             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. AP-76,464



                  EX PARTE NEAL HAMPTON ROBBINS, Appellant

           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                IN CAUSE NO. 98-06-00750-CR FROM THE
      410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY

       A LCALA, J., filed a dissenting opinion.

                                          OPINION

       I respectfully dissent. I conclude that Neal Hampton Robbins is entitled to

relief on his application for a writ of habeas corpus on the ground that he was denied

due process of law by the State’s use of false testimony to obtain his conviction.1

1
  Although I agree with many of the assessments in the Honorable Judge Cochran’s dissenting
opinion, I do not join that opinion because the change in Dr. Moore’s testimony is not due to new
scientific principles but is instead, according to her, due to her having more experience as a medical
examiner, and according to the trial court’s findings, due to her trial testimony being the result of
prosecutorial bias. None of the medical examiners who testified for the application for writ of
habeas corpus describe their testimony as stemming from new scientific principles. Compare Ex
parte Henderson, 246 S.W.3d 690, 691 (Tex. Crim. App. 2007) (“That material [affidavits and
reports of several scientists] indicates that what is called the biomedical analysis of infant head
trauma (an area of scientific research that was beginning to develop in 1995 when applicant was tried
                                                                                        Robbins-2

                                        I.   False Testimony

       The Due Process Clause of the Fourteenth Amendment is violated when the

State knowingly or unknowingly uses perjured testimony to obtain a conviction. Ex

parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009); Ex parte Napper,

322 S.W.3d 202, 242 (Tex. Crim. App. 2010) (“Chabot simply stands for the

proposition that the preponderance of the evidence standard is appropriate for the

unknowing use of perjured testimony that the habeas applicant had no prior

opportunity to discover.”). The term “perjury” in this context requires proof that the

testimony “gives the trier of fact a false impression,” but it does not require proof of

the elements of “perjury” as that term is defined in the penal code. See Ex parte

Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011); see also Napper, 322

S.W.3d at 242 (citing Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim. App. 2010)

(“[W]e held on direct appeal that false testimony that was not perjury resulted in a due

process violation when there was ‘a fair probability that [the] death sentence was

based upon . . . incorrect testimony.’”).




and convicted) now shows that the type of head injuries that Brandon Baugh suffered could have
been caused by an accidental short fall onto concrete.”). The testimony Dr. Moore gave at the writ
hearing concerning her uncertainty about cause and manner of death is very similar to the testimony
given by Dr. Robert Bux, the medical examiner testifying for Robbins at the trial, and her changed
testimony is not due to advances in science.
                                                                               Robbins-3

      The trial court found that Dr. Moore’s trial testimony was false. The trial

court’s findings state that “Dr. Moore’s trial opinions were not true. They were based

on false pretenses of competence, objectivity, and underlying pathological reasoning,

and were not given in good faith.” The trial court characterized her testimony as

“expert fiction calculated to attain a criminal conviction.” The record supports the

trial court’s characterization concerning the falseness of the testimony.

      The record shows that, as the sole witness establishing cause and manner of

death for the State at Robbins’s trial, Dr. Moore testified that, based on her scientific

opinion beyond a reasonable doubt, the cause of Tristen Rivet’s death was asphyxia

due to compression of the chest and abdomen, and the manner of death was homicide.

In her evidence concerning this application for a writ of habeas corpus, she now

concludes that the cause of death was, beyond a reasonable doubt, not compression

asphyxia, and undeterminable as to homicide, asphyxial or otherwise. Dr. Moore’s

subsequent testimony is a complete refutation of her trial testimony because, although

her trial testimony stated that, beyond a reasonable doubt, the cause of death was

compression asphyxia and the manner of death was homicide, she now says that the

cause and manner of death are, beyond a reasonable doubt, “undeterminable.” Both

positions cannot be true. This wholesale refutation of her previously professed

scientific certainty nullifies the veracity of the conclusion itself.
                                                                              Robbins-4

      I recognize that, as noted by the majority opinion, the record shows that neither

Dr. Moore nor any of the other testifying experts can “exclude” asphyxial homicide

as a possible cause of death or “rul[e] out other reasonable hypotheses by which

Tristen died.” In other words, because Dr. Moore presently acknowledges that the

cause of Tristen’s death could possibly have been homicide and possibly by

asphyxiation, the majority opinion determines that her new testimony does not show

that her earlier testimony is false. But Dr. Moore is merely acknowledging the

possibility that this cause and manner of death could be true because her opinion is,

beyond a reasonable doubt, that she does not know the cause and manner of death.

The fact that a witness acknowledges a mere possibility of an alternative hypothesis

is not a failsafe escape for due process violations.

      The Supreme Court has disallowed this technical splicing of the truth to avoid

due process violations. In evaluating whether evidence is false, it has focused on

whether the testimony, taken as a whole, gives the jury a false impression. See

Alcorta v. Texas, 355 U.S. 28, 31 (1957) (holding Alcorta’s due process rights

violated when the State, although not soliciting false evidence, allowed it to go

uncorrected when it appeared, and stating, “It cannot seriously be disputed that [the

witness’s] testimony, taken as a whole, gave the jury the false impression that his

relationship with petitioner’s wife was nothing more than that of casual friendship.”).
                                                                                           Robbins-5

       Furthermore, the Supreme Court has determined that a statement is false even

when the witness has acknowledged the existence of a similar situation. See Napue

v. Illinois, 360 U.S. 264, 270 (1959) (holding Napue’s due process rights violated

because witness’s testimony that public defender had offered to help him if he

testified for the State did not turn “what was otherwise a tainted trial into a fair one”

when true evidence showed that prosecutor had promised “consideration” if witness

testified at Napue’s trial). These Supreme Court decisions illustrate that a due

process violation cannot be excused by the mere acknowledgment that it is possible

that the trial testimony could have been true. Dr. Moore’s new testimony, when taken

as a whole, is that, beyond a reasonable doubt, the manner and cause of death is

undeterminable, and it is that testimony that was improperly precluded from

Robbins’s trial.2

       Perhaps Dr. Moore’s testimony could not be called “false” if, for example, she

consistently determined, beyond a reasonable doubt, that the manner and cause of

2
   Ex parte Chavez, a case on which the majority opinion relies, does not support the majority’s
position. No. AP-76,291, 2010 Tex. Crim. App. Unpub. LEXIS 686 (Tex. Crim. App. Nov. 17,
2010) (not designated for publication). In the trial in Chavez, the State’s expert testified that she
could not identify the recovered hair as belonging to Chavez and confirmed that it was “quite
possible that folks of the same race would share characteristics on their [hair] samples.” Id. at *12-
13. Later, DNA results confirmed that the hair did not belong to the defendant. Id. at *14. The DNA
evidence merely diminished the probative value of the hair comparison testimony at trial. It did not
disprove the expert’s testimony that the hairs shared physical characteristics. Id. at *20. Taking the
hair expert’s testimony as a whole, the DNA evidence did not show it was untrue, and, therefore,
Chavez’s holding is unpersuasive in this context, in which the same witness is giving two
contradictory scientific opinions concerning the exact same subject.
                                                                                Robbins-6

death could be established with scientific certainty and that the manner of death was

homicide, but was uncertain whether the cause of death was asphyxia by some means

other than compression. See Berger v. United States, 295 U.S. 78, 82 (1935) (“The

true inquiry, therefore, is not whether there has been a variance in proof, but whether

there has been such a variance as to ‘affect the substantial rights’ of the accused.”).

But Dr. Moore’s changed testimony is not merely a variance in proof. Her present

position acknowledges that the cause and manner of death could possibly be natural

causes or homicide and that both are equally likely. An acknowledgment that trial

testimony could possibly be correct because no one can determine the cause and

manner of death with scientific certainty is vastly different from evidence that the

cause and manner of death are proven beyond a reasonable doubt with scientific

certainty. I, therefore, agree with the trial court’s assessment that the record shows

that Dr. Moore’s testimony was false.

                                    II.   Harm Analysis

      Having determined that Dr. Moore’s false testimony constituted “perjury” in

the context of this due process analysis, I conclude, as did the trial court, that Robbins

has shown by a preponderance of the evidence that the use of this false evidence

contributed to his conviction. It is undisputed that Robbins had no opportunity to

discover Dr. Moore’s bias and improper intentions prior to her recantation, and,
                                                                                           Robbins-7

therefore, resolution of this case rests on whether he met his burden to show harm.

Regardless whether the State’s use of the perjury was knowing3 or unknowing, the

standard of harm requires that the applicant prove by a preponderance of the evidence

that the error contributed to his conviction or punishment. See Ex parte Fierro, 934

S.W.2d 370, 374-75 (Tex. Crim. App. 1996) (“[W]e hold that the knowing use of

perjured testimony is trial error, subject to the harmless error standard applicable on

habeas corpus,” and “we hold that the applicant has the burden to prove by a

preponderance of the evidence that the error contributed to his conviction or

punishment.”); Chabot, 300 S.W.3d at 771 (“Although the present case involves

unknowing, rather than knowing, use of testimony, we see no reason for subjecting

the two types of error to different standards of harm.”); Napper, 322 S.W.3d at 244


3
   Inconsistently with this harm requirement, our court has absolved an applicant from having to
prove harm, as follows: “When a habeas applicant has shown that the State knowingly used false,
material testimony, and the applicant was unable to raise this claim at the trial or on appeal, we will
grant relief from the judgment that was obtained by that use.” Ex parte Ghahremani, 332 S.W.3d
470, 483 (Tex. Crim. App. 2011); see also Ex parte Carmona, 185 S.W.3d 492, 496 (Tex. Crim.
App. 2006) (due process violated and habeas relief granted where witnesses’ material testimony
recanted “or their bias and lies . . . exposed.”). “[W]e treat perjured testimony as knowingly used
if the witness was a member of the ‘prosecution team.’” Ex parte Napper, 322 S.W.3d 202, 243
(Tex. Crim. App. 2010). Knowledge possessed by a member of the “prosecution team” must be
imputed to the prosecutor actually trying the case. Ex parte Castellano, 863 S.W.2d 476, 485 (Tex.
Crim. App. 1993); Ex parte Brandley, 781 S.W.2d 886, 892 n.7 (Tex. Crim. App. 1989). Everyone
here agrees that the State’s prosecutors did not, themselves, knowingly sponsor false testimony.
Some evidence suggests that Dr. Moore was a member of the “prosecution team” in that she was the
assistant medical examiner employed by the county and the State’s sole witness to establish criminal
cause and manner of death. Because Robbins is able to show harm by a preponderance of the
evidence, I need not determine whether Dr. Moore was a member of the “prosecution team” and do
not address whether Robbins should be absolved of the burden to prove harm.
                                                                            Robbins-8

(“For habeas corpus proceedings involving the unknowing use of perjured testimony,

the harm standard would be preponderance of the evidence”).

      The record supports the trial court’s findings that Dr. Moore’s testimony was

“critical” to resolution of the case and that “her opinions were the sole bases of the

State’s case as to cause and manner of death, without which the State would not have

obtained a conviction.” We must defer to these findings, as they are amply supported

by the record. See Ghahremani, 332 S.W.3d at 478 (requiring deference to findings

supported by record). Alone, Dr. Moore conducted the autopsy of Tristen’s body and

was thus the sole testifying witness with personal knowledge of the medical findings.

And her trial testimony alone professes that the cause of Tristen’s death was, beyond

a reasonable doubt, homicide (asphyxial or otherwise). Absent this trial testimony,

there is no evidence of the cause of death—that is, no evidence that a crime

occurred—because Robbins’s defense expert medical examiner, Dr. Robert Bux,

testified that Tristen’s death could have been from natural causes. Dr. Moore now

agrees with Dr. Bux’s medical assessment. Without Dr. Moore’s trial testimony, the

jury would have been left solely with the evidence from Dr. Bux, who stated that the

cause and manner of Tristen’s death are undeterminable.

      Mere consideration of whether the jury would have convicted based solely on

the remaining circumstantial evidence absent Dr. Moore’s testimony does not
                                                                              Robbins-9

sufficiently measure her testimony’s materiality. See United States v. Johnson, 149

F.2d 31 (7th Cir. 1945) (“‘There is no way for a court to determine that the perjured

testimony did not have controlling weight with the jury, and, notwithstanding the

perjured testimony was contradicted at the trial, a new light is thrown on it by the

admission that it was false; so that, on a new trial, there would be a strong

circumstance in favor of the losing party that did not exist and therefore could not

have been shown, at the time of the original trial.’”) (quoting Martin v. United States,

17 F.2d 973, 976 (5th Cir. 1927)). First, Dr. Moore’s subsequent testimony actually

corroborated defense witness Bux’s testimony that the cause of death was

undeterminable. See Alcorta, 355 U.S. at 31-32 (in reversing judgment, stating, “If

Castilleja’s relationship with petitioner’s wife had been truthfully portrayed to the

jury, it would have, apart from impeaching his credibility, tended to corroborate

petitioner’s contention that he had found his wife embracing Castilleja.”). Second,

her testimony that was introduced at trial affirmatively misled jurors to reach a

damning conclusion on the most crucial issue that, but for that testimony, they likely

would not have reached. See id. at 32 (determining that applicant’s due process rights

were violated by misleading testimony denying sexual relationship between deceased

and witness that was pertinent to proof of sudden passion arising from an adequate
                                                                                            Robbins-10

cause). Dr. Moore’s trial testimony thus prevented “a trial that could in any real sense

be termed fair.” See Napue, 360 U.S. at 270.4

                                        III.     Conclusion

        I conclude that Robbins’s due process rights were violated by the false,

material trial testimony by the State’s sole medical expert establishing cause and

manner of death. In accordance with the recommendation by the convicting court to

grant relief from the judgment, I would remand for a new trial.



Filed: June 29, 2011

Publish




4
  Dr. Moore acknowledges that she had been cited for improper work and evaluated as being biased
in favor of the prosecution. Her supervisor, Dr. Joye Carter, had questioned her impartiality and
suggested that she had not successfully transitioned into the neutral position of a forensic pathologist.
Furthermore, Dr. Moore had provided similar recantations in other cases as well. This evidence
seems to support the trial court’s findings that the false trial testimony by Dr. Moore was not given
in good faith. However, I need not reach the issue of whether Dr. Moore acted in bad faith, because
Robbins has met the burden of proof to show by a preponderance of the evidence that he was harmed
by Dr. Moore’s false testimony. See Napper, 322 S.W.3d at 243-44.
