                                                                    WR-73,484-02
                                                      COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                    Transmitted 5/28/2015 10:40:39 AM
                                                      Accepted 5/28/2015 11:10:35 AM
May 28, 2015                                                           ABEL ACOSTA
                            IN THE                                             CLERK
                  COURT OF CRIMINAL APPEALS
                        AUSTIN, TEXAS


EX PARTE                           §
                                   §
                                   §    NO. WR-73,484-02
                                   §
NEAL HAMPTON ROBBINS               §


                    **************************

    SUCCESSIVE APPLICATION FOR A WRIT OF HABEAS CORPUS
              IN CAUSE NO. 98-06-0075-CR FROM THE
   410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY


                    **************************

               AMICUS CURIAE SUPPLEMENTAL BRIEF
               BY THE INNOCENCE PROJECT OF TEXAS

                    **************************

                              GARY A. UDASHEN
                              Bar Card Number 20369590

                              SORRELS, UDASHEN & ANTON
                              2311 CEDAR SPRINGS ROAD
                              SUITE 250
                              DALLAS, TEXAS 75201
                              (214) 468-8100
                              (214) 468-8104 FAX

                              BOARD PRESIDENT
                              INNOCENCE PROJECT OF TEXAS
                                        TABLE OF CONTENTS
                                                                                                                  Page

TABLE OF CONTENTS........................................................................................... i

INDEX OF AUTHORITIES. .............................................................................. ii-iii

STATEMENT BY AMICUS CURIAE PURSUANT TO T. R. APP. P. 11 . ......... 2

ISSUE PRESENTED ............................................................................................ 2-3

SUMMARY OF THE ARGUMENT . .................................................................. 3-5

ARGUMENT ........................................................................................................... 5

         a.       H.B. 3724 . ........................................................................................ 5-7

         b.       Hair Review ...................................................................................... 7-8

         c.       Ex Parte Keller ................................................................................ 8-9

         d.       National Attention . ......................................................................... 9-10

         e.       Legislative Intent .......................................................................... 10-14

         f.       Texas Leads The Way . ................................................................. 14-17

CONCLUSION AND PRAYER FOR RELIEF .................................................... 17

CERTIFICATE OF SERVICE. .............................................................................. 18

CERTIFICATE OF COMPLIANCE ..................................................................... 19




                                                           -i-
                                   INDEX OF AUTHORITIES


Cases                                                                                                 Page

Ex Parte Daniel Keller, No. WR-36,232-02 (May 20, 2015) .................... 4, 8, 9, 17

Ex Parte Frances Keller, No. WR-36,864-02 (May 20, 2015) . ................ 4, 8, 9, 17

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) . ........................... 16

Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)......................... 17

Ex Parte Neal Hampton Robbins, ___ S.W.3d ___
(Tex. Crim. App. Nov. 26, 2014) ........................................................................ 3-15

Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011). .. 5, 7, 9, 11, 12, 16, 17

Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) . .................................. 16

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) . .................................. 16


Codes and Rules

Tex. Code Crim. Proc. Art. 11.073 . ................................................................ Passim

Tex. Code Crim. Proc. Art. 38.01 . ......................................................................... 15

Tex. Code Crim. Proc. Art. 38.141 . ....................................................................... 15

Tex. Code Crim. Proc. Art. 38.20 . ......................................................................... 15

Tex. Code Crim. Proc. Art. 38.43. .......................................................................... 15


Published Articles

“FBI admits flaws in hair analysis over decades,”
Washington Post, April 18, 2015.............................................................................. 7

                                                     -ii-
FBI/DOJ Microscopic Hair Comparison
Analysis Review, Press Release................................................................................ 7

“In Texas, A New Law Lets Defendants Fight Bad Science,”
Atlantic Magazine, February 28, 2014.................................................................... 16

Lindell, “1992 sex case over day care tossed”
(www.statesman.com May 21, 2015). ...................................................................... 9

The Innocence Project, Understand the Causes: Unreliable-Limited Science....... 14


Miscellaneous

House Bill 48. ......................................................................................................... 15

House Bill 3724. ................................................................................................ 4, 5-7

House Research Organization Bill Analysis of SB344........................................... 13

Senate Bill Analysis . ................................................................................................ 6




                                                           -iii-
                                     IN THE
                           COURT OF CRIMINAL APPEALS
                                 AUSTIN, TEXAS


EX PARTE                                               §
                                                       §
                                                       §       NO. WR-73,484-02
                                                       §
NEAL HAMPTON ROBBINS                                   §


                               **************************

    SUCCESSIVE APPLICATION FOR A WRIT OF HABEAS CORPUS
              IN CAUSE NO. 98-06-0075-CR FROM THE
   410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY


                               **************************

                    AMICUS CURIAE SUPPLEMENTAL BRIEF
                    BY THE INNOCENCE PROJECT OF TEXAS

                               **************************

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:

       NOW COMES The Innocence Project of Texas and submits this Amicus

Curiae Supplemental Brief in the above styled and numbered case. This brief

supplements the previous Amicus Curiae Brief filed by the Innocence Project of Texas

prior to original submission of this case.




Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 1
             Statement by Amicus Curiae Pursuant to T. R. App. P. 11

       This brief is submitted on behalf of the Innocence Project of Texas. The

Innocence Project of Texas is a 501(c)(3) non-profit organization whose work

involves seeking to free wrongfully convicted persons from prison and seeking

reforms in the Criminal Justice System that will decrease the chances of innocent

persons being convicted. The Innocence Project of Texas Board of Directors is

composed of volunteer attorneys from around the State of Texas. This brief is

submitted by Gary A. Udashen, Board President of the Innocence Project of Texas,

and no fee has been paid to any attorney for preparation of this Amicus Curiae Brief.

       The Innocence Project of Texas has been active in attempts to combat the use

of invalid and discredited scientific evidence in the criminal courts of Texas. Art.

11.073, Tex. Code Crim. Proc. is one of the most important steps taken in support of

this goal. The Innocence Project of Texas was one of the groups that supported the

passage of the statute and several officers and directors of the Innocence Project of

Texas testified to the Legislative committees that considered Art. 11.073.

                                     ISSUE PRESENTED

       Art. 11.073, by its plain language, covers the factual situation presented in the

Robbins case. Moreover, the clear intent of the Legislature, in enacting Art. 11.073,

was to provide relief under the factual scenario presented in this case. For these




Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 2
reasons, the Court’s opinion in Robbins II1 was correct and should be reaffirmed on

rehearing.

                           SUMMARY OF THE ARGUMENT

       The Court’s opinion in Robbins II correctly analyzes the language and

legislative intent of 11.073.

       The plain language of Art. 11.073 provides a vehicle for providing relief in this

case. Dr. Moore’s disavowal of her previously expressed opinion on the manner and

cause of the complainant’s death was based on a change in Dr. Moore’s own scientific

knowledge. Dr. Moore followed a normal scientific method of analysis in conducting

her re-evaluation of the case. She noted that she had eight years of additional

experience and training. She became aware of the review and analysis of this case by

other, more qualified and experienced medical examiners, who concluded that the

proper cause and manner of death was undetermined. Following her consideration of

these critical factors, Dr. Moore opined that her initial conclusion as to the manner and

cause of death was incorrect and should have been listed as undetermined. This is a

classic employment of the scientific method of analysis, resulting in a change in the

scientific knowledge available on this case. That is precisely what Art. 11.073

requires in order for relief to be granted. This change of the scientific knowledge was

not available to be offered by Robbins at his trial and contradicts the scientific


1
 Ex Parte Neal Hampton Robbins, ___ S.W.3d ___ (Tex. Crim. App. Nov. 26, 2014) (not yet
published) (Robbins II).

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 3
evidence relied on by the State at trial.

       Moreover, to the extent that there is any ambiguity concerning the precise

meaning of Art. 11.073, and its application to the facts here, the legislative history

provides the answers. The Legislature, in enacting 11.073, was fully aware of the

Court’s opinion in the first Robbins writ. The Robbins case was the focal point of

much of the discussion surrounding this bill and it is clear that, by enacting Art.

11.073, the Legislature intended to provide a clear legal ground for relief for Robbins,

and those similarly situated, based on the change in the scientific evidence underlying

this conviction.

       Additionally, since the State moved for rehearing on this case, the landscape has

further changed in support of the Court’s opinion granting relief in Robbins II. First,

the Legislature enacted H.B. 3724, which amended Art. 11.073 to codify the majority

opinion granting relief in Robbins II. Secondly, the FBI and Justice Department have

issued a press release stating that their preliminary review of hair analysis testimony

for a 20 year period ending around 2000 shows that in 95% of the cases incorrect

scientific testimony was presented. This was testimony consisting of bad science,

presented by bad scientists. Third, this Court issued orders in Ex Parte Daniel Keller,

No. WR-36,232-02 (May 20, 2015) (not designated for publication) and Ex Parte

Frances Keller, No. WR-36,864-02 (May 20, 2015) (not designated for publication).

In the Keller cases, the Court granted habeas relief when a medical doctor admitted

having provided incorrect testimony at trial. This is precisely the situation on which
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 4
this Court denied relief in Robbins I.2

                                          ARGUMENT

       Neal Robbins quest for justice has been long and frustrating. Everybody

seemingly agrees that he was convicted based on invalid scientific testimony that did

not withstand the test of time. Yet, years later, the courts are still considering, and

reconsidering, whether this indisputable fact is enough to warrant a new trial.

       In November of 2014, it appeared that this Court had finally and fairly

answered this question by vacating this conviction and granting habeas relief.

Nevertheless, Robbins is once again before the Court for a reconsideration of its

decision in Robbins II.

       Since November, and since the filing and granting of the State’s rehearing

motion, there have been several significant events that demonstrate that the Court got

it right in Robbins II.

a.     H.B. 3724

       First, the Texas Legislature recently, and overwhelmingly, passed H.B. 3724.

This bill amended Art. 11.073, Tex. Code Crim. Proc. in order to ensure that the

majority opinion in Robbins II remains the law. The language of this amendment is:

       (d) In making a finding as to whether relevant scientific evidence was
       not ascertainable through the exercise of reasonable diligence on or
       before a specific date, the court shall consider whether the field of
       scientific knowledge, a testifying expert’s scientific knowledge, or a


2
 Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011) (Robbins I).

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 5
       scientific method on which the relevant scientific evidence is based has
       changed . . . (emphasis added)

       In particular, this amendment states that a change in “a testifying expert’s

scientific knowledge,” is covered under 11.073. This simple language was a

codification of the majority’s decision in Robbins II, and was written with one purpose

in mind: to make it clear that the Court’s prior interpretation of 11.073 was correct.

The Legislature was well aware of the Court’s consideration of the State’s motion for

rehearing, and of the position taken by three of the four dissenting judges that 11.073

did not cover the Robbins case.3 In codifying by statute the majority’s interpretation

of 11.073, the legislature made its position clear: 11.073 covers Robbins and the

Court properly interpreted the statute in Robbins II, in granting relief.4

       Of course, if the State had not sought rehearing and the Court not granted the

motion, there would have been no need to amend 11.073. This is because the Court’s

opinion in Robbins II properly interpreted the statute. However, in light of the

disagreement among the judges of this Court and the pendency of the State’s request

for a do-over, the Legislature once again stepped in to remove any ambiguity in the

statute, real or imagined.

       The original enactment of 11.073 was a similar move by the Legislature in


Judge Meyers dissent, in which no other member of the Court joined, concludes that the
3

Legislature exceeded its authority in enacting Art. 11.073.
4
 The Senate Bill Analysis states: “H.B. 3724 simply codifies the recent court decisions and
clarifies that the legislative intent in enacting Article 11.073 included not only discredited
science but also the testimony that was based on discredited science.”

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 6
response to this Court’s denial of relief in Robbins I. When the Court denied relief om

Robbins I, the Legislature responded by finally enacting Art. 11.073 to ensure that

Robbins, and those similarly situated, would have a vehicle for post-conviction relief.

The judges on the court have expressed differing opinions on the legislative intent in

the original enactment of 11.073. Nevertheless, there can be no real doubt that the

Robbins I decision was the “tipping point” behind the enactment of the statute. See

Robbins II, Judge Cochran concurring. Robbins II at p. 19.

b.     Hair Review

       The second major event that has occurred since the State sought rehearing is a

further national awareness of the problem of both bad science and bad scientists in

criminal cases. In April of this year, the U. S. Justice Department and FBI issued its

preliminary assessment of the review of hair comparison cases over a 20 year period

before 2000. See Washington Post, April 18, 2015, “FBI admits flaws in hair analysis

over decades.”5 The federal government’s own conclusion was that 95% of these

cases involved incorrect and invalid testimony. While it is yet to be determined to

what extent this testimony was deliberate false testimony, as opposed to a

misunderstanding of the science, there is no question that many defendants, in Texas



5
 http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-
criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html
(last visited May 27, 2015). See also, FBI/DOJ Microscopic Hair Comparison Analysis Review,
Press Release,
http://www.fbi.gov/about-us/lab/scientific-analysis/fbi-doj-microscopic-hair-comparison-analysi
s-review (last visited, May 27, 2015)

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 7
and elsewhere, were convicted based on this invalid scientific testimony. There is also

a question of how much of this invalid testimony is attributed to a scientific witness

misunderstanding and misstating the then-current science and how much is based on

new scientific techniques. Nevertheless, it is clear that the interpretation embraced by

the dissenting judges in Robbins II, and advanced by the State on rehearing, could

well result in numerous habeas applicants being denied relief under 11.073, on the

theory that a scientist giving incorrect testimony, and later, upon further study and

review, realizing the testimony was not correct, does not provide a basis for relief

under 11.073.

c.     Ex Parte Keller

       The third significant event since the granting of the State’s motion for rehearing

is the Court’s opinion in the Frances and Daniel Keller cases. Ex parte Daniel Keller,

No. WR-36,232-02 (May 20, 2015) (not designated for publication); Ex parte Frances

Keller, No. WR-36,864-02 (May 20, 2015) (not designated for publication). In Keller,

the Court granted post-conviction relief based on the presentation of false evidence.

Specifically, the Court found the following:

       “Dr. Mouw testified at Applicant’s original trial that he observed
       physical indications of sexual abuse in the complainant. Dr. Mouw now
       has recanted that trial testimony. The trial court held a hearing during
       which Dr. Mouw testified that his testimony at Applicant’s initial trial
       was misleading and that he now believes that what he believed to be
       trauma was actually a normal variation in the complainant’s anatomy.”
       Keller, slip opinion at 1-2.

       This is, in fact, precisely the same situation in which the Court denied relief in
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 8
Robbins I. In Robbins I, Dr. Moore’s false and misleading testimony was that the

cause of death was asphyxia related compression of the chest. She later re-evaluated

her testimony and concluded that her previous testimony was wrong. As Judge

Johnson explained in her concurring opinion in Robbins II:

       “At the time of the original trial, Dr. Moore had only 18 months
       experience as an associate medical examiner and had been cited for
       defective and improper work. With eight more years experience, she
       testified that she believed that the cause of the child’s death could not be
       determined.” Robbins II, at p. 12.

       There is no principled distinction to be made between the facts of Robbins I and

those in Keller. Both involve a medical doctors reconsideration, and ultimate

recantation of their expert trial testimony.6

       To grant relief in a situation mirroring that of Robbins I, yet denying the same

relief to Robbins, calls into question whether Robbins received a fair evaluation of his

claim in his first writ.7 Robbins has asked the court to reconsider, on its own motion,

its order denying relief in Robbins I. The Keller case is certainly a compelling reason

for the Court to do so.

d.     National Attention

       Additionally, the enactment of Art. 11.073, as well as the decision in Robbins



6
 See also Lindell, “1992 Sex Case Over Day Care Tossed” (www.statesman.com May 21, 2015)
(last visited May 27, 2015) (“Dr. Michael Mouw later admitted that inexperience led him to
misidentify normally occurring conditions as evidence of sexual abuse in a 3-year-old girl.”
7
 It is important to note that Judge Price, who retired from this Court on December 31, 2014,
supplied the fifth vote joining Judge Meyers’ majority opinion in Robbins I.

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 9
II, has drawn nationwide attention and praise. In fact, Art. 11.073 was the first statute

of its kind, one which statutorily recognized that presentation of bad scientific

testimony has resulted in invalid and unsupportable convictions and providing a

remedy for this injustice. The Court’s opinion in Robbins II was widely disseminated

and discussed. Other states are looking to Texas, and how Texas interprets this

important provision of writ law will influence and guide other states.

e.     Legislative Intent

       In his lead opinion for the Court in Robbins II, Judge Womack found the

language of Art. 11.073 to clearly apply to the medical examiners reconsideration of

her faulty opinion that the child’s death was a homicide caused by asphyxia by

strangulation. Regarding the medical examiner, Judge Womack stated:

       “Her new opinion that the cause of death is ‘undetermined,’ which the
       applicant argues is the ‘change in scientific knowledge,’ is also an
       inference or assertion supported by appropriate validation based on the
       scientific method. Moore’s revised opinion on the cause of death
       satisfies the requirements to be called ‘scientific knowledge,’ and thus
       falls within the language of article 11.073. Moore’s opinion labeling
       cause of death as ‘undetermined’ was not available at the time of trial
       because her scientific knowledge has changed since the applicable trial
       date.” (Robbins II at p. 10)

       In reaching this conclusion, Judge Womack’s lead opinion rejected the State’s

contention that there was an ambiguity in the statute. Rather, the plain meaning of the

statute was found to cover the facts in this case.

       In contrast to Judge Womack, Judge Keasler’s dissent argued that legislative

history showed a legislative intent to exclude the Robbins case from the reach of
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 10
11.073. Judge Keasler’s dissent asserted:

       “Article 11.073's legislative history suggests that its aim is to provide an
       avenue of relief for those convicted on science or scientific methodology
       subsequently found to be unsound, not an individual expert’s changed
       testimony when the underlying science or methodology of that opinion
       remains valid.” (Robbins II at 24)

       While the majority opinion in Robbins II was correct in concluding that a resort

to the legislative history is not necessary based on a clear application of the language

of 11.073, nevertheless, it is obvious that the Legislature believed that it was

providing a statutory remedy for the denial of relief in Robbins I. In fact, Judge

Cochran, in her concurring opinion in Robbins II, made it clear that the court’s

decision in Robbins I was the “poster child for enactment of Article 11.073.”

(Robbins II at p. 13).

       Judge Cochran further wrote in Robbins II:

       “I join the majority opinion. I write separately to respectfully disagree
       with the State’s contention that the plain language and legislative history
       of Article 11.073 ‘demonstrate a legislative intent to provide a remedy
       when there is a generally accepted scientific advance or breakthrough in
       a discipline of forensic science,’ rather than a change in the State’s
       scientific expert’s opinion. I think that providing relief from ‘bad’
       scientific testimony and righting the wrong of Robbins was ‘the tipping
       point’ for passing the statute. (Robbins II at p. 13)
       ...
       Dr. Moores later re-evaluation of her opinion - putting aside advocacy
       for one party and seeking more information to reach a more accurate
       result - is the hallmark of ‘good’ scientific methodology:

               Scientists continually observe, test, and modify the body of
               knowledge. Rather than claiming absolute truth, science
               approaches truth either through breakthrough discoveries or
               incrementally, by testing theories repeatedly.
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 11
       It is not surprising, then, that the Texas Legislature would authorize this
       court to review convictions based upon an expert’s ‘scientific
       knowledge’ that the expert has since repudiated or contradicted based on
       her further testing, review, and experience. Indeed, what would not
       make sense is for the Legislature to be concerned about the reliability of
       general fields of forensic science, but unconcerned about the reliability
       of a forensic scientist’s specific testimony. Regardless of whether a
       conviction is based on an unreliable field of science or unreliable
       scientific testimony, the result is the same; an unreliable verdict that
       cannot stand the test of time. It is built upon the shifting sands of ‘junk’
       science or a ‘junk’ scientist, and it is the purpose of Article 11.073 to
       provide a statutory mechanism for relief and a retrial based upon ‘good’
       science and ‘good’ scientific testimony.” (Robbins II at p. 21)

       Judge Johnson’s concurring opinion in Robbins II further explained that, “‘Bad

science’ and ‘bad scientists’ are inseparable.” (Robbins II at p. 12)

       She went on to conclude:

       “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.” (Robbins II at p. 12)

       As discussed in the various opinions, this statute was introduced in both the

2009 and 2011 legislative sessions but did not become law. The major change in the

Texas landscape on new scientific evidence between the end of the 2011 legislative

session and the 2013 legislative session was the Court’s opinion in Robbins I. This

5 - 4 decision caused a stir statewide, as well as in the Legislature. The question that

the Legislature was faced with was whether Texas law would provide a remedy for

someone in Robbins’ situation.

       Clearly, the Legislature took up the challenge and intended Art. 11.073 to apply

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 12
to Robbins and others in this position. The legislative history, including the testimony

presented to the relevant committees, makes this obvious. Moreover, the House

Research Organization Bill Analysis of SB344, which became Art. 11.073, stated the

following:

       “Recent case law and judicial opinion have identified weaknesses in the
       current habeas corpus statute, noting issues that include the absence of
       statutory grounds upon which to grant relief, the speed of changing
       science that serves as the foundation of a conviction, and technical
       testimony that may change with scientific discovery. In one case,
       recanted testimony by a medical examiner established the basis of the
       state’s case with respect to the cause and manner of death, without which
       it would not have obtained a conviction. The Texas Court of Criminal
       Appeals voted against granting a new trial, with the majority finding no
       path to habeas relief under current law. The question was raised as to
       how the criminal justice system should address scenarios in which
       scientific experts sincerely thought something was true at the time they
       testified, but the science and the experts’ understanding and opinions had
       changed.”

       In her concurrence Robbins II, Judge Cochran aptly summed up the legislative

history as follows:

       “It cannot be doubted that the Legislature had this very case in mind
       when it debated and enacted what is now Article 11.073. And, during
       the legislative session, Senator Whitmire told the Texas Tribune that
       ‘several recent Court of Criminal Appeals decisions may make [SB 344]
       more likely to pass.’ The Robbins and Henderson cases raised ‘a novel
       and difficult issue for the criminal-justice system’:

               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.”

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 13
       In Robbins, this Court chose finality over accuracy; in Henderson we did
       the opposite, and in 2013, the Texas Legislature also chose accuracy over
       finality by enacting Article 11.073. (Robbins II at p. 20)

       Moreover, Judge Johnson noted, in her concurring opinion in Robbins II:

       “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.” (Robbins II at p. 11)

       Her concurring opinion concluded that,

       “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.” (Robbins II at p. 13)

       Certainly, as the bill analysis stated, and as Judges Cochran and Johnson

explained, Art. 11.073 was expressly designed to address Robbins. Any suggestion

to the contrary is belied by the well documented legislative history.

f.     Texas Leads The Way

       That the Legislature chose to address the gap in the law exposed by the first

Robbins’ opinion is not surprising.8 As Judge Cochran stated in her concurrence in

Robbins II, “Over the past decade, Texas has been a national leader in addressing

wrongful convictions and recognizing how bad science can lead to wrongful


8
 Unreliable or improper forensic science has appeared in more than 50% of DNA exonerations.
See The Innocence Project, Understand the Causes: Unreliable-Limited Science
(http://www.innocenceproduct.org/understand/Unreliable-Limited-Science.php.) The Tim Cole
Advisory Commission on Wrongful Convictions recognized this by recommending that Chapter
11 of the Code of Criminal Procedure be amended to address changing scientific evidence.

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 14
convictions.” (Robbins II at p. 13)

       The public policy interests of the state have been expressed repeatedly by the

Texas Legislature. For instance, the Legislature, with the support and signature of

Governors Bush and Perry, has passed numerous laws designed to address the

problem of wrongful convictions. These include Chapter 64 of the Code of Criminal

Procedure concerning DNA testing, the amended Art. 39.14 (The Michael Morton

Act) concerning discovery in criminal cases, Art. 38.43 of the Code of Criminal

Procedure concerning retention of biological evidence, Art. 38.01 concerning the

establishment of the Texas Forensic Science Commission, Art. 38.20 concerning

photographic and live lineup procedures and Art. 38.141 requiring corroboration of

the testimony of an undercover informant. Art. 11.073 is another piece of legislation

expressing the pro-active approach taken by the State of Texas to address these issues.

Additionally, the Texas Legislature created the Tim Cole Advisory Commission on

Wrongful Convictions to review the causes of wrongful convictions and recommend

legislative solutions. In just the last few days, the Texas Legislature enacted H.B. 48,

which establishes the Tim Cole Exoneration Commission to study the causes of

wrongful convictions.

       Judge Cochran’s concurring opinion also recognized the National Academy of

Science Report that criticized the scientific basis for forensic testimony as a factor

leading to the enactment of 11.073. (Robbins II at p. 14)

       This Court has also addressed these issues. In addition to the numerous cases
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 15
reversing convictions based on new evidence of innocence, the Court formed the

Texas Criminal Justice Integrity Unit. This group was tasked with the job of

examining and studying the causes of wrongful convictions. The Court has also

addressed these issues in opinions in cases such as Tillman v. State, 354 S.W.3d 425

(Tex. Crim. App. 2011) (eyewitness identification); Winfrey v. State, 323 S.W.3d 875

(Tex. Crim. App. 2010) (dog sniff lineups); and Ex parte Henderson, 384 S.W.3d 833

(Tex. Crim. App. 2012) (child head injuries).

       The Court’s opinion denying relief in Robbins I was an outlier from this

forward march by the Texas courts and Legislature. The Legislature was faced with

a choice of addressing this gap in the law or allowing this opinion to stand in contrast

to the clear trend of Texas law. The Legislature chose to rectify what it perceived to

be the unfairness of Robbins I, and the potential effect of the Court’s opinion on other

cases. Thus, Art. 11.073 became part of the jurisprudence of the State.

       The enactment of Art. 11.073 has garnered national attention and praise for

Texas. On February 28, 2014, in the Atlantic Magazine, a story was published

entitled, “In Texas, A New Law Lets Defendants Fight Bad Science.” This story

describes Art. 11.073 as, “[A] ground breaking new Texas law, the only one of its

kind in the nation, which recognizes that science can get it wrong.”9 The article

quotes Mike Snedeker, President of the non-profit National Center for Reason and


9
 http://www.theatlantic.com/national/archive/2014/02/in-texas-a-new-law-lets-defendants-fight-
bad-science/283895/ (Feb. 28, 2014) (last visited May 27, 2015).

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 16
Justice, describing the new law “as elegant and straightforward and “phenomenally

important, not the least because it clarifies and builds on existing due process rights.”

Referring to the law, Snedeker described Texas as a “beacon of legal progress.” In

fact, Texas is a beacon of legal progress, and Art. 11.073 is just one of the many ways

that this is true.

                     CONCLUSION AND PRAYER FOR RELIEF

       By enacting Art. 11.073, the Texas Legislature has stated its position that

discredited and unreliable science and scientists should not be a basis to hold a man

in prison. A fair and common sense application of Art. 11.073 to Neal Robbins’ case

must result in the granting of relief in this case.10 That is what the Legislature

intended and what the law directs. For this reason, Amicus Curiae, The Innocence

Project of Texas, urges the Court to grant the requested relief and vacate the

conviction in this case.

                                               Respectfully submitted,


                                                     /s/ Gary A. Udashen
                                               GARY A. UDASHEN
                                               Bar Card Number 20369590

                                               SORRELS, UDASHEN & ANTON
                                               2311 Cedar Springs Road, Suite 250
                                               Dallas, Texas 75201

 The granting of Robbins’ motion for the Court to reconsider its decision in Robbins I on its own
10

motion is an alternative ground for vacating his conviction. This argument is also meritorious,
particularly in light of the recent Keller opinion granting relief to Daniel and Frances Keller. Ex
Parte Moussazadeh, 361 S.W.3d 684, 687 (Tex. Crim. App. 2012).

Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 17
                                               (214) 468-8100
                                               (214) 468-8104 Fax

                                               BOARD PRESIDENT
                                               INNOCENCE PROJECT OF TEXAS

                                               Attorney for Amicus Curiae
                                               The Innocence Project of Texas


                              CERTIFICATE OF SERVICE

      I, the undersigned, hereby certify that a true and correct copy of the foregoing
Amicus Curiae Brief on Court’s Consideration on Rehearing by the Innocence Project
of Texas was mailed to the Montgomery County District Attorney’s Office, 301 North
Thompson, Conroe, Texas 77301, and Brian Wice, Attorney for Applicant Neal
Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite 900, Houston, Texas
77002-1635, on this the 28th day of May, 2015.

                                                   /s/ Gary A. Udashen
                                               GARY A. UDASHEN




Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 18
                           CERTIFICATE OF COMPLIANCE

       Pursuant to Tex. R. App. Proc. 9.4(e)(i)(2), undersigned counsel certifies that

this brief complies with the type-volume limitations of Tex. R. App. P. 9.4(e)(i)(2).

1.     This brief complies with the type-volume limitation of Tex. R. App. P.

9.4(e)(i)(2) because this brief contains 4,324 words, excluding the parts of the brief

exempted by Tex. R. App. P. 9.4(e)(i)(2).

2.     This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)

and the type style requirements of Tex. R. App. P. 9.4(e) because this brief has been

prepared in a proportionally spaced typeface using Wordperfect X5 in 14 point Times

New Roman.

                                                   /s/ Gary A. Udashen
                                               GARY A. UDASHEN




Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 19
