                                                                             WR-73,484-02
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 5/22/2015 3:02:56 PM
                                                                Accepted 5/26/2015 9:50:26 AM
                                                                                ABEL ACOSTA
      May 26, 2015                                                                      CLERK




                             May 22, 2015
Abel Acosta, Clerk of the Court
Court of Criminal Appeals
P.O. Box 12308
Capitol Station
Austin, Texas 78711

        RE: Ex parte Neal Hampton Robbins, No. WR-73484-02

Dear Abel:

      Please file the attached transcript of oral argument as an appendix
to this pre-submission list of authority in the above-styled and numbered
cause which will be argued on June 3, 2015.

          Keller WR-36,232-02 & WR-36,864-02 (May 20 2015)(not
Ex parte Keller,
designated for publication)(granting habeas relief where State’s expert
had reevaluated his trial testimony that complainant had suffered sexual
abuse, and admitted at writ hearing that this testimony was misleading
and where he now believes that no such signs of sexual trauma existed).

      Allen 2015 WL 2265128 at *6, *8 (May 13, 2015)(Yeary, J.,
In re Allen,
concurring)(urging legislature to “provide clear definition of mental
retardation” so that courts, in assessing viability of Atkins claims, can
separate “the sheep from the goats.”)(citation omitted).

                             Inc. 438 S.W.3d 556, 581 (Tex. 2014)(Hecht,
Jaster v. Comet II Const., Inc.,
C.J., dissenting)(“The legislative process does not usually allow for the
same care [as in the drafting of judicial opinions] to be taken in the choice
of language. There are many authors, the text is subject to amendments
of all sorts, friendly and unfriendly, and in the end, the product is often
one of compromise, which is essential to the legislative process.”).
                                     1
United
United States v. Rosenberg,
                     Rosenberg 346 U.S. 273, 310 (1953)(Frankfurter, J.,
dissenting)(“American criminal procedure has its defects, though its
essentials have behind them the vindication of long history. But all
systems of law, however, wise, are administered through men and
therefore may occasionally disclose the frailties of men. Perfection may
not be demanded of law, bu the capacity to counteract inevitable, though
rare, frailties is the mark of a civilized legal mechanism.”).

Lee v. Tennis,
        Tennis 2014 WL 4187590, Civ. Action No. 4:08-CV-1972 at 1-2; 44
(M.D. Pa. June 13, 2014)(“‘Slow and painful has been man’s progress from
magic to law.’ This proverb, inscribed at the University of Pennsylvania
Law School on the statue of Hseih-Chai, a mythological Chinese beast who
was endowed with the faculty of discerning the guilty, is a fitting
metaphor for both the progress of the law and the history of this case. The
law is the means by which fragile, frail, imperfect persons and institutions
seek greater perfection and justice through the search for the truth. But
the search for the truth is not always easy, and the path to the truth is not
always clear. Sometimes we find that truth eludes us. Sometimes, with
the benefit of insight gained over time, we learn that what was once
regarded as truth is myth, and what was once accepted as science is
superstition. So it is in this case. ... To achieve justice, the law must serve
as the vehicle through which imperfect institutions strive for greater
justice through a more perfect understanding of the truth. Therefore, as
our understanding of scientific truth grows and changes, the law must
follow the truth in order to secure justice.”1).

            Kristensen 340 U.S. 162, 178 (1950)(Jackson, J., concurring)
McGrath v. Kristensen,
(explaining why he changed his mind after having written an opinion in
opposition to his current position, “The matter does not appear to me now
as it appears to have appeared to be then.”).



       1
         In Lee, the magistrate judge recommended a new trial for the habeas petitioner, who was
convicted of the arson murder of his mentally ill daughter 25 years ago, because the “arson science”
upon which his conviction was largely based was no longer scientifically valid. The magistrate
judge’s report and recommendation was later adopted by the district judge and Lee was released
from prison on August 22, 2014.

                                                 2
     Pursuant to TEX.R.APP. 9.5(d), copies of these documents have been
served upon opposing counsel via e-filing.

                                           Sincerely yours,

                                           /s/ Brian W. Wice

                                           BRIAN W. WICE

BWW:dje

cc: Bill Delmore
    Lisa McMinn




                                   3
                                                                   1


1                              WR-73,484-02

2                                 IN THE

3                     COURT OF CRIMINAL APPEALS

4
     ------------------------------------------------------------
5

6              EX PARTE NEAL HAMPTON ROBBINS, APPLICANT

7
     ------------------------------------------------------------
8
          Successive Application for a Writ of Habeas Corpus
9                 in Cause No. 98-06-0075-CR from the
          410th Judicial District Court of Montgomery County
10
     -----------------------------------------------------------
11
                     TRANSCRIPT OF ORAL ARGUMENT
12
     -----------------------------------------------------------
13
                               APPEARANCES:
14
     FOR THE APPLICANT:             BRIAN W. WICE
15                                  The Lyric Centre
                                    440 Louisiana, Suite 900
16                                  Houston, TX 77002-1635

17   FOR THE STATE OF TEXAS:        WILLIAM DELMORE, III
                                    Montgomery County District
18                                  Attorney's Office
                                    301 North Thompson
19                                  Conroe, TX 77301

20
                      TRANSCRIPTION SERVICE BY:
21
                 JUDICIAL TRANSCRIBERS OF TEXAS, LLC
22                     935 ELDRIDGE ROAD, #144
                       SUGAR LAND, TEXAS 77478
23              Tel: 281-277-5325 / Fax: 281-277-0946
                     www.judicialtranscribers.com
24
         Proceedings recorded by electronic sound recording;
25          transcript produced by transcription service.




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1                       WEDNESDAY, MARCH 19, 2014

2                PRESIDING JUDGE KELLER:    Call now Cause Number

3    WR-73,484-02, Ex Parte Neal Robbins.

4                MR. WICE:   I'm Brian Wice from Houston.   It is my

5    privilege to represent Neal Robbins.

6                This is a case about bad science and broken

7    promises.   The bad science:    The expert trial testimony of

8    Dr. Patricia Moore, as to the manner and cause of death that

9    she later reevaluated and ultimately denounced it was

10   essential to this Defendant's conviction and life sentence.

11               The broken promises:    The right to a fair trial

12   with a reliable result, that the system did not because it

13   could not, keep.    The only way a majority of this Court can

14   once again reject the veteran habeas judge's recommendation

15   of a new trial is to adopt the State's myopic interpretation

16   of Article 11.073 that ignores the canons of statutory

17   construction, the dictionary definitions of the terms

18   employed, the unmistakable legislative history and intent

19   behind it and reduces one of the most important changes in

20   habeas jurisprudence to an umbrella which is withdrawn as

21   soon as it begins to rain.

22               Perhaps the easiest of the four -- of the six

23   questions that this Court has asked us to brief is the

24   Section 4 question.     Obviously our burden to show that we

25   come within that exception.     Well, I think it's clear




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1    because the State acknowledges on page 13 of its Brief that

2    we do; that the Section 4 exception is disjunctive, not

3    conjunctive.   We need to show a legal basis or new factual

4    basis.    Clearly we have shown the former, legal basis

5    upon --

6                JUDGE MEYERS:    Showing a legal basis is a change

7    in the law.

8                MR. WICE:   No, sir.

9                JUDGE MEYERS:    Well, that's what Section 4 says.

10               MR. WICE:   That's not what Section 4 says.

11   Second --

12               JUDGE MEYERS:    Well it had to be a change -- a

13   change in the substantive law.

14               MR. WICE:   That's not what Section 4 says, Judge

15   Meyers.

16               JUDGE MEYERS:    But the Section -- but the change

17   in the law has to be a substantive law, not the enabling

18   law.

19               PRESIDING JUDGE KELLER:    But there is a change in

20   this.    I mean, it's your position that there is a change in

21   the substantive law, namely that before 11.073 a claim could

22   be actual innocence or a claim could be false evidence, and

23   now there is a new substantive claim, which is evidence --

24               JUDGE COCHRAN:    Change in scientific evidence.

25               PRESIDING JUDGE KELLER:    -- contradict scientific




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1    evidence or was not available -- yeah, contradicts

2    scientific evidence relied on by the State or was not

3    available to be offered a convicted person at trial.

4               Is that your position?

5               MR. WICE:    It is, Your Honor, and it is fact --

6               JUDGE MEYERS:   That's enabling law.

7               MR. WICE:   To quote from page 13 of the State's

8    Brief:

9         "Article 11.073 provides a new legal basis for habeas

10        corpus relief in cases in which new scientific evidence

11        would not support an actual innocence or false

12        testimony claim."

13              At the end of the day, if five judges of this

14   Honorable Court didn't believe that we have met the

15   Section 4 exception, I suspect I wouldn't be here this

16   morning.   This case would have been dismissed in November.

17              In turning to the merits, this Court's point of

18   embarkation in interpreting Article 11.073 are the canons of

19   statutory construction, which are conspicuously absent from

20   the State's Brief.     What do they say?   That this Court must

21   take the statute as it finds it.     That even if it disagrees

22   with it, even if it hates it, even if it thinks that the

23   Legislature didn't know "sic 'em from come here" about

24   habeas jurisprudence, they have got to interpret this

25   statute in a way that gives effect to the legislative intent




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1    in history and it's clear --

2               PRESIDING JUDGE KELLER:    And stop in there for a

3    minute.

4               Most of the testimony appears to have been about:

5    This bill is to address junk science or discredited science.

6               Is that correct?

7               MR. WICE:   Some of it was, Your Honor.

8               PRESIDING JUDGE KELLER:    This isn't junk science

9    we're talking about, is it?    It's a person's testimony and

10   she has changed her mind after more experience and re-

11   reviewing the evidence; is that correct?

12              MR. WICE:   While I would disagree with the Court's

13   characterization of her merely changing her mind, this is

14   not a situation of Dr. Patricia Moore being a CSI forensic

15   dilettante, who changes her mind the way she changes

16   hairstyles.   It's worthy to note that in all of her time, in

17   all of her tenure as an Assistant ME, this was the only case

18   where she had ever reevaluated her expert opinion on her

19   own.   Her superiors in other case have ultimately amended or

20   supplemented her conclusions.     This is the only case.

21              PRESIDING JUDGE KELLER:    Okay.    I don't want to

22   get too far off track, but when she reevaluated her

23   testimony, there is at least an allegation that she

24   reevaluated because she has more experience, because she

25   looked at more -- she looked at the police, the offense




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1    report.   She looked at more of the testimony at trial, and

2    one of the things that came up is that she reevaluated it

3    because she didn't understand that there had been so-called

4    aggressive CPR on the 17-month-old child that could have

5    caused the bruises on her back, but she was cross-examined

6    about that at trial, wasn't she?

7               MR. WICE:   And you're right, Judge.       And while we

8    point that out in, I think, in Footnote 19 of our Reply

9    Brief, I went back and I looked at both the original

10   majority opinion and Judge Mayes' findings, but I only think

11   that is one element because this is something more than an

12   expert changing her mind.    And I --

13              PRESIDING JUDGE KELLER:    What is it that's more

14   than an expert changing her mind?     I mean, not that that

15   might not be sufficient on its own, but what is it that's

16   more than an expert changing her mind?

17              MR. WICE:   Well, I think as the Innocence Project

18   points out almost better than I do in its Amicus Brief, the

19   scientific method requires any expert who wants to reexamine

20   an initial determination to consult other experts, to look

21   at relevant material, and viewed through the prism of their

22   own increased training, experience, expertise and knowledge

23   to then make a scientific determination that their initial

24   conclusion was somehow wanting and this is not a case,

25   again, where an expert from the State changed sides or had




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1    buyer's remorse or any other sound bites you're going to

2    hear about in 15 minutes because the legislative intent and

3    history behind Article 11.073.

4              And make no mistake, I was there, Mr. Udashen,

5    Mr. Henson, recognized that this statute, which was a

6    byproduct of the Timothy Cole Advisory Panel on Wrongful

7    Convictions, two of whose members are in the audience and

8    one of whom is on the bench today, recognize, this was the

9    ultimate failsafe mechanism in cases where the underlying

10   science had not changed as in Henderson.

11             JUDGE COCHRAN:     Well I think that's a good point,

12   Mr. Wice, and so I'm looking at the statute and I've read

13   the legislative history, but what exactly are you relying on

14   for the change or the conversion of Dr. Moore's testimony?

15   What words within the statute are you relying on?

16             MR. WICE:   When the statute, Your Honor, uses the

17   words "scientific knowledge," that means more than merely a

18   change in the underlying science.    We believe that a common

19   sense interpretation of that provision means that an expert,

20   after further reevaluation through the prism of the

21   scientific method, exactly as Mr. Moore did in this case, in

22   conjunction with increased training, experience and

23   expertise, could then conclude via the scientific method

24   that the initial determination was not correct.      That's all

25   that the statute requires.




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1              JUDGE MEYERS:     But you have all this in your '01

2    [writ].

3              MR. WICE:     We have a --

4              JUDGE MEYERS:     Everything that you talked about

5    was -- because the facts have not changed since your '01.

6    Everything that you have -- that you just talked about was

7    in your '01.

8              MR. WICE:     That's correct.

9              JUDGE MEYERS:     So what has -- so what has changed?

10             MR. WICE:     What has changed, Your Honor, is 11.073

11   because it changed --

12             JUDGE MEYERS:     All that did was codify -- all that

13   did was codify your facts in '01.

14             MR. WICE:     Well, I would disagree because we

15   believe that unlike Article 11.07, Article 11.071 and

16   Article 11.072, 11.073 is a free standing claim upon which

17   relief in a proper case can be granted.

18             JUDGE KEASLER:     Excuse me, Mr. --

19             JUDGE MEYERS:     There is a --

20             MR. WICE:     Yes, Your Honor.

21             JUDGE KEASLER:     Excuse me, Mr. Wice.    I think to

22   boil it down, what you're saying is the term "scientific

23   knowledge" ought to be read more broadly than general

24   scientific knowledge.    You're talking about specific

25   scientific knowledge relating to the individual expert.      Is




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1    that what you're saying?

2                MR. WICE:   Absolutely, Your Honor.

3                JUDGE KEASLER:    Okay.

4                JUDGE WOMACK:    And the trial court and the

5    convicted court found that the scientific knowledge has

6    changed.

7                MR. WICE:   Judge Mayes made a determination in

8    that regard.    Whether or not that is, in fact, amply or

9    fairly supported by the Record, I suppose is another issue,

10   but what Article 11.073 does is that I think that it answers

11   two equally compelling concerns posed by two dissenting

12   opinions.   Judge Cochran's in the '01 writ and Judge

13   Hervey's an Ex Parte Henderson, where Judge Cochran poses

14   the question:   What can we do to essentially assure that

15   science and the law aren't at loggerheads?

16               And of course, Judge Hervey's dissent in Henderson

17   where after concluding that the Court essentially granted

18   relief on the basis it doesn't exist, asks:        Is something

19   missing here?

20               What was missing in both cases, Your Honors, was

21   Article 11.073 and I don't think you get to where the State

22   wants this Court to go unless you ignore the dictionary

23   definitions, which of course as Judge Keller pointed out in

24   Holcombe, is one of the first places we ultimately turn to.

25               JUDGE MEYERS:    Well 11.073 is not a statute that




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1    grants relief.

2              MR. WICE:    It's a statute through which relief can

3    be granted.

4              JUDGE MEYERS:    Listen, it enabled -- it's like

5    11.07, 11.071, they enable you to come to this Court and

6    file a Writ claiming that you have a Constitutional

7    violation and that's what you had in your '01.         You came to

8    this Court and said she changed her mind as to the cause of

9    death and that --

10             MR. WICE:    That she reevaluated.

11             JUDGE MEYERS: -- Okay, whatever.        Whatever it was

12   and it's the same thing you have here, it's the same thing

13   you had in your '01.    And so whatever she did, then we took

14   those particular facts and measured it against a

15   Constitutional provision of due process and we said that did

16   not violate due process in order -- if he did not get

17   another trial for her to present that particular evidence,

18   that did not violate due process and that is exactly the law

19   that is involved in relation to what grants relief, just

20   like it was in Crawford, like it was in Simmons, like it was

21   in Atkins.    Those are the changes --

22             JUDGE COCHRAN:     This isn't like the -- is it like

23   the codification of an Atkins claim?       That is, this is a new

24   claim that you may bring on a writ of habeas corpus.        We

25   have codified Atkins, so we're just still stumbling around




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1    with cases, but is 11.073 like a codified Atkins claim, but

2    dealing with science?

3                 MR. WICE:    It is, Your Honor.

4                 JUDGE COCHRAN:    Okay.   Let me pose a hypo to you:

5    Let us suppose we have a new DNA scientist and she's just as

6    sweet as all get out, but unfortunately she forgot to come

7    to class one day and forgot a very important part of the DNA

8    testing procedure.       So she does a whole bunch of DNA tests

9    and she thinks she's doing it just right and everybody else

10   thinks she's doing it just right.       She has all these results

11   and she testifies in all these trials about the DNA.

12                Turns out five years down the road she wakes up

13   and realizes, "I forgot this important step.            None of my

14   tests are any good."

15                Would this statute cover her change in position?

16   She was never -- she didn't falsify evidence, she didn't

17   testify falsely, she just didn't have it altogether in her

18   knowledge.    Would this statute cover her newfound

19   understanding of what DNA really is all about?

20                MR. WICE:    It absolutely would, Your Honor,

21   because the language in 11.073, again, as Judge Keasler

22   pointed out, uses that expression which you cannot look at

23   myopically of scientific knowledge.        11.073 is different

24   from 11.07 and 11.071.       You can look at 11.07 and 11.071 and

25   you won't find any reference to ineffective assistance or




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1    Brady, or suppression of evidence that alone presents a

2    freestanding claim.

3               But the drafters of this legislation -- and make

4    no mistake, these folks had every opportunity, as every

5    prosecutor in this Great State did, to come to the

6    Legislature a year ago last week, and tell Senator

7    Whitmire's Committee before the law passed what they're

8    telling this Court after it passed, "Wait a second."

9               PRESIDING JUDGE KELLER:     Maybe they didn't think

10   it applied to anything except junk science.

11              MR. WICE:   No, ma'am.

12              PRESIDING JUDGE KELLER:     That's what it looks like

13   it applies to.

14              MR. WICE:   No, ma'am.    I think what this Bill

15   applies to is exactly what the legislative history and

16   intent spoke to.   Make no mistake, it's the elephant in the

17   room and let's just come out and say it:        As much as the

18   Michael Morton Act recodified discovery on some level to

19   some people, this is the Neal Robbins' Bill.           It was in

20   response to this Court's '01 writ decision.

21              PRESIDING JUDGE KELLER:     Well then, why is there

22   so much discussion about junk science and discredited

23   science?   They find kind of broad discredited science that

24   has come up in other cases.

25              MR. WICE:   Because, Your Honor, those were the two




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1    previous sessions, the sessions I believe in '09 and '11,

2    which the State points out couldn't have impacted what the

3    Legislature ultimately did because it talked about bullets

4    and dog sniff cases and alligators in the sewers and God

5    knows what else.    It was only after this Court's '01

6    decision in June of 2011 that the game changer became

7    Article 11.073 and it's a different prism through which this

8    Court has to look at the facts.

9              PRESIDING JUDGE KELLER:     And the difference -- go

10   ahead.

11             JUDGE ALCALA:    I have a question about the

12   statutory language.    You keep paraphrasing what you think

13   the statute says.    When I read the statute under

14   11.073(b)(1)(A):

15        "Relevant scientific evidence is currently available."

16             That's fine, if you need that.      And:

17        "Was not available at the time of the convicted

18        person's trial because the evidence was not

19        ascertainable through the exercise of reasonable

20        diligence by the convicted person before the date of

21        the convicted person's trial."

22             Now can't we read that to say that the evidence --

23   you could have ascertained evidence contrary to Dr. Moore at

24   the time of the trial because there were certainly other

25   medical examiners that could have been called.




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1                 MR. WICE:   And --

2                 JUDGE ALCALA:   So it's not junk -- this would be

3    different -- your situation is different from junk science

4    or new science because you couldn't present the evidence at

5    the time of the trial.

6                 MR. WICE:   I disagree, Your Honor.

7                 JUDGE ALCALA:   And didn't you?

8                 MR. WICE:   I disagree because what the State

9    claims is that the evidence was available in the form of

10   Dr. Bux's expert testimony.       We could not have known eight

11   years after the fact that Dr. Moore would have reevaluated

12   her testimony, so when they stand up in a second and tell

13   you that Dr. Bux's testimony was available, the statute by

14   its own terms says:

15        "Evidence relied upon by the State."

16                That was Dr. Moore's testimony and not Dr. Bux's

17   testimony.

18                PRESIDING JUDGE KELLER:    Was that part added after

19   your testimony that contradicted -- wasn't that an amendment

20   to the Bill?    That contradict scientific evidence relied on

21   by the State at trial, had it been discredited before?

22                MR. WICE:   I believe it did, Your Honor, and I

23   think that was a last minute change before we ultimately

24   testified --

25                PRESIDING JUDGE KELLER:    Okay.




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1              MR. WICE:   -- with the advice and consent of the

2    Harris County District Attorney's Office.

3              JUDGE MEYERS:    But maybe I missed -- the Judge

4    kind of hit the nail on the head.     He said that what 11.073

5    was codify kind of what your situation is.      It would be

6    similar to codifying situations concerning retardation in an

7    Atkins situation.   But you don't have an Atkins case.        You

8    have to put -- you have to put case law with facts, if you

9    don't have an Atkins case.

10             MR. WICE:   Your Honor, if you believe that I don't

11   prevail on the section --

12             JUDGE MEYERS:    No --

13             MR. WICE:   -- for exception because I point to a

14   new case, whether it's Atkins or Crawford --

15             JUDGE MEYERS:    That's how we --

16             MR. WICE:   -- or Dread Scott versus Sanford.

17             JUDGE MEYERS:    That's how we've always done

18   subsequent writs.

19             MR. WICE:   And I obviously don't have your vote.

20             JUDGE MEYERS:    Well we have to -- that's how we've

21   always done subsequent writs.      When the law is changed like

22   in Crawford or in Atkins or in Simmons, or some of those

23   cases, there has been a new case law, how you interpret the

24   application of the facts to the Constitutional violation.

25   We don't have that here.    All we have is the codification of




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1    facts that are cognizable, but we don't have a new ruling by

2    either us or the Supreme Court in relation to how this is a

3    due process violation.

4                MR. WICE:   With all due respect, I respectfully

5    disagree.

6                Hippocrates said, "That to know is science; merely

7    to believe one knows is ignorance."

8                When she testified in 1999, Dr. Patricia Moore

9    believed she knew.      Eight years later, she merely thought

10   she believed.    To convict this Applicant on what is nothing

11   more than ignorance, is anathema to due process, and there's

12   been some talk about what the public demands and what the

13   public expects in the last case.      What they expect is a --

14               PRESIDING JUDGE KELLER:    Well, let me ask you a

15   question because you just led into it and I was going to

16   save it for rebuttal, but you say that the evidence of the

17   prior injuries that the child received while he was in the

18   Applicant's care is not relevant to whether he should get

19   relief or not.   Doesn't that go into the preponderance of

20   the evidence test?

21               MR. WICE:   What I think we need to recognize,

22   Judge Keller, is that evidence was admissible for a limited

23   purpose.

24               PRESIDING JUDGE KELLER:    But it's a broad limited

25   purpose.    It was for the -- to show the relationship of the




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1    parties.

2               MR. WICE:   The relationship of the parties.

3               PRESIDING JUDGE KELLER:    And it wasn't a limited,

4    limited purpose, right?

5               MR. WICE:   Well it was a limited purpose.     And I

6    think that --

7               PRESIDING JUDGE KELLER:    To show the relationship

8    of the parties is one of the purposes of this amendment.

9               MR. WICE:   That's correct, but I think even if on

10   some level it becomes admissible beyond that limited

11   purpose, what the State has continued to ignore is its

12   wholesale reliance on Dr. Moore's testimony in final

13   argument to not only urge the jurors to convict, but to

14   denigrate Dr. Bux's testimony for the reasons in our Brief

15   and in the Amicus Briefs of the Innocence Project, the

16   National Association of Criminal Defense Lawyers, Texas

17   Criminal Defense Lawyers Association, and for the reasons in

18   our Motion for Reconsideration on the Court's own motion,

19   which is still pending, we ask this Court to grant relief.

20              PRESIDING JUDGE KELLER:    Thank you, Counsel.

21              MR. DELMORE:   If it please the Court, my name is

22   Bill Delmore and I represent the State of Texas in this

23   habeas proceeding.

24              Judge Meyers, you've got me worried now because I

25   did make a concession that this statute creates a new legal




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1    basis for an Article 11.07 claim.

2                 JUDGE MEYERS:    We have to have a new --

3                 MR. DELMORE:    If I can briefly explain --

4                 JUDGE MEYERS:    We have to have a new judicial case

5    law basis.

6                 MR. DELMORE:    At the risk of arguing the

7    Applicant's case, which I certainly don't want to do, it

8    seems to me that the Legislature has now created a right to

9    relief in the absence of a Constitutional violation.        So

10   they didn't codify your previous decisions regarding the due

11   process clause.     They said -- they actually reduced the

12   burden of proof that you have set for a due process

13   violation.

14                So in the past that you had new scientific

15   evidence that you claim established your innocence, it was a

16   very difficult test.     You had to prove it to the point that

17   no rational juror could convict, when you weigh the new

18   evidence against the evidence adduced at trial, and they've

19   lessened that burden.

20                PRESIDING JUDGE KELLER:     But the decree added

21   statutory means getting relief, not that it doesn't have

22   anything to do with due process.

23                MR. DELMORE:    Exactly.   They've created a

24   statutory right to relief based on the use of scientific

25   evidence that is later discredited.




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1                 JUDGE MEYERS:    And you can't do that under habeas.

2                 MR. DELMORE:    I toyed with the argument that the

3    Legislature lacked the Constitutional authority to create a

4    new right to habeas relief and that that was strictly a

5    judicial function under separation of powers, but I couldn't

6    find anything that supports that and I suspect the

7    Legislature probably can create a new right to relief in the

8    absence of a Constitutional violation.

9                 I mean, they could pass a law that says that --

10   you know, Bill Delmore was --

11                JUDGE MEYERS:    So that --

12                MR. DELMORE:    -- the prosecutor --

13                JUDGE MEYERS:    So that would be the only way that

14   he can get relief now is absent a showing of Constitutional

15   violation.

16                MR. DELMORE:    That's correct.

17                JUDGE MEYERS:    Okay.

18                MR. DELMORE:    Absolutely.

19                JUDGE MEYERS:    And that would be a first on this

20   -- in this particular court, or --

21                MR. DELMORE:    Are there other statutory rights to

22   relief that the Court has not recognized strictly to the

23   exercise of the common law?      I can't think of one.    There

24   might well be one.

25                JUDGE KEASLER:    When you tell us about a




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1    Constitutional violation, we'll have to say that the actions

2    of the Legislature were unconstitutional in order to deny

3    relief, it would seem.

4              MR. DELMORE:    Well, I think there's plenty of

5    other reasons to deny relief.

6              JUDGE KEASLER:    Yes.   I mean, that's --

7              MR. DELMORE:    But to say that the statute doesn’t

8    create a legal right -- a new legal basis for a claim --

9              JUDGE KEASLER:    Correct.

10             MR. DELMORE:    -- I think would require a finding

11   that the Legislature exceeded its --

12             JUDGE KEASLER:    Separation of powers and duties.

13             MR. DELMORE:    Yes, sir.    Yes, Your Honor.

14             JUDGE MEYERS:    But that's a separate argument, as

15   opposed to whether there is a right of relief under the

16   Constitution, which has always been traditionally and

17   forever the way that you get relief under habeas.      That you

18   take the facts --

19             MR. DELMORE:    Judge, that is correct.

20             JUDGE COCHRAN:    Well not necessarily, no.

21   Mr. Delmore, we have Article 17.151, which says if you

22   haven't been   -- if the State isn't ready for trial in

23   90 days, the Defendant gets a right to get out on personal

24   recognizance or bail, when the People bring a pretrial writ

25   to enforce that statute, it's not a Constitutional issue,




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1    but you have a right to bring a writ to enforce the statute.

2    Are you done?

3              MR. DELMORE:    Yes, Your Honor.

4              JUDGE COCHRAN:    Okay.   So this is sort of the same

5    kind of concept, different kind of claim, but there's a

6    statutory claim and you could bring a writ to enforce that

7    claim.

8              MR. DELMORE:    Yes, Your Honor.     I wish that I had

9    found some authority for the proposition that the

10   Legislature cannot create a new right to habeas relief, but

11   I couldn't find it.   If you surprised me by announcing that

12   the Legislature has exceeded its authority, then that makes

13   this case very easy and we're done.

14             If you can't get there or if you don't get there,

15   then I think we have to go --

16             JUDGE MEYERS:     Easiest way to say it is they just

17   haven't created a wide -- they created an enabling statute,

18   just like 11.07, 11.071, 11.072 enables you to go to file a

19   writ, to present your facts, to say, hey, I've had a

20   Constitutional violation.

21             And that's exactly what the Applicant in this case

22   had in his '01 writ and it was very cognizable because she

23   had changed her mind as to why or how -- what conclusion she

24   would have come to as to the cause of death.

25             And then we looked at that and measured it against




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1    the Constitutional provision of due process and said, "It

2    does not violate due process not to give the Applicant a new

3    trial to present this particular situation."

4                So all 11.073 did was come back and codify those

5    exact same facts and say, "That's -- that is -- that enables

6    you to bring that particular cause."       But it's already been

7    brought.

8                MR. DELMORE:    And they went one further step.

9    They also said that a Court "may grant habeas corpus relief

10   if the following showing is made."

11               JUDGE MEYERS:    But you still have to measure it

12   against the Constitution.

13               MR. DELMORE:    Apparently you don't under the

14   statute.    It does not require a Constitutional violation.

15   It just requires their --

16               JUDGE COCHRAN:    Would you address the merits, too?

17               MR. DELMORE:    Yes, Your Honor.

18               JUDGE COCHRAN:    Discuss the merits?

19               MR. DELMORE:    The -- I believe that the focus of

20   the statute was to provide a remedy when there's been a

21   scientific advancement or breakthrough that calls into

22   question the accuracy of forensic testimony or evidence that

23   contributed to an inmate's conviction.

24               PRESIDING JUDGE KELLER:    I'm going to stop you for

25   a moment.   On the merits, so this Bill had been brought up




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1    in two previous sessions and it appears to be talking about

2    junk science or debunk science.       But there is a difference.

3    And in the Bill that was passed, there is the phrase that

4    "contradicts scientific evidence relied on by the State at

5    trial."

6                 I was under the impression -- and maybe I'm wrong

7    -- that that was -- that revision was made after Mr. Wice's

8    testimony.    I think he just said that it was made right

9    before his testimony.

10                What do you think that applies to?

11                MR. DELMORE:   Well, okay.    The concern that the

12   prosecutors brought to the authors of this Bill was the

13   vagueness of the term "discredits" because you could

14   discredit testimony by doing something other than showing

15   that new scientific developments has contradicted it.

16                PRESIDING JUDGE KELLER:      Sure.

17                MR. DELMORE:   I'm not -- you know, you could

18   discredit it by saying the scientist who was responsible for

19   the initial science that was testified to at trial was a bad

20   scientist.

21                PRESIDING JUDGE KELLER:      Sure.

22                MR. DELMORE:   "He had cheated on his wife and he

23   didn't pay his income taxes," that would discredit, you

24   know, --

25                PRESIDING JUDGE KELLER:      You can discredit with




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1    another witness.

2                MR. DELMORE:   -- it's a very vague word.

3                PRESIDING JUDGE KELLER:    Okay.

4                MR. DELMORE:   And so the prosecutors didn't like

5    that and they -- it was a prosecutorial suggestion that we

6    replace it with the word "contradicts," and I believe that

7    statement was -- that that change was made simultaneously

8    with that 2013 Committee hearing, because there's a

9    discussion during that hearing of "Well, we have made this

10   change and we're now substituting this Committee language."

11               PRESIDING JUDGE KELLER:    Okay.    At that point --

12               MR. DELMORE:   So -- I'm sorry.

13               PRESIDING JUDGE KELLER:    -- were you considering

14   the phrase "scientific evidence" in that part of the statute

15   was broad enough to include testimony within the evidence?

16               MR. DELMORE:   No.   I mean --

17               PRESIDING JUDGE KELLER:    But that's what evidence

18   is, isn't it?    I mean, it can be testimony or reports or

19   anything?

20               MR. DELMORE:   I was hoping I could convince you

21   that the statute was unambiguous because relevant scientific

22   evidence applies to the substance of the science.

23               JUDGE COCHRAN:   What about -- what about my DNA

24   analyst?    She has done 50 cases and she left out a really

25   important step of it and all of her results are wrong, does




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1    Section -- let's see:

2          "Section A(2) contracts scientific evidence relied on

3          by the State at trial."

4                Would Section 2 apply to her testimony in those

5    50 cases?

6                MR. DELMORE:   Do you mean maybe two or three of

7    the elements that this new statute creates, but not before

8    it?

9                JUDGE COCHRAN:   So you're saying all those

10   people --

11               MR. DELMORE:   The one you don't meet then is that

12   it has to be evidence that was unavailable at the time of

13   trial.

14               JUDGE JOHNSON:   But they didn't know about it at

15   time of trial.    And she didn't either.

16               MR. DELMORE:   But was it was held --

17               JUDGE JOHNSON:   She thought she was doing it

18   right.

19               MR. DELMORE:   -- some other pathologist could have

20   said, "This is not the way you're supposed to do it, this is

21   not" --

22               JUDGE JOHNSON:   Well --

23               MR. DELMORE:   -- this is not consistent with

24   existing science.

25               JUDGE JOHNSON:   They did, didn't they?    And how




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1    are they to know that until she says, "Oops, I did it

2    wrong."

3              PRESIDING JUDGE KELLER:      There was testimony.

4              JUDGE JOHNSON:   But that doesn't --

5              MR. DELMORE:   Expert testimony can be had on both

6    sides.

7              PRESIDING JUDGE KELLER:      Yes.

8              MR. DELMORE:   We now have under Ake a right to

9    obtain scientific assistance to the defense.

10             JUDGE JOHNSON:   I understand it, but I think Judge

11   Keller has just posed a question that Dr. Moore testified as

12   to what she thought -- wasn't that the defense also had --

13   who said what Dr. Moore is now saying.

14             Isn't that correct?

15             MR. DELMORE:   Absolutely.    And that is our primary

16   argument as to why this statute doesn't apply to this

17   situation in that to obtain relief under the statute, the

18   new scientific evidence has to have been unavailable and I

19   believe "new scientific evidence" refers to the substance of

20   the science, the scientific principles and methods that are

21   applied to the case and those --

22             JUDGE JOHNSON:   Well where is it stating new --

23             MR. DELMORE:   -- I'm sorry.

24             JUDGE JOHNSON:   Where in that statute does it say

25   "new?"




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1                MR. DELMORE:   I'm sorry?

2                JUDGE JOHNSON:    Where does it say "new" in the

3    statute?

4                MR. DELMORE:   Because it was not available at the

5    time of trial.

6                JUDGE JOHNSON:    Well that doesn't mean it's not --

7    it's new.   It means only that they couldn't find out about

8    it with reasonable diligence.       They couldn't -- all

9    technology, it is, you know, difficult that the DNA test was

10   being done wrong.

11               MR. DELMORE:   And I started by saying I was hoping

12   to convince you that the statute is unambiguous my way, but

13   maybe you're pointing out that there are some words in the

14   statute that are ambiguous.      The word -- the phrase

15   "relevant scientific evidence" could be ambiguous as to

16   whether you're talking about the science or you're talking

17   about the testimony of an individual witness.

18               The word "available" could be ambiguous as to

19   whether it means the science hadn't been discovered yet,

20   hadn't been developed yet, or it could mean that the witness

21   is on vacation.

22               JUDGE JOHNSON:    Well --

23               MR. DELMORE:   So then we would go to the extra

24   textual considerations in determining the legislative

25   intent, such as the legislative history and the consequences




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1    of a particular construction.

2              JUDGE JOHNSON:   It seems to me that science does

3    not become either relevant or evidence until somebody gets

4    up on the witness stand and talks about it and if they --

5    their testimony about the science is both relevant and

6    scientific, then if that is mistaken at the time -- such as

7    this DNA person -- then that, it seems to me, is what we're

8    looking at, not the science itself, but the science as

9    presented by a witness and that witness testified for

10   whatever reason such that it misled whoever listened to it,

11   and I think juries really do -- can rule as to weight, to

12   State's witnesses -- scientific areas where most jurors

13   won't really know whether they're talking correctly or not.

14             So I'm still looking for the word "new" because it

15   doesn't say that in the statute.    It says it's evidence that

16   has to be science that's relevant to the case and now it

17   apparently contradicts the evidence that was presented at

18   trial and because she did not reevaluate it until she had

19   learned more, that it was not available at the time.

20             MR. DELMORE:   And Your Honor, respectfully, you

21   omitted one element of the new test, which is "not available

22   at the time of trial."

23             JUDGE JOHNSON:   And her testimony was --

24             MR. DELMORE:   That --

25             JUDGE JOHNSON:   -- not available at the time.




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1              JUDGE HERVEY:    But there was contradictory --

2              MR. DELMORE:    But it was available from --

3              JUDGE HERVEY:    -- testimony presented by the

4    defense to contradict what she said at trial.

5              MR. DELMORE:    Yeah, it --

6              JUDGE HERVEY:    So that was available at trial.

7              MR. DELMORE:    I think that if it's available

8    through the testimony of another witness that this Court

9    should find that it was available.

10             PRESIDING JUDGE KELLER:       Well also, I mean, even

11   if scientific evidence covers her testimony -- includes her

12   testimony under (d), the Court -- (d) says:

13        "The Court shall consider whether scientific knowledge

14        or method in which the relevant scientific evidence in

15        the case has change."

16             Now opposing counsel tends to put in her own --

17   when he's talking about that part of the statute -- her own

18   scientific knowledge or method has changed.

19             So we're supposed to consider whether -- even if

20   scientific evidence includes her testimony, whether

21   scientific knowledge or method has changed, and that's kind

22   of the crux of the issue here, isn't it?

23             MR. DELMORE:    Yes and no, Your Honor.    I mean, (c)

24   and (d) -- where you're looking at that language -- seemed

25   to me to set out the standard for when there is a new




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1    factual basis for a subsequent under 11.073.

2                 PRESIDING JUDGE KELLER:    Well that could be,

3    but --

4                 MR. DELMORE:   And it's saying that there has to

5    have been a change in the science since you last filed a

6    writ.

7                 PRESIDING JUDGE KELLER:    That could be, but the

8    language is the same -- some of the language in (d) is the

9    same as the language in (a) -- no, in (b)(1)(A), where it

10   says --

11                MR. DELMORE:   And it's also the same as the

12   language in Section 4 of 11.07 and Section 5 of 11.071, when

13   you're talking about "reasonably ascertainable."

14                JUDGE COCHRAN:   Right, but reasonably

15   ascertainable, for example, goes to Brady material and

16   certainly existed at the time of the trial, but poor

17   Defendant just didn't know about it.        Do you suppose they

18   use that same language here to cover exactly the same

19   situation?    That is, it's there, but it's just that the

20   Defendant didn't know about this particular evidence?"

21                Because otherwise, they could have said, "Because

22   of scientific -- because the scientific evidence is new" and

23   you wouldn't have to mess with it, it was not ascertainable

24   through the exercise of reasonable diligence by the

25   convicted person before the jury during the convicted




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1    person's trial.    I mean, it's two words instead of fifteen.

2              MR. DELMORE:     My argument, Your Honor, is that the

3    two words were synonymous with the fifteen, that the point

4    of the statute was to provide a vehicle, a mechanism for a

5    habeas applicant when there has been a change in science.

6              JUDGE COCHRAN:      Do you think that Senator Whitmire

7    would agree with that?     I mean, it's my understanding that

8    the legislative history is just replete with the Neal

9    Robbins act.

10             MR. DELMORE:     And I totally disagree with that,

11   Your Honor.

12             JUDGE COCHRAN:      Okay.

13             MR. DELMORE:     Because this legislation was created

14   in 2009 and the Committee Report that came out of the

15   Committee in 2009, which is set out in its entirety in one

16   of the footnotes in my brief, is virtually identical with

17   this statute.

18             And so in 2009 this Bill was about junk science

19   and correcting the junk science when there's been

20   advancements in science and a clarification of the science

21   and it was all about primarily the arson cases in which it

22   was clear from the new scientific studies that the old

23   science was bad.

24             JUDGE JOHNSON:      Mr. Delmore?    And then?

25             MR. DELMORE:     And --




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1              JUDGE JOHNSON:      What would your argument be if we

2    substitute for Patricia Moore, Dr. Fred Zain --

3              MR. DELMORE:     I'm sorry.     Say that again?

4              JUDGE JOHNSON:      If you substitute for the name

5    "Dr. Patricia Moore," the name "Dr. Fred Zain," then what is

6    your argument about why a person in that position should not

7    be given another trial?

8              MR. DELMORE:     Okay.    I'm guessing that's from the

9    Henderson case?

10             JUDGE JOHNSON:      No.   Dr. Fred Zain was rather

11   infamous for dry-labbing.

12             MR. DELMORE:     Okay.    I'm not familiar with that,

13   but --

14             JUDGE JOHNSON:      In two states --

15             MR. DELMORE:     -- I don't think the statute was

16   intended to correct the errors in the specific testimony of

17   the individual experts.

18             PRESIDING JUDGE KELLER:       Well, false testimony,

19   they already --

20             MR. DELMORE:     Because that --

21             PRESIDING JUDGE KELLER:       -- they already have

22   jurisprudence on false testimony.

23             MR. DELMORE:     Exactly.    You could already do that

24   under the Court's existing jurisprudence if there was a

25   false statement made by an expert that was material to the




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1    outcome, it was a due process violation before.

2              JUDGE KEASLER:      When we break it all down, all we

3    need to do is look at the legislative history to decide --

4    you know, if --

5              JUDGE COCHRAN:      Well, first we have to decide

6    on --

7              MR. DELMORE:     In 2009 and 2011 --

8              JUDGE COCHRAN:      Again, I can save that question

9    later.

10             MR. DELMORE:     -- it was all about arson.    It was

11   about the FBI's discredited bullet, lead analysis.      In 2011

12   there was discussion of the canine scent lineups.

13             PRESIDING JUDGE KELLER:       So what did -- where did

14   Neal Robbins get mentioned in this legislative history?

15             MR. DELMORE:     It came -- it was finally mentioned

16   when Neal Robbins' supporters appeared at the last moment in

17   2013, and it's our position that that is too little and too

18   late.

19             JUDGE MEYERS:     Well let me ask you this:    This

20   case boils down to whether 11.073 is a statutory situation

21   concerning -- it allows relief independently of the

22   competition.   Isn't that basically what it boils down to?

23             MR. DELMORE:     I think I could finish your sentence

24   about five different ways, Judge.       This case could boil down

25   to whether the statutory language is ambiguous.




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1               JUDGE MEYERS:    Well --

2               MR. DELMORE:    It could boil down to whether the

3    evidence --

4               JUDGE MEYERS:    -- that would be interpreting all

5    the statutes, you know, as to whether or not the facts fit

6    within the statute.

7               MR. DELMORE:    Yes.

8               JUDGE MEYERS:    But I'm saying that's the only

9    vehicle that the -- that's the only way that the Applicant

10   here could win is if the statute provide separate -- relief

11   separate of a Constitutional violation.

12              MR. DELMORE:    Yes.   And I believe that your

13   testimony -- I'm sorry, your opinion will eventually boil

14   down to holding that the relevant scientific evidence upon

15   which they are now relying was available at the time of

16   trial because it was fully known science at the time and it

17   was offered --

18              JUDGE MEYERS:    But that would mean --

19              MR. DELMORE:    -- during the trial --

20              JUDGE MEYERS:    That only goes with the Section 4

21   situation if we are going to measure it on a Constitutional

22   basis, but apparently it seems like the Legislature has

23   created some kind of -- it has overstepped its bounds, it

24   seems like, and creates some kind of statutory relief

25   statute.




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1              MR. DELMORE:   And I would love to be wrong in that

2    regard.

3              JUDGE COCHRAN:   May I have one last question?

4              PRESIDING JUDGE KELLER:    Well please, come in.

5    Sure.

6              JUDGE COCHRAN:   What we're talking -- and you rely

7    quite heavily on Dr. Bux's testimony as it was available

8    testimony concerning how this was an undeterminable cause of

9    death, was it favorable to the Defendant through Dr. Bux's

10   testimony, and I guess I'm thinking:     But isn't there a big

11   difference and didn't the State make a big difference

12   between this is the "Johnny-on-the-spot" medical examiner

13   who actually did this work and heaven forbid has a total

14   neutral scientist versus Dr. Bux's, the hired gun from, you

15   know, San Antonio, who didn't touch this stuff.      He was just

16   looking at the record.

17             Do we think there is sort of a qualitative

18   difference that was emphasized by the State during closing

19   argument, between those two?

20             MR. DELMORE:   Well first, I don't believe the

21   statute is about preexisting science.     And Dr. Bux was

22   relying on preexisting science, so I don't think you even

23   meet the standard.

24             But if I'm wrong about whether we're -- the

25   statute refers to the substance of the testimony or the




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1    specific expert opinion testimony of a particular witness,

2    if you get all the way there, then I think that the next

3    question is:   How do you weigh the new evidence, whatever

4    that is from whatever source against the evidence that was

5    actually offered at trial?

6              JUDGE COCHRAN:     Is --

7              MR. DELMORE:   Which is the standard.       It's right

8    there in the statute.

9              JUDGE JOHNSON:     Mr. Delmore, you said that Dr. Bux

10   was relying on established scientific --

11             MR. DELMORE:   Yes, Your Honor.

12             JUDGE JOHNSON:     What was Dr. Moore relying on?

13             MR. DELMORE:   She was trying to rely on pre-

14   existing science, yes.

15             JUDGE JOHNSON:     And so they're doing the same

16   thing?

17             MR. DELMORE:   Yes, Your Honor.

18             JUDGE JOHNSON:     Okay.

19             MR. DELMORE:   This -- there was no -- there is no

20   new science in -- by my count, six members of this Court

21   have already said that the Ex Parte Robbins case is not

22   about any new scientific development or breakthrough.

23             JUDGE JOHNSON:     When did we say that?

24             MR. DELMORE:   Hum?

25             JUDGE JOHNSON:     Where did it say that?




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1                 MR. DELMORE:    In the Ex Parte Robbins decision,

2    three of the Opinions very specifically state that, Your

3    Honor, that it's not -- there was no scientific

4    breakthrough.    We're --

5                 JUDGE JOHNSON:    Well see, that's where the statute

6    gets ambiguous because it doesn't say anywhere "new

7    science."    It just says "not available," which is entirely

8    different than "new."

9                 MR. DELMORE:    And I respectfully disagree and I

10   think that's one of the big decisions that the Court is

11   going to have to make in construing the statutory --

12                JUDGE MEYERS:    The statute says what it says and

13   the facts are what they are, whether there is new science in

14   Robbins or not, and the statute whether it says "new

15   science" or not, so those are what they are.

16                Now whether they commingle or not, that's a

17   different thing.

18                MR. DELMORE:    I'm not sure if that was a question,

19   Judge.

20                PRESIDING JUDGE KELLER:       Mr. Delmore, your time is

21   up.

22                JUDGE MEYERS:    The question was:    Is that a great

23   statement?

24                MR. DELMORE:    Yes, Your Honor.

25                JUDGE MEYERS:    Thank you.




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1               MR. DELMORE:    Thank you very much.

2               JUDGE MEYERS:    Thank you for the statement.

3               MR. WICE:   May it please the Court?       Senator

4    Whitmire's Committee's focus in '09 was on arson and '11 on

5    dog sniffs, but make no mistakes, Your Honors, in 2013 a

6    year ago last week it was all about Neal Robbins.

7               Judge Keasler, you make two great points.        If this

8    is a case about legislative overstepping, then I lose, but

9    strangely the State has never urged that in its response

10   before this Court.     Moreover, Judge Keasler, this does come

11   down -- this is all about legislative history and intent and

12   they've ignored it because I can assure you that if John

13   Whitmire sat at that table, he'd be raising holy heck about

14   the way they interpret the statute.

15              PRESIDING JUDGE KELLER:    Well we don't get to look

16   at that.   Legislators can't come back after a statute is

17   enacted and tell us what they meant by it.       We held that.

18              MR. WICE:   Absolutely.

19              PRESIDING JUDGE KELLER:    Okay.

20              MR. WICE:   But what I'm suggesting is having been

21   there, I can assure you that the Committee's focus was not

22   on scientific breakthrough and again, if a majority of this

23   court believes that this case turns on a scientific

24   breakthrough, then I'll lose.

25              PRESIDING JUDGE KELLER:    Well let me say --




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1              MR. WICE:   And that's not -- but that's not what

2    the legislative intent history spoke to, Judge Keller.

3              PRESIDING JUDGE KELLER:     Okay.    Let me ask you --

4    I have about three questions.

5              You make a point several times of saying in your

6    Brief that we're supposed to interpret the statute the way

7    it's written, regardless of whether it's a good idea, bad

8    idea, or what we think about it.     Is that a reference to --

9    let me ask:   What would prevent -- I mean, if Dr. Moore

10   changed her -- came up with a different opinion in this

11   case, changed, whatever, but would this statute be available

12   for relief if the defense just brought in a different

13   witness, not Dr. Moore, but someone else who contradicted

14   scientific evidence relied on by the State?

15             MR. WICE:   No.   Because I would suspect in that

16   scenario, the evidence was otherwise available.       I think as

17   Judge Johnson points out:    How could we have known eight

18   years after she walked out of the courtroom that ultimately

19   she would reevaluate her trial testimony?       It existed, much

20   like the Brady evidence the State hides.       We just didn't

21   know that she would ultimately reevaluate her testimony and

22   again, the statute speaks to evidence relied upon the State.

23   That's not Dr. Bux.   That's ultimately Dr. Moore.

24             JUDGE COCHRAN:    Yes.

25             JUDGE ALCALA:     Mr. Wice, under (b) it says that if




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1    the Court finds that had the scientific evidence been

2    presented at trial, under the preponderance of the evidence,

3    the person would not have been convicted.

4                 The "had the scientific evidence been presented at

5    trial," is that specifically in your opinion Dr. Moore's

6    testimony?    Had Dr. Moore's revised testimony been presented

7    at trial, the person would not have been convicted?

8                 It's in followup to Judge Keller's question:        Does

9    the statute come into play just because of the revised

10   testimony of Dr. Moore, or because some new expert has come

11   along and now discredited this whole science?

12                MR. WICE:   No.   No, Your Honor.

13                JUDGE ALCALA:     And some others?

14                MR. WICE:   No, Your Honor, I think our take on it

15   is simple, that if a jury had heard Dr. Moore's

16   reevaluation, they would not have convicted by a

17   preponderance of the evidence.

18                PRESIDING JUDGE KELLER:     Okay.    That gets me to my

19   next question, which has not been fully addressed yet:           The

20   standard for prejudice hasn't changed, has it?          I mean, have

21   new way to get relief, but the standard of prejudice hasn't

22   changed to preponderance of the evidence, which it was when

23   you filed your initial Brief?

24                MR. WICE:   That's correct.

25                PRESIDING JUDGE KELLER:     It has changed.   Has




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1    anything changed since then?      Because we didn't address

2    prejudice.    Judge Price did in his concurring Opinion.

3                 MR. WICE:   Well I think the dissenters did, as

4    well.    I think we've got four members of this Court that

5    found that even under the original '01 writ that the

6    Applicant had proved by a preponderance of the evidence that

7    he was entitled to relief based upon --

8                 PRESIDING JUDGE KELLER:    Isn't that something this

9    Court has to address, even if we go with you on every other

10   argument you've made?

11                MR. WICE:   Absolutely, Judge.     I mean, it's

12   certainly part and parcel of our burden, but Judge Johnson

13   makes a great point.     In the 21st Century, with the CSI

14   effect, and jurors blinded by science, forensic experts are

15   the new High Priests of the courtroom.

16                This is not a situation where we can compare it to

17   any other witness who walks into Court and ultimately takes

18   the oath.     This is about legislative history and if this

19   Court wants to look past it and find that we are required to

20   show a scientific breakthrough when the legislative intent

21   history says, "Uh-huh.       No, not -- that dog don't hunt."

22                JUDGE MEYERS:   Breakthrough -- breakthrough is

23   whether there has been a statutory relief granted in this

24   stage.   That's the breakthrough.      That would be the --

25   that's what this case boils down to is whether 11.073 grants




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1    relief based upon the statute.

2                 MR. WICE:   I agree.

3                 JUDGE MEYERS:   Okay.

4                 MR. WICE:   I absolutely agree with that.

5                 JUDGE MEYERS:   That might be the first time we've

6    ever done it.

7                 MR. WICE:   No question about that, Your Honor, and

8    in the last 15 seconds that I have, I want to quote one of

9    my heroes, Robert Jackson.      He said that:

10           "If there is any fixed star in our Constitutional

11           constellation, it is that the public" --

12                We've heard a lot of talk what the public wants --

13   but what the public demands is the notion that verdicts in

14   criminal cases are supported by -- and based solely on

15   reliable scientific evidence, that withstands the test of

16   time.

17                The evidence in this case cannot, it did not,

18   ultimately survive that test and for that reason, for the

19   reasons in our brief and for the legislative intent and

20   history, which we submit could not be clearer, the

21   Legislature may not have thought that this Court got it

22   wrong back in '11, but I think they thought you were a

23   little weak on being right.

24                I ask this Court with all of the vigor at my

25   disposal to grant relief.




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1                PRESIDING JUDGE KELLER:       Thank you, Counsel.

2                THE CLERK:     All rise.

3                Oyez, oyez, oyez!     The Honorable Court of Criminal

4    Appeals now stands recessed, subject to the call of the

5    Presiding Judge.

6                                  * * * * *

7                 I certify that the foregoing is a correct

8    transcript to the best of my ability from the electronic

9    sound recording of the proceedings in the above-entitled

10   matter.

11   /S/ MARY D. HENRY
12   CERTIFIED BY THE AMERICAN ASSOCIATION OF

13   ELECTRONIC REPORTERS AND TRANSCRIBERS, CET**D-337

14   JUDICIAL TRANSCRIBERS OF TEXAS, LLC

15   JTT INVOICE #52294

16   DATE:     APRIL 20, 2014

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