IN THE 

COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

EX PARTE § 

 § 

 § NO. WR-73,484-02

 § 

NEAL HAMPTON ROBBINS § 

____________________________________________________ 

AMICUS CURIAE BRIEF 

OF THE INNOCENCE PROJECT 

____________________________________________________ 

BARRY C. SCHECK 

NY Bar Number: 1634765 

BRYCE BENJET 

TX Bar Number: 24006829 

THE INNOCENCE PROJECT 

40 WORTH STREET 

SUITE. 701 

NEW YORK, NEW YORK 10013 

(212) 364-5340 

(212) 364-5341 FAX 

Attorneys for Amicus Curiae 

WR-73,484-02

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/1/2015 5:22:49 PM

Accepted 6/2/2015 8:06:32 AM

ABEL ACOSTA

CLERK
i

TABLE OF CONTENTS

Page

Table of Contents ............................................................................................i 

Index of Authorities ...................................................................................ii-iv

Interests of Amicus Curiae .............................................................................2 

A. Article 11.073 Creates a Needed Remedy Where a Criminal 

Conviction Is Based on Unreliable Scientific Evidence ......................3 

1. Unreliable Scientific Evidence Is a Leading Cause of

Wrongful Convictions ...............................................................3

2. Article 11.073 Represents a Broad Legislative

Response to the Problem of Unreliable Scientific

Evidence ....................................................................................7 

B. Article 11.073 Applies to Dr. Moore’s Changed Medical 

Opinion ................................................................................................9 

C. Article 11.073 Balances the Interests of Finality and 

Accuracy in Criminal Cases ...............................................................14 

Conclusion and Prayer .................................................................................15 

Certificate of Service ...................................................................................17 

Certificate of Compliance ............................................................................18
ii

INDEX OF AUTHORITIES

Cases Page

Brooks v. State, 

323 S.W.3d 893 (Tex. Crim. App. 2010) .......................................................7 

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005) ..........................................................................8

Coble v. State, 

330 S.W.3d 253 (Tex. Crim. App. 2010) .......................................................5 

Daubert v. Merrell Dow Pharm., Inc., 

509 U.S. 579 (1993) ...................................................................................6, 8

Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 

557 U.S. 52 (2009) .......................................................................................15

Ex Parte Brooks, 

219 S.W.3d 396 (Tex. Crim. App. 2007) .................................................7, 15

Ex Parte Calderon, 

309 S.W.3d 64 (Tex. Crim. App. 2010) .......................................................11

Ex Parte Robbins, No. WR-73,484-02, 2014 WL 6751684, 

(Tex. Crim. App. November 26, 2014) .................................................Passim 

Ex Parte Coty, 

418 S.W.3d 597 (Tex. Crim. App. 2014) .......................................................4 

Jelinek v. Casas, 

328 S.W.3d 526 (Tex. 2010) ..........................................................................8 

Kelly v. State, 

824 S.W.2d 568 (Tex. Crim. App. 1992) .......................................................8 

Rosen v. Ciba Geigy Corp.,

78 F.3d 316 (7th Cir. 1996) ............................................................................8 
iii

Schlup v. Delo, 

513 U.S. 298 (1995) .....................................................................................15 

Watson v. State, 

204 S.W.3d 404 (Tex. Crim. App. 2006) .......................................................7 

Winfrey v. State, 

323 S.W.3d 875 (Tex. Crim. App. 2010) .......................................................8

Codes and Rules

Tex. Code Crim. Proc. Art. 11.073 .......................................................Passim 

Tex. R. Evid. 702 .....................................................................................8, 14 

Legislative History

House Comm. On Crim. Jurisprudence, Bill Analysis, 

84th Leg. R.S. (bill heard on April 22, 2015) ................................................13

H.J. of Tex. 83rd Leg., R.S. 3407-08 (2013) .................................................12 

H.J. of Tex. 84th Leg., R.S. 2984 (2015) ......................................................13 

S.J. of Tex. 83rd Leg., R.S. 588 (2013) .........................................................12 

S.J. of Tex. 84th Leg., R.S. 1884 (2015) .......................................................13

Senate Research Center, Bill Analysis, 

Tex. H.B. 3724, 84th Leg. R.S. (May 15, 2015) ...........................................13

Witness List, Senate Committee on Criminal Justice, 

Tex. S.B. 344, 83rd Leg. R.S. (March 12, 2013) ..........................................11

Published Reports and Articles

Brian Rogers, Ex-Crime Lab Analyst Told HPD Colleagues of 

Wrongdoing, Houston Chronicle (June 25, 2014) .........................................4
iv

David L. Faigman, The Daubert Revolution and the Birth of 

Modernity: Managing Scientific Evidence in the Age of Science, 

46 U.C. Davis L. Rev. 893, 928 (2013) .........................................................8

Hon. Donald E. Shelton et. al., A Study of Juror Expectations 

and Demands Concerning Scientific Evidence: Does the 

"CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006) ..................5

Michael R. Bromwich, Final Report of the Independent Investigator 

 for the Houston Police Department Crime Laboratory and 

Property Room (June 13, 2007) .....................................................................4

National Research Council of the National Academies, Strengthening 

Forensic Science in the United States: A Path Forward (2009) ................3, 6

Simon A. Cole & Rachel Dioso-Villa, Investigating the 

"CSI Effect' Effect: Media and Litigation Crisis in Criminal Law, 

61 Stan. L. Rev. 1335, 1351-52 (2009) ..........................................................5

Strengthening Forensic Science, NACDL Austin, Texas (2010) ...................6 

Texas Criminal Justice Integrity Unit 2009 Annual Report of Activities.......5
1

IN THE 

COURT OF CRIMINAL APPEALS 

AUSTIN, TEXAS 

EX PARTE § 

§ 

§ NO. WR-73,484-02

§ 

NEAL HAMPTON ROBBINS § 

____________________________________________________ 

AMICUS CURIAE BRIEF 

OF THE INNOCENCE PROJECT 

____________________________________________________ 

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL 

APPEALS: 

NOW COMES The Innocence Project and submits this Amicus 

Curiae Brief in the above styled and numbered case. The Innocence Project 

submits this Brief in support of the Applicant Neal Robbins because the 

proper construction of Article 11.073 is vital to ensuring an avenue for relief 

where faulty scientific evidence has led to a wrongful 

conviction. Consistent with the clear legislative history and the plain 

language of the statute, this Court should confirm that Article 11.073 applies 

to cases, like Robbins, where the scientific evidence relied on by the State is 

contradicted by a new and credible scientific opinion.
2

Interest of Amicus Curiae

The Innocence Project, Inc. is a nonprofit legal clinic and resource 

center created by Barry C. Scheck and Peter J. Neufeld. Founded at the 

Benjamin N. Cardozo School of Law in 1992, the Innocence Project 

provides pro bono legal services to indigent prisoners for whom postconviction DNA testing of evidence can yield conclusive proof of 

innocence. The Innocence Project pioneered the post-conviction DNA 

litigation model that has to date exonerated 329 innocent persons, and served 

as counsel or provided critical assistance in a majority of these cases.

The advent of forensic DNA testing and the use of such testing to 

review criminal convictions have provided scientific proof that our system 

convicts innocent people, and that wrongful convictions are not isolated or 

rare events. DNA testing has, thus, opened a window into wrongful 

convictions so that we may study the causes of this injustice and recommend 

practices to minimize the chance of its occurrence. In roughly half of the 

329 recognized DNA exonerations, the misapplication of forensic science 

has played a role in convicting the innocent. In these cases, forensic 

scientists presented fraudulent, exaggerated, or otherwise unreliable 

scientific evidence which was relied on by the judge or jury resulting in a 

wrongful conviction. Because of this background, the Innocence Project 
3

has a particularly strong interest in ensuring that forensic evidence used to 

obtain convictions is both accurate and reliable. This interest is directly 

implicated in the construction of Article 11.073 of the Texas Code of 

Criminal Procedure at issue in Mr. Robbins’s case. 

A. Article 11.073 Creates a Needed Remedy Where a Criminal 

Conviction is Based on Unreliable Scientific Evidence.

1. Unreliable Scientific Evidence Is a Leading Cause of 

Wrongful Convictions.

The Texas Legislature enacted Article 11.073 against the backdrop of 

a growing recognition that unreliable scientific evidence has led to wrongful 

convictions. See Ex parte Robbins, No. WR-73,484-02, 2014 WL 6751684,

* 14-17 (Tex. Crim. App. November 26, 2014) (Cochran, J., concurring) 

(Robbins II).1 In some cases, entire scientific disciplines have been either 

superseded or discredited by advancements in science. See id. (discussing 

discredited disciplines including arson investigation, toolmark evidence, 

bullet lead analysis, microscopic hair analysis, forensic odontology); see 

also generally National Research Council of the National 

Academies, Strengthening Forensic Science in the United States: A Path 

Forward (2009) (“NAS Report”). However, Texas has also been plagued by 

instances in which forensic experts employed by government crime 

 

1

Page references in the Robbins II opinion will be made to the Westlaw publication, a copy of which is 

attached as an appendix to this Brief.
4

laboratories provided unreliable scientific evidence arising from perfectly 

valid scientific disciplines. These cases have ranged from instances of 

incompetence and sloppy forensic work to outright fraud. See e.g. Michael 

R. Bromwich, Final Report of the Independent Investigator for the Houston 

Police Department Crime Laboratory and Property Room (June 13, 2007) 

(discussing pervasive problems in HPD crime lab, particularly systemic 

misapplication and misunderstanding of serology tests); Brian Rogers, ExCrime Lab Analyst Told HPD Colleagues of Wrongdoing, Houston 

Chronicle (June 25, 2014) (HPD lab analyst who worked on 51 murder cases 

accused of lying, improper procedure, and tampering); Ex parte Coty, 418 

S.W.3d 597, 598 (Tex. Crim. App. 2014) (describing misconduct by DPS 

crime lab employee in falsifying drug test). 

This Court has also acknowledged the great weight jurors place on 

scientific evidence (especially from medical doctors), and that jurors tend to 

defer to an expert’s credentials rather than content when the scientific 

opinions offered are complex:

studies have shown that juror reliance on an expert's credentials 

is directly proportional to the complexity of the information 

represented: the more complex the information, the more the 

jury looks to the background, experience, and status of the 

expert himself rather than to the content of his testimony. There 
5

is also some evidence that jurors value medical expertise higher 

than other scientific expertise . . . .

Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010). Studies also 

show that jurors have grown to expect scientific evidence in criminal cases, 

thus adding pressure on prosecutors to present scientific evidence even when 

its reliability may be in question. See Hon. Donald E. Shelton et. al., A 

Study of Juror Expectations and Demands Concerning Scientific Evidence: 

Does the "CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006) 

(discussing high expectation of jurors for scientific evidence); Simon A. 

Cole & Rachel Dioso-Villa, Investigating the "CSI Effect' Effect: Media and 

Litigation Crisis in Criminal Law, 61 Stan. L. Rev. 1335, 1351-52 (2009)

(describing survey showing prosecutors requested additional forensic tests 

based on the perception that jurors have heightened expectations for forensic 

proof).

Despite the importance of scientific evidence to juries and its role in 

wrongful convictions, this Court’s Criminal Justice Integrity Unit reported in 

2009 that half of the criminal law judges in Texas—the gatekeepers for 

reliability— “received zero hours of forensic science training last year, and 

many judges requested additional training on the standards for reliability of 

scientific evidence.” See Texas Criminal Justice Integrity Unit 2009 Annual 

Report of Activities at 6. The same deficiencies were recognized by the 
6

National Association of Criminal Defense Lawyers in a 2010 report issued 

from Austin, Texas which acknowledged that all legal professionals, 

including defense lawyers who are tasked with challenging unreliable 

scientific evidence, “generally lack the scientific expertise necessary to 

comprehend and evaluate forensic evidence in an informed manner.” 

Strengthening Forensic Science, NACDL Austin, Texas (2010); see also 

NAS Report at 12. 

The Supreme Court acknowledged the double-edged character of 

scientific evidence which can both illuminate and confuse: 

Expert evidence can be both powerful and quite misleading 

because of the difficulty in evaluating it. 

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786, 

2798, 125 L. Ed. 2d 469 (1993). Considering the importance placed on 

scientific evidence by juries and the risk that such evidence can be 

misleading, it is no wonder that unreliable scientific evidence has lead to 

wrongful convictions. A review of the 329 recognized DNA exonerations 

shows that unreliable forensic science contributed to 47% of wrongful 

convictions.2

 Among the 1606 exonerations recognized by the National 

2

http://www.innocenceproject.org/causes-wrongful-conviction (last visited 5/28/15) 
7

Registry of Exonerations, 23% involved false or misleading forensic 

science.3

 

2. Article 11.073 Represents a Broad Legislative Response to

the Problem of Unreliable Scientific Evidence.

Judge Cochran’s concurring opinion identifies two cases which led to 

the enactment of Article 11.073 by the 83rd Legislature. In Robbins I and 

Ex parte Henderson, seven members of this Court agreed that “Texas law 

lacked clarity in dealing with instances in which critical scientific evidence 

supporting the conviction—either the scientific filed itself or the expert’s 

original opinion—had been discredited.” Robbins II at *19. In addition to 

the specific calls for reform in the cases dealing with unreliable scientific 

evidence identified by Judge Cochran above, members of this Court also 

anticipated Legislative action where this Court’s dedication to jury deference 

and “hard minded application of standards of review”4

 could result in 

wrongful convictions. See Watson v. State, 204 S.W.3d 404, 449 (Tex. 

Crim. App. 2006) (Cochran, J., dissenting joined by Keller, C.J., and JJ., 

Keasler and Hervey) (advocating for abandonment of factual sufficiency 

3

https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last 

visited 5/28/15). 

4Brooks v. State, 323 S.W.3d 893, 923 (Tex. Crim. App. 2010) (Cochran, J., concurring). 
8

review and explaining that concerns about manifestly unjust convictions 

could be handled through legislative action).5

 

While our rules of evidence encourage the consideration of relevant 

and reliable scientific evidence pursuant to Rule 702, courts have also noted 

that judges are not well equipped to correctly evaluate difficult issues of 

science. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599 

(1993) (Rehnquist, C.J., and Stevens, J., concurring and dissenting) 

(Daubert factors involve consideration of issues “far afield from the 

expertise of judges”); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 

1996) (“it is a daunting task for judges who do not have a scientific 

background (and most do not) to decide whether a scientist's testimony is 

real science or not”); Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim. App. 

5

 The need for a safety valve to remedy invalid scientific evidence in criminal cases is highlighted when 

contrasted to the greater scrutiny afforded to such evidence in the civil context. Studies have documented 

that civil courts are generally more rigorous in screening out questionable scientific proof. See David L. 

Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of 

Science, 46 U.C. Davis L. Rev. 893, 928 (2013) (reviewing research comparing civil and criminal court 

decisions on admissibility of scientific evidence). This different approach is evident in Texas law as well. 

For example, the Texas Supreme Court has barred any consideration of unsupported scientific evidence 

even absent an objection: 

[I]f no basis for the opinion is offered, or the basis offered provides no support, the 

opinion is merely a conclusory statement and cannot be considered probative evidence, 

regardless of whether there is no objection. ‘[A] claim will not stand or fall on the mere 

ipse dixit of a credentialed witness.’ ” 

Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010); see also City of Keller v. Wilson, 168 S.W.3d 802, 812-

13 (Tex. 2005) (invalid expert testimony “incompetent” and should be disregarded in sufficiency of the 

evidence analysis). By contrast, this Court’s review of judgments based on unsupported expert testimony 

has been more lenient, even when finding the evidence to be insufficient. See, e.g., Winfrey v. State, 323 

S.W.3d 875, 885 (Tex. Crim. App. 2010) (declining to examine validity of dog scent lineup absent 

objection at trial and finding such evidence to raise “strong suspicion of guilt” that, despite its unproven 

reliability, can support a conviction when corroborated by other evidence). 
9

1992) (Clinton, J., dissenting) (expressing concern that incorrect decision 

admitting unreliable science will result in injustice and that Texas criminal 

justice system lacks procedures to meaningfully test scientific evidence). In 

recognition of this unique vulnerability in cases involving scientific 

evidence, Article 11.073 creates a safety valve for criminal convictions 

based on scientific evidence presented at trial that is now undermined by 

either advancements in science or additional scientific evidence that 

contradicts that relied on by the State.

B. Article 11.073 Applies to Dr. Moore’s Changed Medical Opinion.

Consistent with the two-fold problem of “bad science” and “bad 

scientific testimony”6 which has led to wrongful convictions, the lead 

section of Article 11.073 identifies two distinct types of evidence that can 

form the basis for relief under this statutory new trial remedy: 

(1)scientific evidence that was not available to be offered at trial; or

(2)scientific evidence that contradicts the scientific evidence relied on by 

the State at trial.

Section (a)(1), which focuses on evidence unavailable at trial, encompasses 

the “bad science” category. For example, advancements in scientific 

technology such as the advent of forensic DNA testing and other more 

 

6 Robbins II at *15 (“it is not surprising to see ‘bad’ science and ‘bad’ scientific testimony in our 

courtrooms”)
10

powerful modern forensic tools developed after a conviction would fall into 

this category. This category would also include advances within a scientific 

field such as the methods of arson investigation or the understanding of 

biomechanics. 

Section (a)(2) encompasses a separate category of evidence, scientific 

evidence which “contradicts” the scientific evidence relied on by the State at 

trial. Tex. Code Crim. Proc. Art. 11.073 § (a)(2). The Legislature’s use of 

“or” indicates that the contradicting evidence discussed in section (a)(2) 

means something different from that referred to in section (a)(1). Although 

the full breadth of section (a)(2) need not be determined in this case, Dr. 

Moore’s changed medical opinion clearly falls within it because her current 

opinion contradicts, and, so necessarily discredits, the expert opinion she 

offered at trial.

Dr. Moore’s changed medical opinion likewise meets the requirement 

under section (b)(1)(A) that the scientific evidence was “not ascertainable 

through the exercise of reasonable diligence by the convicted person.” At 

Mr. Robbins’s 1999 trial, Dr. Moore testified that it was her medical opinion 

that Tristen Rivet died from compression asphyxia—a homicide. See

Robbins II at *3. Because Tristen was in Mr. Robbins’s sole care at the 
11

time, he was convicted of murder. Id. at *4. In 2007, Dr. Moore 

contradicted this opinion to acknowledge that the cause of death was 

“undetermined.” See id. *5. This was the first time that Dr. Moore had 

expressed her changed opinion, and Mr. Robbins acting with reasonable 

diligence could not have ascertained that Dr. Moore would change her 

opinion prior to the time that she expressed this opinion. Cf Ex parte 

Calderon, 309 S.W.3d 64, 70 (Tex. Crim. App. 2010) (witness recantation 

not available through exercise of due diligence where recantation was 

unknown to defendant). 

This construction of the plain language of the statute is supported by 

the legislative history of Article 11.073 in the 83rd Legislature. The need for 

a law to address Mr. Robbins’s case was discussed in committee by counsel 

for Mr. Robbins as well as the former Montgomery County District Attorney 

who handled the Robbins prosecution and initial post-conviction. See 

Robbins II at *27 (Keasler, J., dissenting). There was no opposing view 

expressed at that hearing or any other legislative forum, despite the presence 

of a representative of the Texas District and County Attorneys Association 

who registered “on” the bill but did not testify. See Witness List, Senate 

Committee on Criminal Justice, Tex. S.B. 344, 83rd Leg. R.S. (March 12, 

2013). No representative of Montgomery County voted against the bill, 
12

which passed unanimously in the House and with only three “nays” in the 

Senate. See S.J. of Tex. 83rd Leg., R.S. 588 (2013); H.J. of Tex. 83rd Leg., 

R.S. 3407-08 (2013). 

Any question as whether the 83rd Legislature intended for Article 

11.073 to apply to the facts of Mr. Robbins’s case has been resolved by the 

84th Legislature’s recent passage of a bill intended to codify this Court’s 

decision which is currently on rehearing. HB 3724 was expressly intended 

to codify this Court’s November 26, 2014 decision in Mr. Robbins’s case. 

The Bill Analysis produced in the Senate makes this unmistakably clear: 

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

H.B. 3724 codifies a recent Court of Criminal Appeals decision 

within the discredited Forensic Science Law that I authored and 

we passed last session. The decision held that a defendant may 

have their convictions reexamined if an expert who testified at 

the defendant's trial later rejects the testimony, casting doubt on 

the integrity of the conviction. 

• This addition is to the current law allowing an individual to

challenge their convictions if they are based on debunked or 

otherwise discredited scientific evidence that was used in their 

trial. It was passed after an alarming number of wrongful 

convictions that resulted from "junk science" and "junk 

scientists." 

• A recent case in the Court of Criminal Appeals tested

whether the law applies in cases where a scientific expert 

sincerely thought something was true at the time the expert 

testified, but the expert's understanding and opinions changed 
13

after trial based on new knowledge and improvements to the 

science that had supported the expert’s former opinion.

H.B. 3724 simply codifies the recent court decisions and 

clarifies that the legislative intent in enacting Article 11.073 

included not only discredited science but also the testimony that 

was based on discredited science. 

Senate Research Center, Bill Analysis, Tex. H.B. 3724, 84th Leg. R.S. (May 

15, 2015). The Bill Analysis by the House Committee on Criminal 

Jurisprudence likewise expresses the original intent of Article 11.073 to 

encompass the facts of Mr. Robbins’s case:

BACKGROUND AND PURPOSE 

 Informed observers note that current law allows for the 

reexamination of certain cases based on new scientific evidence 

and requires a court, in finding whether new scientific evidence 

exists, to consider whether the scientific knowledge or method 

on which the relevant scientific evidence is based has changed. 

The observers contend that a recent Texas Court of Criminal 

Appeals opinion held that a change in the scientific knowledge 

of a testifying expert would be a basis for habeas relief under 

the law. C.S.H.B. 3724 seeks to codify this decision. 

House Comm. On Crim. Jurisprudence, Bill Analysis, 84th Leg. R.S. (bill 

heard on April 22, 2015). With this unambiguous statement of legislative 

intent, HB 3724 was passed unanimously in the Senate and with only three 

“nay” votes in the House. See S.J. of Tex. 84th Leg., R.S. 1884 (2015); H.J. 

of Tex. 84th Leg., R.S. 2984 (2015). All of the elected representatives of 

Montgomery County voted in favor of the bill. See id. 
14

Considering (1) the plain language of Article 11.073, (2) the 

unambiguous statement of the legislative intent in the Senate committee 

hearing on SB 344 before the 83rd Legislature, and (3) and the passage of 

HB 3724 by the 84th Legislature, there is simply no question that the statute 

applies to Dr. Moore’s changed testimony in Mr. Robbins’s case. 

C. Article 11.073 Balances the Interests of Finality and Accuracy in 

Criminal Cases.

The Legislature’s decision to provide a remedy in cases involving 

both changed science and the changed opinion of a scientist strikes a balance 

between the interests in the finality of criminal convictions and the need to 

remedy wrongful convictions. The statute applies to a broad category of 

scientific evidence, but that scientific evidence has to be admissible. See

Tex. Code Crim. Proc. Article 11.073(b)(1)(B). This admissibility 

requirement carries with it an independent gate-keeping inquiry by the trial 

court to ensure that any new scientific evidence presented under the law is 

reliable and relevant to the case. See Tex. R. Evid. 702. Thus, an expert 

can’t simply change her opinion on a whim—there must be a valid scientific 

underpinning to the new opinion or other scientific evidence. A changed but 

unreliable new opinion from an expert could hardly be the basis for 

changing the outcome of a case. 
15

Furthermore, the statute limits relief to those few cases in which the 

new scientific evidence would “probably” change the outcome of the case. 

Although this standard is short of the Elizondo “clear and convincing” test 

for innocence, evidence establishing that a person would probably not have 

been convicted is universally equated with a miscarriage of justice. See 

Schlup v. Delo, 513 U.S. 298, 315 (1995) (evidence that defendant probably 

would not have been convicted brings case within narrow class of cases 

implicating miscarriage of justice); Ex parte Brooks, 219 S.W.3d 396, 400 

(Tex. Crim. App. 2007) (same). Accordingly, Article 11.073 will not result 

in the reversal of every conviction involving discredited scientific evidence. 

The finality of a conviction is only disturbed in the rare instances when 

unreliable scientific evidence was “probably” the reason a defendant was 

convicted. 

Conclusion and Prayer 

Advancements in science have, in large part, brought greater 

reliability to the criminal justice system both in convicting the guilty and 

exonerating the innocent. See Dist. Attorney's Office for Third Judicial Dist. 

v. Osborne, 557 U.S. 52, 55 (2009). But experience shows that scientists

can and do get it wrong. The recent passage of HB 3724 by supermajorities 

in both the Texas House and Senate confirms the intent that Article 11.073 
16

encompass a scientist’s changed opinion when (1) the retracted opinion is 

reliable and (2) the retracted scientific evidence was the primary evidence of 

a person’s guilt, is consistent with the stated legislative intent of Article 

11.073. The Innocence Project therefore asks this Court to uphold the intent 

of the People of Texas to ensure that only the best available science is used 

to convict; and where convictions are found to have been based on 

unreliable scientific evidence, courts have the tools necessary to remedy a 

miscarriage of justice. 

Respectfully submitted,

______________________________ 

BARRY C. SCHECK

NY Bar Number: 1634765

BRYCE BENJET

TX Bar Number: 24006829 

THE INNOCENCE PROJECT

40 WORTH STREET 

SUITE. 701

NEW YORK, NEW YORK 10013

(212) 364-5340

(212) 364-5341 FAX
17

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the 

foregoing Amicus Curiae Brief by the Innocence Project was mailed by 

Federal Express to the Montgomery County District Attorney’s Office, 

207 W. Phillips Flr. 2, Conroe, Texas 77301, and Brian Wice, Attorney for 

Applicant Neal Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite 

900, Houston, Texas 77002-1635, on this the 1st day of June, 2015. This 

brief was also e-filed pursuant to the applicable rules of the Court of 

Criminal Appeals. 

/s/ Bryce Benjet_________________

BRYCE BENJET 
18

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. Proc. 9.4(e)(i)(2), undersigned counsel 

certifies that this brief complies with the type-volume limitations of Tex. R. 

App. P. 9.4(e)(i)(2). 

1. This brief complies with the type-volume limitation of Tex. R. App.

P. 9.4(e)(i)(2) because this brief contains 3,732 words, excluding the parts of 

the brief exempted by Tex. R. App. P. 9.4(e)(i)(2). 

2. This brief complies with the typeface requirements of Tex. R. App. P.

9.4(e) and the type style requirements of Tex. R. App. P. 9.4(e) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft 

Word in 14 point Times New Roman. 

/s/ Bryce Benjet_________________

BRYCE BENJET 
APPENDIX A 
Ex Parte Robbins, --- S.W.3d ---- (2014)

2014 WL 6751684

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 6751684 

Only the Westlaw citation is currently available. 

NOTICE: THIS OPINION HAS NOT BEEN 

RELEASED FOR PUBLICATION IN THE 

PERMANENT LAW REPORTS. UNTIL RELEASED, 

IT IS SUBJECT TO REVISION OR WITHDRAWAL. 

Court of Criminal Appeals of Texas. 

Ex Parte Neal Hampton Robbins, Applicant 

NO. WR–73,484–02 | Delivered November 26, 2014 

| Rehearing Granted May 13, 2015 

Synopsis 

Background: After conviction and life sentence for capital 

murder were affirmed on direct appeal, 88 S.W.3d 256, 

and initial application for writ of habeas corpus was 

denied, 2013 WL 6212218, defendant filed second 

application for habeas relief, based on new scientific 

evidence that was not available at time of trial. The 410th 

District Court, Montgomery County, recommended the 

grant of new trial. 

Holdings: The Court of Criminal Appeals, Womack, J., 

held that: 

[1] medical examiner’s revised opinion that cause and 

manner of child victim’s death were “undetermined,” was 

new scientific evidence that contradicted scientific 

evidence relied upon by State at trial; 

[2] medical examiner’s revised opinion was new scientific 

evidence based on change of scientific knowledge that was 

not available at time of original habeas application; and 

[3] defendant would not have been convicted of capital 

murder if new evidence had been made available at trial, as 

grounds for successive habeas relief. 

Writ issued; judgment of conviction and sentence vacated; 

remanded. 

Johnson, J., filed concurring opinion. 

Cochran, J., filed concurring opinion in which Johnson and 

Price, JJ., joined. 

Keller, P.J., filed dissenting opinion in which Hervey, J., 

joined. 

Meyers, J., filed dissenting opinion. 

Keasler, J., filed dissenting opinion. 

West Headnotes (5) 

[1] Habeas Corpus

Newly discovered evidence

Medical examiner’s post-trial reconsideration of 

initial conclusion from autopsy that cause of 

child victim’s death was asphyxia by 

strangulation and that manner of death was 

homicide, following which she concluded that 

cause and manner of death were “undetermined,” 

was new scientific evidence that contradicted 

scientific evidence relied upon by State at trial 

which was not available at time of original 

application, as basis for obtaining successive 

habeas review. Tex. Crim. Proc. Code Ann. art. 

11.073(a)(2).

Cases that cite this headnote

[2] Habeas Corpus

Change in facts or law; new evidence

The Court of Criminal Appeals may consider a 

subsequent habeas 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 because the factual or legal basis for 

the claim was unavailable on the date the 

applicant filed the previous application.

Cases that cite this headnote
Ex Parte Robbins, --- S.W.3d ---- (2014)

2014 WL 6751684

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

[3] Habeas Corpus

Newly discovered evidence

An applicant seeking habeas relief based on 

newly available scientific evidence that was not 

available at trial must establish that the facts he 

alleges are at least minimally sufficient to bring 

him within the ambit of that legal basis for relief. 

Tex. Crim. Proc. Code Ann. art. 11.073.

Cases that cite this headnote

[4] Habeas Corpus

Newly discovered evidence

Medical examiner’s post-trial revision of her 

original conclusion to which she testified at trial 

for capital murder that cause of child victim’s 

death was asphyxia by strangulation and that 

manner of death was homicide to state that, while 

suspicious, both cause and manner of victim’s 

death were “undetermined,” which revised 

opinion was based on review of medical evidence 

and more experience in field, was new scientific 

evidence based on change of scientific 

knowledge that was not available at time of 

original habeas application, as grounds for 

obtaining successive habeas review. Tex. Crim. 

Proc. Code Ann. art. 11.073.

Cases that cite this headnote

[5] Habeas Corpus

Newly discovered evidence

Medical examiner’s post-trial revision of her 

original conclusion to which she testified at trial 

for capital murder that cause of child victim’s 

death was asphyxia by strangulation and that 

manner of death was homicide to state that, while 

suspicious, both cause and manner of victim’s 

death were “undetermined,” was sufficient to 

show that defendant would not have been 

convicted of capital murder if such evidence had 

been made available at trial, as grounds for 

habeas relief, setting aside conviction and 

sentence, and remanding for new trial, where 

medical examiner’s trial testimony was only 

evidence presented by State to show that victim’s 

death was homicide. Tex. Crim. Proc. Code Ann. 

art. 11.073.

Cases that cite this headnote

ON APPLICATION FOR A WRIT OF HABEAS 

CORPUS FROM MONTGOMERY COUNTY

Attorneys and Law Firms

Brian W. Wice, Attorney at Law, Houston, TX, for 

Applicant.

William J. Delmore III, Assistant District Attorney, 

Conroe, TX, for the State.

Opinion

Womack, J., delivered the opinion of the Court, in which 

Price, Johnson, Cochran, and Alcala, JJ., joined. Johnson, 

J., filed a concurring opinion.

*1 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.1

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.2

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 
Ex Parte Robbins, --- S.W.3d ---- (2014)

2014 WL 6751684

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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 seeking 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 seem to care too much for [Applicant] anymore” 

and seemed afraid of him. Tristen’s injuries and change 

in behavior led neighbor Rhonda Bethune and babysitter 

Helen McDaniel3to 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.

*2 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 Tristen 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 Tristen’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 
Ex Parte Robbins, --- S.W.3d ---- (2014)

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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 statement 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 

Tristen 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.

*3 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 Tristen’s temperature with a rectal 

thermometer, which continued to display its lowest 

possible 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 

Tristen’s legs, which were consistent with normal 

childhood injuries. She also observed five irregularly 

shaped, purple bruises on Tristen’s back, ranging 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 Tristen’s 

back with a scalpel and found hemorrhages down to the 

level of deep subcutaneous tissue. When examining 

Tristen’s 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 Tristen’s 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 Tristen’s 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 Tristen’s 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 petechiae on the back of the thymus and 

lungs indicated an asphyxia-related death. Moore ruled 

out CPR as the 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 
Ex Parte Robbins, --- S.W.3d ---- (2014)

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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.

*4 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 

“non-specific 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 Tristen’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.

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 Curry, 

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 activity 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 Tristen’s 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 
Ex Parte Robbins, --- S.W.3d ---- (2014)

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Tristen’s death was a homicide, but the trial court denied 

the motion.

*5 ...

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 Tristen’s death. The deputy chief 

medical examiner for 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 Tristen’s 

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 Tristen’s 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 

information 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 original application 

for a writ of habeas corpus 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 case 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 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.”

*6 The same day, Applicant and the State filed agreed 

findings of fact and conclusions of law. But instead of 

signing 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]lthough the autopsy 

performed by Dr. Moore was thorough and well 

documented, her conclusion that the death of Tristen 
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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 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 

Tristen’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.

*7 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.7Instead, on December 17, 2009, 

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 
Ex Parte Robbins, --- S.W.3d ---- (2014)

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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 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

*8 This Court denied the applicant’s original application

for writ of habeas corpus.10 On September 3, 2013, the 

applicant filed a subsequent application for writ of habeas 

corpus pursuant to article 11.073 of the Texas Code of 

Criminal Procedure. The trial court recommended that 

relief be granted, and the State objected to its findings and 

recommendations. We ordered that the application be filed 

and set for submission. 

Subsequent Application for Writ of Habeas Corpus 

[1] [2]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 application....”11

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 appellate 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 
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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.”13 This 

Court held in the applicant’s first habeas proceeding that 

his claim did not satisfy the requirements for either actual 

innocence or false testimony.14

Article 11.073 provides a new legal basis for habeas relief 

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. 

[3]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.”15 In this case the 

applicant has alleged prima facie facts in his application 

sufficient to invoke the new law—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 because Moore re-evaluated her 

opinion after trial. Although similar information was 

presented by a defense expert at trial, Dr. Bux, the 

evidence at issue is the State’s evidence regarding cause of 

death, which has been contradicted. 

*9 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 entitled 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).16

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.”17Article 11.073 (d)(1) and (2) provide guidance to 

the Court in how to make this determination: 

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: 

(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 “[t]he process of generating 

hypotheses and testing them through experimentation, 

publication, and republication.”18

[4]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 case 

like this have changed in the scientific community, as have 

other areas of science recently considered by this Court.19

The remaining question before this Court is whether the 

“scientific knowledge ... on which the relevant scientific 

evidence is based has changed” (emphasis added). 
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Moore’s conclusion certainly has changed, but does 

“scientific knowledge” apply to the knowledge of an 

individual?

*10 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

Moore’s opinion at trial on the cause of death was 

admissible scientific evidence, based on inferences derived 

from the scientific method. Dr. Wheeler, Chairman of the 

Department of Pathology at Baylor College of Medicine, 

stated in his letter to the trial court that “the autopsy 

performed by Dr. Moore was thorough and well 

documented,” but her original conclusion was not 

supported by the autopsy.22

Her new opinion that the cause of death is “undetermined,” 

which the applicant argues is the “change in scientific 

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-evaluated opinion was 

available at trial because the same information was 

presented by the defense through Dr. Bux. We disagree. 

The relevant evidence is the State’s evidence on Tristen’s 

cause of death. It has changed. Moore’s re-evaluated 

opinion on cause of death contradicts the evidence relied 

on by the State at trial and was not available 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.

*11 [5]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.

Johnson, J., filed a concurring opinion.
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Cochran, J., filed a concurring opinion, in which Price and 

Johnson, JJ., joined.

Keller, P.J., filed a dissenting opinion, in which Hervey, J., 

joined.

Meyers, J., filed a dissenting opinion.

Keasler, J., filed a dissenting opinion.

Johnson, J., filed a concurring opinion.

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 were 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 possible explanation 

of that phenomenon-and testing of that possible 

explanation to see if the phenomenon is indeed explained 

by that theory. For example, in the 18 th century, 

inoculation against smallpox used the live smallpox virus 

itself, producing a high risk of contracting the disease and 

dying. Dr. Edward Jenner, among others, observed that 

milk maids who had suffered through cowpox, a relatively 

mild disease, did not contract small pox. His theory was 

that having had cowpox protected one against smallpox. 

He tested his theory by inoculating 24 subjects with pus 

from the cowpox blisters on a local milkmaid and then 

exposing those persons to smallpox. None of his subjects 

developed smallpox, thus verifying his theory. A quirk of 

the scientific method is that, even after the theory has been 

thoroughly tested and proven to be an accurate explanation 

of the observed phenomenon, it is still referred to as a 

theory, as in “the theory of gravity,” even though the 

“theory” has become universally accepted as fact.

“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.”

*12 “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, after careful consideration of 

the facts, would choose to settle.

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 
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testimony may persuade 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 resulted from 

improper CPR;1 how much of the general public knows 

that CPR on infants is done with two fingers and at 100 

beats per minute?2 Only Dr. Moore testified at trial that the 

cause of death was homicide. Experienced pathologists 

testified that the cause of death could not be determined. At 

the time of the original trial, Dr. Moore had only 18 months 

of experience as an associate medical examiner and had 

been cited for defective and improper work. With eight 

more years of experience, she testified that she believed 

that the cause of the child’s death could not be determined. 

That “relevant scientific evidence ... was not available at 

the time of the convicted person’s trial,” and it “was not 

ascertainable through the exercise of reasonable diligence 

by the convicted person before the date of or during the 

convicted person’s trial;....” The only person who now 

clings to a firm opinion of homicide is Dr. Norton, who 

closed her practice, moved from her home, and declined to 

be deposed for a habeas hearing.

*13 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.1I think that providing relief from “bad” 

scientific testimony and righting the wrong of Robbinswas 

“the tipping point” for passing the statute.2

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 64,3 which 

set up a procedure for post-conviction DNA testing. Then 

the Dallas District Attorney’s Conviction Integrity Unit 

began testing stored DNA from old rape convictions and 

assisting in the legal exoneration of those defendants 

whose DNA did not match that found at the crime scene.4

*14 Those developments, plus the concern over “bad” 

arson science,5led the Legislature to create the Texas 

Forensics Commission in 2005 to strengthen the use of 

“good” science in criminal proceedings and to investigate 

“allegations of negligence or misconduct” in forensic

sciences.6 The increasing number of Texas exonerations 

led to the formation of (1) the Texas Innocence Project in 

2007 by non-profit organizations working with students, 
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and (2) the Texas Criminal Justice Integrity Unit in 2008 

by the Court of Criminal Appeals to “review the strengths 

and weaknesses of the Texas criminal justice system” and 

to “bring about meaningful reform.”7In 2011, the 

Legislature passed Article 38.20 to improve the reliability 

of photographic and live line-up procedures,8 based, in 

part, on the recommendations of the Criminal Justice 

Integrity Unit.9

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.10 This report concluded that, with the 

exception of DNA, “no forensic method has been 

rigorously shown to have the capacity to consistently, and 

with a high degree of certainty, demonstrate a connection 

between evidence and a specific individual or source.”11 In 

other words, courts and juries were frequently relying on 

“junk” science in criminal proceedings.12 The NAS report 

stated that “[n]ew doubts about the accuracy of some 

forensic science practices have intensified with the 

growing numbers of exonerations resulting from DNA 

analysis (and the concomitant realization that guilty parties 

sometimes walk free).”13

*15 One of the report’s chapters dealt with concerns about 

medical examiners and coroners. It noted numerous 

deficiencies in the system14 and concluded, “It is clear that 

death investigations in the United States rely on a 

patchwork of coroners and medical examiners and that 

these vary greatly in the budgets, staff, equipment, and 

training available to them, and in the quality of services 

they provide.”15 Part of the problem noted in the NAS 

Report was that there is very little forensic pathology 

research, especially research conducted in collaboration 

with universities and medical schools.16 This led to an 

unhealthy reliance on law enforcement and prosecution 

policies and procedures rather than the best medical 

practices. Medical examiners, like other forensic experts, 

should not become the “handmaiden” of the legal system 

with “no significant uses beyond law enforcement.”17

In 1989, just as DNA testing arrived in criminal cases, one 

prominent scientist noted, “At present, forensic science is 

virtually unregulated-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.”18 Twenty-five years 

later, our forensic laboratories and scientists have not 

changed much. Because they are not subject to significant 

oversight or accreditation, it is not surprising to see “bad” 

science and “bad” scientific testimony in our courtrooms.

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.19 But as the 

Supreme Court has explained, the problem is not just that a 

general forensic field may be “bad” science, the problem 

also includes “bad” scientists.

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 

‘[s]erious 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 odontology, and bloodstain analysis;21

or (2) insufficiently reliable expert testimony about an 

otherwise reliable forensic-science discipline.22 This 

second group may include incompetent experts, scientific 

charlatans, and experts who intentionally withheld 

scientific evidence, but an empirical study of the DNA 

exoneration cases shows that the majority of unreliable

expert testimony falls into one of six categories:

• Non–Probative evidence presented as probative;23

*16 • Exculpatory evidence discounted;24

• Inaccurate frequency or statistic presented;25¿

• 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.

*17 As the Supreme Court has noted, what the government 

calls “neutral scientific testing” is not always as neutral or 

scientific as the government suggests.29 “Forensic evidence 

is not uniquely immune from the risk of manipulation.... A 
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forensic analyst responding to a request from a law 

enforcement official may feel pressure—or have an 

incentive—to alter the evidence in a manner favorable to 

the prosecution.”30

In sum, the forensic-science problems that have led to 

wrongful convictions include both “bad” science and 

“bad” (although perhaps sincere and well-intentioned) 

scientists.31

Although Daubert,32Kelly,33 and Nenno,34 have brought 

judicial gatekeeping and oversight to some of the 

underlying forensic-science disciplines, courts do not 

typically examine the specific opinions and conclusions 

that testifying experts reach or whether their inferences are 

supported by their data.35 There is no screening of the 

expert’s case-specific inferences and opinions before the 

jury hears them. Yet it is precisely while the expert testifies 

that “the rubber meets the road,” and the jury hears claims 

about the purported scientific significance of the evidence 

in the particular case.36

This Court has expressed its concerns about “junk” science 

in such cases as Jordan v. State,37 and Tillman v. 

State38dealing with the unreliability of eyewitness 

identifications and the psychological factors that cause 

inaccurate identifications;39 in the Winfrey40 dog-scent 

line-up cases; in the context of psychologists testifying to a 

capital defendant’s future dangerousness based on 

unreliable methods;41 in the admission of polygraph tests;42

and in the use of comparative bullet-lead analysis.43 We 

have also recognized that sometimes the science is good, 

but the individual scientific testimony is “bad.”44

*18 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.45 Although that bill was left 

pending in the House at the end of the session,46 the bill 

analysis stated that Article 11.073

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, “[d]efendants who were 

wrongly convicted using these and any debunked science 

deserve a way to raise their claim before a court.”48 The 

bill’s emphasis was based entirely upon general changes or 

advances in forensic sciences-bad science, not bad 

scientists.

*19 In the next legislative session, Senator Whitmire again 

introduced his bill to enact a new Article 11.073.

49 During a 

House Committee on Criminal Jurisprudence hearing on 

the companion bill, HB 220, witnesses testified that 

molecular evaluation of paint chips, blood spatter 

testimony, arson, “dog bark cases,” and “satanic ritual 

abuse of children” might all be areas of debunked scientific 

expertise subject to possible relief under the proposed bill. 

Once again, the onus was on bad forensic-science 

disciplines, not specific bad scientific testimony. Once 

again, the bill did not pass.

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.”50 The legislative session ended on May 

30, and we delivered our 5–4 opinion denying applicant 

relief on June 29. I wrote a dissenting opinion, lamenting 

that “[o]ur criminal justice system does not currently have 

any legal doctrine, much less a constitutional doctrine, into 

which this situation falls comfortably.”51 I suggested that 

changes needed to be made to accommodate the situation 

in such cases:

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
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The second development was our grant of relief in Ex parte 

Henderson,53 under circumstances that were very similar to 

those in applicant’s original habeas case.54 Just eighteen 

months after denying relief in applicant’s case when the 

medical examiner changed her opinion from “homicide” to 

“undetermined,” we granted Cathy Lynn Henderson relief 

on her claim when the medical examiner changed his 

opinion from “homicide” to “undetermined.” In that case, 

the dissent justly criticized the majority for failing to 

articulate a clear legal basis for granting a new trial.55 The 

three dissenters in Henderson echoed the four different 

dissenters in Robbins in agreeing that current Texas law 

lacked clarity in dealing with instances in which critical 

scientific evidence supporting the conviction-either the 

scientific field itself or the expert’s original opinion-had 

been discredited.

3. The 2013 Legislative Enactment of Article 11.073.

*20 The Robbins and Henderson decisions were the 

judicial landscape in which Senator Whitmire 

introduced—“once more unto the breach, dear friends, 

once more”56—his same habeas corpus bill to establish a 

legal mechanism to address claims of “false and 

discredited forensic testimony”57 in 2013. The third time 

was a charm. And part of its charm may be attributable to 

(1) applicant’s post-conviction lawyer testifying to the 

Senate Criminal Justice Committee about the 2011 

Robbinsdecision, and (2) testimony by the original District 

Attorney who had prosecuted applicant and who, after Dr. 

Moore changed her opinion concerning Tristen’s cause of 

death, agreed with the defense and the trial judge that 

applicant was entitled to a new trial.58 The Bill Analysis to 

the 2013 bill, SB 344, emphasized this Court’s decisions 

and referenced applicant’s case:

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, 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 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.”60 The Robbins and Henderson cases raised 

“a novel and difficult issue for the criminal-justice 

system”:

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,”62 or incompetence, or innocent errors, or 
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cognitive bias. All of these problems are flaws relating to 

“bad” scientific testimony that may exist within a good 

forensic discipline.

*21 This case involves “bad” scientific testimony based on 

insufficient experience.63 The trial and habeas judge 

explicitly found that Dr. Moore

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 an 

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 

specific testimony. Regardless of whether a conviction is 

based on an unreliable field of science or unreliable 

scientific testimony, the result is the same: an unreliable 

verdict that cannot stand the test of time. It is built upon the 

shifting sands of “junk” science or a “junk” scientist, and it 

is the purpose of Article 11.073 to provide a statutory 

mechanism for relief and a retrial based upon “good” 

science and “good” scientific testimony.

*22 With these additional comments, I join the majority 

opinion.

Keller, P.J., filed a dissenting opinion in which Hervey, J., 

joined.

The legislature passed Article 11.073 to allow a defendant 

to obtain habeas relief on the basis of new scientific 

evidence.1In a nutshell, the question before us is whether 

the statute contemplates granting relief on the basis of (1) a

change in the science, or (2) a change in the opinion held 

by a particular expert in the science. Judge Keasler’s 

position is that the scientific evidence is new only if there 

has been a change in the relevant body of scientific 

knowledge or in the accepted method by which a particular 

scientific inquiry is conducted. The Court’s position is that 

the change can be the expert’s own testimony, even if that 

change in testimony is based merely on the expert 

becoming more educated in the relevant field of study. I 

agree with Judge Keasler that the statute contemplates 

granting relief only on the basis of a change in the science.

Subsection (b) of the statute creates a claim for relief on the 

basis of new scientific evidence.2 To obtain relief under 

Subsection (b), the applicant must show, among other 

things, that “relevant scientific evidence is currently 

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.”3In Subsection (d), the legislature defines 

what it means to say that scientific evidence was not 

ascertainable through the exercise of reasonable diligence:

(d) 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 
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based has changed since:

(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.4

I agree with Judge Keasler that the phrase “the scientific 

knowledge or method on which the relevant scientific 

evidence is based” refers to general science, not an expert’s 

particular knowledge or method of doing things. That is the 

natural understanding of the words in the sentence, and 

Judge Keasler explains in detail why the Court’s contrary 

construction of that phrase is untenable. So, to satisfy 

Subsection (b)’s requirement that “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,” the applicant must show that the 

body of scientific knowledge or the accepted methodology 

has changed since the trial.

*23 While I fully agree with the first two sections of Judge 

Keasler’s opinion, I would analyze the issue in the third 

section differently. That section argues that applicant is 

barred from filing this application because the science has 

not changed since his prior application. It is true that, in 

order to take advantage of Subsection (c) of Article 11.073, 

an applicant who files a subsequent application must show 

that the body of scientific knowledge or the accepted 

methodology has changed since his prior habeas 

application. Subsection (c) allows a subsequent application 

when a change in science occurs after the filing of the prior 

application.5 But Article 11.073 did not exist when 

applicant filed his original application, so Subsection (b) of 

that article qualifies as a new legal basis under Article 

11.07, § 4(a)(1) and (b).

6 Consequently, applicant’s claim 

is authorized by Article 11.071, § 5.

Nevertheless, in order for applicant to obtain relief, his 

claim must qualify under Article 11.073, Subsection (b). 

To so qualify, applicant must show that the science has 

changed since his trial. Because he has not done so, his 

claim does not qualify, and this application should be 

dismissed.7

Meyers, J., filed a dissenting opinion.

Chapter 11 of the Texas Code of Criminal Procedure is 

devoted to writs of habeas corpus. The chapter is a creature 

of the legislature and, although they may never suspend the 

right, the legislature may enact “laws effecting the 

implementation of the right to writ of habeas corpus.” 

TEX. CONST. art. I, § 12; Ex parte Davis, 947 S.W.2d 

216, 219 (Tex.Crim.App.1996). However, the way we 

have traditionally treated any writs under Chapter 11 is to 

measure the facts of the application against constitutional 

provisions to determine whether the facts have offended 

either the United States or Texas constitutions. Over the 

years, based upon this method, we have built a body of law 

that sets the standards by which we analyze each type of 

writ and establishes the specific criteria each applicant 

must meet in order for relief to be granted. In every case we 

have decided, we have relied on those standards and 

criteria to determine whether the facts in the applicant’s 

case have offended constitutional provisions, and thereby 

warrant relief.

*24 In the present case, Applicant was convicted of capital 

murder based in part on the testimony of medical examiner 

Dr. Patricia Moore, who testified that the victim’s death 

was a homicide caused by asphyxia due to compression of 

the chest and abdomen. Moore, however, due to her 

additional years of experience, no longer stands by her 

testimony and now believes that the child’s cause and 

manner of death cannot be determined. In 2011, Applicant 

sought his first writ of habeas corpus under Texas Code of 

Criminal Procedure art. 11.07, alleging actual innocence 

and that his right to a fair trial was violated because he was 

convicted based on false testimony. Ex parte Robbins, 360 

S.W.3d 446, 458, 459 (Tex.Crim.App.2011); 

seeTEX.CODE CRIM. PROC. art. 11.07. We ultimately 

denied his application because Moore’s reevalution simply 

stated that the manner and cause of death was 

“undetermined,” not that Applicant could not have caused 

the victim’s death. We held that this reevaluation did not 

meet the requisite showing for actual innocence and did 

not prove Moore’s trial testimony to be false. Id. at 

458–59, 460–63.

In 2013, the Texas Legislature decided to develop a brand 

new avenue for habeas relief based on developing nature of 

science and passed article 11.073 of the Texas Code of 

Criminal Procedure. In propagating this provision, 

however, the legislature set out the criteria that make an 

applicant eligible for relief, but it did not set forth any 

standard by which to judge an application. That is to say 

that there is no set constitutional provision against which 

we are to measure particular facts to determine whether to 

grant relief. Every writ this court has dealt with since 

Chapter 11 has been in effect has been based on analyzing 

whether constitutional provisions have been offended. 
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That is the way we have always analyzed and should 

always analyze applications for writ of habeas corpus. 

Obviously my colleagues are not offended by the 

legislature’s intrusion on our authority, but I find the 

passing of article 11.073 to be a clear attempt at a power 

grab and believe their intent was to tell us how we should 

rule on these types of matters. But if the legislature wants 

to establish non-constitutional means for relief, it needs to 

arrange for the appropriate agency to handle it, such as the 

Board of Pardons and Paroles. In our court, we judge relief 

dependant upon our constitutions, and article 11.073 does 

not provide for relief based upon any constitutional 

criteria. Because I do not believe our court is the 

appropriate avenue for relief and Applicant’s present 

application does not allege any new facts or rulings on 

constitutional law, I would deny relief. Therefore, I 

respectfully dissent.

Keasler, J., filed a dissenting opinion.

We filed and set Neal Robbins’s writ application to 

consider how Texas Code of Criminal Procedure Article 

11.073 applies to the facts of his case. The case presents an 

issue of statutory construction defined by established 

guidelines to an admittedly awkward statute. However, the 

Court applies precedent questionably and reaches an 

incorrect result. The Court interprets the terms “scientific 

method” and “scientific knowledge” in a manner that 

reaches an absurd result and relies upon a United Stated 

Supreme Court case that contradicts legislative intent. 

Article 11.073’s legislative history suggests that its aim is 

to provide an avenue of relief for those convicted on 

science or scientific methodology subsequently found to be 

unsound, not an individual expert’s changed testimony 

when the underlying science or methodology of that 

opinion remains valid. The Court’s opinion also overlooks 

a potential substantive and procedural obstacle for 

Robbins’s application, the resolution of which is necessary 

to grant him relief. For these reasons, I dissent.

Scientific Method

In construing a statute, we limit our analysis to the plain 

meaning of the text, unless the language is ambiguous or 

the plain meaning leads to absurd results that the 

Legislature could not have possibly intended.1 When we 

are called upon to go beyond the plain meaning of the text, 

we may consider various extratextual factors.2 Although 

left unsaid, the Court appears to finds section (d) 

unambiguous and attempts to define “scientific method” 

through a dictionary definition. Dictionary definitions are a 

fine way to define terms because they are ordinarily a 

reliable and readily available source for a term’s plain and 

ordinary meaning.3 But the Court’s use of the Black’s Law 

Dictionary definition of scientific method leads to an 

absurd result that the Legislature could not have intended, 

and from my reading of the statute, did not intend.

*25 To hold that “scientific method,” as used in the statute, 

refers to the universally employed “process of generating 

hypotheses and testing them through experimentation, 

publication, and republication” undermines the statute’s 

clear intent that the object of the change actually be subject 

to change. Section (d) requires a change in either the 

scientific knowledge or method: “whether the scientific 

knowledge or method on which the relevant scientific 

evidence is based has changed....” The scientific method 

generally—“the principles and procedure for the systemic 

pursuit of knowledge”4that instill the necessary rigor of 

valid discovery—is itself unchanging. Science inevitably 

changes; the process by which that change occurs does not. 

Under this definition, the Court frustrates the legislative 

intent and the purpose of the clear statutory scheme by 

requiring an inherently static concept to change before 

relief may be given. This is clearly not what the Legislature 

intended. The Court’s definition of the term drains it of any 

substantive meaning and renders it a useless term, an 

interpretative result we historically are loathe to reach.5

When section (d) is read as a whole, the more accurate 

definition of scientific method (and the more consistent 

with the apparent legislative intent) is the scientific 

methodology used in a particular area of scientific study. I 

do agree with the Court’s conclusion that there is no 

evidence to suggest that the methods for analyzing the 

cause of child death have changed in the scientific 

community. In other words, the accepted science and 

methodology have not changed.

Scientific Knowledge

The Court next sets upon determining whether Dr. 

Moore’s new opinion qualifies as “scientific knowledge ... 

on which the relevant scientific evidence is based has 

changed.” The question posed by the Court is, “Moore’s 

conclusion certainly has changed, but does ‘scientific 

knowledge’ apply to the knowledge of an individual?”6It 

finds that it does, but it is unclear what path the Court has 
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taken on our established statutory-interpretation roadmap: 

holding that the term is unambiguous and the common 

understanding and usage ought to apply, or holding that the 

term is ambiguous and turning to case law, as an 

extratexual source, to define the term. Either way, I find 

the analysis flawed in several respects and disagree with 

the Court’s result.

The Court finds instructive the United States Supreme 

Court’s definition of “scientific knowledge” in its Daubert

opinion.7 The majority then summarily concludes that Dr. 

Moore’s new opinion “satisfies the requirements to be 

called ‘scientific knowledge’ ” because her new opinion is 

“an inference or assertion supported by appropriate 

validation based on the scientific method.”8

The Supreme Court’s opinion has no value in defining any 

of Article 11.073’ s terms. Not only is there no explicit or 

implicit reference to Daubert in Article 11.073’s language, 

Daubert itself does not stand for the proposition that expert 

testimony is necessarily “scientific knowledge” in and of 

itself. The Court’s Daubert quotation ends too soon; it 

should continue as it does in that opinion: “In short, the 

requirement that an expert’s testimony pertain to ‘scientific 

knowledge’ establishes a standard of evidentiary 

reliability.” On a more fundamental level, the majority 

presumes the answer of the question it seeks to 

resolve—whether this term refers to an individual’s 

personal knowledge or the collective knowledge of the 

larger scientific community. Comparing Dr. Moore’s 

individual opinion to what the Supreme Court stated was 

“scientific knowledge” and finding it satisfied merely 

assumes that scientific knowledge means an individual 

opinion.

Applying Daubert ‘s definition of scientific knowledge 

may speak to whether Dr. Moore’s new opinion would be 

admissible under the Texas Rules of Evidence at a trial on 

the date of Robbins’s application—a finding a court must 

make under section (b)(2)—but it does nothing to define 

the statutory phrase in section (d). The inclusion of section 

(b)(2)’s requirement that the relevant scientific evidence be 

admissible counsels against defining scientific knowledge 

in this manner. We presume that the Legislature intended 

each part of a statute to be given effect.9 Not only has the 

Court strayed from our statutory-interpretation 

presumptions, its analysis gets us no closer to a definition.

*26 I would expressly find the term ambiguous because the 

term’s common understanding and usage offers little 

guidance or limitations. Based on Article 11.073’s 

legislative history, I would hold that scientific knowledge 

for purposes of this article refers to the collective 

knowledge within a field of study, not an individual’s 

opinion. Judge Cochran’s concurrence too looks to the 

statute’s legislative history, but its conclusion is not 

supported by that history.

In 2009, Senator Whitmire first introduced a bill that was 

substantively identical to the language found in Article 

11.073.

10 The bill contained the phrase in question—“the 

court shall consider whether the scientific knowledge or 

method on which the relevant scientific evidence is based 

has changed.” The Senate Research Center’s Bill Analysis 

stated Senator Whitmire’s intent was to “prohibit[ ] a 

convicting court from denying relief on an authorized 

application based solely on the applicant’s plea, 

confession, or admission .... [and] authorize[ ] a court to 

grant relief on the basis of relevant scientific evidence not 

available at the time of the convicted person’s trial.”11

The House Research Organization’s Bill Analysis echoed 

the same sentiment. However, it went further and 

expressed the view of the supporters of that bill, who 

believed that the statute was necessary because 

“defendants who were wrongfully convicted using these 

and any debunked science deserve a way to raise their 

claim before the court[,]” specifically citing changes in the 

underlying science of arson investigation and matching 

chemical signatures of bullets.12 To the extent that it is 

relevant, even the bill’s supporters believed that the 

“scientific knowledge or method” addressed a broader, 

fundamental change in the underlying science. I agree with 

Judge Cochran that the bill’s emphasis was on “bad 

science.”13

After the 2009 bill failed to pass, Senator Whitmire filed 

the same bill again in 2011,14 but no testimony nor 

committee action was taken on it. Action was taken, 

however, on Representative Pete Gallego’s identical 

companion bill in the House.15 In taking testimony before 

the House Criminal Justice Committee, Representative 

Gallego laid out his bill stating that the legislation’s intent 

is to address science as it moves forward and to “keep up 

with the times.”16 In his discussion with other committee 

members, Representative Gallego specifically identified 

the advancement of arson science and blood-spatter 

analysis and explained that this legislation would give the 

court the ability to look at new science.17 There was no 

discussion from either the committee members or 

witnesses supporting the bill that the design of the 

legislation was to grant relief based on the change of an 

expert’s opinion absent any significant change in the 

underlying science or accepted methodology. Again, I 
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agree with Judge Cochran that the bills’ emphasis was still 

on “bad science, not bad scientists.”18

*27 In 2013, Senator Whitmire once more introduced the 

bill (in addition to Representative Sylvester Turner’s 

identical companion bill) that ultimately created what is 

now Article 11.073.

19 However, the previous four years 

produced little change to the bill’s text, and Article 11.073

contains the same substantive provisions as the first bill 

filed in 2009. At the urging of the Harris County District 

Attorney’s Office, there were only two changes from the 

2011 version: (1) changing “discredits” to “contradicts”; 

and (2) changing “reasonably probable” to the more 

familiar “upon a preponderance of the evidence” 

standard.20 The Senate Research Center’s Bill Analysis 

summarized the bill’s intent as “amend[ing] the Code of 

Criminal Procedure relating to applications for writs of 

habeas corpus relief based on relevant scientific evidence 

of false and discredited forensic testimony.... Recent 

examples of such evidence include dog-scent lineups, 

misinterpreted indicators of arson, and infant trauma.”21

Judge Cochran’s concurring opinion quotes from the 

“Supporters Say” section of the House Research 

Organization’s Bill Analysis of S.B. 344: “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, and technical testimony that may change with 

scientific discovery.”22 Without naming the case 

specifically, the Bill Analysis clearly references Robbins 

I

23 by describing a case involving a medical examiner’s 

recantation of her trial testimony and this Court’s denial of 

relief.

Several witnesses testified before the Senate Criminal 

Jurisprudence Committee in support of the bill. Judge 

Cochran’s concurrence points out two: Robbins’s counsel 

on his original writ application and current counsel, and the 

former District Attorney who prosecuted Robbins and 

agreed with granting him relief in Robbins I. Robbins’s 

counsel was the only witness who directly opined that the 

statute would apply to a change in an individual expert’s 

opinion. It is also notable that counsel did not reference 

Robbins I. Whatever the effect of committee testimony 

regarding what a witness believes the bill does and does 

not do has on a proper legislative-intent analysis, it is 

undoubtedly at its weakest when the testimony we are 

asked to consider is from an interested party’s own 

representative. Not surprisingly, it is unsatisfying to rely 

on Robbins’s counsel’s own testimony to support the 

conclusion that the Legislature intended the statute to 

apply to a changed individual’s opinion.

Unfortunately, in the Senate, the lack of debate and 

discussion among the committee members, probing 

questions directed at the testifying witnesses, and any floor 

debate substantially hinders our ability to glean real, 

definitive insight on the Legislature’s intent. Judge 

Cochran’s concurrence relies in significant measure on the 

bill’s supporters’ opinions. Reviewing witness testimony 

can, in some instances, serve as a useful source in 

deciphering legislative intent. Experts in a particular field, 

or area of the law, can assist committee members in airing 

issues of concern, providing guidance, and suggesting 

changes to a pending bill’s language. It is not unusual for a 

committee to take testimony from many witnesses 

testifying for or against a particular bill offering a number 

of opinions and concerns. But there is no inherent link 

between what a witness says about a bill and what the 

Legislature intends in passing it. I am less inclined to find 

such testimony helpful from a statutory-interpretation 

standpoint when the absence of committee members’ 

substantive questions offers no insight on collective 

legislative concerns and the testimony has no appreciable 

effect on the bill’s language.

*28 The most compelling sources available regarding 

Article 11.073’s enactment are the authors’ own 

statements and the committee members’ questions and 

statements when discussing the bills. It carries much more 

weight than the witnesses’ opinions expressed in their 

testimony. In a committee hearing, Senator Whitmire 

began by stating that S.B. 344 “will amend the Code of 

Criminal Procedure relating to procedures for applications 

for writs of habeas corpus based on relevant scientific 

evidence of false and contradicted forensic testimony 

utilized in trial to convict an individual.” He continued: 

“Scientific evidence, such as DNA, was not always a factor 

in determining guilt or innocence. Today, scientific 

evidence has been the sole determinant of restoring liberty 

to an innocent person. The writ of habeas corpus is a 

remedy to be used when any person is restrained of their 

liberty. The Texas Department of Criminal Justice houses 

almost 152,000 inmates, and unfortunately some were 

wrongly convicted.”24 With the exception of the number of 

inmates, the second part of Senator Whitmire’s statement 

was a verbatim restatement of how the Senate Research 

Center’s Bill Analysis described his intent in proposing 

S.B.1976, the original bill he filed in 2009. The Senator’s 

comments do not indicate that he held the same concerns 

that Judge Cochran ascribes to him.
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In support of H.B. 967, an identical companion bill to S.B. 

344, Representative Turner was more detailed in his 

explanation of the bill’s intended purpose. He began by 

stating that when an individual is “convicted based on junk 

science or critical forensic testimony that is disproved by 

later scientific advancements, the courts cannot presently 

agree whether or not the existing law provides a basis for 

relief.”25 As examples of disproved science, he specifically 

identified discredited dog scent line-ups, misinterpreted 

indicators of arson, and mistaken assumptions about infant 

trauma. After Representative Turner’s introduction of the 

bill, there was an exchange between Representatives 

Turner and Hughes in which Representative Hughes 

expressed his understanding that the admission of the 

faulty science may not have been error at trial, but the bill 

addresses the scenario when “better technology comes 

along.”26 The hearing also contained poignant questioning 

of testifying witness Jeff Blackburn of the Innocence 

Project of Texas. Representative Carter sought his insight 

on what section (d)’s “ascertainable through the exercise of 

reasonable diligence” language means and how it would 

practically apply. Blackburn responded that it would not 

open the flood gates and burden the courts, that it would 

“kill a lot of fake claims,” and “ensure[s] that this law 

would only apply to new science.”27 As an example, he 

cited the “huge changes” in arson science, where before, in 

his view, it was not even a science. From Representative 

Turner’s express intent and the comments and questions 

from the committee members and witnesses alike, it is 

clear that, while this particular bill was left pending in 

committee, the proposed legislation targeted past scientific 

evidence undermined by subsequent advances in the 

particular field.

Judge Cochran’s belief that S.B. 344 aimed to tackle “bad 

scientific testimony” is contradicted by both Senator 

Whitmire and Representative Turner’s statements, the 

bill’s unchanged language for the past four years, and her 

own opinion that the 2009 and 2011 bills’ emphasis was on 

“bad science.” I find unconvincing Judge Cochran’s 

declaration that the Legislature’s intent and the bill’s 

emphasis shifted from “bad science” to now include “bad 

scientist testimony” without a corresponding change in the 

bill’s language. We can glean something about the 

Legislature’s motivation in the language previously 

proposed and ultimately passed. If the Legislature intended 

to enable a court to grant relief on changed expert 

testimony alone, it could have easily said that. Instead, the 

legislative history suggests the Legislature’s motivation 

was to provide a clear path to relief from convictions based 

on methodology and science that were already 

discredited—advancements in arson detection and 

dog-scent line-ups—and permit relief in future cases 

contesting convictions based on antiquated methodology 

and science. This motivation resulted in the passage of a 

bill that emphasized changing methodology and science, 

not an individual’s singular opinion.

*29 From the supporters’ opinions, Judge Cochran 

concludes that, “It cannot be doubted that the Legislature 

had this very case in mind when it debated and enacted 

what is now Article 11.073.”28 There was no public debate 

in the true sense, and the conclusion that the bill’s passage 

was a result of this Court’s previous cases is rank 

speculation. But if the Legislature was spurred into action 

by the bill supporters’ opinions and Judge Cochran’s 

dissenting opinion in Robbins I and concurring opinion in 

Ex parte Henderson,29 why did the Legislature fail to 

change the bill’s four-year-old text—which pre-dated both 

Robbins I and Henderson—to specifically provide a clear 

“jurisprudential mechanism”30to address the issue we face 

today?

If Article 11.073 was intended to be a response to Robbins 

I, it is not very responsive. If we accept the argument that 

the Legislature was trying to change the result in Robbins I,

it would have understood the change involved was a 

subsequent change in the expert’s trial testimony, not a 

change in her field of study. It is reasonable to expect a 

legislative response to an opinion of this Court based on a 

particular set of facts to come with equally particular 

provisions providing an avenue for relief. Explained in 

more detail below, it is uncertain that the statute even 

avails Robbins of relief based on the timing of the alleged 

change in scientific knowledge or method in relation to his 

previously considered application. What is more, if the 

intent of Article 11.073 was to redress a perceived wrong 

in Robbins I or more broadly grant relief based on an 

expert’s changed testimony without a change in the 

underlying science, it is also reasonable to expect the bill’s 

author to say so in laying out the bill in the committee 

hearing. Neither Senator Whitmire nor Representative 

Turner mentioned any of these alleged intentions. Instead, 

both authors expressed the concern Senator Whitmire 

harbored in 2009—“bad science.”

Potential Implications of Robbins’s Original Writ 

Application

Aside from the definition of “scientific knowledge or 

method,” the statute’s text poses greater uncertainty in the 
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statute’s application and possibly grave consequences for 

Robbins’s current application. The majority concludes 

“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.”31 But this conclusion does not 

consider section (d) in its entirety. For the reader’s benefit, 

I reproduce section (d):

(d) 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:

(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.

The statute provides that, to be eligible for relief on an 

original writ application, the scientific knowledge or 

method on which the relevant scientific evidence is based 

must have changed since trial. However, when a court is 

considering a previously considered application (or any 

subsequent application), the change must occur after the 

last application was filed.

Robbins’s original writ application was filed on June 4, 

2007, in which he claimed that Dr. Moore’s testimony 

changed on or about May 13, 2007. This application was 

denied June 29, 2011. He filed the present application on 

September 3, 2013. Under our current jurisprudence, the 

present application would be considered a subsequent 

application. To find that the relevant scientific evidence 

was not ascertainable through the exercise of reasonable 

diligence, a court would have to find that the change in 

scientific knowledge or method (however that term may be 

defined) on which the relevant scientific evidence is based 

has changed after the date he filed his original 

application.32 Even if we accept that Dr. Moore’s changed 

individual opinion meets the definition of scientific 

knowledge or method, it appears that such a change would 

not satisfy section (d) because it occurred after Robbins’s 

trial and before Robbins’s original application, not after. 

And because a finding on “relevant scientific evidence that 

was not ascertainable through the exercise of reasonable 

diligence” is necessary to both the jurisdictional issue to 

address the merits of a subsequent application under 

section (c) and to grant relief under section (b)(2), it is an 

issue that the Court must answer before granting relief. The 

very presence of this issue questions the Court’s holding 

that Robbins has alleged sufficient facts to bring him 

within the ambit of Article 11.073.

33

Conclusion

*30 Because I find the Court’s statutory interpretation 

flawed and question its omission of any discussion of the 

potentially fatal substantive and procedural issues for 

Robbins’s application, I dissent.

Footnotes

1 Robbins v. State, 88 S.W.3d 256 (Tex.Cr.App.2002).

2 Ex parte Robbins, 360 S.W.3d 446 (Tex.Cr.App.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 2374, 182 L.Ed.2d 1016 

(2012).

3 McDaniel testified that she called CPS regarding Tristen’s injuries, but the agency did not follow up on the case. She also 

claimed that she left town because she was so scared of Applicant.

4 Bux agreed that SIDS does not apply to this case. He also noted that Tristen did not die from poisoning, as per the 

toxicology report.

5 Although Moore claims that she was previously unaware that “ ‘aggressive’ adult type CPR was performed by persons 

untrained in CPR (infant) on this 17 month child” and that “CPR was performed on a manicured lawn,” she was 

cross-examined about such circumstances at trial. Similarly, she asserted that she has learned since her original opinion 
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that “a finger was placed in the child’s mouth to possibly clear the airway and that back blows were done on the child prior 

to EMS arrival,” but these facts were available to Moore, as they were facts obtained during the investigation into 

Tristen’s death and were presented at trial.

6 Norton was paid $22,907.50 from Montgomery County general funds, the district attorney’s forfeiture account, and funds 

budgeted to the sheriff’s cold case investigation squad.

7 Norton’s daughter informed the State that Norton’s office administrator and close personal friend had died of an apparent 

self-inflicted gunshot wound at the residence she shared with Norton. Subsequently, Norton suffered from an unspecified 

health problem that required a “leave of absence” from her medical practice. When the court ordered that the parties take 

the deposition at a location of Norton’s choosing, Norton had closed her office and vacated her home, so she could not be 

located by the investigator who sought to serve her with a copy of the court order. Norton then informed counsel by 

telephone that she was under a doctor’s care and could not currently be medically cleared to participate in a deposition.

8 Applicant stated that by “false evidence,” he meant evidence that is “interchangeable with discredited, inaccurate, 

incorrect, unvalid, unfounded, whatever term of art this Court chooses to use.” He further noted that Moore’s change of 

opinion was not a recantation but instead a reevaluation, so it deserved more deference.

9 Robbins, 360 S.W.3d at 448–57.

10 Robbins, 360 S.W.3d at 463.

11 TEX.CODE CRIM. PRO. 11.07, § 4(a)(1).

12 TEX.CODE CRIM. PRO. 11.07, § 4(b).

13 SeeEx parte Binder, 660 S.W.2d 103, 106 (Tex.Cr.App.1983) ( “the mere raising of a claim of newly discovered evidence 

is, standing alone, not a fit subject for the exercise of state or federal habeas corpus powers”). See alsoEx parte Elizondo,

947 S.W.2d 202, 205 (Tex.Cr.App.1996) (articulating the standard for a bare claim of actual innocence in post-conviction 

habeas proceedings); Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex.Cr.App.2011) (false testimony can constitute a 

violation of due process whether used by the State knowingly or unknowingly when there is a “reasonable likelihood” that 

the false testimony affected the outcome).

14 Robbins, 360 S.W.3d at 460, 463.

15 Ex Parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Cr.App.2013) (expanding the requirement that a subsequent writ 

application must allege facts sufficient to make out a prima facie case for relief under the new law the applicant is 

attempting to invoke to avoid dismissal under Section 4, art. 11.07).

16 “This article applies to relevant scientific evidence that: ... (2) contradicts scientific evidence relied on by the state at trial.”

17 Article 11.073(b)(1).

18 BLACK’S LAW DICTIONARY 1547 (10th ed.2014).

19 See, e.g.,Ex parte Henderson, 384 S.W.3d 833, 833–34 (Tex.Cr.App.2012) (remanding for a new trial where new 

developments in the science of biomechanics led the medical examiner who testified at trial to testify at the evidentiary 

hearing that he now believed “there is no way to determine with a reasonable degree of medical certainty whether [his] 

injuries resulted from an intentional act of abuse or an accidental fall”).

20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
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21 BLACK’S LAW DICTIONARY 1004 (10th ed.2014).

22 Seesupra p. ––––.

1 Q. Now, I’ll give you another situation. An E.M.T. comes up to the location where the adults are trying to do CPR and they 

are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, “If she’s not already 

dead, you’re going to kill her; stop that,” and proceeded to show them the proper way. Would you say that some of that 

could have led to injuries to the child, adults putting their full weight down and trying to revive that child?

A. You should see it more anteriorly than posteriorly.

Q. Pardon?

A. You should see it more the front to the back, the injuries.

Q. If you’ve got your palms on the front and you’ve got little rocks and sticks on the back, you’ll see it on the back, you’ll 

see it on the back, won’t you?

A. Yes. You’d see bruises on the back.

Q. But you wouldn’t necessarily see them on the front if they’re pushing with their palms, would you?

A. No.

Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that sort of 

damage without any noticeable trauma from looking at the skin, couldn’t they?

A. If they’re pushing down lower, yes.

Robbins v. State, 88 S.W.3d 256, 258 (Tex.Crim.App.2002).

2 “Give 30 gentle chest compressions at the rate of at least 100 per minute. Use two or three fingers in the center of the 

chest just below the nipples. Press down approximately one-third the depth of the chest (about 1 and a half inches).” 

http:// depts.washington.edu/learncpr/index.html (University of Washington)

“Place 2 fingers on the breastbone-just below the nipples. Make sure not to press at the very end of the breastbone. 

Keep your other hand on the infant’s forehead, keeping the head tilted back. Press down on the infant’s chest so that it 

compresses about 1/3 to 1/2 the depth of the chest. Give 30 chest compressions. Each time, let the chest rise 

completely. These compressions should be FAST and hard with no pausing. Count the 30 compressions quickly: 

‘1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,1, off.’ ” http:// www.nlm.nih.gov/medlineplus/ency/article/000011.htm 

(National Institutes of Health)

1 State’s Brief at 11–12.

2 See Jani Jo Maselli, Junk Science and the New Habeas Law, 51 HOUS. LAWYER 16, 16 (Feb.2014) (“The tipping point 

in the passage of the statute was most likely the procedurally-complex case of Neal Hampton Robbins.”).

3 TEX.CODE CRIM. PROC. arts. 64.01–64.05.

4 See, e.g.,Ex parte Wallis, No. AP–75586, 2007 WL 57969, at *1 (Tex.Crim.App. Jan. 10, 2007) (not designated for 

publication); Ex parte Smith, No. AP–75573, 2006 WL 3691244, at *1 (Tex.Crim.App. Dec. 13, 2006) (not designated for 

publication); Ex parte Henton, No. AP–75344, 2006 WL 362331, at *1 (Tex.Crim.App. Feb. 15, 2006) (not designated for 

publication) (based on exculpatory DNA test results, granting habeas relief to Dallas inmate who had been wrongly 

convicted of sexual assault).

5 Arson science came to the public’s attention after the execution of Cameron Todd Willingham and the concern that he 

may have been convicted of the capital murder of his three children based on outmoded arson theories and techniques. 

See Hon. Juan Hinojosa & Lynn Garcia, Response,Improving Forensic Science Through State Oversight: The Texas 

Model, 91 TEX. L.REV.SEE ALSO 19, 32 (2012) (noting that “the recommendations generated in the final report of the 

Willingham case have positioned Texas as a leader in improving the quality and reliability of fire and arson investigation. 

The discipline of arson investigation has undergone significant transformation over the last two decades as experts have 

learned more about the way fire behaves. This phenomenon has affected arson investigators in every state. However, no 

other state is taking such proactive measures as Texas.”); see alsoPeter A. Chickris & Mykal J. Fox, Present Danger: 

Preventing Wrongful Convictions by Resolving Critical Issues Within Texas’s Criminal Justice System, 52 S. TEX. 
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L.REV. 365, 405 (2011) (recounting the facts leading to the conviction and execution of Willingham-as well as the 

subsequent exoneration of Ernest Willis-who was convicted on the basis of “faulty” arson science).

6 Texas Forensic Science Commission, About Us, http:// www.fsc.texas.gov/about.

7 Texas Court of Criminal Appeals, Texas Criminal Justice Integrity Unit, 

http://www.txcourts.gov/cca/texas-criminal-justice-integrity-unit.aspx.

8 TEX.CODE CRIM. PROC. art. 38.20 (“Photograph and Live Lineup Identification Procedures”).

9 Texas Criminal Justice Integrity Unit, 2007 Annual Report of Activity, 

http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU–2009–report.pdf at 7 (“The TCJIU encourages law enforcement 

entities to follow the lead of Richardson, Dallas, and other jurisdictions that have voluntarily reformed their eyewitness 

identification procedures. The TCJIU is collaborating with other members of the criminal justice system to develop 

legislation that will address this issue statewide.”).

10 NATIONAL RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH 

FORWARD (National Academies Press 2009) (“NAS Report”).

11 Id. at 7.

12 According to the NAS Report, the situation is “different in civil cases. Plaintiffs and defendants, equally, are more likely to 

have access to expert witnesses in civil cases, while prosecutors usually have an advantage over most defendants in 

offering expert testimony in criminal cases. And, ironically the appellate courts appear to be more willing to second-guess 

trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases.” Id. at 11.

13 Id. at 37.

14 These deficiencies included, among others,

• “inadequate expertise to investigate and medically assess decedents;”

• “inadequate technical infrastructure (laboratory support);”

• “inadequate training of personnel in the forensic science disciplines;”

• “lack of best practices and information standards;” and

• “lack of quality measures and control[.]”

Id. at 250–51.

15 Id. at 250.

16 Id. at 261–62.

17 Id. at 52.

18 Eric S. Lander, DNA Fingerprinting on Trial, 339 Nature 501, 505 (1989).

19 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 319, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (citing Garrett & Neufeld, 

Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009)).

20 Hinton v. Alabama, ––– U.S. ––––, 134 S.Ct. 1081, 1090, 188 L.Ed.2d 1 (2014) (citation omitted).

21 See generally The NAS Report, supra note 10, at 127–83 (setting out and describing various forensic-science disciplines 

whose reliability has not been systematically established). The problem with most of these fields, according to the report, 
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is that

they are based on observation, experience, and reasoning without an underlying scientific theory, experiments 

designed to test the uncertainties and reliability of the method, or sufficient data that are collected and analyzed 

scientifically.

Id. at 128.

22 See Margaret A. Berger, The Impact of DNA Exonerations on the Criminal Justice System, 34 J.L. MED. & ETHICS 320, 

322 (2006) (noting investigations of forensic science “mistakes due to the incompetence or fraud of particular analysts,” 

some of which “have gone on for years,” concluding that “these alarming reports about the erroneous results issuing from 

crime laboratories reflect pervasive problems with regard to the hiring, training, supervision, and review of personnel”); 

see alsoPaul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. 

L.REV. 163, 165–69 (2007) (describing news reports of the Houston Police Department Crime Lab scandal and other 

forensic-evidence scandals and insufficient oversight efforts in various jurisdictions; “[s]ome of the crime lab failures 

involved incompetence and sloppy procedures, while others entailed fraud, but the extent of the derelictions-the number 

of episodes and the duration of some of the abuses, covering decades in several instances-precludes dismissal of the 

controversy as the errant work of only a ‘few bad apples’ ”).

23 Garrett & Neufeld, supra note 19, at 16–17 (this category includes the inaccurate use of population data, suggesting that 

the rarity of finding “X” is much greater than it is; for example, an expert witness might testify that the rapist was blond, this 

defendant is blond and only an infinitesimal percentage of the population is blond, therefore the defendant probably is the 

rapist).

24 Id. at 18 (for example, the expert suggests that when blood found at the scene does not match that of the defendant, it 

must not have been left there during the crime itself).

25 Id. (for example, the expert inadvertently divides the frequency of finding “X” in half, suggesting that his finding has more 

significance than it actually does).

26 Id. (for example, the expert just “makes up” a statistical probability, such as the likelihood of this hair coming from 

someone other than the defendant is 1 in 10,000).

27 Id. at 19 (for example, using such terms as “highly likely,” “very probably,” “consistent with,” when there was no empirical 

data to support any such conclusion).

28 Id. at 20 (for example, an expert states that the bitemark on the victim was made by the defendant when there is no 

empirical data to support such a finding).

29 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

30 Id.

31 If the science is valid and reliable, but the scientist is not up to the task at hand, the problem is with his testimony, not with 

the science itself. See Simon Cole, Where the Rubber Meets the Road: Thinking About Expert Evidence as Expert 

Testimony, 52 VILL. L.REV.. 803, 819–24 (2007) (“Judges assume that their work is done once they have ruled proffered 

evidence admissible or inadmissible” instead of assessing whether the expert’s testimony fits the task at hand).

32 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

33 Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

34 Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998).

35 Cole, supra note 31, at 819–24.
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36 Id.

37 928 S.W.2d 550 (Tex.Crim.App.1996) (discussing the importance of assessing the reliability of scientific evidence and 

how trial judges must act as gatekeepers to weed out “junk” science; concluding that the scientific testimony of a 

psychologist on the reliability of eyewitness identification is relevant and may be admissible).

38 354 S.W.3d 425, 435–36 (Tex.Crim.App.2011) (holding that psychologist’s testimony on the reliability of eyewitness 

testimony was both relevant and reliable, and thus should have been admitted); see alsoState v. Esparza, 413 S.W.3d 

81, 94 (Tex.Crim.App.2013) (Hervey, J., concurring) (expressing concern that defendants may be convicted on the basis 

of “junk” science if trial judges do not have the authority to sua sponte conduct a gatekeeping hearing into the scientific 

reliability of offered evidence; “The real losers of this decision will be criminal defendants convicted on “junk” science; the 

residents of the convicting county; the people that expended time, effort, and money at the original trial; and the State of 

Texas.”).

39 According to the Innocence Project, “[e]yewitness misidentification is the single greatest cause of wrongful convictions 

nationwide, playing a role in 72% of convictions overturned through DNA testing.” Innocence Project, Eyewitness 

Misidentification, http:// www.innocenceproject.org/understand/Eyewitness–Misidentification.php. According to one law 

review article, 82% of the first 38 Texas convictions that DNA exonerated were based on erroneous eyewitness 

identification. Chrickras & Fox, supra note 5, at 369.

40 MeganWinfrey v. State, 393 S.W.3d 763 (Tex.Crim.App.2013) (evidence that dogs alerted to defendant’s scent and 

weak corroborating evidence legally insufficient to support capital-murder conviction); RichardWinfrey v. State, 323 

S.W.3d 875 (Tex.Crim.App.2010) (same).

41 Coble v. State, 330 S.W.3d 253, 270–80 (Tex.Crim.App.2010) (forensic psychiatrist’s testimony concerning defendant’s 

future dangerousness was not sufficiently reliable to be admissible).

42 Leonard v. State, 385 S.W.3d 570 (Tex.Crim.App.2012) (reversing probation revocation based on therapist’s testimony 

that defendant failed to “show no deception” on five polygraph tests).

43 Gonzales v. State, No. PD–1661–09, 2010 WL 711783 (Tex.Crim.App. Feb. 24, 2010) (not designated for publication) 

(Cochran, J., concurring).

44 See, e.g.,Ex parte Coty, 432 S.W.3d 341, 343 (Tex.Crim.App.2014) (holding that a defendant may prove a due-process 

violation caused by the malfeasance of a forensic laboratory technician if he establishes an inference of falsity and 

proves that the “false” evidence was material to his conviction).

45 That bill, introduced and then amended during the 81 st regular session, read as follows:

Art.11.073 PROCEDURES RELATED TO CERTAIN SCIENTIFIC EVIDENCE.

(a) This article applies to relevant scientific evidence that:

(1) was not available to be offered by the convicted person at the convicted person’s trial; or

(2) discredits scientific evidence relied on by the state at trial.

(b)A A court may grant a convicted person relief on an application for a writ of habeas corpus if the convicted person 

files an application, in the manner provided by Article 11.07,11.071, or 11.072, containing sufficient specific facts 

indicating that:

(1)A relevant scientific evidence is available and was not available at the time of the convicted person’s trial 

because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person 

before the date of or during the convicted person’s trial;

(2) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the 

application; and

(3)A the court finds that, had the scientific evidence been presented at trial, it is reasonably probable that the 

person would not have been convicted.

(c)A For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, 

a claim or issue could not have been presented previously in an original application or in a previously considered 

application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the 
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exercise of reasonable diligence by the convicted person on or before the date on which the original application or a 

previously considered application, as applicable, was filed.

(d)A In determining whether relevant scientific evidence was not ascertainable through the exercise of reasonable 

diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which 

the relevant scientific evidence is based has changed since:

(1)A the applicable trial date or dates, for a determination made with respect to an original application; or

(2)A the date on which the original application or a previously considered application, as applicable, was filed, for 

a determination made with respect to a subsequent application.

46 The Legislature did, however enact House Bill No. 498, which created the Timothy Cole Advisory Panel on Wrongful 

Convictions. Part of that panel’s legislative mandate was to investigate “the effects of state law on wrongful convictions, 

as determined based on state statutes regarding ... writs of habeas corpus based on relevant scientific evidence.” Tex. 

H.B. 498, 2009 Tex. Gen. Laws 1256, 81st Leg. R.S. (2009).

47 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. (2009).

48 Id. at 3. Testimony in the Senate Criminal Justice Committee also mentioned problems with serology evidence and 

firearms. Scott Henson testified before the House Committee on Criminal Jurisprudence and explained why the 

proposed statute dealt with all types of forensic science, rather than any specific field:

We don’t want to have to come back and ask y’all to pass a new law for, or a new chapter 65 for bullet lead analysis, 

and chapter 66 for arson, and chapter 67 for whatever the next thing is. And so what this [bill] does is create a 

mechanism to evaluate discredited scientific evidence without it being specific to one type of forensics.

SB 1976, House Committee on Criminal Jurisprudence, May 6, 2009.

49 The bill was substantively the same as that introduced in 2009, but there were minor differences in the division of the 

subsections.

50 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).

51 Id. at 470 (Cochran, J., dissenting). The problem was not that the science of determining the cause of death had 

changed, but that the medical examiner who had done the autopsy and originally determined that Tristen’s death was a 

homicide had, after many more years of experience, reviewing additional scientific materials and the trial testimony, 

changed her opinion and agreed with four other pathologists-Dr. Bux, Dr. Carter, Dr. Wolf, and Dr. Wheeler-who had 

concluded that they could not scientifically determine the cause of Tristen’s death. Id. at 468. The legal problem is that the 

verdict was no longer reliable.

The result in this case is not “patently inaccurate.” Yet its accuracy is clearly open to dispute. How should the habeas 

case be resolved when the prior verdict might have seemed accurate at the time, but everyone later recognizes that 

it might not have been accurate because it was based upon scientific expertise that has been rejected-either by the 

scientific community or the original scientist herself?

Id. at 470–71. I had concluded that, since there was no statute that addressed the problem, courts should “fall back 

upon the wisdom and experience of the habeas judge-the ‘Johnny–on–the–Spot’ factfinder to whom we will defer 

whenever the record supports his essential factual findings.” Id. at 472. In this case, the trial judge had recommended 

granting relief and giving applicant a new trial. Id. at 473–76. A majority of the Court did not agree with the trial judge.

52 Id. at 471 (footnote omitted).

53 Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App.2012).

54 In Henderson, a majority of this Court granted relief in a short per curiam opinion, while Judge Price wrote a concurring 

opinion; I wrote a concurring opinion joined by Judges Womack, Johnson, and Alcala; Judge Alcala wrote a concurring 

opinion; Judge Keasler wrote a dissenting opinion joined by Presiding Judge Keller and Judge Hervey; and Judge 

Hervey wrote a dissenting opinion joined by Presiding Judge Keller and Judge Keasler. Id.

Cathy Lynn Henderson was convicted of the capital murder of the child for whom she babysat. At trial, the medical 

examiner had testified that the defensive theory that the child’s fatal head injury was from an accidental fall was “false” 

and “impossible,” but at the habeas hearing he testified that, based on new biomechanical studies, he could not 
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determine whether the child’s injuries were caused by an accidental or intentional act. Id. at 833–34.

The only factual difference between the Henderson case and applicant’s is that, in the former, the medical examiner 

changed his opinion based on advances in the scientific field of biomechanics, while in the latter, the medical examiner 

changed her opinion based upon her eight additional years of experience in the field, reviewing additional materials, 

and consulting with other pathologists.

55 Id. at 852 (Keasler, J., dissenting); id. at 859 (Hervey, J., dissenting) (“Something is missing here. While the Court states 

that it accepts the trial court’s recommendation granting relief, it does so without providing any legal basis for that ruling, 

and I cannot find a ground upon which relief should be granted. And to justify its decision, the Court makes a quantum 

leap from ‘advances in science’ to granting relief, which presents a whole new dilemma for the criminal justice system 

and this case in particular.”).

56 WILLIAM SHAKESPEARE, HENRY V, act 3, sc. I, line 1.

57 House Research Organization, Bill Analysis, Tex. S.B. 344, 83rd Leg. R.S. at 2 (2013).

58 See State’s Brief at 27–29 (summarizing the testimony at the March 12, 2013 meeting of the Senate Criminal Justice 

Committee).

59 Bill Analysis, supra note 57, at 2–3 (“Supporters Say”).

60 Maurice Chammah, Bill Addresses Changing Science in Criminal Appeals,The Texas Tribune, Feb. 4, 2013, available at

http:// www.texastribune.org/2013/02/04/criminal-justice-advocates-renew-call-flawed-scien/.

61 Robbins, 360 S.W.3d at 469 (Cochran, J., dissenting).

62 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

63 This is not the only case in which Dr. Moore’s conclusions had been questioned during the early years of her 

medical-examiner practice. She was the medical examiner in the Brandy Dell Briggs case and declared that the death of 

Ms. Briggs’s infant son was a homicide. Ex parte Briggs, 187 S.W.3d 458, 463 (Tex.Crim.App.2005). Ms. Briggs originally 

pled guilty to injury to a child, but later filed a writ application alleging ineffective assistance of counsel for failing to retain 

an expert to read and interpret the child’s medical records. After other more experienced pathologists and doctors 

investigated and determined that the infant had suffered a natural death from septicemia originating with an undiagnosed 

urinary tract infection, Dr. Moore admitted that “another opinion from an outside source would be of utmost importance.... 

Someone with more experience (performed several autopsies on pediatric cases for years) and more expertise (in 

neuropathology and/or pediatric pathology or pediatrics) than I could help resolve the issues involved in this case.” Id. at 

463 n. 9. We noted in that case that “[t]he original pathologist is no longer with the Medical Examiner’s Office. Applicant 

introduced numerous official Harris County Medical Examiner’s Office ‘conduct counseling’ reports in the writ hearing 

concerning the purported deficient performance in various cases by the original pathologist.” Id.

In a parental-rights-termination case, Dr. Moore also declared that a child’s death was a “homicide due to 

complications from blunt force trauma to the abdomen, even though there were no bruises to her abdomen.” In re J.L.,

127 S.W.3d 911, 915 (Tex.App.-Corpus Christi 2004), rev’d163 S.W.3d 79 (Tex.2005). The court of appeals reversed 

the termination of the mother’s parental rights based on expert testimony that contradicted Dr. Moore’s and had been 

given in the father’s criminal prosecution. Id. at 918. The Texas Supreme Court reversed the court of appeals because 

that court had improperly taken judicial notice of the expert testimony in a different, criminal proceeding. 163 S.W.3d at 

88–89. Based on the testimony admitted in the mother’s civil case, the evidence was legally sufficient to support the 

termination of rights to the mother’s other child. Id. Dr. Moore and her “homicide” cause-of-death opinions were 

questioned in other cases as well. Andrew Tilghman, Several Autopsies by Former Examiner Reviewed,HOUS. 

CHRON. July 22, 2004, http:// 

chron.com/news/houston–texas/article/Several–autopsies–by–former–examiner–reviewed–1520093.php.

64 The NAS Report notes that “cognitive bias” is a common source of errors in scientific testimony. It explains that

[s]uch cognitive biases are not the result of character flaws; instead, they are common features of decisionmaking, 
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and they cannot be willed away. A familiar example is how the common desire to please others (or avoid conflict) can 

skew one’s judgment if co-workers or supervisors suggest that they are hoping for, or have reached, a particular 

outcome.

NAS Report, supra note 10, at 122.

65 Id. at 112. The report explained the self-correcting nature of science which

has had to develop means of revisiting provisional results and revealing errors before they are widely used. The 

processes of peer review, publication, collegial interactions (e.g., sharing at conferences), and the involvement of 

graduate students (who are expected to question as they learn) all support this need. Science is characterized also 

by a culture that encourages and rewards critical questioning of past results and of colleagues.

Id. at 125.

1 SeeTEX.CODE CRIM. PROC. art. 11.073.

2 Id. art. 11.073(b).

3 Id. art. 11.073(b)(1)(A).

4 Id. art. 11.073(d) (emphasis added).

5 Id. art. 11.073(c) (“For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 

11.072, a claim or issue could not have been presented previously in an original application or in a previously considered 

application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of 

reasonable diligence by the convicted person on or before the date on which the original application or a previously 

considered application, as applicable, was filed.”).

6 See id.art. 11.07, § 4(a)(1) (“If a subsequent application for a writ of habeas corpus is filed after final disposition of an 

initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the 

subsequent application unless the application contains sufficient specific facts establishing that ... the current claims and

issues have not been and could not have been presented previously in an original application or in a previously 

considered application filed under this article because the factual or legal basis for the claim was unavailable on the date 

the applicant filed the previous application.”), (b) (“For purposes of Subsection (a)(1), a legal basis of a claim is 

unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have 

been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United 

States, or a court of appellate jurisdiction of this state on or before that date.”).

7 SeeEx parte Oranday–Garcia, 410 S.W.3d 865 (Tex.Crim.App.2013) (applicant must make out a prima facie case for 

relief under the new law he identifies to avoid dismissal under subsequent-application prohibitions).

1 Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

2 Ex parte Rieck, 144 S.W.3d 510, 512 (Tex.Crim.App.2004).

3 See, e.g.,Dobbs v. State, 434 S.W.3d 166, 171 (Tex.Crim.App.2014); Watson v. State, 369 S.W.3d 865, 870 

(Tex.Crim.App.2012); Boykin, 818 S.W.2d at 786.

4 “Scientific Method.” Merriam–Webster.com, http:// www.merriam-webster.com/

dictionary/scientific method (last visited October 8, 2014).

5 See, e.g.,Clinton v. State, 354 S.W.3d 795, 801–802 (Tex.Crim.App.2011); Garza v. State, 213 S.W.3d 338, 349 

(Tex.Crim.App.2007) (“We must presume that ‘in enacting a statute, the Legislature intends the entire statute to be 

effective[,]’ and did not intend a useless thing.”).
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6 Ante, op. at ––––.

7 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (outlining factors that bear on 

the admissibility of scientific evidence under Federal Rule of Evidence 702).

8 Ante, op. at –––– – ––––.

9 Garza, 213 S.W.3d at 349.

10 Compare Tex. S.B.1976, 81st Leg., R.S. (2009) with Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).

11 Senate Research Center, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 1 (2009).

12 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 3 (2009).

13 Ante, op. at –––– – –––– (Cochran, J., concurring).

14 Tex. S.B. 317, 82nd Leg., R.S. (2011).

15 Tex. H.B. 220, 82nd Leg., R.S. (2011).

16 Hearing on H.B. 220 Before the House of Represenative Committee on Criminal Jurisprudence, 82nd Leg., R.S. (Feb. 

22, 2011) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/82 (statement from author Rep. 

Pete Gallego) (self-transcribed).

17 Id.

18 Id. at 13 (Cochran, J., concurring).

19 Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).

20 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) (statement from 

Justin Wood, Harris County Criminal District Attorney’s Office).

21 Senate Research Center, Bill Analysis, SB 344, 83rd Leg.

22 Ante, op. at –––– (Cochran, J., concurring).

23 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).

24 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) available at http:// 

www.senate.state.tx.us/avarchive/yr=2013 (statement from author Sen. John Whitmire) (self-transcribed).

25 Hearing on H.B. 967 Before the House of Representatives Committee on Criminal Jurisprudence, 83rd Leg., R.S. (April 

23, 2013) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/83 (statement from author Rep. 

Sylvester Turner) (self-transcribed).
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26 Id.(testimony of Rep. Sylvester Turner) (self-transcribed).

27 Id. (testimony of Jeff Blackburn of the Innocence Project of Texas) (self-transcribed).

28 Ante, op. at ––––.

29 384 S.W.3d 833, 837 (Tex.Crim.2012) (Cochran, J., concurring).

30 Ante, op. at ––––.

31 Ante, op. at ––––.

32 SeeTEX.CODE.CRIM. PROC. art. 11.073(d).

33 SeeEx parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Crim.App.2013).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.