                                                                                                               WR-73,484-02
                                                                                           COURT OF CRIMINAL APPEALS
                                                                                                            AUSTIN, TEXAS
                                                                                        Transmitted 12/29/2014 9:36:13 AM
December 29, 2014
                                                                                         Accepted 12/29/2014 10:03:57 AM
                                                                                                             ABEL ACOSTA
                                          IN THE                                                                     CLERK
                                COURT OF CRIMINAL APPEALS
                                  FOR THE STATE OF TEXAS
                                       AUSTIN, TEXAS


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


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

                             RESPONSE OF AMICUS CURIAE,
                          THE INNOCENCE PROJECT OF TEXAS,
                                  IN OPPOSITION TO
                           STATE’S MOTION FOR REHEARING

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

  TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
  APPEALS:

          NOW COMES Amicus Curiae, the Innocence Project of Texas, and submits

  this response to the State’s Motion for Rehearing.

                                                         I.

                          What Is The Purpose of a Rehearing Motion

          The State’s rehearing motion suggests that the Court should treat the briefing, oral

  argument, consideration by the Court, drafting of opinions and issuance of a judgment as

  dress rehearsals for the real event, which, according to the State, is the motion for rehearing.

  The State’s motion for rehearing, and its invitation to the Court to disregard everything that

  Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
  Page 1
has preceded it, challenges the concept of an orderly consideration of appellate court cases.

Rather, the State suggests that simply requesting a “do-over” is a sufficient reason for

granting a rehearing motion.

        The Robbins case is one of the most thoroughly litigated cases to ever be

considered by the Court of Criminal Appeals. The nine judges on this court have

twice ruled on this case on Applications for Writ of Habeas Corpus. The parties have

thoroughly briefed and argued this case and the judges of the Court have all expended

considerable time and effort at analyzing the arguments and issuing written opinions.

Everything to be said on this case has been said. At some point, a case is over and

decided. That point has been reached on the Robbins case.

        Footnote 2 of the State’s rehearing motion discusses the concept of “finality of

judgments.” However, the State’s rehearing motion fails to acknowledge the idea of

finality of appellate opinions. Finality of judgments is a meritorious concept when a

defendant has had his bite at the apple, has nothing new to present and must accept the

judgment of the courts. Finality of an appellate opinions is the same. When the

parties have had their opportunity to fully brief and argue their position, and the

appellate court has thoroughly considered the case and issued written decisions, there

should be a point of finality. A motion for rehearing should be considered only when

there are extraordinary circumstances. Unhappiness by a party because a majority of

the court rejected their argument is not the type of extraordinary circumstances meant


Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
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to be addressed with a rehearing.

        It is clear that the state would like to have the Court reconsider this case with

three new judges taking the place of three of the judges in the majority. The question

is whether that is a proper use of a motion for rehearing.

        The Court speaks as a unit. The Court has ruled in favor of Robbins and this

ruling should have some meaning. The Court’s decision should be respected by all

concerned and not lightly disregarded. It is respectfully suggested that the proper

approach to this rehearing motion should be to ask, not whether the newly constituted

court would resolve it in the same way, rather, whether the case was fully and fairly

considered by the court prior to the issuance of its opinion and judgment.

                                                      II.

                                  State’s Arguments Lack Merit

        The substance of the state’s rehearing motion is easily disposed of. Essentially,

the state has taken the arguments that they have already made and repackaged them

as a motion for rehearing. These arguments have already been rejected by the court,

and this fact alone is sufficient to reject the rehearing motion.

        The state’s rehearing motion claims that the court made no holding in its

opinion that the relevant scientific evidence was unavailable at the time of trial

because it was “not ascertainable through the exercise of reasonable diligence” by

applicant. In order to make this argument, the state must feign a misunderstanding of


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the court’s basic holding. The court clearly and unequivocally held the very thing that

the state claims they did not hold, that is, that Dr. Moore’s new scientific

understanding was not ascertainable by applicant at the time of trial since she did not

reach her new understanding until recently. In other words, applicant could not

ascertain something at the time of trial that did not exist.

        A further point made in the state’s motion, that the word “ascertainable”

demonstrates legislative intent contrary to the ruling made by the court, is simply

rehash of the argument that has already been rejected by the court’s opinion. The

same is true of the state’s argument concerning the meaning of “relevant scientific

evidence.” Moreover, the claim that the court’s interpretation of “relevant scientific

evidence” will lead to many unnecessary applications for habeas relief is wildly off

base. Robbins is a unique case where an expert witness, through further scientific

education, research and knowledge, learned that her previous opinion was

scientifically invalid. This situation is extremely rare, and the suggestion that many

similar writ applications will follow as a result of this ruling is simply not correct.

        Lastly, the state contends that the court did not address the state’s argument

regarding the manner in which habeas courts should weigh the newly available

scientific evidence against the inculpatory evidence adduced in the original trial. To

the contrary, the court directly decided how to weigh the evidence and engaged in that

weighing process here. The court’s opinion correctly found that Dr. Moore’s


Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
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testimony was the only evidence that the jury heard that supported the idea that the

child’s death was a homicide and, without that evidence, a jury would certainly not

find applicant guilty. The court’s holding does not bar the state from retrying

applicant, and presenting other evidence to attempt to prove a homicide. However,

the court’s holding is abundantly clear that the trial evidence, minus Dr. Moore’s

discredited testimony, does not establish a homicide.

                                                      III.

                                        Texas Leads The Way

        The majority opinion correctly found that the Legislature intended Art. 11.073

to cover the situation in the Robbins case. That the Legislature chose to address the

gap in the law exposed by the first Robbins’ opinion is not surprising.1 The first

Robbins opinion exposed a gap in the law that needed to be fixed. By enacting Art.

11.073, the Legislature chose to clarify Texas law in order to cover the Robbins facts

and to erase this black mark from Texas’ reputation for leading the country in the area

of correcting wrongful convictions based on invalid evidence.

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

Texas Legislature, just as was done in enacting 11.073. For instance, the Legislature,


1
 Unreliable or improper forensic science has appeared in more than 50% of DNA exonerations.
See The Innocence Project, Understand the Causes: Unreliable-Limited Science
(http://www.innocenceproduct.org/understand/Unreliable-Limited-Science.php. The Tim Cole
Advisory Commission on Wrongful Convictions recognized this by recommending that Chapter
11 of the Code of Criminal Procedure be amended to address changing scientific evidence.

Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
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with the support and signature of Governors Bush and Perry, has passed numerous

laws designed to address the problem of wrongful convictions. These include Chapter

64 of the Code of Criminal Procedure concerning DNA testing, the amended Art.

39.14 (The Michael Morton Act) concerning discovery in criminal cases, Art. 38.43

of the Code of Criminal Procedure concerning retention of biological evidence, Art.

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

38.20 concerning photographic and live lineup procedures and Art. 38.141 requiring

corroboration of the testimony of an undercover informant. Art. 11.073 is another

piece of legislation expressing the pro-active approach taken by the State of Texas to

these issues. Additionally, the Texas Legislature created the Tim Cole Advisory

Commission on Wrongful Convictions to review the causes of wrongful convictions

and recommend legislative solutions.

        The Court has also addressed these issues in opinions in cases such as Tillman

v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) (eyewitness identification); Winfrey

v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) (dog sniff lineups); and Ex parte

Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (child head injuries).

        The Court’s original opinion denying Robbins habeas relief was an outlier from

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

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

contrast to the clear trend of Texas law. The Legislature chose to rectify the


Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
Page 6
unfairness of the first Robbins writ opinion, and the potential effect of the Court’s

opinion on other cases. Thus, Art. 11.073 became part of the jurisprudence of the

State.

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

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

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

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

kind in the nation, which recognizes that science can get it wrong.”2 The article

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

Justice, describing the new law “as elegant and straightforward and “phenomenally

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

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

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

that this is true.

         The Robbins decision was a significant step towards solidifying the state’s

reputation as leading the country at dealing with junk science and invalid convictions.

The Innocence Project of Texas urges the court to not back off from their opinion

granting Robbins a new trial. The reputation of both the court and the state as a whole

will take a significant hit if this is done.


2
 www.theatlantic.com/magazine. (Feb. 28, 2014)
Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
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                                             CONCLUSION

        For the reasons stated herein, the Innocence Project of Texas urges the Court

to deny the state’s motion for rehearing.

                                                    Respectfully submitted,


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

                                                    SORRELS, UDASHEN & ANTON
                                                    2311 Cedar Springs Road, Suite 250
                                                    Dallas, Texas 75201
                                                    (214) 468-8100
                                                    (214) 468-8104 Fax

                                                    BOARD PRESIDENT
                                                    INNOCENCE PROJECT OF TEXAS

                                                    Attorney for Amicus Curiae
                                                    The Innocence Project of Texas


                                  CERTIFICATE OF SERVICE

      I, the undersigned, hereby certify that a true and correct copy of the foregoing
Response of Amicus Curiae by the Innocence Project of Texas to State’s Motion for
Rehearing was mailed to the Montgomery County District Attorney’s Office, 301
North Thompson, Conroe, Texas 77301, and Brian Wice, Attorney for Applicant Neal
Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite 900, Houston, Texas
77002-1635, on this the 29th day of December, 2014.

                                                        /s/ Gary A. Udashen
                                                    GARY A. UDASHEN




Response of Amicus Curiae, The Innocence Project of Texas, In Opposition to State’s Motion for Rehearing -
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