                                                                                       PD-0292-15
                                                                      COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                    Transmitted 4/29/2015 11:16:38 AM
                                                                      Accepted 4/29/2015 11:27:44 AM
                               NO. PD-0292-15                                          ABEL ACOSTA
                                                                                               CLERK

                                      IN THE
                 COURT OF CRIMINAL APPEALS
                                   OF TEXAS
                                 AUSTIN, TEXAS


                     JENNIFER BANNER WOLFE
                                   APPELLANT
                                V.
                       THE STATE OF TEXAS,
                                    APPELLEE


             APPELLANT'S PETITION FOR DISCRETIONARY
            REVIEW FROM THE SECOND COURT OF APPEALS


                            02-12-00188-CR
                  FOR THE SECOND COURT OF APPEALS
                           AT FORT WORTH

                      On appeal from Cause Number 1200447D
                 in the 213th District Court of Tarrant County, Texas
                       Honorable Louis Sturns, Judge Presiding

                         DAVID A. PEARSON, P.L.L.C.
                         ATTORNEY FOR APPELLANT
                       222 W. EXCHANGE AVE., STE. 103
                          FORT WORTH, TEXAS 76164
                                  (817) 625-8081
                               (817) 625-8038 FAX
                           STATE BAR No. 15690465
                              david@lawbydap.com

April 29, 2015
                      THE PARTIES INVOLVED

MS. JENNIFER BANNER WOLFE              APPELLANT
     #1776755
     Lockhart Work Facility
     P.O. Box 1170
     Lockhart, TX 78644

HON. DAVID A. PEARSON, IV              ATTORNEY FOR APPELLANT
     222 W. Exchange Ave., 103         (APPEAL)
     Fort Worth, TX 76164

HONORABLE LISA MULLEN                  ATTORNEY FOR APPELLANT
    1214 Fairmount                     (TRIAL)
    Fort Worth, TX 76104

HONORABLE ROSE ANNA SALINAS            ATTORNEY FOR APPELLANT
    1214 Fairmount                     (TRIAL)
    Fort Worth, TX 76104

HON. SHAREN WILSON                     DISTRICT ATTORNEY
     401 W. Belknap St.                TARRANT COUNTY, TX
     Fort Worth, TX 76196

HON. DEBRA ANN WINDSOR                 ASST. DISTRICT ATTORNEY
     401 W. Belknap St.                TARRANT COUNTY, TX
     Fort Worth, TX 76196              (APPEAL)

HONORABLE KIM D’AVIGNON                ASST. DISTRICT ATTORNEY
    401 W. Belknap St.                 TARRANT COUNTY, TEXAS
    Fort Worth, TX 76196

HONORABLE KEVIN BONEBERG               ASST. DISTRICT ATTORNEY
    401 W. Belknap St.                 TARRANT COUNTY, TEXAS
    Fort Worth, TX 76196


                                 -i-
HONORABLE LOUIS STURNS            JUDGE PRESIDING
    401 W. Belknap St.            213TH CRIMINAL
    Fort Worth, TX 76196          DISTRICT COURT
                                  TARRANT COUNTY, TX




                           -ii-
                                             SUBJECT INDEX
The Parties Involved .................................................................................................i

Subject Index .........................................................................................................iii

Index of Authorities ................................................................................................ iv

Statement Regarding Oral Argument .......................................................................2

Statement of the Case .............................................................................................. 2

Statement of Procedural History ..............................................................................3

Grounds for Review
         Ground for Review One:
         Whether the Court of Appeals wrongly decided that the Appellant‘s
         point of error that the trial court abused its discretion by admitting
         unreliable expert testimony of abusive head trauma based solely on a
         constellation of symptoms did not fairly include the issue whether the
         expert testimony was unreliable given this specific injured party’s
         history. ..........................................................................................................4


         Ground for Review Two:
         Whether the Court of Appeals wrongly decided that the trial court did
         not abuse its discretion by admitting unreliable expert testimony of
         abusive head trauma based solely on a constellation of symptoms. ...............4

Points, Arguments, and Authorities ..........................................................................4

Prayer for Relief .................................................................................................... 17

Certificate of Service ............................................................................................. 18

Certificate of Compliance ...................................................................................... 19

Court of Appeals’ Opinion .........................................................................Appendix
                                              -iii-
                                   INDEX OF AUTHORITIES

Cases                                                                                               Page
Cavazos v. Smith, 132 S.Ct. 2 (2011) ............................................................... 14,15

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 572 (1993) ...................5

Ex parte Henderson, 384 S.W.3d 833, 833-34 (Tex. Crim. App.—2012) ........12-14

Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied, 2012 U.S.
LEXIS 3468 (U. S., May 14, 2012) ................................................................. 16,17

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) .........................................9

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ................................ 5,9

Perry v. Cohen, 272 S.W.2d 585 (Tex. 2008) ...................................................... 10

State v. Bailey, 201 S.W.3d 739 (Tex. Crim. App. 2006) ............................... 5,9,10

State v. Copeland, 2014 Tex. Crim. App. Unpub. LEXIS 929, No. PD-1802-13
(Tex. Crim. App. 2014) (not designated for publication) ....................................... 10

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) .............................. 5,10

Constitutions, Rules, Statutes

TX. R. APP. P. 38.1(i) ........................................................................................ 7,9

TEX. R. APP. PROC. 66.3(a) ................................................................................4

TEX. R. APP. PROC. 66.3(c) ............................................................................. 4,5

TEX. R. EVID. 702 ................................................................................................ 6

TEX. R. EVID. 705 ................................................................................................ 6

                                                       -iv-
Secondary Sources

Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms,
151 Forensic Sci. Int’l 71 (2005) .......................................................................... 14

Minns, Shaken Baby Syndrome: Theoretical and Evidential Controversies, 35 J.
Royal College of Physicians of Edinburgh 5, 10 (2005) ........................................ 15

NATIONAL ACADEMY OF SCIENCES STRENGTHENING FORENSIC
SCIENCE IN THE UNITED STATES: A PATH FORWARD 112 (2009) (“NAS
Report), note 4; Daniel G. Orenstein, Comment: Shaken to the Core: Emerging
Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome,
42 ARIZ. ST. L.J. 1305 (2010) ............................................................................ 17

Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo) 57,
59 (2006) ............................................................................................................. 15




                                                          -v-
                               NO. PD-0292-15
                                        IN THE

                  COURT OF CRIMINAL APPEALS

                                     OF TEXAS
                                   AUSTIN, TEXAS


                  JENNIFER BANNER WOLFE,
                                     APPELLANT

                                           V.

                    THE STATE OF TEXAS,
                                      APPELLEE



                      APPELLANT'S PETITION FOR
                       DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      NOW COMES, Appellant in this cause, by and through her attorney of

record, DAVID A. PEARSON, IV, and, pursuant to the provisions of

Tex.R.App.Pro. 66 et. seq. moves this Court to grant discretionary review, and

would show the Court as follows:




1 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
             STATEMENT REGARDING ORAL ARGUMENT

      In the event this petition is granted, the Appellant does not believe oral

argument would be necessary to the Court’s consideration of the issue in this case.



                          STATEMENT OF THE CASE

      The Appellant was charged by indictment with Injury to a Child, Elderly or

Disabled, Serious Bodily Injury.        (3 R. R. 10) (C. R. 10-11) The State and

Appellant waived a jury trial. The State waived paragraphs one through three of the

indictment, and proceeded on paragraph four plus the deadly weapon notices. (C.

R. 2-3) (3 R. R. 9) The Appellant entered a not guilty plea. (3 R. R. 9-11)

Following a bench trial the trial court found the Appellant guilty. (C. R. 268, 274-

76) (8 R. R. 4) Following a brief sentencing hearing the trial court assessed the

punishment at 5 years in the Texas Department of Criminal Justice – Institutional

Division. (C. R. 274-76, 281) (8 R. R. 42-43) The trial court certified that the

Appellant had the right to appeal. (C. R. 277) Appellant timely filed notice of

appeal on 2 May 2012. (C. R. 278)




                STATEMENT OF PROCEDURAL HISTORY



2 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
      In a published opinion dated 26 February 2015, the Court of Appeals

affirmed, with one Justice dissenting, the judgment of the trial court. Jennifer

Banner Wolfe v. State, 2015 WL 831720, No. 02-12-00188-CR (Tex. App.—Fort

Worth, February 26, 2015) (Walker, J., dissenting). Neither party filed a motion for

rehearing. Pursuant to one extension granted by this Court, the Appellant’s Petition

for Discretionary Review is timely if filed on or before 29 April 2015.




3 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
                           GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE:

      Whether the Court of Appeals wrongly decided that the Appellant‘s
      point of error that the trial court abused its discretion by admitting
      unreliable expert testimony of abusive head trauma based solely on a
      constellation of symptoms did not fairly include as an issue whether the
      expert testimony was unreliable given this specific injured party’s
      history.



GROUND FOR REVIEW TWO:

      Whether the Court of Appeals wrongly decided that the trial court did
      not abuse its discretion by admitting unreliable expert testimony of
      abusive head trauma based solely on a constellation of symptoms.

             POINTS, ARGUMENTS, AND AUTHORITIES

GROUND FOR REVIEW ONE:

      Whether the Court of Appeals wrongly decided that the Appellant‘s
      point of error that the trial court abused its discretion by admitting
      unreliable expert testimony of abusive head trauma based solely on a
      constellation of symptoms did not fairly include as an issue whether the
      expert testimony was unreliable given this specific injured party’s
      history.


      This Court should grant review, because the Court of Appeals has decided an

important question of state law that conflicts with applicable decisions of the Court

of Criminal Appeals, and conflicts with several other courts’ of appeals decisions on

4 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
the same issue. TEX. R. APP. PROC. 66.3(a) (c).

      The Court of Appeals has decided an important question of state law in a way

that conflicts with this Court’s decisions in State v. Bailey, 201 S.W.3d 739 (Tex.

Crim. App. 2006); Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992); and

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998), and thus this Honorable

Court should grant discretionary review. TEX. R. APP. PROC. 66.3(c)

      Jennifer Banner Wolfe voiced her objection and challenge to the State’s

experts and their reliance upon the scientific basis and theory of shaken baby

syndrome. (4 R. R. 6-8) Ms. Wolfe clarified and the trial court accepted that her

challenge to the scientific theory and method she referred to as “shaken baby

syndrome,” would also incorporate the affiliated terms, “abusive head trauma”, or

“sudden impact injury”. (4 R. R. 168) Ms. Wolfe specifically proposed and the

trial court agreed and acknowledged that her Daubert/Kelly challenge could be

heard contemporaneous with the State and Defense presentation of evidence. (4 R.

R. 6-8) (8 R. R. 4-5)      The trial court ruled that it would hear the case, and in

conjunction with that, also perform the necessary gate-keeping function and rule on

Ms. Wolfe’s challenge. (4 R. R. 7-8)

      At the close of evidence, the trial court carried the Daubert /Kelly challenge,

in order to have further time to review the materials presented on the issue. Prior to


5 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
sentencing, the trial court overruled Ms. Wolfe’s Daubert /Kelly challenge. (8 R. R.

4-5)

       In support of her challenge, Ms. Wolfe urged due process of law and Texas

Rules of Evidence 702 and 705. (7 R. R. 5) Specifically, Ms. Wolfe complained

that the State experts issued the opinion of non-accidental, intentional injury based

upon finding subdural hematoma, retinal hemorrhage, and brain swelling.

Furthermore, Ms. Wolfe, in trial and appeal, argued that given no external, physical

signs of trauma or injury, the State experts were improperly calling the injury

intentionally inflicted based on the triad of symptoms. (7 R. R. 6-7) Ms. Wolfe

argued in essence that the trial court should disregard the State experts’ opinions

due to the general disagreement and retraction in the medical community that a

certain constellation of symptoms was exclusively child abuse. (7 R. R. 10-11)

       The Court of Appeals side-stepped the issue of whether the diagnosis of

abusive head trauma could be reliable with respect to this child (alias-“Jack”), given

Jack’s prior medical history—including the prior bleeding in his brain. (Opinion, p.

3, n. 3, p. 20-21) The Court of Appeals restricted its analysis to “only the general

reliability of testimony relating to diagnosing abusive head trauma.” (Opinion, p.

21) Even assuming, sans conceding, the Court of Appeals is correct that it was not

briefed that the expert testimony was unreliable given this injured party’s medical


6 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
history, the Court of Appeals wrongly determined that the issue of whether the

abusive head trauma diagnosis “as applied” to this specific injured party in this

specific case, is not a “subsidiary question that is fairly included.” TEX. R. APP. P.

38.1(f). The Court of Appeals claimed that Ms. Wolfe did not alternatively argue

that the diagnosis of abusive head trauma was unreliable as to this specific injured

party. However, the record below belies the Court of Appeals’ foundation for

procedural default. Ms. Wolfe did specifically cite the record reference to the “old

bleed.” (4 R. R. 195, 199, 201, 238) Furthermore, Ms. Wolfe’s appellant’s brief

included the following:

      “According to Dr. Roberts, [the child] must have had another prior
      hemorrhage, but according to Dr. Roberts the old blood would not
      have caused the constellation or entirety of the injuries. (4 R.R. 222-
      23) Dr. Roberts further acknowledged that there were two older
      bleeds, and both were subdural. (4 R.R. 239-240, 243) On cross-
      examination, Dr. Roberts unequivocally stated more than once that his
      opinion that non-accidental trauma (child abuse) occurred was based
      upon a patient with a subdural hematoma, retinal hemorrhaging, and
      brain swelling. (4 R.R. 272-73, 280-81)”


So, clearly Ms. Wolfe incorporated in her brief the juxtaposition of the state

expert—even with this particular child and his old bleed—sticking to his diagnosis

that if a certain constellation of symptoms is present, then, no matter what, the

injury is intentional. Therefore, Ms. Wolfe precisely briefed whether the abusive

head trauma expert testimony should have been admitted—given this injured party

7 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
and his history.

      Moreover, the dissenting Justice believed the issue was “fairly included” in

Ms. Wolfe’s point of error as presented. The dissent disagreed with the majority,

stating that Ms. Wolfe fairly raised the issue whether the trial court erred to rely

upon the state experts’ opinions that the injuries sustained by Jack were “non-

accidental.” (Walker, J., Dissenting Opinion, p. 2)

      Moreover, based on my review of the State’s expert 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;
      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, yet
      Jack had no external injuries, marks, bruises, fractures, spinal or neck
      injuries, or grip marks on his body. 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. And all three of the State’s experts agreed that Jack did not
      have a normal, healthy brain before he experienced this diagnostic
      constellation. Yet, all three 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.

(Walker, J., Dissenting Opinion, p. 3-5)

      “I write additionally only to point out that serious questions exist regarding

8 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
the reliability of the experts’ opinions as applied to the undisputed facts concerning

Jack’s unhealthy brain and the lack of any physical injury to Jack.” (Walker, J.,

Dissenting Opinion, p. 5-6)

      Respectfully, if the dissenting opinion sees the issue, discusses the issue, and

writes separately to state that the issue was fairly included, wouldn’t that necessarily

mean the subsidiary issue meets the burden of “fairly included.”

      “The standards of procedural default … are not to be implemented by

splitting hairs in the appellate courts.” Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992). The Texas Rules of Appellate Procedure require that

issues be “construed liberally” and that every subsidiary question, which is fairly

included, must be addressed. State v. Bailey, 201 S.W.3d 739, 743-44 (Tex. Crim.

App. 2006); TEX. R. APP. P. 38.1(f). However, an appellate court may not reverse

a trial court “’on a theory that the trial court did not have the opportunity to rule

upon and upon which the non-appealing party did not have an opportunity to

develop a complete factual record.” Id. at 743, quoting Hailey v. State, 87 S.W.3d

118, 122 (Tex. Crim. App. 2002).

      An appellant’s brief must contain “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” TEX.

R. APP. P. 38.1(i). According to TEX. R. APP. P. 38.1(f), the statement of an issue


9 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
or point will be treated as covering every subsidiary question that is fairly included.

      Procedural default rests on the basic principle of appellate jurisprudence that

points not argued at trial are deemed to be waived. State v. Mercado, 972 S.W.2d

75, 78 (Tex. Crim. App. 1998). This Court explained a two-fold purpose behind

this principle: (1) To inform the trial judge of the basis of the party’s argument and

afford him an opportunity to respond to that argument, and (2) to give opposing

counsel the opportunity to respond to that argument. State v. Copeland, 2014 Tex.

Crim. App. Unpub. LEXIS 929, No. PD-1802-13 (Tex. Crim. App. 2014) (not

designated for publication).       The Texas Supreme Court opined as follows:

“Appellate briefs are to be construed liberally, so that the right to appellate review is

not lost by waiver. Simply put, appellate courts should reach the merits of an appeal

whenever reasonably possible.” Perry v. Cohen, 272 S.W.2d 585, 587 (Tex. 2008).

      In the record below, the State clearly had ample opportunity and actually did

develop its evidence and respond to the Appellant’s argument regarding the expert

testimony. In State v. Bailey, above, appellant who was charged with violations of

the Texas Securities Act claimed on appeal that the certificates of deposits at issue

were not securities under the Act as a matter of law. The appellant sought a trial

court ruling on that issue. On appeal, the Eighth Court of Appeals re-framed the

appellant’s complaint finding that the trial court erred in not charging the jury to


10 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
determine of whether or not a certificate of deposit is a security. Id. at 740. This

Court granted review and determined that the Court of Appeals committed error

when it addressed an issue not presented to the trial court or raised by the parties on

appeal. Id. at 742. This Court held that the Court of Appeals reformulated the issue

to be that the trial court erred in charging the jury that the CDs were securities and

reversing on those grounds. This Court found that the issue of who should make the

determination of whether CDs qualify as securities is clearly separate from whether

the trial judge, in response to the agreement of the parties, erred in deciding that the

CDs were securities as a matter of law. Id. at 743. This Court acknowledged that

T.R.A.P. 38.9(b) instructs that briefing rules are to be construed liberally, and gives

the appellate courts some discretion in remedying substantive defects in parties’

briefs, but it does not allow the court of appeals to “reach out and reverse the trial

court on an issue that was not raised.” Id. at 744.

      As the dissent recognizes in this case, Ms. Wolfe’s brief did not require nor

invite the Court of Appeals to “reach out” and create an issue on which to reverse.

The Appellant’s Brief squarely raised the issue whether this expert testimony in this

case with this injured party—was reliable in its conclusion that there was intentional

head trauma. In its Brief, the State never argued that this issue was defaulted, yet

the Court of Appeals “reached out” and found default. For all of the above reasons,

11 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
because the Court of Appeals has decided an important question of state law that

conflicts with other decisions made by this Court, this Honorable Court should grant

discretionary review.




GROUND FOR REVIEW TWO:

      Whether the Court of Appeals wrongly decided that the trial court did
      not abuse its discretion by admitting unreliable expert testimony of
      abusive head trauma based solely on a constellation of symptoms.


      The Court of Appeals held that that “even if the principles supporting the

testimony are not universally accepted in various medical fields, we cannot hold the

State presented inadmissible ‘junk science’”.        (Opinion, p. 26)    The Court of

Appeals readily acknowledged that “reasonable disagreement exists about the

scientific and admissibility of the testimony at issue…. .” (Opinion, p. 26)

      This Court granted relief and vacated a death sentence in Ex parte

Henderson, 384 S.W.3d 833, 833-34 (Tex. Crim. App.—2012). The Court of

Criminal Appeals accepted the trial court findings of fact and conclusion as a matter

of law that applicant did not receive a fundamentally fair trial based upon reliable

scientific evidence. The state did not file objections to the habeas court’s findings.

      Henderson involved an infant death where the applicant claimed at trial that

the infant fell from her arms to the concrete floor, a distance of approximately four-
12 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
and-one-half feet. At trial the medical examiner, Dr. Roberto Bayardo, strenuously

disagreed that the infant’s death could have been accidental. Dr. Bayardo testified

that “it would have been impossible” for an accidental fall to have produced the

injuries sustained by the infant. Dr. Bayardo testified “unequivocally” at trial that

the three-and-a-half-month-old child “came to his death as a result of a severe

closed head injury…characteristic of abuse, homicide.” Ex parte Henderson, 384

S.W.3d at 833-34. However, since the time of trial, Dr. Bayardo changed his mind

based upon “advances in the science of pediatric head trauma.” Id. (emphasis

added) Dr. Bayardo declared that, based upon the physical evidence, he could not

determine with a reasonable degree of medical certainty whether the child’s injuries

resulted from an intentional act or an accidental fall. Id.

      Dr. Bayardo further recanted that “because of recent scientific knowledge”

about how head injuries occur, he no longer believed if the injuries were from an

accidental fall, it would be the result of a fall from a height of over two stories. He

changed his manner of death finding from homicide to “undetermined”.               The

applicant in Henderson also called two experts in biomechanical engineering who

both testified, “The application of biomechanics to the study of pediatric head

trauma and the medical community’s recognition of the role of biomechanics in

determining causes of injury are recent and still developing.” Id. (emphasis added)


13 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
      Judge Cochran also cited the testimony of pediatric forensic pathologist and

medical examiner, Dr. Ophoven, who described a ‘pendulum swing’ in the medical

community with respect to pediatric injuries.              “Now, with studies applying

biomechanics to the field of pediatric head injuries, doctors are more cautious about

‘ruling out’ the possibility that a child’s head injury occurred accidentally.” Id.

      The Court of Appeals was not persuaded by the Henderson case because it

involved an expert who changed his opinion; but, the Court of Appeals failed to

appreciate the import that the expert changed his opinion “based on medical

advances”, (Opinion, p. 25, n. 20), and based “upon advances in the science of

pediatric head trauma.” Ex parte Henderson, 384 S.W.3d at 834.

      The Court of Appeals also failed to appreciate—given the complete absence

of any physical sign of external injury to Jack—the significance of Justice

Ginsberg’s mention of multiple sources all pointing to the consensus that the

commonly held opinion that subdural hemorrhage and retinal hemorrhage in an

infant was strong evidence of SBS was unsustainable. Cavazos v. Smith, 132 S.Ct. 2

(2011) (Ginsberg, J., dissenting); See Bandak, Shaken Baby Syndrome: A

Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int’l 71, 78 (2005)

(“’Head acceleration and velocity levels commonly reported for SBS generate

forces that are far too great for the infant neck to withstand without injury ….[A]n


14 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
SBS diagnosis in an infant …without cervical spine or brain stem injury is

questionable and other causes of the intracerebral injury must be considered.’”) ;

Minns, Shaken Baby Syndrome: Theoretical and Evidential Controversies, 35 J.

Royal College of Physicians of Edinburgh 5, 10 (2005) (“’[D]iagnosing ‘shaking’ as

a mechanism of injury …is not possible, because these are unwitnessed injuries that

may be incurred by a whole variety of mechanisms solely or in combination.’”);

Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo) 57,

59 (2006) (“’[T]he hypothetical mechanism of manually shaking infants in such a

way as to cause intracranial injury is based on a misinterpretation of an experiment

done for a different purpose, and contrary to the laws of injury biomechanics as they

apply specifically to the infant anatomy.’”) Cavazos v. Smith, 132 S.Ct. 2 (2011)

(Ginsberg, J., dissenting).

      The Court of Appeals claims that sources cited by Ms. Wolfe challenging the

reliability of an abusive head trauma based on shaking alone are inapposite because

two state experts testified—without any sign of physical evidence—that Jack’s

injuries could not have occurred by shaking alone.         (Opinion, p. 24-25) This

myopic statement is glaring and highlights exactly why this case should be

reviewed. The Court of Appeals states the troubled scientific history of SBS is of

no moment, because these particular experts say Jack’s injuries could not have


15 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
occurred by shaking alone. Yet, in this record, without a shred of external damage,

and no mark, bruise, or any other physical sign of impact, these experts bootstrap

that an impact occurred, and unequivocally opine that Jack’s head trauma was

intentional. Thus, the developing and dubious science regarding concluding head

trauma was intentional in SBS without any sign of external injury goes exactly to

point. This trial court was told—and the Court of Appeals is equally entranced

by—the blind assumption that an intentional impact must have occurred, based on

the same triad of symptoms that are not “unsustainable” to support SBS.

      In Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied,

2012 U.S. LEXIS 3468 (U. S., May 14, 2012), habeas relief in a capital case was

denied. At trial, the medical examiner ruled the death caused by asphyxiation by

compression and the manner of death was homicide. At some point post-conviction,

the deputy chief medical examiner re-evaluated the autopsy findings and changed

the ruling from homicide to undetermined. The medical examiner that performed the

autopsy agreed with the change and explained that since her original opinion she

had more experience and had reviewed additional information. Her opinion changed

to manner of death of undetermined. Id.

      In the dissenting opinion, Judge Cochran expressed her legitimate concern for

convictions that rest upon specious forensic science. Id., (Cochran, J., dissenting).


16 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
Judge Cochran, joined by two other judges, relied in part upon the NATIONAL

ACADEMY OF SCIENCES STRENGTHENING FORENSIC SCIENCE IN THE

UNITED STATES: A PATH FORWARD 112 (2009) (“NAS Report), note 4;

Daniel G. Orenstein, Comment: Shaken to the Core: Emerging Scientific Opinion

and Post-Conviction Relief in Cases of Shaken Baby Syndrome, 42 ARIZ. ST. L.J.

1305 (2010) (arguing that the criminal justice system must be prepared to reexamine

cases in which the conviction, was based entirely or principally, on unsettled science

when the science evolves substantially enough to undermine confidence in a

verdict).

       Judge Cochran also made the somewhat poignant comparison to an arson-

murder case in which the experts at trial were confident that the fire that killed the

victim was set intentionally, but later experts reviewed the evidence and science and

could not determine whether the fire was arson or not. It was a fire of undetermined

and undeterminable origin and not capable of being scientifically determined as

arson or accidental. Ex parte Robbins, 360 S.W.3d at 469, (Cochran, J., dissenting)

       For all of the above reasons, because the Court of Appeals has decided an

important question of state law that conflicts with other decisions made by this

Court, this Honorable Court should grant discretionary review.




17 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
                                PRAYER FOR RELIEF

       WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays that

the Court of Criminal Appeals grant this Petition for Discretionary Review, that the

case be set for submission to the Court of Criminal Appeals; that after submission,

the case be remanded to the Court of Appeals for review of the issue deemed

procedural defaulted; or, in the alternative be reversed, and the cause be remanded

for a new trial.

                                                Respectfully submitted,

                                                DAVID A. PEARSON, P.L.L.C.



                                                By: ______________________
                                                David A. Pearson, IV
                                                Attorney for Appellant
                                                222 W. Exchange Ave., Ste. 103
                                                Fort Worth, Texas 76164
                                                (817) 625-8081
                                                FAX (817) 625-8038
                                                State of Texas Bar Card
                                                Number 15690465
                                                david@lawbydap.com


                             CERTIFICATE OF SERVICE

       I hereby certify, by affixing my signature above, that upon submission for
filing a true and correct copy of the foregoing PETITION FOR DISCRETIONARY
REVIEW was e-served to Hon. Debra Windsor, Assistant District Attorney, Chief-
Post Conviction Section, Tarrant County District Attorney’s Office at
18 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
CCAAppellateAlerts@TarrantCounty.com and was e-served to Hon. Lisa C.
McMinn, State Prosecuting Attorney at information@spa.texas.gov, and a file-
stamped copy will be served by U.S. mail to the Appellant, Jennifer Banner Wolfe,
TDCJ#01776755, Lockhart Work Facility, P.O. Box 1170, Lockhart, TX 78644.



                      CERTIFICATE OF COMPLIANCE

        I hereby certify that this document complies with Texas Rule of Appellate
Procedure 9.4(i)(1)and (2)(D), containing 3,476 words, not including the caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement
of jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix. Signed on this the 29 April
2015.

                                                       ________________________
                                                       David A. Pearson, IV




19 | Jennifer Banner Wolfe v. State of Texas; PD-0292-15
                                APPENDIX




Jennifer Banner Wolfe v. State of Texas; PD-0292-15
                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00188-CR


JENNIFER BANNER WOLFE                                                    APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


                                       ----------

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

                                       ----------

                                     OPINION 1

                                       ----------

      Appellant Jennifer Banner Wolfe pled not guilty to knowingly causing

serious bodily injury to a child, a first-degree felony. 2 Following a bench trial, the

trial court found her guilty and sentenced her to five years’ confinement. In one
      1
       This appeal was originally submitted without oral argument on
September 30, 2013. The court, on its own motion on June 10, 2014, ordered
the appeal reset without oral argument on July 1, 2014 and assigned it to the
current panel. The undersigned was assigned authorship on December 3, 2014.
      2
       See Tex. Penal Code Ann. § 22.04(a)(1), (e) (West Supp. 2014).
point, appellant asserts that the trial court abused its discretion by admitting

allegedly unreliable medical expert opinion testimony on abusive head trauma.

We affirm.

                                 Background Facts

      Appellant maintained an in-home day care and was a state-certified

childcare provider. As part of her certification, she received training about the

risk of abusive head trauma in small children.

      On April 1, 2010, near 7:15 a.m., Mrs. Smith, a teacher, dropped off seven-

month-old Jack Smith 3 at appellant’s home. Although Jack was fighting a cold,

had struggled with acid reflux, and had been fussy the night before, that morning,

he had been behaving normally.

      At 10:22 a.m., an ambulance was dispatched to appellant’s home. When

paramedics arrived, Jack’s skin was blue-hued; he was lying on his back and

was receiving CPR by fire department personnel who had already arrived. He

did not have a pulse or spontaneous respirations, meaning that he was not

getting oxygen and was clinically dead. Appellant said that after eating, Jack had

screamed “real loud and just fell back unconscious.” Jack had not yet been able

to sit up by himself at that time.



      3
       To protect the anonymity of the child at issue, we will use aliases to refer
to him and his mother. See Daggett v. State, 187 S.W.3d 444, 446 n.3 (Tex.
Crim. App. 2005); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim.
App. [Panel Op.] 1982).


                                        2
      In the ambulance, following the administration of more CPR and advanced

life-support procedures, Jack began to have spontaneous respirations along with

a weak pulse. He also vomited, but he did not have visible external signs of

injury. Upon reaching Cook Children’s Hospital, he was awake and crying.

      At approximately 10:40 a.m., Mrs. Smith received a call telling her to go to

the hospital because Jack was being rushed there. Appellant told Mrs. Smith on

the phone that after she had sat Jack down, he had fallen backward.

      Mrs. Smith and her husband arrived at the hospital, saw that Jack was

pale and still, and learned that he needed immediate surgery to stop bleeding in

his brain.   During the surgery, a Fort Worth police officer spoke with Jack’s

parents. Later that day and night, the same officer and personnel from the Texas

Department of Human Services interviewed appellant, and she again said that

Jack had simply fallen on his head on a foam-padded floor and had immediately

gone limp. Eventually, she wrote a statement stating the same but conceding

that she had “possibly” sat Jack down hard.

      Jack suffered multiple injuries, including a subdural hematoma and retinal

hemorrhaging. 4 He suffered no fractures or other external physical injuries. He

remained at the hospital for nine days after his surgery.




      4
      A subdural hematoma occurs when there is bleeding beneath the dura.
The dura is the thick, leathery-like covering of the brain. Hemorrhaging occurs
when blood leaks out of an artery or a vein.


                                         3
      Dr. Richard Roberts, a pediatric neurosurgeon, treated Jack.                  A

preoperative CT scan of Jack’s brain showed the presence of two older stages of

blood, as well as new bleeding.           Dr. Roberts performed an emergency

craniotomy to evacuate the hematoma and to decrease the pressure in Jack’s

brain. Dr. Roberts determined that a bridging vein connected to the sagittal sinus

had avulsed, or had been pulled off of the sagittal sinus, causing the brisk

bleeding in Jack’s brain.

      Dr. Ann Ranelle, a pediatric ophthalmologist, assessed Jack’s eye injuries

after his craniotomy. Jack’s right eye was uninjured, but his left eye suffered

multilayered retinal hemorrhages that were consistent with nonaccidental trauma

and retinoschisis, which occurs when the retina splits apart.         That eye also

suffered chemosis, which is swelling of a covering over the white part of the eye.

The vitreous 5 base had also separated from the retina in Jack’s left eye.

Dr. Jayme Coffman, a child-abuse pediatrician, consulted on Jack’s case while

he was in the hospital and determined that his injuries could not have been

caused by falling from a seated position, as appellant had claimed.

      A grand jury indicted appellant with knowingly causing serious bodily

injury 6 to Jack by shaking him or by striking him against a hard surface. The

indictment included paragraphs alleging that appellant had used her hands as a

      5
       The vitreous is a jelly-like substance that gives the eye structure.
      6
      Parts of Jack’s brain are dead, but as of the time of trial, it was too early to
determine the long-term effects of his injuries.


                                          4
deadly weapon during the crime.        Appellant retained counsel; filed several

pretrial motions, including requests for a hearing on the reliability of scientific

evidence to be presented by the State; waived her right to a jury trial; and pled

not guilty. Dr. Roberts, Dr. Ranelle, and Dr. Coffman testified for the State at

trial, each opining that Jack’s injuries were the result of nonaccidental, abusive

head trauma. 7 Appellant’s expert disputed the State’s experts’ conclusions and

proposed that Jack’s injuries could have been caused by an unresolved, birth-

related subdural hematoma. The trial court convicted appellant and sentenced

her to five years’ confinement. She brought this appeal.

                        Reliability of Expert Testimony

      Rule of evidence 702 provides, “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise.”

Tex. R. Evid. 702.    Rule of evidence 705(c) governs the reliability of expert

testimony and states that “[i]f the court determines that the underlying facts or

data do not provide a sufficient basis for the expert’s opinion under Rule 702 or


      7
        At the beginning of the trial, appellant objected to this expert testimony,
and the trial court carried the objection through the trial. Specifically, she
challenged “the underlying principle” of shaken baby syndrome or abusive head
trauma as unreliable in the scientific community and not reliable in this case.
After the State rested, the parties presented arguments on the reliability of the
testimony provided by the State’s experts, and the trial court overruled
appellant’s objection.


                                         5
703, the opinion is inadmissible.” Tex. R. Evid. 705(c); see Bekendam v. State,

441 S.W.3d 295, 303 (Tex. Crim. App. 2014). Reliability depends upon whether

the evidence has roots in sound scientific methodology.            Vela v. State, 209

S.W.3d 128, 133 (Tex. Crim. App. 2006); see Bekendam, 441 S.W.3d at 303;

Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (“[T]he proponent

must prove two prongs:        (1) the testimony is based on a reliable scientific

foundation, and (2) it is relevant to the issues in the case.”).

      We review a trial court’s ruling admitting expert scientific testimony for an

abuse of discretion. Tillman, 354 S.W.3d at 435; Mata v. State, 46 S.W.3d 902,

908 (Tex. Crim. App. 2001). Thus, we reverse the ruling only when the trial

court’s decision was outside the zone of reasonable disagreement. Tillman, 354

S.W.3d at 435.

      The proponent of scientific evidence is not typically called upon to

establish its empirical reliability as a predicate to admission until the opponent of

that evidence raises an objection under rule 702. State v. Esparza, 413 S.W.3d

81, 86 (Tex. Crim. App. 2013); see Tex. R. Evid. 702. Once the party opposing

the evidence asserts a rule 702 objection, the proponent bears the burden of

demonstrating by clear and convincing evidence that the evidence is reliable.

Esparza, 413 S.W.3d at 86; Mata, 46 S.W.3d at 908.




                                           6
      For “hard” scientific evidence, 8 the proponent satisfies this burden by

showing the validity of the underlying scientific theory, the validity of the

technique applying the theory, and the proper application of the technique on the

occasion in question. Mata, 46 S.W.3d at 908; Kelly v. State, 824 S.W.2d 568,

573 (Tex. Crim. App. 1992); see Tillman, 354 S.W.3d at 435 (“The focus of the

reliability analysis is to determine whether the evidence has its basis in sound

scientific methodology such that testimony about ‘junk science’ is weeded out.”).

Factors that could affect a trial court’s determination of reliability include

      (1) the extent to which the underlying scientific theory and technique
      are accepted as valid by the relevant scientific community, if such a
      community can be ascertained; (2) the qualifications of the expert(s)
      testifying; (3) the existence of literature supporting or rejecting the
      underlying scientific theory and technique; (4) the potential rate of
      error of the technique; (5) the availability of other experts to test and
      evaluate the technique; (6) the clarity with which the underlying
      scientific theory and technique can be explained to the court; and
      (7) the experience and skill of the person(s) who applied the
      technique on the occasion in question.

Kelly, 824 S.W.2d at 573. Even if the traditional Kelly reliability factors do not

perfectly apply to particular testimony, the proponent is not excused from proving

its reliability. Vela, 209 S.W.3d at 134.




      8
       “The ‘hard’ sciences, areas in which precise measurement, calculation,
and prediction are generally possible, include mathematics, physical science,
earth science, and life science.” Weatherred v. State, 15 S.W.3d 540, 542 n.5
(Tex. Crim. App. 2000).


                                            7
Dr. Roberts’s testimony

      Dr. Roberts 9 testified that Jack suffered a subdural hematoma with a

significant accumulation of blood; he presented with “compression of the brain

that would be worrisome for surviving.” His brain had shifted from the left side

toward the right side of his head, which was an indication of increased pressure.

Unless treated, the injury would have compressed Jack’s brain stem to the point

of causing him to become brain dead, and it also could have permanently

paralyzed the right side of his body.           Dr. Roberts performed an emergency

craniotomy and evacuation of the subdural hematoma to decrease the pressure

in Jack’s brain and to allow it to return to its normal state.

      During the craniotomy, Dr. Roberts determined that the bridging vein

connected to the sagittal sinus 10 had avulsed. Although he did not locate a torn

or avulsed vein, he determined that the vein had avulsed, through some sort of

force applied to Jack’s head, because the bleeding stopped when he placed a

hemostatic agent against the sagittal sinus. Dr. Roberts explained that Jack’s

brain had to deform far enough to stretch the bridging vein and tear it from the

sagittal sinus.    Dr. Roberts explained that the amount of force necessary to


      9
       Dr. Roberts attended medical school at Louisiana State University. He
completed a six-year residency focused on neurosurgery, and during that time,
he assessed children who had brain trauma. He had been working at Cook
Children’s Hospital as a pediatric neurosurgeon for more than four years at the
time of the trial.
      10
          The sagittal sinus is a triangular draining vein in the top of the brain.


                                            8
avulse a bridging vein must arise from a high-energy impact such as a car

accident or a fall from a second-story window; he opined that the bridging vein

could not have avulsed merely from a fall backwards onto a padded surface from

a sitting position.

       Dr. Roberts testified that retinal hemorrhage, tearing of the retina

(retinoschisis), subdural hematoma, and an avulsed bridging vein “are all

classically associated with high-energy input to the head,” not including toppling

backwards from a seated position.              He opined that Jack’s injury was

nonaccidental trauma based on the finding of retinal hemorrhages (including

retinal tearing), brain swelling, and the subdural hematoma, coupled with the fact

that Jack’s injuries were inconsistent with appellant’s explanation of what had

happened. 11 Dr. Roberts testified that his opinion was based on principles that

the medical community generally accepts.

       Dr. Roberts explained that Jack’s injuries could have been caused by

striking Jack with or against a hard surface, including a padded play floor like the

one in appellant’s house, or by shaking Jack and then exerting upon him some

sort of impact, but not by shaking alone.            According to Dr. Roberts, the


       11
        Dr. Roberts testified,

       [W]e are taught . . . that a patient with a subdural hematoma,
       including mixed-density subdural hematoma, which can indicate
       previous trauma, retinal hemorrhaging, and brain swelling are the
       . . . things that we need to call a . . . non-accidental trauma when . . .
       the described action does not meet the injuries.


                                           9
mechanism had to include acceleration and deceleration in order to cause the

bridging vein to avulse.

        Dr. Roberts proposed that with the exception of the old blood (the chronic

subdural hematoma), the remainder of Jack’s injuries (the brain swelling, the

acute subdural hematoma, the retinal hemorrhaging, and the retinal tearing) all

occurred at once because of the impact or the shaking with impact. He also

suggested that the amount of force necessary to cause Jack’s injuries would

have been to a degree that a person would know that she was doing a

dangerous act. Jack’s lack of external injuries, bruises, fractures, spinal or neck

injuries, or grip marks did not change Dr. Roberts’s opinion that force had to be

applied to avulse the bridging vein.

        On cross-examination, Dr. Roberts explained that he had learned that the

constellation of subdural hematoma, retinal hemorrhaging, and brain swelling is,

in absence of an explanation for the injuries, the result of a nonaccidental

trauma. He was trained that shaking impact, rather than shaking alone, typically

causes that collection of symptoms. He admitted that Jack did not have visible

signs of impact-caused injury to his head, but he testified that the lack of such

signs did not change his opinion that force was required to avulse the bridging

vein.

        Appellant asked Dr. Roberts whether he was familiar with certain studies

about shaken baby syndrome, and Dr. Roberts said that he was not familiar with




                                        10
those studies. Dr. Roberts also testified that he had not written any articles in the

field of child abuse.

Dr. Ranelle’s testimony

       Dr. Ranelle 12 found no hemorrhages in Jack’s right eye but found

hemorrhaging in all retinal layers of his left eye. 13 Dr. Ranelle testified that Jack’s

left eye also suffered retinoschisis, which occurs when the retina splits apart and

causes a pocket of blood, and that the vitreous base had separated from the

retina in the left eye.

       Dr. Ranelle testified that the conjunction of Jack’s eye injuries with his

brain injuries was consistent with violent, high-energy, intentional trauma, even

considering that there were no visible external injuries. She explained in part that

nonaccidental trauma caused by an accelerating and decelerating force may be

diagnosed from a “baby with a subdural hematoma and multilayered retinal

hemorrhages that are confluent [and] that go to the ora.”

       Based on her experience in treating other, less-severe eye injuries,

Dr. Ranelle stated that it was not possible for appellant’s version of the facts, the

medical treatment that Jack had received, or Jack’s birth to have caused his eye

       12
         Dr. Ranelle attended medical school at what is now called the Kansas
City University of Biomedical Sciences. After completing an osteopathic
ophthalmology residency and a pediatric ophthalmology fellowship, she started
practicing pediatric ophthalmology in Fort Worth in 2005 and had treated
“thousands” of patients, mostly children, by the time of her testimony.
       13
       Dr. Ranelle could not explain why              violent   force   would    cause
hemorrhaging in only one eye’s retinal layers.


                                          11
injuries.   Dr. Ranelle opined that Jack’s injuries were consistent with an

acceleration/deceleration type of force.        She explained that she had treated

children who had fallen out of second story windows or out of shopping carts

onto concrete floors without suffering the serious retinal injuries that Jack had

experienced.

       Dr. Ranelle explained that retinoschisis can be congenital or result from

nonaccidental trauma, but when it occurs in conjunction with the separation of

the vitreous base, it is most often from nonaccidental trauma.         Dr. Ranelle

testified that the retinoschisis and the separation of the vitreous base could not

have been secondarily caused by the swelling in Jack’s brain.

       Dr. Ranelle based her opinions on her training and her experience with

healthy children who present this collection of symptoms, which is “very

consistent with a violent shaking, traumatic abusive force.” She explained that

the training she had received during her fellowship taught her to be strongly

suspicious of nonaccidental trauma when a child presents with retinal

hemorrhaging, subdural hematoma, and no explanation for these injuries:

                A. Well, there’s usually -- in Pediatric Ophthalmology there
       will still be a chapter on assessing nonaccidental trauma.

              Q. And that conclusion is reached in that chapter regarding
       this constellation that you’re testifying about.

             A. . . . [W]hat conclusion?

             Q. Of nonaccidental trauma.




                                           12
             A. Right. . . . [H]ow do you be suspicious of it? You know,
      that’s the goal. They give you guidelines which you follow. And kind
      of a procedure, dilate the eye using indirect ophthalmoscope, those
      types of things. They give you a procedure to follow and then
      basically outline a situation in which, you know, you should be
      strongly suspicious of nonaccidental trauma.

              ....

           Q. . . . It doesn’t out -- it doesn’t [rule out] any other type of
      cause.

              A. Well, yes. It tells you how to rule out other causes, you
      know.

              ....

              Q. So is it your belief based on those factors in a healthy
      child, that’s [an] axiomatic or automatic conclusion?

              A. Yes.

              Q. Always.

              A. You know, when you say “always,” you’re talking about an
      infinite number of times. But, yeah, I mean, I would say 99 percent
      of the time if in these exact same circumstances, that’s what you
      would look at as child abuse, yeah.

      Dr. Ranelle testified as to the theories that cause retinal hemorrhages:

“one is just the acceleration and deceleration force basically causes the blood

vessels to leak”; another is that the vitreous base tears away from the retina and

pulls on the blood vessels, causing hemorrhaging; and a third is when a

subarachnoid hemorrhage tracks through the optic nerve up into the retina. She

opined that Jack’s injuries were caused by an acceleration and deceleration




                                        13
force. 14   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. Ranelle stated on cross-examination that she was not familiar with

literature questioning the use of retinal hemorrhages in a diagnosis of child

abuse. She testified that she was aware that “some doctors” question the validity

of retinal hemorrhages in nonaccidental trauma, but she disagreed that the

medical community, specifically pediatric ophthalmologists, are in a “state of

unrest” concerning a diagnosis of child abuse based on retinal hemorrhages

without physical injuries.

Dr. Coffman’s testimony

       Dr. Coffman 15 testified that she is the medical director of the Child

Advocacy, Resource, and Evaluation (CARE) Team at Cook Children’s Hospital.

She consulted on Jack’s case while he was in the hospital to opine whether his


       14
        Regarding the second theory, Dr. Ranelle testified that because the
vitreous base is “very highly attached” in children, that theory is not likely.
Regarding the third theory, Dr. Ranelle testified that Jack had hemorrhages
coming off the optic nerve but no significant swelling.
       15
        Dr. Coffman attended medical school at the University of Texas Health
Science Center in San Antonio. She completed a pediatric residency, opened a
pediatric practice, and eventually began working at Cook Children’s Hospital.
She is board certified in general pediatrics and child-abuse pediatrics.


                                        14
injuries were consistent with appellant’s story.      After examining Jack in the

hospital and reviewing his family and medical histories, Dr. Coffman concluded

that Jack’s injuries were the result of a high-energy, violent impact or a

combination of impact and shaking, causing sudden acceleration and

deceleration. She opined that the injuries could not have been caused by falling

onto a foam-padded floor from a seated position. She explained that the avulsed

bridging vein caused the brisk bleeding in Jack’s brain and that “there had to be

some sort of trauma to cause that [avulsed bridging vein].” Dr. Coffman’s review

of Jack’s medical history and her observations of him revealed no alternative

diagnosis for his injuries.

      Regarding retinoschisis, Dr. Coffman testified that it is only seen in severe

trauma other than one case of leukemia.           Dr. Coffman explained that blood

testing on Jack revealed that he did not have leukemia or any blood disorder; he

also did not have any clotting disorder. She testified that retinoschisis results

from severe trauma, both accidental and nonaccidental.

      Dr. Coffman testified that there is no “unrest” in the medical field as to a

diagnosis of abusive head trauma, although there is unrest in the biomechanical

and medical examiner fields. She explained that research of an infant’s brain is

ongoing but that all fields draw similar conclusions that subdural hemorrhages

and extensive retinal hemorrhages are more common in abuse than accident.

Dr. Coffman said that she does not use the term “shaken baby syndrome” or rely

only on “the triad” of injuries. She explained,


                                         15
      [T]he triad is a fallacy because we don’t make our diagnosis based
      on a triad. The diagnosis is based on the individual patient’s
      presentation and . . . findings. So I would no more diagnose abusive
      head trauma based on a triad than I would with anything else. . . .

             It’s based on that individual patient’s history, presentation, and
      findings. I don’t use shaken baby syndrome because that is an
      isolated type of injury. . . . I’m not there when the child gets injured.
      I don’t know if there’s impact involved . . . .

      Dr. Coffman opined that the mechanism used in Jack’s case was violent

and high energy. She said that an impact onto something padded could cause

no bruising or could cause bruising underneath the scalp that would be visible

only during an autopsy. She testified that she has seen numerous cases of head

trauma in which the child had no visible external scalp bruising but the autopsy

revealed bruising underneath the scalp.       Dr. Coffman has both had personal

experience and read about cases with children sustaining injuries similar to

Jack’s after having been impacted against a soft surface similar to the padded

mat in appellant’s house. Dr. Coffman agreed with Dr. Roberts that all of Jack’s

head and eye injuries occurred simultaneously. Finally, she testified that studies

and papers upon which appellant’s expert witness relied were flawed and that

appellant’s expert witness failed to properly consider Jack’s retinoschisis in his

report.   On cross-examination, Dr. Coffman agreed that there is ongoing

research into the tolerance and failure limits of the intracranial structures and

bridging veins and into what forces cause subdural hematomas and retinal

hemorrhages in infants.




                                         16
Defense witness Dr. Robert Rothfeder’s testimony

      Appellant’s expert witness, Dr. Robert Rothfeder, an emergency-room

physician, testified that he has researched abusive head trauma for fifteen years.

He stated that the medical community disagrees about the principles for

diagnosing abusive head trauma and that this disagreement is “far and away the

area of greatest dispute in any medical topic [he has] encountered.”

      Dr. Rothfeder explained that abusive head trauma was once called shaken

baby syndrome and that the theory originally was that the triad of subdural

hematoma, retinal hemorrhages, and brain swelling (cerebral edema) could be

caused by shaking a baby, which would not produce an external injury or impact

point. After studies cast doubt on whether shaking alone could injure the brain of

a healthy child, the principle evolved into shaking with impact and, ultimately, into

what is now called abusive head trauma. Dr. Rothfeder said that the principle is

still based on the same triad. He testified that professionals within the medical

community disagree about         the   validity of     the principle;   according   to

Dr. Rothfeder, the principle is accepted by the majority of pediatricians and “the

minority of anyone else who is active in the field.”

      He also testified that a main problem with diagnosing abusive head trauma

is that a child who has no external signs of injury could not likely have been

impacted in a significant enough way to cause the triad of injuries. He explained,

“The big issue for me in this case is the lack of any . . . superficial trauma to the




                                         17
scalp, to the head, . . . to anything in a case where it’s alleged that the subdural

hematoma was caused by impact.”

         Regarding Jack’s case, Dr. Rothfeder testified that the probability that the

bridging vein could have avulsed by impact without any external signs of impact

“is somewhere between zero likelihood and extremely unlikely.”           Contrary to

Dr. Roberts’s and Dr. Coffman’s testimony, Dr. Rothfeder testified that some of

Jack’s injuries could have occurred as a result of others. He opined that the

swelling of Jack’s brain was most likely caused by the lack of oxygen to the brain

when Jack went into cardiac arrest and that the retinal hemorrhaging could have

been secondarily caused by the swelling of Jack’s brain. He also said that the

retinoschisis was a progression of the retinal hemorrhages and explained that

hemorrhaging in the retina can cause a splitting of the layers sufficient to tear the

retina. He opined generally that Jack’s injuries may not have been acute and

postulated specifically that Jack had suffered from a hemorrhagic stroke with a

cause that was unknown but perhaps related to earlier chronic subdural bleeding.

In his written report admitted as Defense Exhibit 12, Dr. Rothfeder stated that an

alternative explanation for Jack’s injuries was that he had an asymptomatic birth-

related subdural hematoma that did not resolve, continued to ooze and bleed,

perhaps causing intermittent fussiness and other nonspecific symptoms, and

finally broke loose spontaneously with rapid bleeding on April 1, 2010.

Dr. Rothfeder testified that 46% of babies suffer subdural hematomas during

birth.


                                          18
      Dr. Rothfeder also testified that his opinions in this case were based in part

on an article by Dr. Steven Gabaeff entitled, “Challenging the Pathophysicologic

Connection between Subdural Hematoma, Retinal Hemorrhage and Shaken

Baby Syndrome.” That article was admitted as Defense Exhibit 13. The article

states that bridging veins can be torn because of severe head trauma or extreme

cerebrocranial disproportion, which is extra space around the brain. According to

the article, cerebrocranial disproportion can occur “in infants with previous birth-

related [subdural hematoma]” and “can stretch [bridging veins] to their tensile

limit with even minor movement.”      Thus, according to Dr. Gabaeff, tearing of

bridging veins “is an unlikely cause of [subdural hematoma] in a previously

healthy infant, but may play some role in the rebleed of an infant with severe

[cerebrocranial disproportion] from previous [subdural hematoma or] chronic

subdural hematoma.”

      On cross-examination, Dr. Rothfeder agreed that he has spent the majority

of his career as an emergency-room physician, that he is not board certified in

pediatrics, that he has not conducted pediatric neurosurgery, that the minority of

his patients are children, that he stopped working full time as an emergency room

physician in the mid-1990s, that he had not published articles or conducted

research regarding issues related to child abuse, that he received about $8,000

plus expenses for his engagement as an expert in this case, and that most

recently he has been primarily working with a personal injury law firm treating

motor-vehicle accident patients. In the previous year, he testified as a consultant


                                        19
for the defense in approximately twelve to fifteen child abuse cases. He also

admitted that studies upon which he relied have been criticized.

Reliability of the State’s experts’ testimony

      On appeal, appellant challenges only the reliability of the State’s medical

expert testimony regarding a diagnosis of abusive head trauma—in general—on

the basis of the “triad” of subdural hematoma, retinal hemorrhaging, and brain

swelling, without evidence of external injuries. In other words, she argues only

that the general theory behind diagnosing abusive head trauma is flawed, relying

on debate and disagreement within the scientific community about the general

theory. Indeed, she summarizes her argument as follows:

             The trial court abused its discretion by allowing medical expert
      testimony on shaken baby syndrome (or its current vernacular,
      “abusive head trauma”) as support for its findings. The State
      presented testimony that the child suffered a non-accidental,
      intentional . . . head injury; yet, the child displayed no external,
      physical signs of trauma. There [is] a vigorous debate supported
      from multiple sources and studies against the opinion that subdural
      hemorrhage and retinal hemorrhage in an infant is indicative of
      Shaken Baby Syndrome (SBS).

             The fact of the matter is that there is growing unrest in the
      medical community regarding the diagnosis of abusive head trauma
      on the basis of subdural hematoma, retinal hemorrhaging, and brain
      swelling, and the trial court abused its discretion to admit and
      consider the opinions relying on these markers. [Emphasis added.]

      Appellant does not, at any point within her brief, alternatively argue that

even if a diagnosis of abusive head trauma could be reliable with respect to a

typical patient based on the symptoms that Jack presented with, it was not

reliable as to Jack based on his prior medical history, including the prior bleeding


                                        20
in his brain. 16 All cites to authority within the brief focus only on attacking the

theory of diagnosing abusive head trauma generally.           Only three sentences

within the eleven-page argument portion of the brief even mention Jack’s old

brain bleeds; these sentences are unconnected with legal citations and do not

purport to challenge the reliability of the experts’ testimony based on the old

bleeds. Thus, we will examine only the general reliability of testimony relating to

diagnosing abusive head trauma. 17

      Applying the Kelly factors, we cannot conclude that the trial court abused

its discretion by overruling appellant’s objection and by admitting the evidence

provided by the State’s experts.        824 S.W.2d at 573.        The experts, who

demonstrated their unchallenged qualifications to testify about pediatrics

generally and the injuries Jack suffered specifically, see id., clearly articulated the

      16
         We recognize that much of appellant’s focus in the trial court, particularly
during her cross-examination of the State’s experts, was on the prior bleeding.
But on appeal, appellant characterizes her trial-court complaint as being that the
court “should [have] disregard[ed] the State experts’ opinions due to the general
disagreement and retraction in the medical community that a certain constellation
of symptoms was exclusively child abuse.” [Emphasis added.] Similarly, on
appeal, appellant highlights the “modern unease in the medical community with
the reliability of shaken baby or shaken with impact syndrome.”
      17
         “We do not, and cannot, create arguments for parties—we are neither the
appellant’s nor the appellee’s advocate.” Meyer v. State, 310 S.W.3d 24, 26
(Tex. App.—Texarkana 2010, no pet.); see also Tex. R. App. P. 38.1(i) (requiring
a brief to contain a clear argument for the contentions made); Lesher v.
Doescher, No. 02-12-00360-CV, 2013 WL 5593608, at *3 (Tex. App.—Fort
Worth Oct. 10, 2013, pet. denied) (mem. op.) (“It is not the proper role of this
court to create or develop arguments for an appellant; we are restricted to
addressing the arguments actually raised, not those that might have been
raised.”).


                                          21
conditions under which they diagnosed abusive head trauma and confirmed that

the pediatric medical community generally accepts the diagnosis of abusive head

trauma from the types of injuries that Jack suffered.       See id.    Specifically,

Dr. Roberts confirmed that his diagnosis was based on principles generally

accepted with the medical community. See id. Dr. Ranelle testified that the

majority of her peers—pediatric ophthalmologists—would have reached the

same conclusions that she did and that she did not “personally know” any

doctors who question the link of retinal hemorrhages to nonaccidental trauma.

And Dr. Coffman testified that there is no unrest about the diagnosis of abusive

head trauma within the fields of pediatric ophthalmology, pediatric radiology, or

pediatric neurosurgery, although she recognized unrest with medical examiners

and “in the biomechanical world that doesn’t deal with real people.”

      Next, the State provided the court with literature supporting the diagnosis

of abusive head trauma with the types of injuries that are present here. See id.

State’s Exhibit 42 is a paper by Dr. Sandeep Narang. 18 The paper addresses



      18
        See Sandeep Narang, M.D., J.D., A Daubert Analysis of Abusive Head
Trauma/Shaken Baby Syndrome, 11 Hous. J. Health L. & Pol’y 505 (2011).
Although the paper was not submitted into evidence, the trial court stated on the
record that both sides had agreed that the court should read the paper, and it
indicated that it had reviewed and “marked . . . up” the paper. On appeal,
appellant cites other literature related to the validity of a diagnosis for abusive
head trauma.

       We do not intend to cast a vote on vigorous, longstanding disagreements
within the medical community on the plethora of issues concerning the diagnosis
of abusive head trauma. We hold only that under the evidence presented here,

                                        22
recent legal literature, public media, and court decisions calling into question the

validity of abusive head trauma as a medical diagnosis. It details the medical

literature on abusive head trauma, 19 research- and evidence-based studies on

the relation of subdural hematoma and retinal hemorrhaging in abusive head

trauma, and case law confirming the validity of abusive head trauma. The paper

also includes a list of possible causes of subdural hemorrhages and of retinal

hemorrhages in children and details several studies demonstrating the

“significant statistical association” of both subdural hematomas and retinal

hemorrhages with abusive head trauma.            Finally, the paper lists fifteen

international   and   domestic    medical    organizations   that   have    publicly

acknowledged the validity of diagnosing abusive head trauma.           Dr. Coffman

testified that she had reviewed Dr. Narang’s paper and that the paper refuted

conclusions made by Dr. Rothfeder.




the trial court did not abuse its discretion by concluding that the State’s experts’
testimony was reliable and by therefore overruling appellant’s objection to it.
      19
        The paper states that “peer-reviewed medical literature on the topic of
[abusive head trauma] is voluminous.” The paper also asserts that “there have
been at least 8 systematic reviews, over 15 controlled trials, over 50 comparative
cohort studies or prospective case series, and numerous well-designed,
retrospective case series/reports, comprising thousands of cases, supporting the
diagnosis of AHT.” [Footnotes omitted.] See Kelly, 824 S.W.2d at 573 (stating
that reviewing courts should evaluate, among other factors, “the extent to which
the underlying scientific theory and technique are accepted as valid by the
relevant scientific community” and “the availability of other experts to test and
evaluate the technique”).


                                        23
      Furthermore, we note that the trial court’s acceptance of the diagnosis of

abusive head trauma in this case was not novel but is instead in line with the

decisions of other courts, including courts in Texas, that have upheld convictions

based on such testimony. See Thomas v. State, No. 03-07-00646-CR, 2009 WL

1364348, at *4–7 (Tex. App.—Austin May 14, 2009, pet. ref’d) (mem. op., not

designated for publication); see also Day v. State, 2013 OK CR 8, ¶ 7, 303 P.3d

291, 296 (Okla. Crim. App. 2013) (“We have upheld convictions based on

evidence of violent shaking, or explicitly of SBS, since at least 1989.”), cert.

denied, 134 S. Ct. 1303 (2014).

      Although evidence exists in the record that some doctors, biomechanical

engineers, and medical examiners question the validity of a diagnosis of child

abuse based on the “triad” of injuries, that disagreement in and of itself does not

make the State’s expert testimony unreliable. See Day, 2013 OK CR 8 at ¶ 8,

303 P.3d at 296 (“Expert testimony is not rendered unreliable by criticism.”); see

also United States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000) (holding that a

trial court did not err by admitting expert evidence although there was a

“disagreement between professionals” concerning the reliability of the evidence);

New Hampshire Ins. Co. v. Allison, 414 S.W.3d 266, 276 (Tex. App.—Houston

[1st Dist.] 2013, no pet.) (“Conflicting theories between experts . . . do not

automatically render one unreliable.”).

      Moreover, to the extent that the sources cited by appellant challenge the

reliability of a diagnosis of abusive head trauma based on shaking alone, those


                                          24
sources are inapposite because both Dr. Roberts and Dr. Coffman testified that

Jack’s injuries could not have occurred by shaking alone. See, e.g., Cavazos v.

Smith, 132 S. Ct. 2, 10 (2011) (Ginsburg, J., dissenting) (“Doubt has increased in

the medical community ‘over whether infants can be fatally injured through

shaking alone.’”) (quoting State v. Edmunds, 2008 WI App. 33, ¶ 15, 746 N.W.2d

590, 596 (Wis. Ct. App. 2008, pet. denied)). 20



      20
        Appellant relies on Cavazos and Edmunds. We note that Cavazos
concerned evidentiary sufficiency, not admissibility. See 132 S. Ct. at 3–4.
Likewise, the decision in Edmunds did not hinge on the admissibility of expert
testimony but instead concerned whether newly discovered evidence required
the granting of a motion for new trial. See 746 N.W.2d at 595–99. In fact, the
Wisconsin court appeared to base its decision on a jury’s entitlement to hear
“competing credible medical opinions in determining whether there is a
reasonable doubt [of] guilt.” See id. at 599 (emphasis added).

        Appellant also directs us to two recent habeas corpus cases from the court
of criminal appeals concerning expert testimony presented at trial that was later
viewed as inaccurate based on new scientific evidence.                See Ex parte
Henderson, 384 S.W.3d 833, 833–34 (Tex. Crim. App. 2012) (remanding for new
trial because of medical examiner’s changing manner of death from “homicide” to
“undetermined” based on new science showing that infant’s injuries could have
been sustained by accidental, short fall onto concrete); Ex parte Robbins, 360
S.W.3d 446, 471 (Tex. Crim. App. 2011) (Cochran, J., dissenting) (noting
“current legitimate concerns” about the scientific reliability of forensic science in
courtrooms), cert. denied, 132 S. Ct. 2374 (2012). These cases involve
testimony by experts who changed their opinions based on medical advances
that they believed discredited their original testimony. The cases do not squarely
address the admissibility of expert testimony on abusive head trauma, and they
are therefore inapposite.

      Finally, the medical articles cited by appellant, while representative of
Dr. Rothfeder’s testimony and the ongoing dispute concerning the diagnosis of
abusive head trauma, do not compel us to hold that the trial court abused its
discretion by admitting the State’s expert testimony in this case.


                                         25
      For all of these reasons, applying the Kelly reliability factors, we cannot

conclude that the trial court abused its discretion by admitting the testimony of

the State’s experts; even if the principles supporting the testimony are not

universally accepted in various medical fields, we cannot hold that the State

presented inadmissible “junk science.” See 824 S.W.2d at 573; see also Tillman,

354 S.W.3d at 435.      In other words, even acknowledging that reasonable

disagreement exists about the scientific reliability and admissibility of the

testimony at issue, our standard of review forecloses reversal of the trial court’s

implicit ruling that the evidence was clearly and convincingly reliable.      See

Tillman, 354 S.W.3d at 435. Thus, we overrule appellant’s sole point.

                                   Conclusion

      Having overruled appellant’s sole point, we affirm the trial court’s

judgment.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

WALKER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: February 26, 2015




                                          26
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00188-CR


JENNIFER BANNER WOLFE                                              APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                    ----------

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

                                    ----------

                          DISSENTING OPINION

                                    ----------

      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.


                                         2
      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.


                                         3
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.”


                                          4
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.


                                         5
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




                                          6
