DocketNumber： NO. WR-73,484-02
Judges： Price, Johnson, Cochran, Alcala, Keller, Hervey, Meyers, Keasler
Filed Date： 11/26/2014
Status： Precedential
Modified Date： 11/14/2024
delivered the opinion of the Court,
The applicant, Neal Hampton Robbins, was convicted''in 1999 of the capital murder of his girlfriend’s seventeen-month-old daughter,' Tristen Rivet. The State did not seek the death penalty, and upon conviction the applicant was sentenced to life in prison. We affirmed the judgment and sentence on direct appeal.
The applicant filed his first application for a writ of habeas corpus in 2011, alleging actual innocence based on new evidence and due process claims for the use of false testimony, which we denied.
The. applicant filed this subsequent application for a writ of habeas corpus on September 3, 2013, pursuant to article 11.073 of the Texas Code of Criminal Procedure. Article 11.073 was passed during the 2013 legislative session and became effective on September 1, 2013. There are no factual changes in the applicant’s case since the filing of his first application. In both applications he argued he was entitled to a new trial because the medical examiner who testified for the prosecution, Dr. Patricia Moore, could no longer stand by her. trial -testimony regarding the cause of death. The .only difference between the two applications is the enactment of the new law upon which the applicant now relies. Based on article 11.073, the applicant argues he is entitled to relief because scientific evidence relied on by the State at trial has been contradicted by relevant scientific evidence that was unavailable at trial, and if it had been presented at trial he would not have been convicted.
We shall grant the applicant’s request for relief.
Background
The relevant facts and procedural background have not changed since the applicant’s first application for habeas corpus was denied by this Court in 2011. As we summarized previously, the facts as developed at trial and during original habeas proceedings are as follows:'
The victim resided with her mother, Barbara Hope, and her mother’s boyfriend, Applicant, at the home of Applicant’s mother, Bonni Morris. Applicant and Hope had a volatile relationship, frequently separating and reuniting. Witnesses suggested that both suffered from depression. When seeMng group-type counseling, Applicant told a counselor that he did not know what he would do if things got worse, and he feared he would hurt Hope if they stayed together.
Testimony indicated that Tristen and Applicant had a good relationship, but that changed in the months leading to Tristen’s death. Applicant’s personality began to change after he started taking pain medication for injuries received in a serious car accident. Then, beginning in November 1997, Tristen suffered injuries on three -separate occasions while being cared for by Applicant: a bruise under the eye, an injury to her leg or ankle, and finally, a series of bruises across her face. Also, testimony suggested that in early 1998, Tristen became afraid of Applicant. Hope stated that Tristen “didn’t seém to care too much for [Applicant] anymore” and seemed afraid of him. Tristen’s injuries and change in behavior led neighbor*681 Rhonda Bethune and babysitter Helen McDaniel3 to express concern that Applicant was hurting Tristen. However, the defense presented several witnesses, including Morris and Applicant’s grandmother, brother, and sister-in-law, who stated that Tristen and Applicant had a very loving, father-daughter type of relationship.
On the morning of her death, Tristen was suffering from a cold but was otherwise in good health. Hope, accompanied by Morris, left the house at approximately 11:30 a.m. to attend appointments and run errands. Applicant was entrusted with Tristen’s care. Applicant’s parole officer, Tim Hurst, visited Applicant between 1:26 p.m. until 2:00 p.m. Hurst testified that he observed Tristen walking around and eating animal crackers, and 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-
Applicant paged Hope between 3:30 and 4:00 p.m. When Hope called, Applicant sounded “shaky” and “excited” and told her to hurry back to the house because he “had to go and had things to do.” When Hope and Morris arrived home between 4:00 and 4:30 p.m., Applicant told them that he had laid Tristen down for a nap shortly after they spoke on the telephone. Applicant stated that he had to leave, and an argument ensued with Hope about Applicant’s frequent absences. Applicant and Hope walked to the store a couple of blocks away and then returned home. During that time, Morris was alone with Tristen. She testified that she was going through bills and talking on the phone, as could be supported by phone records.
After Applicant departed, Hope watched a news broadcast on television. At about 5:40 p.m., Hope checked on Tris-ten and thought that the child was sleeping. At 6:00 p.m., Hope returned - to Tristen’s' room to wake her up. She saw that the baby was lying in her -bed with a pillowcase covering one eye, part of her nose, and her mouth. When Hope moved the pillowcase, she saw that'Tris-ten’s- lips were blue. Upon picking her up, Hope found that Tristen’s body was cold and that she was not breathing. Hope cried for Morris to call 9-1-1 for assistance and carried Tristen into the living room. There she held Tristen on her lap and tried to breath into' her mouth. A pink fluid gurgled up from Tristen’s mouth and nose, and Hope inserted a finger into Tristen’s throat to attempt to dislodge any 'object stuck in her throat. Hope then carried Tristen outside, where she yelled for someone to assist her and placed the child on a patch of well-groomed lawn near the front door. Morris and a neighbor’s daughter, Pamela Garrison, attempted to perform CPR on Tristen. Morris blew into Tristen’s mouth while Garrison pushed with very little force upon the child’s abdomen three or four times, using the palm of her hand. Garrison testified that Tristen’s skin felt very cold, and she did not hear any air coming out of the baby. Another neighbor, Jackie Sullivan, who. had previously worked as an emergency medical technician, approached and told Morris and Garrison to stop because they were performing CPR too forcefully, given the size of the child. Sullivan made a state*682 ment to the effect that they would kill the child if she was not dead already. She observed that. Tristen was not breathing, that her body was cold, and that her lips were bluish-purple, circumstances leading her to believe that Tris-ten was dead at that time. Still, Sullivan started to perform infant CPR with two fingers.
An ambulance arrived at 6:08 p.m., and paramedic Elizabeth Fredregill placed Tristen on a stretcher. After several .unsuccessful attempts, a breathing tube was inserted into Tristen’s larynx. Fire department personnel performed CPR and administered epinephrine during the trip to the hospital. Fredregill observed that Tristen was pale and cold to the touch, that her neck was stiff, and that there was vomit in her airway, and she formed an opinion that Tristen was dead based on her observation of fire department personnel performing CPR. The first base-line EKG was taken in the ambulance at 6:16 p.m.
Tristen arrived at the hospital at 6:36 p.m., and she was immediately examined by Dr. John Conner, who determined that Tristen was “asystole” and without respiration, was cool to the touch, and displayed some dependent lividity, all indicating that she “had been dead for some time.” Tristen was placed on monitors to assess her condition, but Conner believed that there was no chance of successful resuscitation. A nurse attempted to determine Tristeris temperature with a rectal thermometer, which continued to display its lowest possiblé reading of 94 degrees Fahrenheit, thereby signifying that the child’s temperature was actually lower than the minimum displayed by the digital thermometer. Conner pronounced Tristen dead at 6:53 p.m. He broke the news to Hope, who was distraught and cried that she did not want to live. Conner testified that Applicant’s behavior was unusual in the situation because he attempted to fondle Hope, but other witnesses disputed this testimony.
Subsequently, Justice of the Peace Edie Connelly ordered an autopsy that was performed by the Harris County Medical Examiner’s Office (HCMEO), specifically assistant medical examiner Dr. Patricia Moore. Moore noted six or seven contusions on Tristeris legs, which were consistent with normal childhood injuries. She also observed five irregularly shaped, purple bruises on Tristeris back, tanging from one-eighth to one-quarter inch in width; bruises on the right side of her neck; and areas of discoloration on her face and left arm. Moore incised the bruises on Tristeris back with a scalpel and found hemorrhages down to the' level of deep subcutaneous tissue. When examining Tristeris internal organs, Moore discovered petechiae (small areas of hemorrhage) on the thymus and the lungs, a small hemorrhage on the kidney, a recent hemorrhage between the intracostal muscles of the eleventh and twelfth ribs on each side, and a hemorrhage of the tonsils. Moore stated that Tristeris heart appeared “pretty good” and the lungs contained “some mucus in the bronchi,” which probably resulted from a cold. Upon further examination the next day, Moore found two additional bruises behind Tristeris right ear and another bruise on the right side of her neck.
At trial, Moore, as the State’s expert witness, testified that the cause of Tris-teris death was asphyxia due to compression of the chest and abdomen and that the manner of death was homicide. She explained that the presence of pe-techiae on the back of the thymus and lungs indicated an asphyxia-related death. Moore ruled out CPR as ■ the*683 cause of death because the injuries to Tristen’s back were inconsistent with the administration of adult CPR and the injury to the kidney was deep down, requiring a lot of force. She also excluded sudden infant death syndrome (SIDS) because of the child’s age “and the story doesn’t fit the picture of a SIDS baby death.” Additionally, Moore stated that Tristen may have been dead for at least three hours before her temperature was taken at the hospital, based upon an approximate post-mortem cooling rate of 1.5 degrees per hour, and that Tristen’s body would not have sustained bruises as the result of the application of CPR that long after her death. On cross-examination, Moore testified that she was assuming that the CPR took place on the floor, so Applicant asked her to imagine that it took place on a floor with sticks and rocks scattered around and that the adults performing CPR were doing so as if Tristen was a strong adult and were applying heavy force on her chest and abdomen. Moore responded that such circumstances could explain the bruises on the back but not the rib injury (although she also acknowledged that if enough pressure was applied to the abdomen, the kidney and ribs could bruise). Moore also asserted that she was not completely excluding other reasonable hypothesis by which Tristen died. Still, it was her opinion that Tristen was asphyxiated, and she believed that beyond a reasonable doubt.
To contravene Moore’s testimony, the defense called Dr. Robert Bux, the deputy chief medical examiner for Bexar County, Texas.4 Bux testified that the cause of Tristen’s death could not be determined and that no anatomical reason demonstrated during the autopsy could have led to a specific cause of her "death. Relying on a treatise, Bux explained that death from asphyxia by compression would have resulted in abundant petechiae above the level of compression (including on the forehead, cheeks, and eyes) as well as abrasions and bruises around the front of Tristen’s body that would have occurred during the struggle. But Moore observed none of these during the autopsy. Bux also stated that the occasional petechiae on internal organs observed were a “nonspecific finding” and could have resulted from other causes. That is, “[e]ven the presence of abundant petechiae is not a hallmark” and was not “specific for asphyxia.” Regarding the time of death, Bux stated that pulseless electrical activity on Tristen’s EKG charts could have occurred 30 to 40 minutes after her death, indicating that Tristen’s death occurred after 5:30 p.m. when Applicant was not with the baby. When asked •about the role of CPR in the injuries, Bux asserted that the bruises on Tris-ten’s back were consistent with the administration of CPR while the child was lying on a lawn that was not prepared for that purpose. Similarly, Bux testified that the rib and kidney injuries could have been caused by frontal pressure during CPR, although he admitted that he had not personally seen a kidney injury due to such occurrence. Bux claimed that bruises can occur after .death, explaining that it is possible for there to be a distribution of blood vessels and then the blood runs out and pools because of gravity.
*684 In its rebuttal case, the State offered evidence to contradict Bux’s EKG testimony. Fredregill described how the electrodes are attached and the advantages of electrodes over other types of monitors. Kelly Gurry, Fredregill’s supervisor and the clinical manager for EMS at Montgomery County Hospital District who was trained in and also taught how to read EKGs, testified about interference and artifacts in EKG readings.. She explained that the three electrode leads attached to Tristen looked at different directions of the heart and were to be read simultaneously. She dismissed as artifacts any aetivity on the EKG charts because no organized activity was represented and not all of the leads showed it. One reading did show some movement, but she attributed it to the CPR that was in progress, not heart activity. Finally, Carl Ulbrich, a physician who was working in the emergency room at the same time as Dr. Conner but was not the primary physician on Tristen’s case, reviewed the records and testified that the EKG readings indicated no electrical activity except for mild interference. He noted that the up-and-down pattern on one of the EKG charts was consistent, .with CPR.
Applicant testified in his defense,, He stated that Tristen was affectionate toward him and that on the day of her death, he did nothing to harm Tristen. In fact, he claimed that he. had never struck her, abused her, disciplined her, .or even raised his voice to her. Yet he admitted causing the three injuries to Tristen, blaming the incidents on his “carelessness.” When asked about his turbulent relationship with Hope, Applicant denied that any stress resulted from the fact that Hope .came in and out of his life, and although he participated in group counseling with her, he denied being depressed, claiming he attended merely out of concern for Hope. Applicant further commented that he would overlook a lot of things because of his love for Tristen. In addition, Applicant was questioned about the testimony of Bethune that in the month' following Tristen’s death, Applicant took all of the batteries out of Tristeris, toys and then explained to her that “it hurt too much; he couldn’t handle the guilt;” Applicant responded that he.removed the batteries because it hurt him to hear them go off, not due to a feeling of guilt from something that he had done.
During closing arguments, the State emphasized Moore’s testimony in arguing that it was Applicant, and only Applicant, who could have caused the asphyxia-related death of Tristen. For his part, Applicant argued that if “anything, he is guilty of the offense of loving a child.” Applicant put forth the SIDS scenario and emphasized that the bruises on Tristen’s body could have been caused by incorrectly performed CPR efforts to save her life. He also pointed to the testimony of the two medical examiners, arguing that Bux’s was the more credible opinion.
-On February 22, 1999, the jury found Applicant guilty of capital murder, and 'Applicant was sentenced to life imprisonment. Approximately a month later, Applicant filed a motion for new trial, arguing that evidence was legally and factually insufficient to establish that Tristen’s death was a homicide, but the trial court denied the motion.
D. Reevaluation of Autopsy Findings
In March 2007, an acquaintance of Applicant contacted the HCMEO and asked it to. review Moore’s findings regarding the cause of Tristeris death. The deputy chief medical examiner for*685 Harris County, Dr. Dwayne Wolf,, undertook a re-evaluation of the autopsy findings. After reviewing the testimony adduced during Applicant’s trial, the autopsy report, the EMS and medical records, and the police offense report, Dr. Wolf concluded that Moore’s observations during the autopsy did not support a finding that the death resulted from asphyxiation, by compression or from any other specific cause. Consequently, on May 2, 2007, Wolf amended Tristeris autopsy report to reflect that both the cause and manner of death was “undetermined.” And so on the following day, Justice of the Peace Edie Connelly formally reopened the inquest into. Tris-teris death.
Shortly thereafter, former Harris County Medical Examiner Joye Carter was asked' by the Montgomery County District Attorney’s Office to review Moore’s autopsy report. Carter had been Moore’s supervisor and had agreed with Moore’s original opinion, In a May 10 letter to the district attorney, she wrote, “Upon my review of this case I would not concur with the opinion on the manner of death as a homicide but would reconsider this case as an undetermined manner,” and “If the Harris County Medical Examiner intends to re-rule this case as an undetermined manner of death I would agree with that change.”
Moore, too, was asked by the Montgomery County District Attorney’s Office to review her autopsy report. In a May 13 letter to the district attorney, she stated, I .believe that there are unanswered questions as to'why the child died, and I still feel that this is a suspicious death of. a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death- of undetermined, undetermined is best for this case.
Moore explained that since her original opinion, she has had more experience, and she has reviewed additional infor.mation that suggested that the bruises could have resulted from aggressive CPR and other efforts to assist the child.5 .She emphasized that it was significant that aggressive adult-type CPR by untrained persons was performed on Tristen, a 17-month-old child.
E. [Original] Habeas Application and Proceedings
On June 4,2007, Applicant filed his orig- . inal application for a writ of habeas cor- . pus alleging, “Newly discovered evidence shows that no rational juror would find Applicant guilty beyond a reasonable doubt of the offense for which he ..was charged and convicted.” About a month later, Applicant filed a supplemental application alleging that his “right to a fair trial by a fair and impartial jury ... was violated because his conviction was based on testimony material to the State’s ease that has now been determined to be false.”
In its original response on June 25, 2007, the State recommended that Applicant be granted a new trial because his due*686 process rights to a fair trial and impartial jury were violated. The State claimed that because it relied on Moore’s original opinion in presenting its case, which' has now been recanted, confidence in the outcome has been undermined. Citing Ex parte Carmona, 185 S.W.3d 492 (Tex.Crim.App.2006), the State wrote, “While Dr. Moore’s testimony is not perjured testimony, the effect of the change in her opinion is the same — the jury was led to believe and credit facts that were not true.”
The same day, Applicant and the State filed agreed findings of fact and conclusions of law. But instead of sighing them, on August 22, 2007, the trial court appointed Dr. Thomas Wheeler, the Chairman of the Department of Pathology at Baylor College of Medicine, with the task of conducting an independent pathological examination to address the following issues: (1) What is the manner of Tristen Rivet’s death? (2) What is the means of Tristen Rivet’s death? (3) Are the manner and means of-Tristen Rivet’s death able to be determined? (4) Does a change in the medical examiner’s opinion about the manner and means of Tristen Rivet’s death entitle Applicant to a new trial? After reviewing the autopsy file of the victim, trial testimony, and exhibits, Wheeler concluded in a September 18, 2007, letter to the trial court that the cause and manner of Tristen’s death were undetermined. Wheeler asserted that “[a]l-though the autopsy performed by Dr. Moore was thorough and well documented, her conclusion that the death of Tris-ten Rivet was caused by asphyxia secondary to chest compressions was not justified by the objective facts and pathological findings in this case.” He could not rule out suffocation or asphyxiation as the cause of death, but he did not see any physical findings that would support any particular conclusion as to the cause of death.
In October 2007, Judge Connelly ordered that pathologist Linda Norton conduct an independent forensic examination of the evidence and submit a written report of her findings and opinion on the cause and the manner of Tristen’s death.6 On March '28, 2008, Norton .reported the results of her review during a recorded telephone conference call, in which Judge Connelly and counsel for Applicant and the State participated. Norton stated that it was her opinion that Tristen’s death was a homicide and that the manner of death was asphyxia by suffocation. She explained that her conclusion was supported by the petechial hemorrhages on Tristen’s lungs and thymus, combined with the other evidence of trauma, and in the context of the other circumstances of Tristen’s death. In addition, Norton stated that the correct rule of thumb for assessing temperature loss in a child’s body after death is an approximate loss of three degrees per hour, depending upon ambient temperature and other environmental facts. Thus, combining that with Tristen’s maximum rectal temperature of 94 degrees at the hospital and the descriptions of Tristen’s condition by Sullivan and others, she believed that Tristen’s death occurred between 2:30 and 5:00 p.m. Consequently, because the child had been dead for at least an hour before CPR was attempted, the external bruises observed during the autopsy could not have been inflicted during the*687 CPR. Nonetheless, Norton acknowledged that she could not conclude beyond a reasonable doubt that Applicant and Applicant alone committed the homicide.
Norton also recommended that authorities investigate reports that Applicant had written something on a dollar bill and placed it in Tristen’s casket at the funeral home on the date of Tristen’s funeral. Ruth Hope (Barbara Hope’s mother) and Shelby Becker (Barbara Hope’s sister) had executed affidavits indicating that they saw Applicant writing something on a money bill and then placing it in Tristen’s coffin. On April 4, 2008, Judge Connelly signed an order directing that Tristen be exhumed for the purpose of retrieving any evidence that might be found in the casket. Six days later, Tristen’s remains were exhumed and remnants of a piece of paper resembling United States currency were recovered from the casket liner. Document preservation experts reported on May 6, 2008, that no markings of any kind could be identified due to the poor condition of the paper.
Judge Connelly amended Tristen’s death certificate on May 13, 2008, to correspond with Norton’s opinion that Tris-ten’s death was caused by asphyxia due to suffocation, rather than asphyxia by compression; the homicide finding was not changed. The following day, Norton executed an affidavit incorporating her conference discussion. In its May 27, 2008, supplemental response, the State was no longer willing to recommend a grant, but it agreed not to oppose Applicant’s request for a new trial. It wrote that the “cause of death remains asphyxiation, albeit by suffocation rather than compression, and the manner of death a homicide as presented by the jury at Applicant’s trial.” On August 6, Wheeler submitted a sworn affidavit, repeating what he had said in his September letter to the trial court, adding that he disagreed with Norton’s opinions. That same day, Applicant filed a memorandum on why Moore’s amended autopsy should not be found credible.
On August 13, 2008, Applicant, joined by the State, filed proposed joint findings of fact and conclusions of law, which recommended that Applicant be granted a new trial based on due process grounds and the fact that he was denied a “fundamentally fair trial and an accurate result.” On August 25, Moore’s sworn affidavit was filed, incorporating much of her prior letter to the district attorney. The next day, Applicant, again joined by the State, filed another set of proposed findings and conclusions. Instead of signing it, the trial court ordered that the parties engage in discovery. Moore was deposed on December 10, 2008; Wheeler on December 19, 2008; and Wolf on February 10, 2009. The trial court appointed John Milutin, an attorney experienced in the deposition of medical experts, to depose these witnesses. Norton was subpoenaed so she, too, could be deposed, but she could not be located. When the trial court granted the State’s motion to depose Norton at the location of her choosing, she could not be deposed due to medical problems.7 Instead, on December 17, 2009,*688 Norton submitted a second affidavit in which she confirmed that she was incapable of preparing for or participating in a deposition, and she adopted and ratified under oath the statements and opinions she expressed during the previous telephone conference, including that she believed Tristen died from suffocation and that her death was - homicide. Based largely on. Norton’s opinion, on December 22, the State filed its second supplemental response and recommended that relief be denied. Shortly thereafter, Applicant filed an objection to Norton’s affidavit, arguing that, given her unwillingness to be deposed, the trial court should not consider her affidavit.
On December 29, 2009, Judge Connelly conducted an evidentiary hearing on Applicant’s motion to reopen the inquest into Tristen’s death to allow consideration of additional expert medical testimony. Applicant also filed a motion to reopen the inquest into Tristen’s death after her death certificate was amended to show she died of suffocation, but this motion was denied because “on the basis of examination and investigation, in the opinion of this Court, the cause and manner of the death of Tristin Skye Rivet, as shown on the amended death certificate ...., is cause: asphyxia due to suffocation, manner: homicide.”
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. On January 21, the State filed its first supplemental brief in support of its proposed findings and conclusions. While ■not willing to concede that Applicant properly raised a due process claim in his. supplemental ground for relief, the State argued that, even if he did raise due process, the Court “has not yet held — and it seems unlikely that it will ■ ever* hold — that the Due Process Clause is violated when a witness provides, in good faith, an opinion that' is believed to be true by both the witness and the prosecution at the time of trial, even if that opinion is subsequently challenged by other experts or reconsidered by the witness who offered it.”
The next day, on January 22, 2010, the trial court permitted oral argument. Applicant argued that Moore’s re-evaluation was newly available evidence and that Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996), requires that the newly available evidence be evaluated within the four corners of the trial transcript.8 _ Further, Applicant asserted that due process and fairness require that the jury have the opportunity to re- . weigh the evidence. In contrast, the State contended that Applicant could not establish that he was actually innocent because the evidence is not newly discovered, the re-evaluation was not indisputable, and there was other evidence of Applicant’s guilt. Regarding the due process claim, the State argued that Applicant had failed to raise it as a supplemental ground, and it doubted whether there was a legal and factual basis for*689 his due process claim: “It’s hard to believe that a violation of due process'-is established by evidence .that an expert opinion may have been correct or it may have been incorrect.” .
The trial-court made twenty-two pages of detailed findings of fact, much - of which is summarized above, and, five pages of conclusions of law. The trial court recommended that we grant Applicant a new trial because his due process and due course of law rights were violated, as was his right to an impartial jury.9
This Court denied the applicant’s original application for writ of habeas corpus.
Subsequent Application for Writ of Habeas Corpus
This Court may consider a subsequent application only if' “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 applica-tion_”
As stated previously, no new factual bases for a claim have emerged since the applicant filed his original application. The'question remains whether the enactment of 11.073 created a new legal basis for a claim.
Article 11.07 defines what makes a legal claim unavailable:
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 and 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 appellaté jurisdiction of this state on or before that date.12 ’
' Article 11.073 was enacted on September 1, 2013, six years after the applicant filed his original application. Prior to the enactment of article 11.073, newly available scientific evidence per se generally was not recognized as a basis for habeas corpus relief and could not have been reasonably formulated from a final decision of this Court or the United States Supreme Court, unless it supported a claim of “actual innocence” or “false testimony.”
Article 11.073 provides a new legal basis for habeas relief in the small number of cases where the applicant can show by the preponderance of the evidence that he or she would not have been convicted if the newly available scientific evidence had been presented at trial.
An applicant also must establish “that the facts he alleges are at least minimally sufficient to bring him within the ambit of that new legal basis for relief.”
The applicant has met the requirements for submission of a subsequent application, and we now proceed to consider the merits of this application.
Article 11.073
The applicant argues he is ehtitled to relief under article 11.073 because Dr. Moore, the medical examiner who performed the autopsy and testified for the State, has re-evaluated her testimony and opinion and can no longer stand by her trial testimony that Tristen’s death was a homicide. Moore now believes, as stated in her May 13, 2007, letter to the district attorney, “that an opinion for a cause and manner of death of undetermined, undetermined [sic ] is best for this case.”
This evidence regarding the cause of death is relevant scientific evidence that contradicts scientific evidence relied on by the State ■ at trial: Moore’s testimony. During the applicant’s trial, the State repeatedly emphasized Moore’s testimony that this was homicide by asphyxiation.
We hold that article 11.073 applies to this .evidence under section (a)(2).
Availability of Scientific Evidence
In order to obtain relief, the applicant must include in his application specific facts showing the “relevant scientific evidence is currently available and was not available at the time of [his] trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during [his] trial.”
In making a finding as to 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:
*691 (1) the applicable trial date or dates, for a determination made with respect to an original application; or
(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 requires the Court to consider “whether the scientific knowledge or method on which the relevant scientific evidence is based has changed.” Scientific method is defined as “[tjhe process of generating hypotheses and testing them through experimentation, publication, and republication.”
The process used by Moore did not change, and there is no argument from either the applicant or the State that methods for analyzing the cause of child death in a ease like this have changed in the scientific community, as have other areas of science recently considered by this Court.
The United States Supreme Court defined scientific knowledge when explaining what constitutes admissible “scientific knowledge” testimony from an expert witness.
The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known ■facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.” Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science. 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
The Supreme Court laid out several factors for determining whether something qualifies as scientific knowledge under its definition, which are incorporated into the definition of “scientific knowledge” provided in Black’s Law Dictionary:
Knowledge that is grounded on scientific methods .that have been supported by adequate validation. Four primary factors are used to determine whether evidence amounts to scientific knowledge: (1) whether it has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) the degree of acceptance within the scientific community.21
' Her new opinion that the cause of death is “undetermined,” which the applicant argues is the “change.in scientific knowledge,” is also an inference or assertion supported by appropriate validation based on.the scientific method. Moore’s revised opinion on-the cause of death satisfies-the requirements-to be called “scientific knowledge,” and thus falls within the language of article 11.073. Moore’s opinion labeling cause of death as “undetermined” was not available at the time of trial because her scientific knowledge has changed since the applicable trial date.
The State argues Moore’s re-evaiuated opinion was available at trial because the same inforination was presented by the defense through Dr. Bux. We disagree. The relevant evidence is the State’s evidence on Triatén’s causé of death. ■ It has changed.' Moore’s re-évaluated opinion on cause of death contradicts the evidence relied on by the State at trial and was not ávailable at that time because she re-evaluated years after the trial ended.
Admissibility and Probable Outcome
Both the State and the applicant agree that, if it had been available at trial, Moore’s opinion regarding the cause of death would be admissible under the Texas Rules of Evidence.
Finally, we find on the preponderance of the evidence that, had this evidence been presented at trial, the applicant would not have been convicted. Moore’s original trial testimony was the only evidence presented claiming conclusively that Tristen died as the result of a homicide. The State also emphasized her testimony in its closing statement when arguing to -the jury that the applicant caused Tristen’s death. It is hard to imagine any reasonable jury’s returning a conviction when no one can even say confidently that a murder has been committed.
Conclusion
We grant the applicant’s request for relief, set aside the applicant’s conviction in cause number 98-06-00750-CR, and order that the applicant be remanded to the Sheriff of Montgomery County to answer the charges against him.
The various positions on statutory interpretation seem to agree that the legislative history indicates that the intent of this statute is to provide relief to those who wei-e convicted on science or scientific methodology that is now known to be unsound.
My first observation is that “scientific method” and “scientific methodology” are not the same. “Scientific method” is the observation of some phenomenon in the world, the formulation of a theory-a possi
“Scientific methodology,” on the other hand, is the means by which a theory is tested. In Jenner’s cases, the methodology was to scrape pus from a human who had active cowpox and using that pus to inoculate other humans, then exposing them to smallpox to confirm that the inoculation with cowpox provided immunity to smallpox. If the theory being tested is that blood is thicker than water, the methodology is likely to involve measuring the viscosity of blood and water and comparing the results. Automobile manufacturers constantly test new theories about injury prevention and mitigation with crash-test dummies.
The words of Article 11.073 state that it “applies to relevant scientific evidence ... that was not available to be offered ... at the convicted person’s trial; or ... contradicts scientific evidence relied on by the state at trial.” Relief may be granted if “relevant scientific evidence is currently available and was not available at the time of ... 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.”
“Evidence” is what is presented at trial in support of the litigants’ positions. “Scientific evidence” is presented by scientists, and the content of that evidence depends on the knowledge of that particular witness about the science at issue. “Bad science” and “bad scientists” are inseparable. A scientist may not intend to present bad science, nor must that scientist be a bad scientist in every situation. Linus Pauling won a Nobel Prize in chemistry and would certainly be a good scientific witness if he testified about his work in chemistry. However, he would be a bad scientist presenting bad science if he were called as a witness to, the unlimited powers of vitamin C.
Because evidence is what is presented at trial by a witness and is therefore limited by the personal knowledge of that witness, logically the statute must be intended to address the personal knowledge of scientific witnesses. Personal knowledge increases over time as one gains new knowledge and refines one’s understanding of one’s older knowledge. New law graduates may know book law, but most have not yet learned how to integrate book law with trial tactics. - And some skills simply cannot be learned anywhere except in the crucible .of practice in the real world. New lawyers are likely to lose trials that a more experienced lawyer would not, merely because they have not yet developed the interpretive skills of that more experienced lawyer. Or they might choose to try a case that a more experienced lawyer,
The same is true of physicians. Because of inexperience, a resident may miss a diagnosis that a more experienced doctor would have made, merely because the older doctor had seen the grouping of apparently unrelated symptoms before or was knowledgeable about uncommon diseases or just knew more about what questions to ask the patient. Some practitioners, of law or medicine, may not keep up with the current literature. The result of inexperience or out-dated knowledge may be testimony that may rightfully be called bad science, even if not intentionally so, "and that testimony may persuáde a jury to convict when it should not.
This is just such a case. Testimony indicated that the child’s injuries could have been inflicted intentionally, but it also indicated that the injuries could have re-suited from improper CPR;
As has been noted, some examples of “contradicted scientific evidence relied on by the state at trial” include arson, infant trauma, bullet-lead analysis, bite marks, some ballistics tests, blood-spatter patterns, and scent line-ups. Some such evidence has involved misinterpretation based on out-dated knowledge, some are simply junk science that has never been subjected to any kind of scientific investigation. Whether “debunked” or “refined” for increased accuracy, changes in scientific knowledge in general, and therefore changes in scientific testimony by individuals, must be acknowledged and addressed. As Judge Cochran noted in her dissent in applicant’s original application for habeas corpus,
When scientific experts honestly and sincerely thought “X” was true at the time they testified, but the science has changed or the experts’ understanding of the science has changed and their opinions have changed, what cognizance of that change should the criminal justice system take long after a person has been convicted?
Ex parte Robbins, 360 S.W.3d 446, 469 (Tex.Crim.App.2011)(Cochran, J., dissenting).
The legislature has made it clear that advances in DNA technology may be the basis for re-examining convictions. Advances and changes in other forms of scientific knowledge, and thus in scientific testimony from individuals, should also be available as bases for re-examination of convictions.
I join the opinion of the Court.
Cochran, J., filed a concurring opinion in which Price and Johnson, JJ., joined.
. I join the majority opinion. I write separately to respectfully disagree with the State’s contention that the plain language and legislative, history of Article 11.073 “demonstrate a legislative intent to provide a remedy when there is a generally accepted scientific advance or breakthrough in a discipline of forensic science,” rather than a change in the State’s scientific expert’s opinion.
A. Our Prior Decision in Robbins was the Poster Child for Enacting Article 11.073.
1. The scientific and legal landscape before passage of Article 11,073.
Over the past decade, Texas has been a national leader in addressing wrongful convictions and recognizing how bad science can lead to bad convictions. During the past ten years, all three branches of Texas government have worked to ensure the scientific integrity of Texas criminal convictions and to reassure our citizens that Texas criminal trials are fundamentally fair and reach accurate results.
In 2001, the Texas Legislature enacted Chapter 64,
Those developments, plus the concern over “bad”‘arson science,
In 2009, the National Research Council, an arm of the National Academy of Sciences, published Strengthening Forensic Science in the United States: A Path Forward, its exposé of the shoddy forensics used in criminal proceedings.
One of the report’s chapters dealt with concerns about medical examiners and coroners. It noted numerous deficiencies in the system
In 1989, just as DNA testing arrived in criminal cases, one prominent scientist noted, “At present, forensic science is virtually unregulafed-with the paradoxical result that clinical laboratories must meet higher standards to be allowed to diagnose strep throat than forensic labs must meet to put a defendant on death row.”
Meanwhile, Texas has continued its push to ensure that state-of-the-art- science would assist in seeing that the guilty were convicted and the innocent were not, especially because more than half of all DNA exonerations involved unvalidated or improper forensic science.
Prosecution experts, of course, can sometimes make mistakes. Indeed, we have recognized the threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensics experts, noting that '[sjerious deficiencies have been found in the forensic evidence used in criminal trials.... One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.’20
The DNA exonerations have shown that faulty forensic-science testimony may be due to either (1) insufficiently reliable forensic-science disciplines, such as toolmark and firearm evidence, bullet-lead analysis, analysis of hair or fibers, analysis of paint or explosives evidence, forensic odontolo-gy, and bloodstain analysis;
• Non-Probative evidence presented as probative;23
• Exculpatory evidence discounted;24
• Inaccurate frequency or statistic presented;25
*699 • Statistic provided without empirical support;26
• Non-numerical statements provided without empirical support;27 and
• Conclusion that evidence originated from defendant.28
In general, the problem with these experts was one of “over-claiming” or scientific puffery.
As the Supreme Court has noted, what the government calls “neutral scientific testing” is not always as neutral or scientific as the government suggests.
In sum, the forensic-science problems that have led to wrongful convictions in-elude both “bad” science and “bad” (although perhaps sincere and well-intentioned) scientists.
Although Daubert,
This Court has expressed its concerns about “junk” science in such cases as Jordan v. State,
By 2009, the Texas Legislature, at the urging of the Innocence Project of Texas, began reacting- to the problems of prior convictions based on bad scientific evidence. Senator John Whitmire sponsored Senate Bill 1976, a bill (after amendments) that is remarkably similar to the current Article 11.073 statute.
would authorize courts to grant relief on writs of habeas corpus that, subject to criteria in the bill, raised relevant scientific evidence that was not available at the time of a trial, or that discredited scientific evidence relied on by the' prosecution at a trial.47
The Bill Analysis also noted that this statute was needed because “the science surrounding arson investigations has changed dramatically in recent years” and “a technique used by the FBI to match the chemical signature of bullets has been discredited.” Thus, “[djefendants who were wrongly convicted using these and any debunked science deserve a way to raise their claim before a court.”
In the next legislative session, Senator Whitmire again introduced his bill to enact a new Article 11.073.
2. Tipping point: the two events that led to the passage of Article 11.073.
Two important developments occurred after the legislative session ended in May of 2011. First, we denied applicant relief on his original habeas corpus claim, which was based on the medical examiner’s change of opinion from Tristen’s death being “homicide” to her death being “undetermined.”
Given the current legitimate concerns about the scientific reliability of forensic science used in American courtrooms, I think that the criminal justice system needs some jurisprudential mechanism to deal with cases in which a prior conviction was based upon scientific evidence that has subsequently been found to be unreliable, in whole or in a specific case.52
The second development was our grant of relief in Ex parte Henderson,
3. The 2013 Legislative Enactment of Article 11.073.
The Robbins and Henderson decisions were the judicial landscape in which Senator Whitmire introduced — “once more unto the breach, dear friends, once more”
Recent case law and judicial opinion[s] have identified weaknesses in the current habeas corpus statute, noting issues that include the absence of statutory grounds upon which to grant relief, the speed of changing science that serves as the foundation of a conviction,1 and technical testimony that may change with scientific discovery. In one case, recanted testimony by a medical examiner established the basis of the state’s case with respect to the cause and manner of death, without which it would not have obtained a conviction. The Texas Court of Criminal Appeals voted against granting a new trial, with the majority finding no path to habeas relief under current law. The question was raised as to how*704 the criminal justice system should address - scenarios' in which the- scientific experts sincerely thought something was true at the time they testified, but the science and the experts’ understanding and opinions had changed.59
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 of Criminal Appeals decisions may make [SB 344] more likely to pass.”
When scientific experts honestly and sincerely thought ‘X’ .was true at the time they testified, but..the science has changed or the experts’ understanding of the science has changed and their opinions have changed, what cognizance of that change should the criminal justice system take long after a person has been convicted?61
In Robbins, this Court chose finality over accuracy; in Henderson we did the opposite, and in 2013, the Texas Legislature also chose accuracy over finality by enacting Article 11.073.
B. The term “scientific knowledge” in Article 11.073 includes both general scientific advances and specific scientific testimony.
As noted above, wrongful convictions have been based on both a “bad” forensic- . science discipline, e.g., bullet-lead analysis, and “bad” scientific testimony within a good forensic discipline. As Justice Scalia has stated, “[f]orensic evidence is not uniquely immune from the risk of manipulation,”
This case involves “bad” scientific testimony based on insufficient experience.
was not competent at the time of trial to offer objective and pathologically sound opinions as to cause and manner -of death in this case. Her level of inexperience at 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 for defective and improper work and was evaluated as being biased in favor of the prosecution,64 as well as Dr. Carter’s statements concerning the turbulence in the ME office in 1998, the concern about Moore being perceived as a witness for one particular side, and that (at that time) Moore was making the transition to the neutral position of a forensic pathologist cast grave doubt on Moore’s opinions at trial and the reasons she gave them. This is newly discovered evidence that could not have been previously discovered by applicant.
Dr. Moore’s later re-evaluation of her opinion-putting aside advocacy for one party and seeking more information to reach a more accurate result-is the hallmark of “good” scientific methodology:
Scientists continually observe, test, and modify the body of knowledge. Rather than claiming absolute truth, science approaches truth either through breakthrough discoveries or incrementally, by testing theories repeatedly.65
It is not surprising, then, that the Texas Legislature would authorize this court to review convictions based Upon án expert’s “scientific knowledge” that the expert has since repudiated or contradicted based on her further testing, review, and experience. Indeed, what would not make sense is for the Legislature to be concerned about the reliability of general fields of forensic science, but unconcerned about the reliability of a forensic scientist’s spe
With these additional comments, I join the majority opinion.
. 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).
. 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.
. 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.
. 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 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.'
. 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.
. 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
. 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.
. Robbins, 360 S.W.3d at 448-57.
. Robbins, 360 S.W.3d at 463.
. Tex.Code Crim. Pro. 11.07, § 4(a)(1).
. Tex.Code Crim. Pro. 11.07, § 4(b).
. See Ex 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 also Ex 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).
. Robbins, 360 S.W.3d at 460, 463.
. 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).
. “This article applies to relevant scientific evidence that: ... (2) contradicts scientific evidence relied on by the state at trial.”
. Article 11.073(b)(1).
. Black’s Law Dictionary 1547 (10th ed.2014).
. 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”).
. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Black’s Law Dictionary 1004 (10th ed.2014).
. See supra pp. 685-86.
. "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/leamcpr/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,-11,12,13,14,15,16,17,18,19,20,21,22,23,-24,25,26,27,28,29,30, off.’ ” http://www.nlm. nih.gov/medlineplus/ency/article/000011 .htm (National Institutes of Health)
. State’s Brief at 11-12.
. 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.”).
, Tex.Code Crim. Proc. arts. 64.01-64.05.
. 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).
, Arson science came to the public’s attention after the execution of Cameron Todd Willing- ' ham 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 also Peter A. Chickris & Mykal J. Fox, Present DangerPreventing Wrongful Convictions by Resolving Critical Issues Within Tex-as's Criminal Justice System, 52 S. Tex. L.Rev. 365, 405 (2011) (recounting the facts leading to the conviction and execution of Willing-ham — as well as the subsequent exoneration of Ernest Willis — who was convicted on the basis of "faulty” arson science). ■
. Texas Forensic Science Commission, About Us, http://www.fsc.texas.gov/about.
. Texas Court of Criminal Appeals, Texas Criminal Justice Integrity Unit, http://www. txcourts.gov/cca/texas-criminal-justice-integrity-unit. aspx.
. Tex.Code Crim. Proc. art. 38.20 (“Photograph and Live Lineup Identification Procedures”).
. 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.”).
. National Research Council, Strengthening Forensic Science in the United States: A Path Forward (National Academies Press 2009) ("NAS Report”).
. Id. at 7.
. 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.
. Id. at 37.
. 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.
.Id. at 250.
., Id. at 261-62.
. Id. at 52.
. Eric S. Lander; DNA Fingerprinting on Trial, 339 Nature 501, 505 (1989).'
. 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)).
. Hinton v. Alabama, — U.S. -, 134 S.Ct. 1081, 1090, 188 L.Ed.2d 1 (2014) (citation omitted).
. 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, 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.
. 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 also Paul 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' ”).
. 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).
. 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).
. 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).
. 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).
. 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).
. 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).
. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
. Id.
. 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).
. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).
. Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998).
. Cole, supra note 31, at 819-24.
. Id.
. 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).
. 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
. According to the Innocence Project, “[e]ye-witness 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.
. Megan Winfrey 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); Richard Winfrey v. State, 323 S.W.3d 875 (Tex.Crim.App.2010). (same).
. 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).
. 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).
. Gonzales v. State, No. PD-1661-09, 2010 WL 711783 (Tex.Crim.App. Feb. 24, 2010) (not designated for publication) (Cochran, J., concurring),
. 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).
. That bill, introduced and then amended during the 81st 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 per-1 son’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;
*701 (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 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.
. 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).
. House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. (2009).
. 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 fprehsic scienc.e, 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. .
. The bill was substantively the same as that introduced in 2009, but there were minor differences in the division of the- subsections.
. Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).
. 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.
. ⅝ Id. at 471 (footnote omitted).
. Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App.2012).
. 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 acciden
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.
. 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.”).
. William Shakespeare, Henry V, act 3, sc. I, line 1.
.. House Research Organization, Bill Analysis, Tex. S.B. 344, 83rd Leg. R.S. at 2 (2013).
. See State’s Brief at 27-29 (summarizing the testimony at the March 12, 2013 meeting of the Senate Criminal Justice Committee).
. Bill Analysis, supra note 57, at 2-3 (“Supporters Say”).
. 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-jtistice-advocates-renew-call-flawed-scien/.
. Robbins, 360 S.W.3d at 469 (Cochran, J., dissenting).
. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
. 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 neuro-pathology and/or pediatric pathology dr 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 tile 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
. 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, 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.
. 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.
. See TexCode Crim. Proc. art. 11.073.