            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
                           TRAVIS COUNTY



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

                                 DISSENTING OPINION

       Like this Court’s order remanding the matter to the trial court for findings of fact and

conclusions of law, the Court’s opinion today grants Cathy Henderson relief without one

word of analysis why she is entitled to it. In fact, the Court does not even identify the legal

basis for granting Henderson relief. Instead it issues a legally hollow opinion with a

staggering result. Readers of both our remand order in this matter and today’s opinion will

undoubtedly and justifiably be both baffled and appalled by the Court’s opinion. I count

myself among them. The unmistakable message of the Court’s per curiam opinion is this:
                                                  HENDERSON DISSENTING OPINION—2

despite applicable legal precedent to the contrary and overwhelming inculpatory facts, we

grant Henderson relief solely because we want to. And to future applicants, this message’s

implication is clear: with luck, your writ application may also be viewed with such grace.

       In her subsequent application for a writ of habeas corpus, Henderson asserts she is

entitled to relief for three reasons: (1) she is actually innocent of capital murder because no

reasonable juror would convict her of capital murder in light of new scientific evidence

(Herrera1 -type claim); (2) but for constitutional errors—namely a violation of Ake v.

Oklahoma2 and a Fifth Amendment claim previously raised and rejected on direct appeal3 —

no rational juror could have found her guilty beyond a reasonable doubt in light of the new

evidence (Schlup4 -type claim); and (3) she is no longer death eligible. The Court came to the

breathtaking conclusion that Henderson satisfied Texas Code of Criminal Procedure article

11.07, § 5(a) with her allegation that then Travis County Medical Examiner Dr. Roberto

Bayardo’s reevaluation of his opinion at trial was newly discovered evidence that established

her innocence. The Court remanded the matter to the trial court for further proceedings on

Henderson’s first two claims and dismissed her third.5




       1
           Herrera v. Collins, 506 U.S. 390 (1993)
       2
           470 U.S. 68, 83–87 (1985).
       3
           Henderson v. State, 962 S.W.2d 544, 551–57 (Tex. Crim. App. 1997).
       4
           Schlup v. Delo, 513 U.S. 298 (1995).
       5
           Ex parte Henderson, 246 S.W.3d 690, 692 (Tex. Crim. App. 2007).
                                                   HENDERSON DISSENTING OPINION—3

       After several evidentiary hearings, this matter now returns to us with the trial judge’s

findings of fact and conclusions of law recommending that we grant relief on Henderson’s

first actual-innocence claim. Dr. Bayardo’s reevaluation of whether the injuries suffered by

Brandon Baugh, the three-and-half-month-old victim of this capital murder, were

intentionally inflicted is the crux of Henderson’s actual-innocence claim and the foundation

of the trial judge’s recommendation to grant relief. Despite our instructions in the remand

order, the trial judge did not enter findings of fact or conclusions of law on Henderson’s

Schlup claim, which if the Court were to expressly reject Henderson’s actual-innocence

claim, as it should, would require remanding to the trial judge to address this issue.

       By explicitly stating that the trial judge’s findings of fact are supported by the record,

the Court, by implication, reaches the opposite conclusion as to the trial judge’s conclusions

of law—that they do not share the same record support. But it nonetheless “accepts” the trial

judge’s recommendation to grant relief and give Henderson a new trial on an unknown basis.

Surely, it cannot be actual innocence otherwise the Court would have found the trial judge’s

conclusions are supported by the record or would have expressly found Henderson proved

her actual innocence. In its zeal to grant Henderson relief, the Court is forced to look

elsewhere to accomplish its goal, and left without a clear legal path, the Court takes the

indefensible position to grant relief without justification or explanation. The facts adduced

at trial and in the subsequent evidentiary hearings in light of our actual-innocence case law

make it clear why the majority could not adopt the trial judge’s conclusions and grant
                                                   HENDERSON DISSENTING OPINION—4

Henderson relief on actual-innocence grounds; the burden is too high, the inculpatory facts

are too great, and the “new evidence” is too weak.

       To put the issue of Dr. Bayardo’s reevaluation in perspective, it is appropriate to start

with his testimony at Henderson’s 1995 capital murder trial. At the time, Dr. Bayardo had

been Travis County’s Chief Medical Examiner for eighteen years and throughout his career

he had performed approximately 15,000 autopsies. He personally performed Brandon

Baugh’s autopsy and testified to the extent of Brandon’s injuries at trial. Dr. Bayardo

concluded, “It is my opinion, based upon the autopsy findings, that the decedent, Brandon

Baugh, came to his death as a result of a severe closed head injury. There was comminuted

fracturing of the back of the skull and subdural and subarachnoid hemorrhages implying that

a severe force had been given to the head and characteristic of abuse, homicide.” 6 Dr.

Bayardo also concluded that it would have been “impossible” and “incredible” for a fall from

four to four-and-a-half feet to have caused Brandon’s injuries. He also testified that

Brandon’s injuries were not accidental because the fractures crossed the suture lines found

in an infant’s not-fully formed skull which would require a severe degree of force. Further,

the injury’s location—the back of the head—was a characteristic of an abused child because

most accidents occur on the sides of the head. Dr. Bayardo explained that “[t]his is an injury

that you see when a baby’s head is slammed or thrown very forceable against a flat surface”

and in order for Brandon’s injury to result from a fall, “he would have to fall from a height



       6
           33 R.R. 854.
                                                  HENDERSON DISSENTING OPINION—5

higher than a two-story building.”7 On cross-examination, Dr. Bayardo conceded that his

testimony was limited to the cause of death and he was unable to tell the jury the exact nature

of the severe force or how that force was inflicted.

       At the habeas hearing and in his affidavit, Dr. Bayardo testified that after reviewing

reports from Drs. John Plunkett, Peter Stephens, and Kenneth Monsoon—Henderson’s

proffered experts who discussed how biomechanics could explain that Brandon’s injuries

were accidental—he would no longer testify that the manner of Brandon’s death was

homicide; instead he would now conclude that it was “undetermined,” as opposed to

accidental. According to his affidavit, Dr. Bayardo also claims that he would not be able to

testify about the degree of force needed to cause Brandon’s head injury and would not

conclude that an accidental fall was “impossible” or “incredible” in explaining the cause of

Brandon’s injuries.

       Even after the benefit of multiple evidentiary hearings where the trial judge took

testimony from expert after expert, Henderson is no closer to establishing her innocence than

she was in her claims she asserted in her subsequent application.8 Henderson presents a bare

innocence claim. We have labeled the burden of establishing a bare claim of actual

innocence a Herculean task.9 In satisfying this heavy burden, Henderson’s newly discovered


       7
           33 R.R. 868.
       8
           Ex parte Henderson, 246 S.W.3d at 696–97 (Keasler, J., dissenting).
       9
        Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006); Ex parte
Robbins, 360 S.W.3d 446, 464 (Tex. Crim. App. 2011) (Price, J., concurring).
                                                  HENDERSON DISSENTING OPINION—6

evidence must constitute affirmative evidence of her innocence.10 Henderson must show by

clear and convincing evidence that no reasonable juror would have convicted her in light of

the new evidence.11 Whether an applicant satisfies this burden requires the evaluation of “the

probable impact of the newly available evidence upon the persuasiveness of the State’s case

as a whole, so we must necessarily weigh such exculpatory evidence against the evidence of

guilt adduced at trial.” 12

        The trial judge concluded that Henderson “has proved by clear and convincing

evidence that no reasonable juror would have convicted her of the capital murder of Brandon

Baugh in light of the new evidence presented in her Application.”13 The Court’s opinion

acknowledges that in most circumstances we appropriately defer to and accept the trial

judge’s findings of fact and conclusions of law when they are supported by the record.

However, we may make contrary findings and conclusion when our independent review of

the record reveals the findings and conclusions are not supported by the record.14 Here, the

trial judge’s conclusion is not supported by the record and is demonstrably wrong because


        10
             Ex parte Franklin, 72 S.W.3d 671, 678 (Tex. Crim. App. 2002).
        11
             Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
        12
             Ex parte Robbins, 360 S.W.3d at 458 (citing Ex parte Elizondo, 947 S.W.2d at
206).
        13
         Findings of Fact and Conclusions of Law on First Subsequent Application for
Post-Conviction Writ of Habeas Corpus at 11, No. 94-2034 (299th Dist. Ct, Travis
County, Tex. May 17, 2012) (hereinafter “Findings of Fact and Conclusion of Law”).
        14
             Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
                                                   HENDERSON DISSENTING OPINION—7

it implicitly mischaracterizes Dr. Bayardo’s new opinion, improperly focuses on Dr.

Bayardo’s reevaluation in isolation, and fails to weigh such exculpatory evidence against all

of the evidence of guilt adduced at trial.

       Dr. Bayardo’s testimony was merely one piece of evidence that established

Henderson’s guilt at trial and shed light on her intent that fateful day. Henderson was the last

one to have seen Brandon the day he went missing after he was dropped off at Henderson’s

home where she cared for Brandon and Megan Baugh. There were no calls to 911 that day

from Henderson’s home or from her neighborhood. There were no other pleas for help. She

had the Baughs’ emergency contact numbers. But they were not called. After Brandon died,

she wrapped his body in a blanket and put his body in a Bartles & Jaymes wine cooler box

and secured it with tape later matched up to tape found in her home. With Brandon’s body

in the trunk of her car, Henderson put her daughter Jennifer and Megan, Brandon’s older

sister, in the car with a spade and her neatly packed suitcase and drove to Round Rock to get

her car’s oil changed.

       On her way out of town and with the two girls in tow, she drove to the bank to

withdraw $2200 through a cash advance on her credit card. After repeated attempts proved

unsuccessful, she was finally able to withdraw $1000. Henderson told the bank employee

that she needed the money because her father just died and she needed to be with her family.

At some point in the afternoon, she stopped at McDonald’s to get the girls something to eat.

She then drove to Holland, Texas where her husband’s relatives lived.              She arrived
                                                 HENDERSON DISSENTING OPINION—8

unexpectedly. They had not seen Henderson in five or six months. Once there, she told her

husband’s relatives that she needed to go to the store and would be back soon. She asked her

eleven-year-old niece to babysit Jennifer and Megan. She never returned. Instead, she

continued north where outside Waco, just off a country road near a stand of trees, she buried

Brandon in the box, using the spade she packed. Investigators would later find Brandon’s

diaper bag in a ditch in the vicinity where they found Brandon’s buried body.

       Later that night she checked into a motel in Blackwell, Oklahoma under the name

Tracy Simms and listed a Missouri address. The next day, Henderson arrived in Trenton,

Missouri and dropped in on a longtime friend Linda Brewer. It too was an unexpected visit.

The two discussed Henderson’s troubling custody issues and how she was ordered to have

only supervised visitation with her other daughter. Henderson told Brewer that the children

she watched were picked up by their grandparents who would take care of them for a week

so she decided to visit her in Missouri. Only three days after Brandon was killed and while

having a few margaritas with a friend, Henderson admitted that she had “killed somebody

or murdered somebody.” 15

       Henderson and Brewer then drove to Independence, Missouri to see other friends.

After her arrival in Independence, Henderson told Brewer that she had a new identity, was

getting new licence plates for her car, and wondered how she would look with red hair.

Brewer began to realize Henderson’s trip was no longer just an opportunity to come back and



       15
            31 R.R. at 347.
                                                 HENDERSON DISSENTING OPINION—9

visit. When asked why she needed to change her identity, she responded, “I can’t do life.

I don’t want to talk about it anymore.” With the use of a Social Security card another friend

found, she assumed the identity of Patricia Keith. Reluctant to drive her vehicle because she

was afraid the police would be looking for it, she got some old Missouri license plates and

put them on her car. She dyed her hair red. With her new identity, she rented an apartment

under her assumed name. She also began a sexual relationship with the male friend who

gave her the Social Security card and new license plates and wanted him to move in with her.

She attempted to find a job in Independence. She did all of this within three or four days

after Brandon’s death.

       When a police officer knocked at the door of her apartment looking for information

on Henderson and Brandon, she claimed that she had never seen the person (Henderson) in

the pictures. At first, the officer did not recognize her from the pictures. But the officer

returned, and Henderson gave a false name. After Henderson consented to a search of the

apartment, the officer discovered the Social Security card Patricia Keith’s name along with

the receipt for the oil change and apartment rental receipt. She was subsequently arrested

and claimed that she did not know what this was about, threatened the officers with a false

imprisonment suit, and complained that she was going to miss a hair appointment.

       She was then interviewed by an FBI agent to whom she gave conflicting stories. Her

first story was that she did not have any information about Brandon. In her second story, she

claimed that the Baughs’ grandmother came to pick Brandon up. She then claimed she
                                                 HENDERSON DISSENTING OPINION—10

packed up the girls and brought them to the bank, McDonald’s, and the relatives’ home in

Holland and drove to Blackwell, Oklahoma, checking into the motel under Tracy Simms and

finally arriving in Trenton and Independence, Missouri. But when the agent suggested that

Brandon was dead, and perhaps it was an accident, Henderson said “yes.” When asked “Did

you bury him?” she responded “Of course, I did. He’s just a baby.” Henderson’s final

version was that around 10:30 in the morning, Brandon fell from her arms and hit the tile

floor. She stated she attempted CPR for about an hour, but she knew he was dead. She

admitted to burying Brandon near Waco with a spade she brought from home.

       Dr. Bayardo was not the only witness who gave expert testimony concerning the

manner of Brandon’s death. The jury heard from Lubbock County Deputy Chief Medical

Examiner Dr. Sparks Veasey III. Like Dr. Bayardo, Dr. Veasey concluded that Brandon’s

injuries were “consistent with a baby’s head [being] slammed into a blunt object, a baby

being held by the legs and slammed into a wall or a floor. They are consistent with a baby

being forcefully—extremely forcefully thrown into a blunt—into a blunt object.” 16 He

further concluded that Brandon’s injuries were inconsistent with an accidental drop from a

distance of four to five feet and was certain that Brandon’s injuries were not the result of an

accident. In addition to Dr. Veasey, Henderson’s own expert corroborated Dr. Bayardo’s and

Dr. Veasey’s conclusions. After reviewing the autopsy report, photographs, and videotape,

Dr. Kris Sperry, the Fulton County Deputy Chief Medical Examiner in Atlanta, Georgia,



       16
            33 R.R. 903.
                                                HENDERSON DISSENTING OPINION—11

opined that Brandon’s crushing skull fractures were not accidental.

       The trial judge’s conclusion that Henderson proved by clear and convincing evidence

that no reasonable juror would have convicted her of capital murder simply failed to weigh

Dr. Bayardo’s reevaluation against the evidence of guilt adduced at trial. The trial judge

came to the remarkable and unsupported mixed finding and conclusion that

       Because Dr. Bayardo’s testimony at trial was the critical evidence upon which
       the conviction of Applicant rested, and was the testimony upon which the
       essential element of culpable mental state hinged, the Court finds that if Dr.
       Bayardo’s re-evaluation had been presented to the jury in 1995, no rational
       juror could have or would have convicted Applicant of capital murder beyond
       a reasonable doubt in light of this new evidence.17

Contrary to Judge Cochran’s belief, the trial judge’s opinion that “no rational juror could

have or would have convicted Applicant of capital murder beyond a reasonable doubt in light

of this evidence” is a conclusion of law, and therefore not entitled to deference.

       The trial judge claimed to be mindful of Henderson’s flight, only to “find[] that the

evidence of flight did not have the capacity to prove the mens rea of capital murder beyond

a reasonable doubt.” But “[w]e have repeatedly held that flight is evidence of a circumstance

from which an inference of guilt may be drawn.”18 Notably, the trial judge did not hear from

Dr. Veasey or Dr. Sperry in connection with Henderson’s application and Henderson does



       17
            Findings of Fact and Conclusions of Law at 7.
       18
           Colella v. State, 915 S.W.2d 834, 839 n.7 (Tex. Crim. App. 1995) (citing Foster
v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989)); see also Hernandez v. State, 939
S.W.2d 173, 178 (Tex. Crim. App. 1997); Valdez v. State, 623 S.W.2d 317 (Tex. Crim.
App. 1981); Holloway v. State, 525 S.W.2d 165 (Tex. Crim. App. 1975).
                                                 HENDERSON DISSENTING OPINION—12

not directly challenge their conclusions. We do not know if their conclusions would change

like Dr. Bayardo’s when presented with Henderson’s experts’ affidavits and reports. On this

record, we cannot assume they would. However, the trial judge cavalierly found that “if the

jurors had heard Dr. Bayardo’s re-evaluation, they would not have credited the then-

conflicting testimony of Dr. Veasey.”19 Such idle speculation is certainly not a finding that

this Court should adopt. Even if true, what about Dr. Sperry’s testimony offered by

Henderson herself? The findings and conclusions are silent about the potential impact of Dr.

Sperry’s corroborative testimony of both Dr. Veasey’s and Dr. Bayardo’s opinions at trial.

       More importantly, it is the trial judge’s failure to consider all of Henderson’s actions

after Brandon’s death that is the most troubling. After Brandon’s death, there was no attempt

to call for help. She attempted to hide the evidence of Brandon’s death by burying him near

Waco with the spade she brought from home. While having drinks with friends she admitted

to killing or murdering someone. Further, Henderson did not merely engage in a very

deliberate plan to flee. She actively attempted to evade law enforcement through assuming

a new identity, changing her appearance, changing her licence plates, and starting a new life

in Missouri while leaving her family behind. And when the jig was up, she first claimed not

to know what happened to Brandon before finally admitting to burying him and changing her

version of events to describe an accidental death. These are not the acts of an innocent

person. In the face of common sense and our case law, it would be preposterous to conclude



       19
            Findings of Fact and Conclusions of Law at 3.
                                                  HENDERSON DISSENTING OPINION—13

that Dr. Bayardo’s new opinion that the manner of death should be undetermined, as opposed

to accidental, would undermine all of the incriminating evidence establishing Henderson’s

guilt.

         By leaving its rationale unstated, the Court avoids confronting our holding in Ex parte

Robbins,20 our recent opinion addressing a factually similar actual-innocence claim and

precedent determinative of Henderson’s actual-innocence claim. In Ex parte Robbins, Dr.

Patricia Moore, an assistant medical examiner, testified at Robbins’s capital murder trial that

the child victim’s death was caused by “asphyxia due to compression of the chest and

abdomen and that the manner of death was homicide.” 21 Many years after the jury found

Robbins guilty of capital murder, Dr. Moore’s report and conclusions were reexamined by

several other medical examiners who disagreed with her conclusions. Dr. Moore herself also

reevaluated her report and came to the conclusion that her opinion had changed and the cause

and the manner of the victim’s death should be listed as undetermined.22 Like Henderson,

Robbins claimed this reevaluation was newly discovered evidence that demonstrated his

actual innocence.23 In denying Robbin’s actual-innocence claim, we held that

         [Robbins] failed to prove that the new evidence unquestionably establishes his
         innocence. Moore can no longer stand by her trial testimony, but rather than


         20
              360 S.W.3d at 458.
         21
              Id. at 450.
         22
              Id. at 454.
         23
              See id. at 457–58.
                                                      HENDERSON DISSENTING OPINION—14

       completely retracting her trial opinion, she is of the current opinion that the
       cause and manner of death of [the victim’s] death are ‘undetermined.’ Moore
       cannot rule out her trial opinion as a possibility of how [the victim] died.
       Hence, Moore’s reevaluation falls short of the requisite showing for actual
       innocence because it does not affirmatively disprove that [Robbins]
       intentionally asphyxiated [the victim].24

       Like Dr. Moore’s reevaluation in Ex parte Robbins, Dr. Bayardo’s reevaluation did

not render void his trial testimony.25       The jury could have considered Dr. Bayardo’s

testimony that the manner of death was “undetermined” and still have found Henderson

guilty based on all of the evidence presented at her trial, including Dr. Veasey’s and Dr.

Sperry’s expert conclusions.26 Henderson’s reliance on Dr. Bayardo’s reevaluation merely

serves to retroactively impugn the State’s case at trial and does not affirmatively demonstrate

her innocence.27 On this record and particular claim of actual innocence, we are compelled

to follow Ex parte Robbins and conclude that Henderson failed to satisfy her Herculean

burden—to show by clear and convincing evidence that no reasonable juror would have

convicted her in light of Dr. Bayardo’s reevaluation.

       In its response, the State does not contest the trial judge’s findings and conclusions,

and does not oppose granting Henderson relief. The State takes this position while

simultaneously making it clear that it does not believe that Henderson is not guilty and


       24
            Id. at 458.
       25
            See id. at 459.
       26
            Id.
       27
            See id. at 466 (Price, J., concurring).
                                                  HENDERSON DISSENTING OPINION—15

disagrees with the biomechanical theory presented by Henderson’s experts and relied upon

by Dr. Bayardo in his reevaluation. The State’s concern for the community’s confidence in

the criminal justice system expressed in its response is laudable. But it is neither legally

controlling, nor a particularly persuasive argument for granting Henderson relief when the

State still contests Henderson’s underlying factual contentions. The State’s acquiescence

cannot not bridge the gulf between Henderson’s asserted claims and the burden she must

satisfy to be legally entitled to relief.

       Today, the Court’s decision casts aside its established legal principles and grants relief

to an applicant not entitled to it. The Court accomplishes this feat by abandoning all

standards necessary for an applicant to obtain relief, only to replace them with an

unexplained, ad hoc determination. “Because we want to” is not a substitute for legal

reasoning. And any suggestion to the contrary is untenable. Further, we have denied past

applicants similarly requested relief on similar evidence. We owe a duty to all applicants that

we will measure the merits of their claims equally.

       Henderson’s Herrera-type claim of actual innocence should be denied and her

pending Schlup-type actual-innocence claim should be remanded to the trial court for

findings of fact and conclusions of law. It is a travesty to grant this child killer relief on

some unknown legal principle while her tiny, defenseless victim lies dead and reburied.

Therefore I dissent with all the vigor at my command.
                                   HENDERSON DISSENTING OPINION—16

DATE DELIVERED: December 5, 2012

PUBLISH
