IN THE 148TH DISTRICT COURT 

OF NUECES COUNTY, TEXAS 

AND 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

IN AUSTIN, TEXAS 

RICHARD VASQUEZ, JR. 

 APPLICANT. 

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WRIT NO. 59,201-03 

TRIAL COURT NO. 98-CR-0730-E 

CAPITAL CASE 

Scheduled Execution Date: 

April 23, 2015 

APPLICANT RICHARD VASQUEZ JR.’S 

RESPONSE TO THE STATE’S 

MOTION TO DISMISS1

 

Last Wednesday, April 15, Applicant Richard Vasquez Jr. timely filed a 

subsequent application for a writ of habeas corpus and a motion for stay of 

execution in this Court and in the trial court. The State responded on Saturday, 

April 18, moving the Court to dismiss Mr. Vasquez’s application and to deny his 

motion for a stay.2

 But in arguing that dismissal is warranted, the State assumes as 

 1

 Although the State’s filing also, somewhat confusingly, addresses Mr. Vasquez’s 

motion for a stay with a “motion to . . . deny the motion to stay execution,” State’s M. to Dismiss 

at 2, it is fair to construe that part of the State’s filing as a response in opposition rather than a 

separate motion. Thus, in the interest of brevity, this response will refer to the State’s filing as 

its motion to dismiss. 

2

 Because this response only opposes the State’s motion to dismiss and does not seek any 

affirmative relief beyond what was requested in Mr. Vasquez’s timely filed application and 

WR-59,201-03

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/20/2015 11:18:20 AM

Accepted 4/20/2015 11:28:23 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 4/20/2015 ABEL ACOSTA, CLERK 
2 

true what it sets out to prove: “It was multiple blows to the head, as admitted by 

Vasquez himself, causing severe and extensive injury to the brain” that caused 

Miranda’s death. State’s M. to Dismiss at 12. But rather than identifying a valid 

basis for dismissal, the State’s motion illustrates precisely why an evidentiary 

hearing is necessary—Mr. Vasquez’s petition identifies new scientific evidence 

that forcefully contradicts the State’s evidence on the cause of Miranda’s death, 

and that evidence cannot be dismissed without careful consideration of the 

underlying science and the effect it would have had if it were introduced at Mr. 

Vasquez’s trial. Accordingly, for the reasons set out below, the State’s motion to 

dismiss should be denied. 

I. The State’s Concessions 

In its motion to dismiss, the State has implicitly acknowledged several 

important areas of agreement with Mr. Vasquez. Through its silence, the State has 

effectively conceded that (1) Mr. Vasquez’s claims are not barred by Section 5 of 

Article 11.071 of the Texas Code of Criminal Procedure; (2) the scientific evidence 

discussed in Mr. Vasquez’s application is admissible under the Texas Rules of 

Evidence; (3) material scientific evidence discussed in Mr. Vasquez’s application 

 

motion for stay, it is not subject to this Court’s Miscellaneous Rule 11-003. However, in case 

the Court decides that Miscellaneous Rule 11-003 does apply, counsel has attached an affidavit 

explaining why it was factually impossible to file this response more than seven days before Mr. 

Vasquez’s execution date. 
3 

was not available to be offered at his trial;3 (4) the scientific evidence regarding 

biomechanics discussed in the application meets the standard for relief under 

Article 11.073; and (5) Mr. Vasquez’s application alleges valid claims for habeas 

relief based on Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009), see

Application at 37–43, and actual innocence, see Application at 43–44. Thus, in 

ruling on Mr. Vasquez’s motion to stay and the State’s motion to dismiss, the 

Court can consider those issues undisputed and focus its attention on the areas of 

disagreement identified below. 

II. Mr. Vasquez has pleaded a claim for relief under Article 11.073. 

In its motion to dismiss, the State basically concedes that Article 11.073 

would provide relief in “a case where the defendant claimed at trial that the victim 

fell from a sufficient height to have caused a fatal injury, where that theory was 

discredited by expert testimony considered valid at the time, and where new 

scientific evidence would suggest that the theory in question was a valid 

explanation for the fatal injury based on data comparing substantially similar fatal 

and non-fatal falls.” State’s M. to Dismiss at 12. That is precisely the case that is 

before the Court. As set out in Mr. Vasquez’s application, Miranda did fall from a 

sufficient height to cause a fatal injury—Mr. Vasquez explained that Miranda fell 

 3

 The exception is Dr. Squier’s discussion of Shaken Infant Syndrome, which, for reasons 

discussed below, the State erroneously characterizes as being based on a study published in 

1987. 
4 

from a stool immediately before she lapsed into a coma, and in light of modern 

scientific knowledge it is now clear that a fall from that height (10.5 inches for the 

stool plus Miranda’s height of 41 inches equals a fall of over four feet) can be fatal. 

See Application at 27–29 (discussing new scientific evidence showing that short 

falls can be fatal). And that theory was discredited by expert testimony considered 

valid at the time—Dr. White casually dismissed the possibility that falling from the 

stool could have caused Miranda’s death and Dr. Burke totally excluded that 

possibility by testifying that Miranda’s wounds could only have been caused by 

intentional child abuse. See Application at 13–16 (discussing the trial testimony of 

Drs. White and Burke). And as the attachments to the State’s motion show, there 

is new scientific evidence based on case studies involving substantially similar 

falls that show falling from a stool is a valid explanation for Miranda’s death. See 

Application at 27–29. Thus, by the State’s own description of a valid claim under 

Article 11.073 (not to mention this Court’s description of a prima facie claim 

under Article 11.073, see Application at 22–24 (discussing Ex parte Robbins, 2014 

WL 6751684 (Tex. Crim. App. Nov. 26, 2014))), the facts alleged in Mr. 

Vasquez’s application state a valid claim under Article 11.073. 

But the State denies this conclusion, flatly asserting that “it was multiple 

blows to the head, as admitted by Vasquez himself, causing severe and extensive 

injury to the brain” that caused Miranda’s death. State’s M. to Dismiss at 12. The 
5 

State does not, however, immediately attempt to justify that statement, choosing 

instead to cloud the issues by pointing to Mr. Vasquez’s admission that he struck 

Miranda and other evidence that supposedly proves that Miranda had suffered 

other, unrelated abuse. That evidence is beside the point because Mr. Vasquez was 

not tried for having struck Miranda, and in any event his admitted conduct does not 

amount to a capital crime. The conviction Mr. Vasquez is challenging is for 

capital murder, and his application is based on new scientific evidence showing 

that he was not guilty of that crime. Thus, in order to show that dismissal is 

proper, the State cannot simply reiterate evidence that was introduced at trial and 

must instead attempt to identify some deficiency in the claims for relief set out in 

Mr. Vasquez’s application. 

The State’s discussion on that point is halfhearted at best. In an attempt to 

discredit Dr. Young’s declaration, the State notes that the studies he cites in his 

report dealt with falls from heights as low as two feet. Because Miranda fell from 

a stool that was 10.5 inches high, the State reasons that the articles Dr. Young cites 

are inapplicable. But to reach that conclusion, the State has to ignore the fact that 

Miranda, who was 41 inches tall at the time, was standing on the stool when she 

fell. That means her head was over four feet off the ground, putting her fall 

squarely within the ambit of the studies discussed in Dr. Young’s report. The 
6 

State’s other attempts to cast doubt on Dr. Young’s declaration4 illustrate again 

why factual questions render dismissal inappropriate: Dr. Young is a trained 

pathologist, and the State’s attempts to challenge that conclusion amount to, at 

best, the educated guesses of a layperson. If the Court is to have a credible basis 

for evaluating Dr. Young’s conclusions and the new science they are based upon, 

an evidentiary hearing in the trial court is necessary. 

The State’s gripes with Dr. Squier’s declaration are even less compelling. 

First, the State attempts to show that Dr. Squier’s opinions regarding Shaken Infant 

Syndrome are not based on new science by pointing to a 1987 article cited in her 

declaration. But context matters, and one look at Dr. Squier’s declaration shows 

that she only cited that article to show that Dr. Burke’s testimony misrepresented a 

study that he mentioned at trial. See Application Ex. B. at 3 (“[Dr. Burke’s] 

testimony does not accurately reflect Duhaime’s study.”) In the preceding 

paragraph, however, Dr. Squier expresses her own opinion on the current state of 

scientific knowledge on Shaken Infant Syndromes, and there she cites to a 2012 

study that was clearly unavailable at the time of Mr. Vasquez’s 1999 trial. See

Application Ex. B. at 3. The State’s other criticism—i.e., that Dr. Squier’s 

opinions are based on “an unverified assumption that Vasquez . . . was telling the 

 4

 For example, by noting that “the dynamics and motions involved in falling from a swing 

or other movable playground equipment are different from those involv[ed] in falling from a 

stationary stool, as well as the nature of the surface or structure onto which the child fell.” State’s 

M. to Dismiss at 14. 
7 

truth about the sequence of events at the time of the injury,” State’s M. to Dismiss 

at 15—is highly misleading. As Dr. Squier’s declaration shows, her opinions were 

not based solely on Mr. Vasquez’s testimony but upon her review of copious 

evidence including “trial transcripts from the capital murder trial of Richard 

Vasquez and various exhibits from that trial, including the autopsy report of 

Miranda Lopez, a police report, Richard Vasquez’s statement to the police, 

voluminous medical records and photographs of Miranda Lopez.” Application Ex. 

B at 2. After she reviewed that evidence, and in light of her professional 

experience and the new science discussed in her report, she reached a conclusion 

that supports Mr. Vasquez’s innocence. The State cannot object to that conclusion 

based solely on the fact that it corroborates Mr. Vasquez’s story—otherwise, a 

claim for relief under Article 11.073 would be functionally impossible. Instead, 

the State’s criticisms of Dr. Squier’s report serve again to show why dismissal is 

inappropriate; cross-examination at an evidentiary hearing is the proper way to 

identify and challenge the bases of Dr. Squier’s expert opinions, not bare assertions 

of counsel in a motion to dismiss. 

The State does concede that Dr. Squier’s opinions regarding Second Impact 

Syndrome are based on new science. On that point, the State denies only that the 

new science on Second Impact Syndrome establishes that Mr. Vasquez’s strikes 

“were clearly insufficient to cause [Miranda’s] death.” State’s M. to Dismiss at 17. 
8 

Setting aside the fact that the State’s evaluation of scientific knowledge regarding 

Second Impact Syndrome should be presented to the trial court at an evidentiary 

hearing rather than to this Court on a motion to dismiss, the more fundamental 

problem with the State’s argument is that it relies on the wrong standard of proof. 

According to the State, Mr. Vasquez cannot maintain a claim for relief under 

Article 11.073 unless he presents evidence that clearly shows that the fall from the 

stool was the only possible explanation for Miranda’s death. See State’s M. to 

Dismiss at 16 (citing Tex. Pen. Code. Ann § 6.04(a), which deals with concurrent 

causation). But that is not the standard: at this stage Mr. Vasquez need only allege 

that “there is arguably relevant scientific evidence that contradicts scientific 

evidence relied on by the state at trial, and that evidence was not available at trial 

. . . ,” Ex parte Robbins, 2014 WL 6751684, at *8 (discussing the elements of a 

prima facie claim under Article 11.073), and to ultimately prevail on the merits of 

his claim under Article 11.073, Mr. Vasquez need only prove by a preponderance 

that he would not have been convicted of capital murder if the new evidence had 

been admitted at his trial, Tex Code. Crim. Pro. art 11.073(b)(2). (The prejudice 

standard for Mr. Vasquez’s unchallenged claim under Ex parte Chabot is even 

lower, requiring only a “reasonable likelihood that the false testimony affected 

[his] conviction or sentence,” Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. 

App. 2012).) Thus, the State’s assertion that its evidence against Mr. Vasquez 
9 

might not have been insufficient as a matter of law to prove causation is simply 

irrelevant; the question here is whether the new scientific evidence might have led 

the jury to a different conclusion on the question of capital murder. On that point, 

Mr. Vasquez’s application has pointed to compelling scientific evidence that shows 

he would not have been convicted of capital murder5

 and rebuts the State’s 

evidence on both causation and mens rea (the latter of which the State does not 

even attempt to address in its motion to dismiss). In light of that evidence, Mr. 

Vasquez is entitled to ultimately succeed on the merits of claim for habeas relief 

under Article 11.073. But at this stage, a decision on the merits would be 

premature, so the Court should deny the State’s motion to dismiss and remand Mr. 

Vasquez’s application to the trial court with instructions to hold an evidentiary 

hearing. 

III. Mr. Vasquez’s Motion to Stay 

Other than the substantive arguments addressed above, the State identifies 

no grounds for opposing Mr. Vasquez’s motion for a stay of execution pending a 

decision on the merits of his application. As discussed above, the State’s 

substantive arguments for dismissal all fail, so Mr. Vasquez’s motion to stay 

should be granted for the reasons set out in his motion and application. 

 5

 Despite the State’s generic references to murder, the question under Article 11.073 is 

whether Mr. Vasquez would have been convicted of capital murder rather than one of the lesser 

included offenses of murder or manslaughter. 
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IV. Conclusion 

 Accordingly, for the reasons set out above, the State’s motion to dismiss 

should be denied, and Mr. Vasquez’s motion for a stay of execution should be 

granted. 

Respectfully submitted, 

EDISON, MCDOWELL & HETHERINGTON 

LLP 

By: /s/ Andrew M. Edison 

 Andrew M. Edison 

 Texas Bar No. 00790629 

 James M. Chambers 

 Texas Bar No. 24092240 

Phoenix Tower 

3200 Southwest Freeway, Suite 2100 

Houston, Texas 77027 

Telephone: (713) 337-5580 

Facsimile: (713) 337-8850 

andrew.edison@emhllp.com 

james.chambers@emhllp.com 

 

ATTORNEYS FOR RICHARD VASQUEZ, JR.

 
11 

CERTIFICATE OF SERVICE 

 I hereby certify that a copy of this motion has been served on April 20, 2015, 

by email to the following: 

Douglas K. Norman 

Nueces County District Attorney’s Office 

901 Leopard Street, Room 206 

Corpus Christi, TX 78401 

douglas.norman@nuecesco.com 

douglas.norman@co.nueces.tx.us 

Matthew Ottoway 

Office of the Attorney General 

PO Box 12548 

Austin, TX 78711 

matthew.ottoway@texasattorneygeneral.gov 

 /s/ Andrew M. Edison 

 Andrew M. Edison