            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-76,925



                EX PARTE CATHY LYNN HENDERSON, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                       FROM CAUSE NO. 94-2034 IN THE
                 299TH DISTRICT COURT OF TRAVIS COUNTY

       Price, J., filed a concurring opinion.

                                CONCURRING OPINION

       Back in 2007, I voted to allow the applicant in this cause to proceed on the merits of

a subsequent writ application because I believed that her application contained previously

unavailable specific facts sufficient to make out a prima facie case for a constitutional claim

of actual innocence.1 Now that the applicant has had a chance to develop a record in support

of her claim of actual innocence, I agree with both Judge Keasler (and, implicitly, Judge

Cochran) that her evidence falls short of satisfying the “Herculean” burden imposed on



       1

       Ex parte Henderson, 246 S.W.3d 690, 693 (Tex. Crim. App. 2007) (Price, J., concurring).
                                                           Henderson Concurring Opinion — 2


applicants making a bare claim of actual innocence under the standard we laid out in Ex parte

Elizondo.2 And yet, the convicting court has recommended that we grant the applicant a new

trial, and the State has declared itself content to go along with that ultimate recommendation.

I write separately to explain why, particularly in light of my concurring opinion last year in

Ex parte Robbins,3 I, too, am content to grant the applicant a new trial in this case—but on

the basis of the inadvertent use of false evidence rather than actual innocence.

       A bare claim of actual innocence and a claim that false evidence was inadvertently

used to obtain a conviction both fall along a continuum of due process violations. At one end

of the continuum is a claim that the State has knowingly used false or perjured testimony.

Here, due process is primarily concerned with the fairness of the trial.4 Because of the

State’s complicity in undermining the integrity of the process, the standard for materiality is

comparatively low: a reasonable possibility that the false or perjured testimony contributed

to the conviction.5 At the other end of the continuum is a bare claim of actual innocence.

An actual innocence claim does not depend upon a showing of misconduct of any kind on


       2

        See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (“Establishing a bare
claim of actual innocence [under the standard set out in Ex parte Elizondo, 947 S.W.2d 202 (Tex.
Crim. App. 1996)] is a Herculean task.”).
       3

       360 S.W.3d 446, 463-68 (Tex. Crim. App. 2011) (Price, J., concurring).
       4

       Id. at 464 (Price, J., concurring).
       5

       United States v. Bagley, 473 U.S. 667, 678-80 & n.9 (1985).
                                                               Henderson Concurring Opinion — 3


the part of the State. The due process concern is with the accuracy of the result.6 For that

reason, an actual innocence claim will result in habeas corpus relief only upon a showing of

extreme materiality: the applicant must be able to show by clear and convincing evidence

that, given the newly available evidence of innocence in addition to the inculpatory evidence

presented at trial, no reasonable juror would have convicted him.7 And, as Presiding Judge

Keller has advocated, and I agree, “[t]he unknowing use of perjured or false testimony falls

[or at least should fall] in between these endpoints, with a mid-level standard (or standards)

of materiality.”8 Thus, as the particular due process claim moves from the fairness end of the

continuum toward the accuracy end, the standard for materiality should rise concomitantly,

culminating in the Herculean burden associated with a bare claim of actual innocence.

       Though I do not think that the applicant has proven actual innocence in this case, I do

believe that she has established that her conviction violated her right to due process. She has

proven to my satisfaction that her conviction was based in critical part upon an opinion from

the medical examiner that he has now disowned because it has been shown by subsequent



       6

        Robbins, at 463 (Price, J., concurring).
       7

        Elizondo, supra, at 209.
       8

         Ex parte Chavez, 371 S.W.3d 200, 216 (Tex. Crim. App. 2012) (Keller, P.J., dissenting).
The majority in Chavez seems to have applied the same standard of materiality for the unknowing
use of false or perjured evidence as for the knowing use. See Chavez, supra, at 208-09 (applying
“reasonable likelihood” standard of materiality). Needless to say, I am not in favor of that. Robbins,
supra, passim (Price, J., concurring).
                                                            Henderson Concurring Opinion — 4


scientific developments to be highly questionable. In Robbins, a non-death-penalty capital

murder case, the applicant raised claims of actual innocence and the inadvertent use of false

evidence. I joined the majority opinion denying relief on both claims, but wrote separately

to express my view that, “when it comes to claims of the inadvertent use of false evidence,

we must not be overly liberal in how we characterize ‘false’ evidence.” 9 One immediately

obvious difference between Robbins and the instant case is that Robbins did not involve

intervening scientific developments—the medical examiner in Robbins simply changed her

mind between the time of her trial testimony and the post-conviction writ proceedings.10

Here, the medical examiner currently believes that intervening research in the science of

biomechanics has undercut his trial testimony, and the convicting court has accepted that as

a sufficiently accurate statement of the condition of current scientific/medical knowledge to

justify the conclusion that the applicant’s trial was rendered unfair—and quite possibly

inaccurate—by the medical examiner’s now-disowned trial testimony.                 Under these

circumstances, I am far less hesitant to characterize the trial testimony as “false.”

       Nor does it trouble me that, when the applicant filed her subsequent writ application

in 2007, she did not include a false-evidence claim, per se. Having filed her subsequent writ



       9

        Robbins, supra, at 465 (Price, J., concurring).
       10

       Id. at 463 (“[U]nlike Henderson, [the medical examiner’s] re-evaluation was not attributed
to new scientific information but was instead based on the same autopsy findings and other
information that she had at the time of trial.”).
                                                                Henderson Concurring Opinion — 5


application two-and-a-half years before we issued our opinion in Ex parte Chabot,11 she

could not have known that we would come to entertain claims of the inadvertent use of false

evidence.12 Even so, embedded within her claim of actual innocence are facts sufficient to

allege such a claim,13 and in pursuing her actual innocence claim, she has ultimately

developed facts sufficient to prove it.

       My concurring opinion in Robbins was fueled by a concern that the materiality

standard we have applied to claims of the inadvertent use of false or perjured evidence since

Chabot may not be sufficiently stout. To my way of thinking, such claims fall closer to the

accuracy-of-the-result actual-innocence end of the continuum than the fairness-of-the-process

State-complicity end. Accordingly, while a claim that the State inadvertently used false or

perjured testimony should not be subject to quite the same Herculean standard of materiality

as an actual innocence claim, still, if we are to recognize it as a valid due process claim at all,

we should subject it to a materiality standard that is relatively high. I did not think that


       11

        300 S.W.3d 768, 771 (Tex. Crim. App. 2009).
       12

         Cf. Chavez, supra, at 205 (“Chabot was the first case in which we explicitly recognized an
unknowing-use due-process claim; therefore, that legal basis was unavailable at the time applicant
filed his previous application. See TEX . CODE CRIM . PROC. art. 11.07 § 4(a)(1).”).
       13

         See Ex parte Napper, 322 S.W.3d 202, 243 (Tex. Crim. App. 2010) (“[W]e observe that our
‘actual innocence’ jurisprudence could encompass a claim on habeas that involved newly discovered
evidence that a witness’s testimony was false.”); Chavez, supra, at 216 n.30 (Keller, P.J., dissenting)
(“Although Elizondo was decided as an actual innocence case, it would also have satisfied the
predicate, under today’s standards, for an unknowing-use-of-perjured-testimony claim because the
recantation of a testifying witness was at issue.”).
                                                            Henderson Concurring Opinion — 6


Robbins could meet such a high standard of materiality and believed that to grant him relief

under the circumstances of that case would effectively undermine our actual innocence

jurisprudence. I therefore voted to deny relief in Robbins.

       By contrast, on the facts of this case, as detailed in Judge Cochran’s concurring

opinion, it is evident to me that the applicant can meet practically any standard of materiality

less than that applicable to a bare actual innocence claim. In Ex parte Chavez, I recently took

the position that a subsequent post-conviction habeas applicant should not be permitted to

proceed to the merits of his inadvertent-use-of-false-evidence claim because, regardless of

whatever standard of materiality we might apply, the subsequent applicant could not possibly

meet it.14 In this case, my view is just the opposite. While she cannot satisfy the Herculean

materiality standard to satisfy a claim of actual innocence, the present applicant has

demonstrated materiality under whatever marginally lesser standard we may care to carve out

to govern a claim that due process has been violated by the inadvertent use of false evidence.

That is enough to convince me that the Court appropriately adopts the convicting court’s

ultimate recommendation—acceded to by the State—to grant the applicant a new capital

murder trial.




FILED:          December 5, 2012
PUBLISH


       14

        Chavez, supra, at 220-21 (Price, J., dissenting).
