                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00188-CR


JENNIFER BANNER WOLFE                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1200447D

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                          DISSENTING OPINION

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      I respectfully dissent. I cannot agree with the majority’s contention that

Appellant Jennifer Banner Wolfe does not challenge on appeal the reliability of

the State’s experts’ testimony concerning abusive head trauma as applied to

Jack.1 See Maj. Op. at 21–22. Rule 38.1(f) of the rules of appellate procedure



      1
      The record establishes that she did so at trial; at the beginning of the
bench trial, she objected to the State’s expert testimony, challenging “the
provides that “[t]he statement of an issue or point will be treated as covering

every subsidiary question that is fairly included.” See Tex. R. App. P. 38.1(f);

accord Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (explaining that under

rule 38.1(f), “[a]ppellate briefs are to be construed reasonably, yet liberally, so

that the right to appellate review is not lost by waiver”). The issue Appellant

raises is as follows: “[T]he trial court abused its discretion by allowing unreliable

medical expert opinion testimony on abusive head trauma.” In her brief, she

asserts that this court “should find that the trial court abused its discretion by

admitting and relying upon the state experts’ opinions that the injuries sustained

[by Jack] were non-accidental.” She also argues that “[t]he proponent of the

scientific evidence must show, by clear and convincing proof, that the evidence is

sufficiently relevant and reliable to assist the jury in accurately understanding

other evidence or in determining a fact in issue.”       Reasonably, yet liberally,

construing the issue expressly raised by Appellant, I would hold that the

subsidiary question of the reliability of the State’s experts’ testimony concerning

abusive head trauma as applied to Jack is fairly included in her issue on appeal.

Therefore, I respectfully dissent from the majority opinion to the extent that it

declines to address the issue of whether the expert opinion testimony of Dr.

Roberts, Dr. Ranelle, and Dr. Coffman diagnosing Jack with abusive head

trauma (that is, non-accidentally inflicted head trauma) was reliable.

underlying principle” of shaken baby syndrome or abusive head trauma as
unreliable in the scientific community and not reliable in this case.


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      Moreover, based on my review of the State’s experts’ testimony, a serious

question exists as to the reliability of their conclusion that Jack suffered abusive

head trauma. The undisputed evidence at trial established the following: that

seven-month-old Jack had experienced at least two prior brain bleeds in his head

and did not have a normal, healthy brain at the time he became unconscious at

Appellant’s home;2 that according to Jack’s preoperative CT scan, the chronic

bleeding in Jack’s head and the brisk bleeding observed by Dr. Roberts during

Jack’s surgery were “side by side”; and that all three of the State’s experts

concluded that Jack’s injuries could not have been caused by shaking alone but

required a high-energy impact to Jack’s head,3 yet Jack had no external injuries,



      2
       A preoperative CT scan showed that Jack’s brain had been displaced
toward the right side; the CT scan also showed older blood in Jack’s brain,
meaning that there had been bleeding in Jack’s brain at least twice in the past.
Jack’s CT scan showed “bright white” accumulation, which was “new blood”; a
“grayer” area, which was “older blood”; and an “even darker area,” which was
even older blood.
      3
       Dr. Roberts opined that Jack’s injuries could not have been caused by
only shaking him. He testified that in a normal, healthy brain, the amount of force
necessary to avulse a bridging vein would be that from a high-energy impact,
such as a car accident or a fall from a second-story window.

       Dr. Ranelle opined that the type of force required to create the injuries she
saw in Jack’s left eye would be something “very, very significantly traumatic,”
violent, and high energy. She explained that she had treated children who had
fallen out of second-story windows or fallen out of shopping carts onto concrete
floors who did not present with the serious retinal injuries that Jack experienced.

       Dr. Coffman opined that the injury mechanism used in Jack’s case was
violent and high energy.


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marks, bruises, fractures, spinal or neck injuries, or grip marks on his body.4 All

three of the State’s experts agreed that when a child with a normal, healthy brain

experiences the constellation of subdural hematoma, retinal hemorrhages, and

no explanation for the injuries, the typical diagnosis is abusive head trauma.5

And all three of the State’s experts agreed that Jack did not have a normal,

healthy brain before he experienced this diagnostic constellation.6 Yet, all three



      4
       Cf. Benefield v. State, No. 02-14-00099-CR, slip op. at 4 (Tex. App.—Fort
Worth Feb. 26, 2015, no pet. h.) (involving child victim of abusive head trauma
and noting that he previously suffered a spiral arm fracture and presented at the
hospital with numerous physical injuries, including an acute rib fracture, two
healing rib fractures, ligamentous neck injuries, and corner fractures on the
bottom of both his left and right femur bones and on the top of his left and right
humerus bones).
      5
        Dr. Roberts opined that the constellation of subdural hematoma, retinal
hemorrhaging, and brain swelling is, in the absence of an explanation for the
injuries, the result of a non-accidental trauma.

       Dr. Ranelle opined that a diagnosis of abusive head trauma is “automatic”
when a healthy, normal child presents with the constellation of retinal
hemorrhaging, subdural hematoma, and the lack of an explanation for a child’s
injuries.

       Dr. Coffman denied that she diagnoses abusive head trauma “based on a
triad” and testified that she bases her diagnosis on the individual patient’s history,
presentation, and findings. But she testified that the combination of the injuries
suffered by Jack here—specifically, subdural hematoma, severe retinal
hemorrhaging, and retinoschisis—is caused by “a force that would be likely to
injure or kill a child.” And she agreed that these injuries are associated with
abusive head trauma.
      6
       On cross-examination, Dr. Roberts agreed that “something” was going on
in Jack’s brain to cause the prior bleeds and that because of Jack’s prior brain
bleeds, “we are not talking about a healthy brain.”


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still opined that despite Jack’s already-injured brain, the existence of this

diagnostic constellation in Jack meant that Jack’s head trauma was intentionally

inflicted––abusive head trauma.7

      As the dissenting author, I decline to undertake a complete analysis of the

reliability of the State’s experts’ testimony concerning abusive head trauma as

applied to Jack. I write additionally only to point out that serious questions exist

regarding the reliability of the experts’ opinions as applied to the undisputed facts


       Dr. Ranelle agreed that Jack’s previous brain bleeds meant that Jack was
not a “completely healthy child.”

       Dr. Coffman testified that Jack’s brain had neomembranes from prior
bleeds that had to have been caused by some type of trauma and that had not
been reabsorbed. She also agreed that the old blood created pressure in the
brain.
      7
        Dr. Roberts opined that Jack’s injury was non-accidental trauma based on
the finding of retinal hemorrhages, brain swelling, and the subdural hematoma,
coupled with the fact that Jack’s injuries were inconsistent with Appellant’s
explanation of what had happened.

      Dr. Ranelle opined that Jack’s injuries were caused by an acceleration and
deceleration force. When asked about the lack of external injuries to Jack, Dr.
Ranelle testified, “I don’t know what happened to [Jack]. Nobody came up with
an explanation of what happened to [Jack]. . . . All I can tell you is that with this
constellation of symptoms, you know, other children that I’ve seen, it is very
consistent with a violent shaking, traumatic abusive force.”

       Dr. Coffman opined that only severe trauma could have caused the
avulsed bridging vein, the retinal hemorrhages, and the retinoschisis in this case
and that Jack’s injuries could not have occurred from falling from the seated
position—as Appellant had explained. Dr. Coffman maintained that “there had to
be some sort of trauma to cause that to tear” in the bridging vein and said that
the prior bleeds could not have caused the bridging vein to avulse. She also
stated that retinoschisis is seen only in trauma and in one case of leukemia,
which Jack did not have.


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concerning Jack’s unhealthy brain and the lack of any physical injury to Jack.

See, e.g., Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses:

Fifteen Years Later, 52 Houston Law Rev. 1, 142 (2014) (explaining that an

expert’s opinion is unreliable if it is founded on facts or assumptions that are

contrary to the proven or undisputed facts in the case), 160–62 (explaining that,

to be admissible, expert testimony must have “connective reliability,” meaning

that the expert must connect the underlying data, facts, or assumptions to the

expert’s opinion). These serious reliability questions should be addressed by the

majority opinion.

      I would hold that the issue of the reliability of the State’s experts’ testimony

that Jack suffered abusive head trauma is fairly included in Appellant’s issue on

appeal and would reach the merits of this issue. Because the majority does not, I

respectfully dissent.

                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PUBLISH

DELIVERED: February 26, 2015




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