              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 299 TH DISTRICT COURT
                              TRAVIS COUNTY

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

                                DISSENTING OPINION

       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.
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         The real issue in this case is whether the admission of potentially unreliable

evidence requires this Court to grant relief regardless of the state of the remaining record.

Eleven expert witnesses testified at Applicant’s writ hearing, some for both sides. The

trial court found all of the experts credible but focused on a change in the testimony of

expert Dr. Bayardo to conclude that Applicant had proven by clear and convincing

evidence that no reasonable juror would have convicted her in light of the “new

evidence.” This Court now defers to that conclusion. However, nowhere in Dr.

Bayardo’s altered testimony does he state or indicate that his original opinion was false,

nor does he refute the medical science relied upon by the other State experts. Instead, Dr.

Bayardo changed his opinion on the manner of death from “homicide” to “undetermined”

based upon changes in the science upon which he relied. While a change in Dr.

Bayardo’s testimony could render his opinion unreliable, “unreliable” testimony does not

equate with “false testimony” or “innocence,” nor does it automatically require a new

trial.

         The admission of expert testimony is governed by Texas Rule of Evidence 702,

and to be admissible under this rule, the party offering the scientific expert testimony

must demonstrate by clear and convincing evidence that such testimony is both relevant

and reliable. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). The focus of

the reliability analysis is to determine whether the evidence has its basis in sound

scientific methodology such that testimony about “junk science” is weeded out. Jordan v.
                                                                         Henderson dissent - 3

State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).

       Whether the science at issue is a “hard” science1 or a “soft” science,2 “reliability

should be evaluated by reference to the standards applicable to the particular professional

field in question.” Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim. App. 2010); see

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (holding that when

the subject of the expert’s testimony is scientific knowledge, the basis of his or her

testimony must be grounded in the accepted methods and procedures of science).

Therefore, a change in the science upon which an expert relied in providing his trial

testimony might indeed undermine the reliability of his testimony. But it does not

necessarily follow that the testimony was “false” or that the existence of new science

necessarily implicates innocence. For example, in this Court’s unanimous opinion in Ex

parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012), we adopted the trial court’s

conclusion that the “gunshot-residue standards, as testified to at trial, are no longer

reliable.” Id. at 663. However, we did not adopt the trial court’s conclusion that

“Applicant should also be granted relief, independently, on the ground of flawed forensic

testimony.” Id. Instead, we looked to all of the evidence presented and only then

determined that actual-innocence relief was warranted. Other decisions from this Court

recognize both the advancement in science and the legislative directive to apply that



       1
           Daubert, 509 U.S. 579; Kelly, 824 S.W.2d 568.
       2
           Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998).
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science to our caselaw through Chapter 64 of the Texas Code of Criminal Procedure.

While further testing may prove to be inconclusive or even exculpatory, relief may

nonetheless be denied based on the volume of other evidence. See Gutierrez v. State, 337

S.W.3d 883 (Tex. Crim. App. 2011); Prible v. State, 245 S.W.3d 466 (Tex. Crim. App.

2008).

         Furthermore, even if a change in the underlying science means that the expert

testimony was unreliable, it does not automatically result in a due process violation (and

thus a new trial). An additional analytical step is required. Only when the admission of

unreliable testimony was harmful is due process implicated and a new trial appropriate.

See Coble, 330 S.W.3d at 280. Accordingly, relief should only be granted if the applicant

demonstrates the error affected his or her substantial right to a fair trial. See Tex. R. App.

Proc. 44.2(b); Coble, 330 S.W.3d at 280 (explaining that harm occurs when the error had

a substantial and injurious effect or influence in determining the jury’s verdict). A

criminal conviction should not be overturned by the erroneous admission of evidence “if

the appellate court, after examining the record as a whole, has fair assurance that the error

did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410,

417 (Tex. Crim. App. 1998).

         This reliability analysis is consistent with our policy interest in the finality of

convictions. The Supreme Court has emphasized its enduring respect for “the State’s

interest in the finality of convictions that have survived direct review within the state
                                                                        Henderson dissent - 5

court system.” Calderon v. Thompson, 523 U.S. 538, 555 (1998). “Without finality, the

criminal law is deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288,

309 (1989) (plurality op.). To abide by Judge Cochran’s suggestion that any intervening

scientific development should result in a new trial would seriously undermine the stability

of our criminal justice system. Most convictions involve some type of scientific

evidence, whether hard (e.g., DNA or urinalysis) or soft (e.g., eyewitness identification or

forensic psychiatrists testifying about future dangerousness). Rarely is a case wholly

dependent on science alone. Thus, if we were to grant a new trial with every scientific

advancement, without proof that the original science was indeed faulty, the finality of

convictions would be illusory. While the evolution of science is important to the

improvement of our system, each case must be decided individually, taking into account

all of the evidence.

       In summary, intervening scientific developments might result in unreliable expert

testimony, and the admission of this unreliable evidence might rise to the level of a due

process violation. But this case does not present us with such a scenario. Dr. Bayardo

changed his opinion on the manner of death from “homicide” to “undetermined” based

upon changes in the science upon which he relied. Perhaps this makes Dr. Bayardo’s trial

testimony unreliable, but as Judge Cochran acknowledges in her concurring opinion, this

“does not mean applicant is actually innocent of homicide” or that “[Dr. Bayardo’s] trial

testimony was ‘false’ at the time it was given, based upon the state of scientific
                                                                          Henderson dissent - 6

knowledge that he relied upon at that time.” The “new evidence,” even if based on “new

science,” must still affirmatively establish that the applicant is entitled to relief. See Ex

parte Spencer, 337 S.W.3d 869, 879 (Tex. Crim. App. 2011).

       Additionally, when the entire record is considered, it is clear that Appellant’s

substantial rights to a fair trial were not affected by the admission of Dr. Bayardo’s

testimony. See Coble, 330 S.W.3d at 280 (“In making a harm analysis, we examine the

entire trial record and calculate, as much as possible, the probably impact of the error

upon the rest of the evidence.”). As Judge Keasler competently outlines in his dissenting

opinion, there is ample evidence to support that Appellant intentionally caused Brandon’s

death. See T EX. P ENAL C ODE § 19.03(a)(8). Certainly, in this context, Dr. Bayardo’s

unreliable testimony could not have a substantial and injurious effect or influence in

determining the jury’s verdict. See Coble, 330 S.W.3d at 280. The record provides fair

assurance that the error would not influence a jury, or would have but a slight effect. See

Johnson, 967 S.W.2d at 417.

       For these reasons, I respectfully dissent.

                                                           Hervey, J.

Filed: December 5, 2012

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