









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-49,984-02


EX PARTE CATHY LYNN HENDERSON, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM CAUSE NO. 94-2034 IN THE

299TH DISTRICT COURT OF TRAVIS COUNTY



 Price, J., filed a concurring statement.

CONCURRING STATEMENT


	In order to proceed to the merits of her claims in this subsequent post-conviction
application for writ of habeas corpus, the applicant must satisfy the criteria of Article 11.071,
Section 5. (1)  She argues that she should be allowed to proceed with her first claim of actual
innocence under Article 11.071, Section 5(a)(1), which provides for consideration of the
merits of a subsequent application upon a showing of "sufficient specific facts establishing
that" her claim of actual innocence could not have been presented in a previous habeas
application because "the factual . . . basis for the claim was unavailable" before.  In my view,
the applicant has presented sufficient newly available facts in the form of Dr. Bayardo's
affidavit.  Dr. Bayardo now avers that, given the new developments in the science of
biomechanics, he could not now testify, as he did during the applicant's 1995 trial, that
Brandon's head injury could not have been caused by an accidental fall such as that which the
applicant described in her trial testimony.  He now asserts that he "cannot determine with a
reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an
intentional act or an accidental fall."  For the reasons that follow, I believe this constitutes a
prima facie showing of a cognizable claim of actual innocence.
	Under the standard for determining a bare claim of actual innocence announced in Ex
parte Elizondo, an applicant must show "by clear and convincing evidence that no reasonable
juror would have convicted him in light of the new evidence." (2)  In conducting this analysis, the
reviewing court should view the newly available evidence in the context of the evidence
developed during the course of the trial and ask whether any rational juror would still have
convicted the applicant given whatever additional perspective the newly available evidence may
provide, assuming the juror had also heard that newly available evidence. (3)
	In my view, the applicant's newly available evidence is sufficient to establish a prima
facie case under this standard.  At trial, Dr. Bayardo testified that applicant's exculpatory
version of how Brandon sustained his injuries could not possibly be true.  Dr. Bayardo's
affidavit demonstrates that, in light of the new scientific developments, he could no longer
testify as he did at trial.  This new evidence has the effect of totally nullifying Dr. Bayardo's
trial testimony.  Adding it to the evidentiary mix means that the jury would no longer have any
affirmative evidence to cause it to prefer the theory that Brandon was murdered as opposed to
the theory that he was killed accidentally or with some lesser culpable mental state than is
necessary to sustain a capital murder conviction. (4)  Under these circumstances, it is at least
arguable that the evidence is not even legally sufficient to sustain a conviction; that is, a
rational jury could not convict the applicant of capital murder. (5)  In any event, it is evident that
the applicant has presented a plausible claim that no reasonable juror would have found her
guilty of a capital homicide-at least not to a level of confidence beyond a reasonable doubt. 
Thus, the applicant has at least pled facts sufficient to allow her to proceed with her claim of
actual innocence.
	This differs from the situation in which a lay witness later claims that his or her trial
testimony was mistaken or untrue-an ordinary recantation.  In that event the jury that we
hypothesize in our Elizondo analysis has been presented with two different and conflicting
versions of the facts from the same witness and must decide which version to believe.  If the
recantation is not particularly compelling under the circumstances, we have no basis to
conclude that there is clear and convincing evidence that none of the jurors would have
convicted the defendant anyway.  Relief would not be warranted.  But here we have a situation
in which the State's expert, upon whose opinion testimony the essential element of culpable
mental state hinges, has now withdrawn his earlier expert opinion in light of new scientific
developments and has replaced it with a new, presumably better informed, expert opinion. (6) 
Accordingly, in applying the Elizondo standard, we do not hypothetically envision a jury that
is now presented with two conflicting versions of the brute facts.  Instead, we envision a
hypothetical jury that has heard an expert who has renounced his own earlier opinion as
scientifically invalid.  I do not believe a rational juror would choose to rely upon the expert's
abandoned view.  This leaves our hypothetical jury with precious little evidence upon which to
conclude that the applicant killed Brandon with the mens rea necessary to justify convicting
her of an offense for which she could suffer the ultimate penalty of death.
	Nor am I swayed by the fact that the trial evidence shows that the applicant fled.  Of
course, I acknowledge that we have said many times that evidence of flight amounts to some
evidence of a guilty conscience.  But I do not believe on the facts of this case that the
applicant's flight provides the jury with any greater basis to prefer the conclusion that she
killed Brandon with the requisite intent for capital murder versus some lesser culpable mental
state or no mens rea at all.  In short, while the applicant's flight undoubtedly evinces a guilty
conscience, it provides little rational basis to conclude she felt guilty of an intentional or
knowing murder, as opposed to a reckless or negligent homicide or even an excusable
accident.  Neither does her statement to her friend that she "killed somebody or murdered
somebody" provide a particularly compelling basis to differentiate her level of culpability. 
That the evidence may still be legally sufficient to convict the applicant even in the face of Dr.
Bayardo's affidavit does not mean we cannot conclude that a prima facie case has been made
that no reasonable juror would have convicted the applicant.  In my view she should be
permitted to proceed with the claim based upon her newly available evidence so that we may
determine, in the normal course of habeas proceedings, whether she can ultimately convince
us by clear and convincing evidence.
	In her second claim the applicant asserts that she should be allowed to proceed with
other constitutional issues under Article 11.071, Section 5(a)(2), which requires a showing
of "sufficient specific facts establishing that . . . by a preponderance of the evidence, but for
a violation of the United States Constitution, no rational juror could have found the applicant
guilty beyond a reasonable doubt[.]"  This standard requires a lower threshold of confidence
(preponderance of the evidence rather than clear and convincing evidence), but it also requires
a showing that no rational juror "could" have convicted, rather than that no rational juror
"would" have, as under the Elizondo standard governing bare claims of innocence.  To me these
differences in the applicable standards result in a wash.  Given Dr. Bayardo's affidavit, I would
also hold that the applicant has shown by a preponderance of the evidence that no rational juror
"could" have found her guilty to a level of confidence beyond a reasonable doubt and that the
merits of her constitutional claims should therefore be addressed.
	With these observations, I join the Court in its order staying the applicant's impending
execution and granting her leave to proceed with the first two claims of her subsequent writ
application under Article 11.071, Section 5. (7)

Filed:	June 11, 2007
Publish
1. 	 Tex. Code. Crim. Proc. art. 11.071, § 5.
2. 	 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
3. 	 E.g., Ex parte Chavez, 213 S.W.3d 320, 322 (Tex. Crim. App. 2006).
4. 	 In his affidavit, Dr. Bayardo indicated that he had reviewed the affidavit of Dr. John Plunkett, "and
I agree with his opinion."  Dr. Plunkett's affidavit is dated May 18, 2007, and it includes the following:

	Neither I . . ., nor anyone else, can prove Brandon's injury and death was an accident. 
However, because of the new scientific information and analysis now available to
scientifically evaluate Brandon's injury and death, neither may anyone prove that Ms.
Henderson intentionally caused it.  It is impossible for any qualified scientist or physician
to conclude, whether to a reasonable degree of medical certainty, or beyond a reasonable
doubt, that any intentional and deliberate act by Ms. Henderson caused Brandon Baugh's
death, or that the [sic] Brandon's injuries are such as to rule out an accidental cause.
5. 	 See Nelson v. State, 848 S.W.2d 126, 138-9 (Tex. Crim. App. 1992) (Clinton, J., dissenting); 
Mason v. State, 905 S.W.2d 570, 579-80 (Tex. Crim. App. 1995) (Clinton, J., dissenting).
6. 	 I say "presumably" better informed only because the record does not presently suggest otherwise. 
This is not to say that on the remand the State cannot challenge the applicant's claims with respect to
validity and/or weight of the advances in biomechanical science upon which the applicant, and Dr. Bayardo
in his affidavit, rely.  We are not called upon to address the merits of the applicant's claims at this juncture,
but only whether she has met the threshold showing for consideration of the merits in the ordinary course
of proceedings under Article 11.071.  See Ex parte Blue, ___ S.W.3d ___ (No. AP-75,254, Tex. Crim.
App., March 7, 2007) (2007 Tex. Crim. App. LEXIS 318) (Slip op. at *29).
7. 	 It is my understanding that the District Attorney of Travis County has made public that he has sent
a letter to the Board of Pardons and Paroles in which he has recommended that the Board recommend that
the Governor grant the applicant a thirty-day reprieve.  See Tex. Const. art. 4, § 11(b).
