            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 229 TH DISTRICT COURT
                        FROM TRAVIS COUNTY


       .

       A LCALA, J., filed a concurring opinion.

                                CONCURRING OPINION

       Like the majority of the Court, I conclude that the death sentence imposed against

Cathy Lynn Henderson, applicant, must be vacated and that she must receive a new trial for

the charge of capital murder of Brandon Baugh. In reaching this conclusion, I follow the

recommendation of the trial court and the State’s attorney and join the Court’s majority

opinion granting relief. I also join the concurring opinion by the Honorable Judge Cochran

with two exceptions. I disagree with her conclusions that (1) this case is the same as Ex parte
Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), and (2) this case permits us to decide

whether there is a due-process violation outside the context of a death-penalty case. I write

separately to explain why I conclude that this case presents more compelling reasons for

granting relief than those presented in Robbins. See id.

       In Robbins, this Court denied the applicant relief. Id. at 448. If this case was factually

identical to Robbins, the same precedent that was used to deny relief in Robbins would

compel denying relief in this case. See id. Instead, the Court grants relief in this case. I

conclude that, although they share many factual similarities, Robbins and this case differ as

to the findings of fact rendered by the respective trial courts: This trial court finds that new

scientific evidence is the basis for ordering a new trial, whereas the Robbins trial court found

that use of false evidence was the basis for ordering a new trial. Id. at 457.

       The Robbins trial court’s findings stated that medical examiner “Dr. Moore’s trial

opinions were not true. They were based on false pretenses of competence, objectivity, and

underlying pathological reasoning, and were not given in good faith.” Id. at 477 (Alcala, J.,

dissenting). The trial court characterized Dr. Moore’s testimony as “expert fiction calculated

to attain a criminal conviction.” Id. Furthermore, the trial court found that Dr. Moore was

“biased toward the State” at the time she testified. Id. at 474 (Cochran, J., dissenting). In my

dissenting opinion in Robbins, I concluded that the record supported the trial court’s

characterization concerning the falseness of the testimony and that the use of that testimony

violated the Due Process Clause of the Fourteenth Amendment. Id. at 476-77 (Alcala, J.,



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dissenting); see also Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009); Ex

parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App. 2010).

       Here, the trial court has not made any factual findings to suggest that, at the time that

it was introduced, the medical evidence underlying applicant’s conviction was known to have

been false. More specifically, nothing in the trial court’s findings suggests that Dr. Bayardo

based his testimony on false pretenses of competence, a lack of objectivity, prosecutorial

bias, or expert fiction calculated to attain a criminal conviction. The absence of these types

of findings distinguishes this case from Robbins and renders it a new-science case rather than

a false-testimony case. Compare id. at 457. As Judge Cochran accurately observes in her

concurring opinion today, Dr. Bayardo’s testimony was “based upon the state of the scientific

knowledge” and was not known to have been false at the time it was given. For this reason,

I join Judge Cochran’s opinion today, although I did not in Robbins. See id. at 476 n.1

(Alcala, J., dissenting).

       In Robbins, I explained that I did not join Judge Cochran’s dissenting opinion

“because the change in Dr. Moore’s testimony is not due to new scientific principles but is

instead, according to her, due to her having more experience as a medical examiner, and

according to the trial court’s findings, due to her trial testimony being the result of

prosecutorial bias.” Id. Today, I join Judge Cochran’s concurring opinion because this case

falls squarely within her assertion that executing a defendant whose conviction is premised




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on now-discredited scientific theories violates due process, even though those scientific

theories were once considered valid and true at the time they were applied.

       Furthermore, although I disagree with the Honorable Judge Price’s analysis of

Robbins, I agree with his conclusion that this case presents a stronger reason to grant relief

than that presented in Robbins: Without relief, applicant will be executed for a conviction

that we now know was premised largely on faulty science.

       The Supreme Court has succinctly observed that “the penalty of death is qualitatively

different from any other sentence.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (internal

quotations omitted). Among these differences is that a death sentence “is unique in its total

irrevocability.” Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., concurring). The

Court has held that the “qualitative difference between death and other penalties calls for a

greater degree of reliability when the death sentence is imposed.” Lockett, 438 U.S. at 604.

This heightened need for reliability requires a mechanism that enables judicial enforcement

of that sentence to evolve with the science that serves as the basis for imposition of that

sentence.

       Whether we ultimately apply the faulty-science theory to due-process complaints

beyond the death-penalty context is a question for another day. The holding of this case is

quite narrow: Due process prohibits the execution of a person when faulty science was

essential to the State’s establishment of an element necessary for conviction—here, that the

cause of death of the complainant was intentional—and the habeas record shows that today’s



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scientific community reaches a different consensus—here, that the cause of death is

undetermined.

       In accordance with the trial court’s recommendation, I join in the Court’s judgment

granting relief and remanding for a new trial.

                                                       Alcala, J.

Filed: December 5, 2012

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