             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                       NO. WR-73,484-02



                    Ex parte NEAL HAMPTON ROBBINS, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 98-06-0075-CR IN THE 410 TH DISTRICT COURT
                           MONTGOMERY COUNTY

                K ELLER, P.J., filed a dissenting opinion in which H ERVEY, J., joined.

       The legislature passed Article 11.073 to allow a defendant to obtain habeas relief on the basis

of new scientific evidence.1 In 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



       1
           See TEX . CODE CRIM . PROC. art. 11.073.
                                                                             ROBBINS DISSENT - 2

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.”3 In 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 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


       2
           Id. art. 11.073(b).
       3
           Id. art. 11.073(b)(1)(A).
       4
           Id. art. 11.073(d) (emphasis added).
                                                                             ROBBINS DISSENT - 3

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.

        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 11.07, § 4.



        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.”).
                                                                         ROBBINS DISSENT - 4

         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

Filed: November 26, 2014
Publish




         7
        See Ex 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).
