             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-73,484-02



                  EX PARTE NEAL HAMPTON ROBBINS, Applicant



            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
         CAUSE NO. 98-06-00750-CR(2) IN THE 410TH DISTRICT COURT
                          MONTGOMERY COUNTY

        J OHNSON, J., filed a concurring opinion.

                             CONCURRING OPINION

        The various positions on statutory interpretation seem to agree that the legislative history

indicates that the intent of this statute is to provide relief to those who were convicted on science or

scientific methodology that is now known to be unsound.

        My first observation is that “scientific method” and “scientific methodology” are not the

same. “Scientific method” is the observation of some phenomenon in the world, the formulation of

a theory–a possible explanation of that phenomenon–and testing of that possible explanation to see

if the phenomenon is indeed explained by that theory. For example, in the 18th century, inoculation

against smallpox used the live smallpox virus itself, producing a high risk of contracting the disease
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and dying. Dr. Edward Jenner, among others, observed that milk maids who had suffered through

cowpox, a relatively mild disease, did not contract small pox. His theory was that having had

cowpox protected one against smallpox. He tested his theory by inoculating 24 subjects with pus

from the cowpox blisters on a local milkmaid and then exposing those persons to smallpox. None

of his subjects developed smallpox, thus verifying his theory. A quirk of the scientific method is

that, even after the theory has been thoroughly tested and proven to be an accurate explanation of

the observed phenomenon, it is still referred to as a theory, as in “the theory of gravity,” even though

the “theory” has become universally accepted as fact.

        “Scientific methodology,” on the other hand, is the means by which a theory is tested. In

Jenner’s cases, the methodology was to scrape pus from a human who had active cowpox and using

that pus to inoculate other humans, then exposing them to smallpox to confirm that the inoculation

with cowpox provided immunity to smallpox. If the theory being tested is that blood is thicker than

water, the methodology is likely to involve measuring the viscosity of blood and water and

comparing the results. Automobile manufacturers constantly test new theories about injury

prevention and mitigation with crash-test dummies.

        The words of Article 11.073 state that it “applies to relevant scientific evidence . . . that was

not available to be offered . . . at the convicted person’s trial; or . . . contradicts scientific evidence

relied on by the state at trial.” Relief may be granted if “relevant scientific evidence is currently

available and was not available at the time of . . . trial because the evidence was not ascertainable

through the exercise of reasonable diligence by the convicted person before the date of or during the

convicted person’s trial.”

        “Evidence” is what is presented at trial in support of the litigants’ positions. “Scientific
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evidence” is presented by scientists, and the content of that evidence depends on the knowledge of

that particular witness about the science at issue. “Bad science” and “bad scientists” are inseparable.

A scientist may not intend to present bad science, nor must that scientist be a bad scientist in every

situation. Linus Pauling won a Nobel Prize in chemistry and would certainly be a good scientific

witness if he testified about his work in chemistry. However, he would be a bad scientist presenting

bad science if he were called as a witness to the unlimited powers of vitamin C.

        Because evidence is what is presented at trial by a witness and is therefore limited by the

personal knowledge of that witness, logically the statute must be intended to address the personal

knowledge of scientific witnesses. Personal knowledge increases over time as one gains new

knowledge and refines one’s understanding of one’s older knowledge. New law graduates may

know book law, but most have not yet learned how to integrate book law with trial tactics. And

some skills simply cannot be learned anywhere except in the crucible of practice in the real world.

New lawyers are likely to lose trials that a more experienced lawyer would not, merely because they

have not yet developed the interpretive skills of that more experienced lawyer. Or they might choose

to try a case that a more experienced lawyer, after careful consideration of the facts, would choose

to settle.

        The same is true of physicians. Because of inexperience, a resident may miss a diagnosis that

a more experienced doctor would have made, merely because the older doctor had seen the grouping

of apparently unrelated symptoms before or was knowledgeable about uncommon diseases or just

knew more about what questions to ask the patient. Some practitioners, of law or medicine, may not

keep up with the current literature. The result of inexperience or out-dated knowledge may be

testimony that may rightfully be called bad science, even if not intentionally so, and that testimony
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may persuade a jury to convict when it should not.

         This is just such a case. Testimony indicated that the child’s injuries could have been

inflicted intentionally, but it also indicated that the injuries could have resulted from improper CPR;1

how much of the general public knows that CPR on infants is done with two fingers and at 100 beats

per minute?2 Only Dr. Moore testified at trial that the cause of death was homicide. Experienced

pathologists testified that the cause of death could not be determined. At the time of the original

trial, Dr. Moore had only 18 months of experience as an associate medical examiner and had been

cited for defective and improper work. With eight more years of experience, she testified that she



         1
            Q. Now, I'll give you another situation. An E.M.T. comes up to the location where the adults are trying to
do CPR and they are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, "If
she's not already dead, you're going to kill her; stop that," and proceeded to show them the proper way. W ould you
say that some of that could have led to injuries to the child, adults putting their full weight down and trying to revive
that child?
          A. You should see it more anteriorly than posteriorly.
          Q. Pardon?
          A. You should see it more the front to the back, the injuries.
          Q. If you've got your palms on the front and you've got little rocks and sticks on the back, you'll see it on the
back, you'll see it on the back, won't you?
          A. Yes. You'd see bruises on the back.
          Q. But you wouldn't necessarily see them on the front if they're pushing with their palms, would you?
          A. No.
          Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that
sort of damage without any noticeable trauma from looking at the skin, couldn't they?
          A. If they're pushing down lower, yes.

Robbins v. State, 88 S.W .3d 256, 258 (Tex. Crim. App. 2002).

         2
            “Give 30 gentle chest compressions at the rate of at least 100 per minute. Use two or three fingers in the
center of the chest just below the nipples. Press down approximately one-third the depth of the chest (about 1 and a
half inches).” http://depts.washington.edu/learncpr/index.html (University of W ashington)

“Place 2 fingers on the breastbone–just below the nipples. Make sure not to press at the very end of the breastbone.
Keep your other hand on the infant's forehead, keeping the head tilted back. Press down on the infant's chest so that
it compresses about 1/3 to 1/2 the depth of the chest. Give 30 chest compressions. Each time, let the chest rise
completely. These compressions should be FAST and hard with no pausing. Count the 30 compressions quickly:
‘1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30, off.’”
http://www.nlm.nih.gov/medlineplus/ency/article/000011.htm (National Institutes of Health)
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believed that the cause of the child’s death could not be determined. That “relevant scientific

evidence . . . was not available at the time of the convicted person’s trial,” and it “was not

ascertainable through the exercise of reasonable diligence by the convicted person before the date

of or during the convicted person’s trial; . . ..” The only person who now clings to a firm opinion

of homicide is Dr. Norton, who closed her practice, moved from her home, and declined to be

deposed for a habeas hearing.

       As has been noted, some examples of “contradicted scientific evidence relied on by the state

at trial” include arson, infant trauma, bullet-lead analysis, bite marks, some ballistics tests, blood-

spatter patterns, and scent line-ups. Some such evidence has involved misinterpretation based on

out-dated knowledge, some are simply junk science that has never been subjected to any kind of

scientific investigation. Whether “debunked” or “refined” for increased accuracy, changes in

scientific knowledge in general, and therefore changes in scientific testimony by individuals, must

be acknowledged and addressed. As Judge Cochran noted in her dissent in applicant’s original

application for habeas corpus,

       When scientific experts honestly and sincerely thought “X” was true at the time they
       testified, but the science has changed or the experts’ understanding of the science has
       changed and their opinions have changed, what cognizance of that change should the
       criminal justice system take long after a person has been convicted?

Ex parte Robbins, 360 S.W.3d 446, 469 (Tex. Crim. App. 2011)(Cochran, J., dissenting).

       The legislature has made it clear that advances in DNA technology may be the basis for re-

examining convictions. Advances and changes in other forms of scientific knowledge, and thus in

scientific testimony from individuals, should also be available as bases for re-examination of

convictions.
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      I join the opinion of the Court.

Filed: November 26, 2014
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