W.3d 763 (Tex.Crim.App.2013) (evidence that dogs alerted to defendant’s scent and
weak corroborating evidence legally insufficient to support capital-murder conviction); RichardWinfrey v. State, 323
S.W.3d 875 (Tex.Crim.App.2010) (same).
41 Coble v. State, 330 S.W.3d 253, 270–80 (Tex.Crim.App.2010) (forensic psychiatrist’s testimony concerning defendant’s
future dangerousness was not sufficiently reliable to be admissible).
42 Leonard v. State, 385 S.W.3d 570 (Tex.Crim.App.2012) (reversing probation revocation based on therapist’s testimony
that defendant failed to “show no deception” on five polygraph tests).
43 Gonzales v. State, No. PD–1661–09, 2010 WL 711783 (Tex.Crim.App. Feb. 24, 2010) (not designated for publication)
(Cochran, J., concurring).
44 See, e.g.,Ex parte Coty, 432 S.W.3d 341, 343 (Tex.Crim.App.2014) (holding that a defendant may prove a due-process
violation caused by the malfeasance of a forensic laboratory technician if he establishes an inference of falsity and
proves that the “false” evidence was material to his conviction).
45 That bill, introduced and then amended during the 81 st regular session, read as follows:
Art.11.073 PROCEDURES RELATED TO CERTAIN SCIENTIFIC EVIDENCE.
(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by the convicted person at the convicted person’s trial; or
(2) discredits scientific evidence relied on by the state at trial.
(b)A A court may grant a convicted person relief on an application for a writ of habeas corpus if the convicted person
files an application, in the manner provided by Article 11.07,11.071, or 11.072, containing sufficient specific facts
indicating that:
(1)A relevant scientific evidence is available and was not available at the time of the convicted person’s trial
because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person
before the date of or during the convicted person’s trial;
(2) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the
application; and
(3)A the court finds that, had the scientific evidence been presented at trial, it is reasonably probable that the
person would not have been convicted.
(c)A For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072,
a claim or issue could not have been presented previously in an original application or in a previously considered
application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the
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exercise of reasonable diligence by the convicted person on or before the date on which the original application or a
previously considered application, as applicable, was filed.
(d)A In determining whether relevant scientific evidence was not ascertainable through the exercise of reasonable
diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which
the relevant scientific evidence is based has changed since:
(1)A the applicable trial date or dates, for a determination made with respect to an original application; or
(2)A the date on which the original application or a previously considered application, as applicable, was filed, for
a determination made with respect to a subsequent application.
46 The Legislature did, however enact House Bill No. 498, which created the Timothy Cole Advisory Panel on Wrongful
Convictions. Part of that panel’s legislative mandate was to investigate “the effects of state law on wrongful convictions,
as determined based on state statutes regarding ... writs of habeas corpus based on relevant scientific evidence.” Tex.
H.B. 498, 2009 Tex. Gen. Laws 1256, 81st Leg. R.S. (2009).
47 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. (2009).
48 Id. at 3. Testimony in the Senate Criminal Justice Committee also mentioned problems with serology evidence and
firearms. Scott Henson testified before the House Committee on Criminal Jurisprudence and explained why the
proposed statute dealt with all types of forensic science, rather than any specific field:
We don’t want to have to come back and ask y’all to pass a new law for, or a new chapter 65 for bullet lead analysis,
and chapter 66 for arson, and chapter 67 for whatever the next thing is. And so what this [bill] does is create a
mechanism to evaluate discredited scientific evidence without it being specific to one type of forensics.
SB 1976, House Committee on Criminal Jurisprudence, May 6, 2009.
49 The bill was substantively the same as that introduced in 2009, but there were minor differences in the division of the
subsections.
50 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).
51 Id. at 470 (Cochran, J., dissenting). The problem was not that the science of determining the cause of death had
changed, but that the medical examiner who had done the autopsy and originally determined that Tristen’s death was a
homicide had, after many more years of experience, reviewing additional scientific materials and the trial testimony,
changed her opinion and agreed with four other pathologists-Dr. Bux, Dr. Carter, Dr. Wolf, and Dr. Wheeler-who had
concluded that they could not scientifically determine the cause of Tristen’s death. Id. at 468. The legal problem is that the
verdict was no longer reliable.
The result in this case is not “patently inaccurate.” Yet its accuracy is clearly open to dispute. How should the habeas
case be resolved when the prior verdict might have seemed accurate at the time, but everyone later recognizes that
it might not have been accurate because it was based upon scientific expertise that has been rejected-either by the
scientific community or the original scientist herself?
Id. at 470–71. I had concluded that, since there was no statute that addressed the problem, courts should “fall back
upon the wisdom and experience of the habeas judge-the ‘Johnny–on–the–Spot’ factfinder to whom we will defer
whenever the record supports his essential factual findings.” Id. at 472. In this case, the trial judge had recommended
granting relief and giving applicant a new trial. Id. at 473–76. A majority of the Court did not agree with the trial judge.
52 Id. at 471 (footnote omitted).
53 Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App.2012).
54 In Henderson, a majority of this Court granted relief in a short per curiam opinion, while Judge Price wrote a concurring
opinion; I wrote a concurring opinion joined by Judges Womack, Johnson, and Alcala; Judge Alcala wrote a concurring
opinion; Judge Keasler wrote a dissenting opinion joined by Presiding Judge Keller and Judge Hervey; and Judge
Hervey wrote a dissenting opinion joined by Presiding Judge Keller and Judge Keasler. Id.
Cathy Lynn Henderson was convicted of the capital murder of the child for whom she babysat. At trial, the medical
examiner had testified that the defensive theory that the child’s fatal head injury was from an accidental fall was “false”
and “impossible,” but at the habeas hearing he testified that, based on new biomechanical studies, he could not
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determine whether the child’s injuries were caused by an accidental or intentional act. Id. at 833–34.
The only factual difference between the Henderson case and applicant’s is that, in the former, the medical examiner
changed his opinion based on advances in the scientific field of biomechanics, while in the latter, the medical examiner
changed her opinion based upon her eight additional years of experience in the field, reviewing additional materials,
and consulting with other pathologists.
55 Id. at 852 (Keasler, J., dissenting); id. at 859 (Hervey, J., dissenting) (“Something is missing here. While the Court states
that it accepts the trial court’s recommendation granting relief, it does so without providing any legal basis for that ruling,
and I cannot find a ground upon which relief should be granted. And to justify its decision, the Court makes a quantum
leap from ‘advances in science’ to granting relief, which presents a whole new dilemma for the criminal justice system
and this case in particular.”).
56 WILLIAM SHAKESPEARE, HENRY V, act 3, sc. I, line 1.
57 House Research Organization, Bill Analysis, Tex. S.B. 344, 83rd Leg. R.S. at 2 (2013).
58 See State’s Brief at 27–29 (summarizing the testimony at the March 12, 2013 meeting of the Senate Criminal Justice
Committee).
59 Bill Analysis, supra note 57, at 2–3 (“Supporters Say”).
60 Maurice Chammah, Bill Addresses Changing Science in Criminal Appeals,The Texas Tribune, Feb. 4, 2013, available at
http:// www.texastribune.org/2013/02/04/criminal-justice-advocates-renew-call-flawed-scien/.
61 Robbins, 360 S.W.3d at 469 (Cochran, J., dissenting).
62 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).
63 This is not the only case in which Dr. Moore’s conclusions had been questioned during the early years of her
medical-examiner practice. She was the medical examiner in the Brandy Dell Briggs case and declared that the death of
Ms. Briggs’s infant son was a homicide. Ex parte Briggs, 187 S.W.3d 458, 463 (Tex.Crim.App.2005). Ms. Briggs originally
pled guilty to injury to a child, but later filed a writ application alleging ineffective assistance of counsel for failing to retain
an expert to read and interpret the child’s medical records. After other more experienced pathologists and doctors
investigated and determined that the infant had suffered a natural death from septicemia originating with an undiagnosed
urinary tract infection, Dr. Moore admitted that “another opinion from an outside source would be of utmost importance....
Someone with more experience (performed several autopsies on pediatric cases for years) and more expertise (in
neuropathology and/or pediatric pathology or pediatrics) than I could help resolve the issues involved in this case.” Id. at
463 n. 9. We noted in that case that “[t]he original pathologist is no longer with the Medical Examiner’s Office. Applicant
introduced numerous official Harris County Medical Examiner’s Office ‘conduct counseling’ reports in the writ hearing
concerning the purported deficient performance in various cases by the original pathologist.” Id.
In a parental-rights-termination case, Dr. Moore also declared that a child’s death was a “homicide due to
complications from blunt force trauma to the abdomen, even though there were no bruises to her abdomen.” In re J.L.,
127 S.W.3d 911, 915 (Tex.App.-Corpus Christi 2004), rev’d163 S.W.3d 79 (Tex.2005). The court of appeals reversed
the termination of the mother’s parental rights based on expert testimony that contradicted Dr. Moore’s and had been
given in the father’s criminal prosecution. Id. at 918. The Texas Supreme Court reversed the court of appeals because
that court had improperly taken judicial notice of the expert testimony in a different, criminal proceeding. 163 S.W.3d at
88–89. Based on the testimony admitted in the mother’s civil case, the evidence was legally sufficient to support the
termination of rights to the mother’s other child. Id. Dr. Moore and her “homicide” cause-of-death opinions were
questioned in other cases as well. Andrew Tilghman, Several Autopsies by Former Examiner Reviewed,HOUS.
CHRON. July 22, 2004, http://
chron.com/news/houston–texas/article/Several–autopsies–by–former–examiner–reviewed–1520093.php.
64 The NAS Report notes that “cognitive bias” is a common source of errors in scientific testimony. It explains that
[s]uch cognitive biases are not the result of character flaws; instead, they are common features of decisionmaking,
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and they cannot be willed away. A familiar example is how the common desire to please others (or avoid conflict) can
skew one’s judgment if co-workers or supervisors suggest that they are hoping for, or have reached, a particular
outcome.
NAS Report, supra note 10, at 122.
65 Id. at 112. The report explained the self-correcting nature of science which
has had to develop means of revisiting provisional results and revealing errors before they are widely used. The
processes of peer review, publication, collegial interactions (e.g., sharing at conferences), and the involvement of
graduate students (who are expected to question as they learn) all support this need. Science is characterized also
by a culture that encourages and rewards critical questioning of past results and of colleagues.
Id. at 125.
1 SeeTEX.CODE CRIM. PROC. art. 11.073.
2 Id. art. 11.073(b).
3 Id. art. 11.073(b)(1)(A).
4 Id. art. 11.073(d) (emphasis added).
5 Id. art. 11.073(c) (“For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article
11.072, a claim or issue could not have been presented previously in an original application or in a previously considered
application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of
reasonable diligence by the convicted person on or before the date on which the original application or a previously
considered application, as applicable, was filed.”).
6 See id.art. 11.07, § 4(a)(1) (“If a subsequent application for a writ of habeas corpus is filed after final disposition of an
initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the
subsequent application unless the application contains sufficient specific facts establishing that ... the current claims and
issues have not been and could not have been presented previously in an original application or in a previously
considered application filed under this article because the factual or legal basis for the claim was unavailable on the date
the applicant filed the previous application.”), (b) (“For purposes of Subsection (a)(1), a legal basis of a claim is
unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have
been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United
States, or a court of appellate jurisdiction of this state on or before that date.”).
7 SeeEx parte Oranday–Garcia, 410 S.W.3d 865 (Tex.Crim.App.2013) (applicant must make out a prima facie case for
relief under the new law he identifies to avoid dismissal under subsequent-application prohibitions).
1 Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).
2 Ex parte Rieck, 144 S.W.3d 510, 512 (Tex.Crim.App.2004).
3 See, e.g.,Dobbs v. State, 434 S.W.3d 166, 171 (Tex.Crim.App.2014); Watson v. State, 369 S.W.3d 865, 870
(Tex.Crim.App.2012); Boykin, 818 S.W.2d at 786.
4 “Scientific Method.” Merriam–Webster.com, http:// www.merriam-webster.com/
dictionary/scientific method (last visited October 8, 2014).
5 See, e.g.,Clinton v. State, 354 S.W.3d 795, 801–802 (Tex.Crim.App.2011); Garza v. State, 213 S.W.3d 338, 349
(Tex.Crim.App.2007) (“We must presume that ‘in enacting a statute, the Legislature intends the entire statute to be
effective[,]’ and did not intend a useless thing.”).
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6 Ante, op. at ––––.
7 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (outlining factors that bear on
the admissibility of scientific evidence under Federal Rule of Evidence 702).
8 Ante, op. at –––– – ––––.
9 Garza, 213 S.W.3d at 349.
10 Compare Tex. S.B.1976, 81st Leg., R.S. (2009) with Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).
11 Senate Research Center, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 1 (2009).
12 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 3 (2009).
13 Ante, op. at –––– – –––– (Cochran, J., concurring).
14 Tex. S.B. 317, 82nd Leg., R.S. (2011).
15 Tex. H.B. 220, 82nd Leg., R.S. (2011).
16 Hearing on H.B. 220 Before the House of Represenative Committee on Criminal Jurisprudence, 82nd Leg., R.S. (Feb.
22, 2011) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/82 (statement from author Rep.
Pete Gallego) (self-transcribed).
17 Id.
18 Id. at 13 (Cochran, J., concurring).
19 Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).
20 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) (statement from
Justin Wood, Harris County Criminal District Attorney’s Office).
21 Senate Research Center, Bill Analysis, SB 344, 83rd Leg.
22 Ante, op. at –––– (Cochran, J., concurring).
23 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).
24 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) available at http://
www.senate.state.tx.us/avarchive/yr=2013 (statement from author Sen. John Whitmire) (self-transcribed).
25 Hearing on H.B. 967 Before the House of Representatives Committee on Criminal Jurisprudence, 83rd Leg., R.S. (April
23, 2013) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/83 (statement from author Rep.
Sylvester Turner) (self-transcribed).
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 31
Ex Parte Robbins, --- S.W.3d ---- (2014)
2014 WL 6751684
26 Id.(testimony of Rep. Sylvester Turner) (self-transcribed).
27 Id. (testimony of Jeff Blackburn of the Innocence Project of Texas) (self-transcribed).
28 Ante, op. at ––––.
29 384 S.W.3d 833, 837 (Tex.Crim.2012) (Cochran, J., concurring).
30 Ante, op. at ––––.
31 Ante, op. at ––––.
32 SeeTEX.CODE.CRIM. PROC. art. 11.073(d).
33 SeeEx parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Crim.App.2013).
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 32