              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. AP-76,925



                  EX PARTE CATHY LYNN HENDERSON, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             FROM CAUSE NO. 94-2034 IN THE 229 TH DISTRICT COURT
                          FROM TRAVIS COUNTY



      C OCHRAN, J., filed a concurring opinion in which W OMACK, J OHNSON, and
A LCALA, JJ., joined.

                                 CONCURRING OPINION

       This case raises the same novel and difficult issue for the criminal-justice system that

this Court faced, and, I maintain, fumbled in Ex parte Robbins:1 Changing science has cast

doubt on the accuracy of the original jury verdict.2 Dr. Roberto Bayardo, who performed the

autopsy of the victim in this case, testified unequivocally at trial that three-and-a-half-


       1
           360 S.W.3d 446 (Tex. Crim. App. 2011).
       2
         For a thorough discussion of the jurisprudential issues raised by the problem of “shifting
science” and the reliability of criminal verdicts over time, see Caitlin Plummer & Imran Syed,
“Shifted Science” and Post-Conviction Relief, 8 STAN . J.C.R. & C.L. 259 (2012).
                                                     Henderson     Concurring Opinion      Page 2

month-old Brandon Baugh “came to his death as a result of a severe closed head injury. . .

characteristic of abuse, homicide.” He concluded, without a scintilla of doubt, that the cause

of Brandon’s death was a severe closed-head injury and the manner of death was homicide.

Dr. Bayardo was the State’s star witness at trial on the cause and manner of Brandon’s death.

But, based on advances in the science of pediatric head trauma, he has since changed his

mind: “Based on the physical evidence in the case, I cannot determine with a reasonable

degree of medical certainty whether Brandon Baugh’s injuries resulted from an intentional

act or an accidental fall.” This scientific uncertainty about Brandon’s manner of death raises

an extremely serious concern about the accuracy of the original jury verdict.3 I write

separately to provide some factual context for the habeas judge’s recommendation to grant

a new trial, the State’s decision to agree with that recommendation, and this Court’s

adoption of the habeas judge’s findings of fact and ultimate recommendation.

                                                I.

       On the morning of January 21, 1994, Eryn and Melissa Baugh left their infant son,




       3
         See “Shifted Science, supra note 2 at 263-64 (noting the problem of “what happens
when scientific testimony that led to a conviction is later proved to have been completely invalid
- a phenomenon we call ‘shifted science.’ Science - its very character defined as the search for
what lies beyond the present horizon of human understanding - advances, changes, and evolves
constantly. Unfortunately, courtroom procedures, practices, and the institutional knowledge of
legal actors are just the opposite: the law takes pride in its consistency and glacial pace of
adaptation. If science is a leading indicator of where society is headed, the law is a lagging
indicator of truths society recognized years before, and may since have moved above and beyond.
When the two come together in the case of scientific evidence being used in courtrooms, it
should be no surprise that the results are often less than palatable.”).
                                                       Henderson     Concurring Opinion         Page 3

Brandon, with applicant, their regular babysitter.4 That day, both applicant and Brandon

disappeared. A kidnapping investigation began the next day. On February 1, applicant was

arrested by the FBI in Kansas City. At first, applicant denied any knowledge of Brandon’s

location or well-being. Later, she stated that Brandon’s grandmother, driving a car with

Oklahoma license plates, picked him up during the afternoon of January 21. Eventually,

applicant admitted that Brandon was dead, but claimed that his death was an accident. She

also said that she had buried his body in a wooded area near Waco, that she had used a spade

to dig the grave, and that she could take officers to his grave.

       The single contested issue in the 1995 capital-murder trial was whether applicant

intended to kill Brandon or whether she recklessly, negligently, or accidentally caused his

death. In her statement, applicant contended that Brandon’s death was an accident–he

accidentally fell from her arms onto a linoleum-covered concrete floor.5 The State’s primary

evidence to prove that applicant intended to kill Brandon consisted of the circumstantial

evidence produced by the autopsy.6 At trial, Dr. Roberto Bayardo, the long-time and highly


       4
       These background facts are taken, largely verbatim, from our opinion on direct appeal.
Henderson v. State, 962 S.W.2d 544, 548-49 (Tex. Crim. App. 1997).
       5
           Agent Napier testified that

       [I]n telling the story, one time she would say that [Brandon] fell out of her arms,
       that he dropped out of her arms, and the final version is that while she’s holding
       him with one hand . . . as she’s trying to turn the recorder off with the other one so
       she can answer the phone, that he pushes his feet against the wall, and that motion
       then causes him to flip out of her hands and on to the floor.
       6
       The trial judge noted in his factual findings that applicant’s flight and conduct after
Brandon’s death was evidence of her guilty conscience that supported a finding of some culpable
                                                       Henderson     Concurring Opinion      Page 4

experienced medical examiner for Travis County, testified that it was “impossible” for

Brandon’s extensive brain injuries to have occurred in the way that applicant stated. He said

that her story was false and “incredible.” In his opinion (and that of Dr. Sparks Veasey, the

Deputy Chief Medical Examiner of Lubbock County), Brandon’s injuries must have resulted

from an intentional blow.7 He concluded, “I would say the baby was caught up with the

hands by the arms along the body and then swung and slammed very hard against a surface.”

In Dr. Bayardo’s opinion, Brandon’s death was the result of child abuse: “this is the worst

case of head injury [at the hands of a person] I [have] ever seen.” The jury agreed and

convicted applicant of capital murder in May 1995.

       This Court affirmed applicant’s conviction and death sentence on direct appeal8 and

denied relief on her initial writ application in 2002.9 The federal district judge denied her




mental state, but that “equivocal” evidence was not sufficient to establish, beyond a reasonable
doubt, an intent to cause Brandon’s death. See Finding of Fact Number 23, quoted on page 19.
       7
          Dr. Veasey did not dispute Dr. Bayardo’s opinion that “this was the result of single
massive blow,” but he had a “suspicion . . . that this may have been more than one impact
causing these fractures[.]” The defense expert, Dr. Kris Sperry, testified that, although Brandon’s
death was not an accident, it could have been the result of an impulsive, reckless act rather than a
volitional, intentional or knowing one. The jury was charged on capital murder, intentional
injury to a child, and reckless injury to a child.
       8
           Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997).
       9
         Ex parte Henderson, No. WR-49,984-01 (Tex. Crim. App. March 6, 2002) (not
designated for publication).
                                                     Henderson       Concurring Opinion    Page 5

federal habeas petition in 2004,10 and the Fifth Circuit affirmed that denial in 2006.11

       The Honorable Jon Wisser presided over applicant’s 1995 trial and is currently

presiding over her subsequent writ application. Judge Wisser was sufficiently troubled by

the preliminary scientific evidence initially presented to him that, on April 4, 2007, he

recalled applicant’s original death warrant and rescheduled her execution to give her

sufficient time to gather additional material for this subsequent writ application.

       On May 23, 2007, three weeks before her re-scheduled execution date of June 13,

2007, applicant filed this subsequent application for habeas relief based on recent scientific

advances in the area of biomechanics and physics–advances that led Dr. Bayardo to recant

his conclusive opinion that Brandon’s head injuries could not have been caused by an

accidental, short-distance fall. Dr. Bayardo’s 2007 affidavit stated,

               Since 1995, when I testified at Cathy Henderson’s trial, the medical
       profession has gained a greater understanding of pediatric head trauma and the
       extent of injuries that can occur in infants as a result of relatively short
       distance falls, based in part on the application of principles of physics and
       biomechanics. Specifically, and as shown in the reports that I have read, even
       a fall of a relatively short distance onto a hard surface can cause the degree of
       injury that Brandon Baugh experienced. If this new scientific information had
       been available to me in 1995, I would have taken it into account before
       attempting to formulate an opinion about the circumstances leading to the
       injury.




       10
         Henderson v. Dretke, No. A–02–CA–758–SS, 2004 WL 5295477 (W.D. Tex. March
31, 2004) (not designated for publication).
       11
            Henderson v. Quarterman, 460 F.3d 654 (5th Cir. 2006).
                                                         Henderson   Concurring Opinion       Page 6

              I have reviewed the affidavit of John Plunkett dated May 18, 2007,12
       and I agree with his opinion. Based on the physical evidence in the case, I
       cannot determine with a reasonable degree of medical certainty whether
       Brandon Baugh’s injuries resulted from an intentional act or an accidental fall.
       In fact, had the new scientific information been available to me in 1995, I
       would not have been able to testify the way I did about the degree of force
       needed to cause Brandon Baugh’s head injury.

       Faced with this recantation, we held that applicant’s first two claims–(1) she is

innocent of capital murder, and (2) but for constitutional errors she would not have been

found guilty of capital murder–satisfied the requirements of article 11.071, § 5(a). We then

remanded her application to the trial court for consideration of the merits. Judge Wisser held

hearings between November 17, 2008, and March 5, 2009, and listened to the testimony of

twelve witnesses. Seven of these witnesses were medical doctors and four were scientists

with Ph.Ds. The twelfth witness was Linda Icenhauer-Ramirez, one of applicant’s trial

attorneys.

       At the habeas hearing, Dr. Bayardo testified that, because of recent scientific

knowledge about how head injuries occur, he would no longer use words like “impossible”

or “incredible” to describe applicant’s version of the events. Also, he would no longer assert


       12
            Dr. Plunkett’s affidavit includes the following:

       Neither I . . ., nor anyone else, can prove Brandon’s injury and death was an
       accident. However, because of the new scientific information and analysis now
       available to scientifically evaluate Brandon’s injury and death, neither may anyone
       prove that Ms. Henderson intentionally caused it. It is impossible for any qualified
       scientist or physician to conclude, whether to a reasonable degree of medical
       certainty, or beyond a reasonable doubt, that any intentional and deliberate act by
       Ms. Henderson caused Brandon Baugh’s death, or that [his] injuries are such as to
       rule out an accidental cause.
                                                         Henderson   Concurring Opinion    Page 7

that Brandon’s injuries, if they were caused by an accidental fall, would have to be the result

of a fall from a height of over two stories. He stood by the cause of death: a heavy blow to

the head. But he would change the manner of death from “homicide” to “undetermined.”

He stood by his trial testimony that the comminuted depressed fracture of the back of the

skull, which caused radiating fractures, was the result of a single blow. Dr. Bayardo said

that, because Brandon sustained just one injury and that was to the back of his head, he

doubted his prior finding of “homicide.” In other child homicides, the infants had multiple

injuries to the side or front, rather than the back, of the head.13          Dr. Bayardo flatly

contradicted his trial testimony when he concluded, “I don’t believe it’s a case of child

abuse.”

       Applicant also called Dr. Monson, an assistant professor of biomechanics at the

University of Utah, who studies traumatic brain injury in children; Dr. Plunkett, a forensic

pathologist who studies pediatric head trauma; and Dr. Van Ee, who has a Ph.D. in

biomedical engineering and studies impact and orthopedic biomechanics. They testified that

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


       13
            At trial Dr. Bayardo had said just the opposite.

Q.     Okay. Can you describe for the jury what is the significance of the location of the injury
       in this case?
A.     Yes. Also the location is quite characteristic of an abused child because most of the
       accidental injuries are going to occur on the sides of the head in the parietal bone. So
       whenever we see a fracture that includes the occipital bone, we immediately think of
       abuse.
                                                     Henderson   Concurring Opinion    Page 8

recent and still developing.     The medical community did not recognize a role for

biomechanics in cases such as this one in 1998, when applicant filed her first habeas

application.

       These experts testified about “drop” experiments conducted with crash-test dummies

and infant cadavers that measured the impact and injuries involved in short-distance falls,

and how those experiments show the potential for head injury and death when babies fall

short distances. Dr. Monson testified that he calculated the g-force involved in the fall (as

described by applicant) to be 120 to 163g. Dr. Monson could not rule out the possibility that

Brandon’s death resulted from a short-distance fall: “So recognizing that the calculated

values are well above when simple skull fracture may occur and also recognizing that there

aren’t data defining exactly when a fracture of this severity may occur, I have to conclude

that you simply cannot rule out that possibility.”

       Dr. Plunkett testified about his playground-equipment study that included cases in

which small children who fell short distances suffered complex skull fractures, brain injury,

and death. He also could not rule out the possibility of an accident.

Q.     As a pathologist who has done intensive work in this area and now is an author and
       speaker and expert in the field, do you think it’s scientifically plausible to offer an
       opinion on the cause of an infant’s death in a case like this without any review or
       application of biomechanics?

A.     Not today, that’s not acceptable.

Q.     Why not?

A.     Unless your experience is in the area of bioengineering, very few physicians have the
                                                      Henderson       Concurring Opinion   Page 9

       necessary knowledge to evaluate, to rigorously evaluate, Brandon’s injury. It’s got
       to go beyond medicine.

Q.     Based on your studies and your work, Dr. Van Ee’s work, the CRABI14 dummy tests
       that you’ve seen, all of your review of the medical reports, and a portion of Brandon
       Baugh’s skull this morning, in your opinion, can any person conclude rationally and
       with certainty that the death of Brandon Baugh resulted from an intentional
       murderous act?

A.     No.

Q.     Could Brandon, in your opinion, have suffered a complex comminuted skull fracture
       from a drop of four feet–four and a half feet landing on the back of his head on a hard
       floor?

A.     Yes.

       Dr. Van Ee performed an accident reconstruction using the CRABI-6 infant dummy.

He testified that Brandon was probably traveling 11 miles per hour when he hit the concrete

floor. “Severe injury is certainly a possibility and may even be likely for this type of impact.”

He testified that Brandon’s skull fracture could have resulted from a fall of about four feet

onto a carpeted or linoleum-covered concrete surface. He said there was now no “correct

scientific support” for Dr. Bayardo’s trial testimony.

       Applicant’s experts generally concluded that it was possible that a short-distance fall,

like the one that applicant reported, could have caused Brandon’s injuries. The State’s

experts then testified about the limitations and shortcomings of the studies and experiments

described by applicant’s experts and the rarity of head injuries with diffuse brain injury and

complex skull fractures such as those Brandon suffered.

       14
            CRABI stands for “Child Restraint Air Bag Interaction.”
                                                     Henderson     Concurring Opinion     Page 10

       The State called Dr. Rangarajan, who has a Ph.D. in biomedical engineering and

engineering mechanics. He designs crash-test dummies for government and industry use.

Dr. Rangarajan designed a newborn-infant dummy for car-seat tests in Japan, and he testified

about the limitations of using a dummy’s response to predict injury. He noted that “dummies

are calibrated to perform well in automotive seated posture.” And, the dummies are only

biofidelic (able to produce true human-like responses) within calibration limits. He said that

there are not enough biomechanics data to assess the probability of injury, but he did not

know whether the tests conducted by the defense experts were an accepted way of predicting

severe head injury: “I don’t know how to answer the question because I cannot say. I’m not

like–I’m not the general secretary of the scientific community.”

       Dr. Case, a medical examiner, neuropathologist, and forensic pathologist who has

published articles on short-distance falls and pediatric head injuries, also testified for the

State. She has written on how to distinguish between accidental head injuries and inflicted

or abusive head injuries. A marker, “the presence of the diffuse distribution of subdural

blood over the cerebral convexities,” signals brain injury produced by a blow to the head.

Short falls, on the other hand, cause focal injuries, not diffuse ones.15 Only “one to two to

three percent of all short falls will result in a simple linear skull fracture.” Brandon’s injury,

“a depressed comminuted skull fracture,” signaled that he had suffered a blunt impact blow.



       15
           Dr. Bayardo testified similarly at trial: “By just throwing the baby or just the baby
falling from somebody’s arms, the injury would have linear, a single short fracture on the side of
the head or maybe in the front, but not on the back or the occipital bone.”
                                                     Henderson     Concurring Opinion      Page 11

“In my opinion, this is not going to result from a short fall [of] less than six feet. This

fracture is not a fracture that I have ever seen in a short fall or that I have ever seen described

in a short fall.” Brandon had a “diffuse subdural hemorrhage,” but Dr. Case could not tell

whether it was the result of a single impact or multiple impacts.

       Dr. Case disagreed with Dr. Bayardo about the significance of the fact that there were

no other injuries on Brandon’s body. In her experience, 25 to 50 percent of children who

died from abusive head injury had no other marks on their body. Dr. Case specifically

criticized Dr. Plunkett’s work and testified that it was “on the fringe” and not widely

accepted in the professional-medical community. Dr. Case thought the defense’s focus on

the fracture was misguided because “You have to focus on the entirety of the head injury.”

       Dr. Pustilnik, the Chief Medical Examiner for Galveston County and an assistant

professor in pathology at UTMB, testified for the State and said that biomechanical

engineering “looks at the body in what they call finite-point analysis. . . . In certain instances

it falls apart when you have to look at differential . . . mechanisms when you have both rigid

structures in the body interacting with liquid or gelatinous structures in the body.” He said

that there was “absolutely” a danger in taking readings from accelerometers in the crash-test

dummies and making assumptions about how an infant of those dimensions would behave:

       [I]t’s not any good to use the CRABI for head injury in these young infants
       because no one has studies on head injuries on infants the way they have
       studies on CRABI models. . . . They don’t have–you know, three-month-olds
       don’t have accelerometers behind their ears, so you can never know.

Dr. Pustilnik also criticized the cadaver studies because there were too many unknowns:
                                                    Henderson     Concurring Opinion     Page 12

Were the children stored cold, room temperature, or frozen? Were they dried out? Were they

dropped with the scalp intact? “You just don’t know. It’s not in the papers.” It was Dr.

Pustilnik’s opinion that Brandon suffered “multiple impacts to the back and left or perhaps

even right left-side back area” of his head.

       Dr. Jenny, a professor of pediatrics and the director of the child protection program

at a hospital in Providence, Rhode Island, has studied child abuse and car safety and has

specialized in treating babies with head injuries. She also questioned the usefulness of the

defense studies and testified that, based on the severity of Brandon’s fractures, it was “highly

likely” that he had been a victim of multiple impacts or crush injuries to his head. The

fracture pattern was not consistent with a short fall from a care-giver’s arms. Dr. Jenny

characterized Dr. Plunkett’s testimony about playground falls as disingenuous, and Dr. Van

Ee’s accident reconstruction “drop” tests with the CRABI-6 as lacking a proper protocol.

She said it was “impossible” for Brandon to have suffered his injuries in a short fall. She

disagreed with the other State’s experts that such injuries were possible, though improbable,

from a short fall. Those falls create “linear parietal” fractures, rather than complex fractures.

       Dr. Gill-King, the director of the Laboratory of Forensic Anthropology and Human

Identification, and a professor of forensic anthropology and pathology, who focuses on the

material properties of bone, testified for the State. He likened the radiating fractures found

on Brandon’s skull to those created from shooting a BB-gun multiple times at a window: “A

fracture stops another fracture.” He disagreed with Dr. Bayardo that there was one blow to
                                                    Henderson    Concurring Opinion      Page 13

Brandon’s head because the injuries were distinct outside-to-inside injuries: “I concluded

there were at least three separate applications of force. There may have been more, but there

were at least three.” He also stated that the CRABI-6 dummy’s head does not in any way

accurately portray the properties of a human infant head.

       In rebuttal, applicant called Dr. Ophoven, a pediatric forensic pathologist and medical

examiner, and Dr. Stephens, a forensic pathologist and former medical examiner.

       Dr. Ophoven described the “pendulum swing” in the medical community with respect

to pediatric injuries: before the 1980's, a doctor would generally accept a family member’s

report that a child’s head injury occurred accidentally. In the late 1980's, doctors began to

routinely disbelieve family members’ reports of children’s accidental head injuries and to

assume abuse. 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 accidently. After reviewing the materials in this case, including the State’s experts’

testimony, Dr. Ophoven stated that short falls like that described here “rarely cause fatal

injuries, but have the potential to kill.” She stated that biomedical analysis is important in

cases like this one, where there is no evidence of pre-existing or fresh abuse or assault and

where the history comes in as a possible accidental fall. She said that Dr. Van Ee’s and Dr.

Monson’s reports support their opinions that fatal injuries can occur from a fall of 46 inches

onto the concrete surface described here. She also said that Brandon’s injuries were

consistent with a single blow; she did not see evidence of multiple impacts. She based this
                                                     Henderson     Concurring Opinion      Page 14

on “confluence bleeding from a single area of impact,” and the “clear continuity between

the fractures in the back with the fractures on the side[.]” She said that she would not rely

on a forensic anthropologist, like Dr. Gill-King, to help her with the cause of death or nature

of injuries or number of impacts because “theirs is the area of bones and their training is not

in making a determination and rendering it.”

       Recent studies have clearly said, very clearly, you can not tell the difference
       between an accidental fracture and an inflicted fracture by how bad it is, how
       complicated it is, whether or not it crosses the suture line, whether or not it
       comes apart on the sides, that you cannot look at the fracture and say, I see
       abuse.

Dr. Ophoven summarized her testimony as follows:

       So this issue here is, is it my opinion that there is science to study the force that
       could be generated in a fall? Yes. Do we have reasonable expectations of
       what’s the amount of force it takes for those falls to cause a fatal injury or
       death? Yes. Could those forces have been generated in this case? Yes. Do
       I have an opinion about what happened to Brandon? I can’t answer the
       question, but what I can say is he sure could have fallen and died.

       The defense also called Dr. Stephens, who said that a medical examiner’s change of

the manner of death from “homicide” to “undetermined” represents a paradigm shift. He did

not regard Dr. Plunkett’s work as marginal but instead opined that some professionals in the

medical community would not let go of old beliefs when faced with studies that challenged

them. He personally had seen cases in which short-distance falls had killed children. He did

not agree with much of what Dr. Pustilnik had to say, and discounted the significance of

fracture lines hitting one another. He also agreed with Dr. Bayardo that the injuries Brandon

sustained were the product of a single blow or impact.
                                                     Henderson    Concurring Opinion     Page 15

       Applicant also called her trial attorney to testify that she filed a pre-trial motion for

funds to employ a biomechanical expert, but her motion was denied.

       In sum, all but one of these ten medical and scientific experts agreed that Dr.

Bayardo’s trial testimony was now known to be scientifically inaccurate: Brandon’s autopsy

results did not establish that his death was the product of an intentional homicide. Indeed,

all but one of these experts basically admitted that science cannot answer the question of

whether Brandon’s death was the result of an intentional homicide. It could have been an

intentional homicide; it could have been an accident. Based upon the totality of the evidence,

Judge Wisser recommended that this Court

       vacate the judgment of conviction in this cause, and . . . order that Applicant
       be returned forthwith from her present place of confinement to the custody of
       the Sheriff of Travis County Texas, where she may thereafter be held to
       answer any indictment or other charges made against her arising out of the
       death of Brandon Baugh.

                                               II.

        Dr. Bayardo’s change in opinion on the manner of death from “homicide” to

“undetermined” does not mean applicant is actually innocent of homicide. Nor does it mean

that his trial testimony was “false” at the time it was given, based upon the state of scientific

knowledge that he relied upon at that time. Due process was not violated at the time of trial,

but nevertheless, the scientific testimony that supported a finding of “homicide” in the

original trial has been retracted. Dr. Bayardo’s current scientific uncertainty, as well as the

uncertainty of all but one of the experts at the habeas evidentiary hearing, casts a pall upon
                                                      Henderson     Concurring Opinion       Page 16

the basis for the jury’s verdict and upon its accuracy. At worst, the result of a change in the

manner of Brandon’s death to “undetermined” is only an admission that science cannot

resolve the issue of whether Brandon’s death was the result of a homicidal act. The jurors

would have to decide that crucial question based upon the rest of the evidence.

       The problem is that we do not know whether the jury would have found that applicant

intentionally (as opposed to recklessly, negligently, or accidentally) caused Brandon’s death

absent Dr. Bayardo’s expert scientific opinion.16 I recognize that this case does not fit neatly

into our habeas statute or our actual-innocence jurisprudence.17 But until the Supreme Court

       16
            I agree with Judge Price that

       while the applicant’s flight undoubtedly evinces a guilty conscience, it provides
       little rational basis to conclude she felt guilty of an intentional or knowing murder,
       as opposed to a reckless or negligent homicide or even an excusable accident.

Ex parte Henderson, 246 S.W.3d 690, 694-95 (Tex. Crim. App. 2007) (Price, J., concurring).
       17
           As one law professor–addressing the tension between the governing framework for
collateral relief and the issues presented by the “Shaken Baby Syndrome” cases–put it:

                Until scientific consensus has been achieved, the criminal justice system must
       find its own solutions to the problem of a diagnosis already morphed and still in
       transition.
                To date, our system has failed. In place of adaptation, we have seen massive
       institutional inertia. Once the SBS prosecution paradigm became entrenched, the
       crime became reified. Deferential review standards and a quest for finality
       perpetuated the system’s course. How expeditiously, and how deliberately, this
       course is righted will inform the meaning of justice.
                Complicating the endeavor, SBS prosecutions raise discomfiting possibilities
       that diverge from those presented by the innocence archetype. Here, no other
       perpetrator can be held accountable; indeed, no crime at all may have occurred. The
       problem is not individual, but systemic, and its source is error, not corruption.
       Responsibility is diffuse: prosecutors and scientists may each legitimately point
       fingers. Most fundamentally, scientific developments have cast new doubt without
       yet creating certainty in its place. The story of SBS thus challenges current notions
                                                    Henderson     Concurring Opinion     Page 17

(or this Court) holds that a conviction later found to be based upon unreliable scientific

evidence violates the Due Process Clause,18 I will stick by what I said in my Robbins dissent.

       Who should decide whether the newly discovered unreliability of the expert
       scientific testimony was so crucial to the original jury’s verdict that the
       accuracy of that verdict can no longer be relied upon?

       I fall back upon the wisdom and experience of the habeas judge—the
       “Johnny–on–the–Spot” factfinder to whom we will defer whenever the record
       supports his essential factual findings.19

Judge Wisser held a series of live hearings so that he could hear, first-hand, from all the

experts. And he has concluded that the accuracy of the verdict can no longer be relied upon.

The following findings–all supported by the record–are especially important to Judge

Wisser’s recommendation of a new trial:

7.     Dr. Roberto Bayardo served as the Chief Medical Examiner of Travis County for
       twenty-eight years, and personally conducted the autopsy of Brandon Baugh in


       of wrongful convictions. Underlying conceptual frameworks must evolve
       accordingly.
               For now, we find ourselves situated in an extraordinary moment; one which
       tests our commitment to innocence that is not proven, but presumed.

Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal
Courts, 87 WASH . U. L. REV . 1, 58 (2009).
       18
          In Han Tak Lee v. Glunt, the Third Circuit intimated that advances in forensic science
may support a due-process claim. In sending an arson case back to district court for an
evidentiary hearing, the Han Tak Lee court stated, “If Lee’s expert’s independent analysis of the
fire scene evidence—applying principles from new developments in fire science—shows that the
fire expert testimony at Lee’s trial was fundamentally unreliable, then Lee will be entitled to
federal habeas relief on his due process claim.” Han Tak Lee v. Glunt, 667 F.3d 397, 407-08 (3d
Cir. 2012).
       19
          Ex parte Robbins, 360 S.W.3d 446, 473-74 (Tex. Crim. App. 2011) (Cochran, J.,
dissenting).
                                                 Henderson    Concurring Opinion     Page 18

      February 1994.

8.    [Applicant] claims that the infant died when he accidently fell from her arms to the
      concrete floor of her home, a distance of approximately four-and-one-half feet. At
      the trial, however, Dr. Bayardo strenuously disagreed that the infant’s death could
      have been accidental. Dr. Bayardo told the jury in no uncertain terms that “it would
      have been impossible” for an accidental fall to have produced the injuries sustained
      by the infant; that the claim of an accidental fall therefore was “incredible” and that
      to have sustained these injuries from a fall, the infant “would have to fall from the
      height higher than a two story building.” For these reasons, Dr. Bayardo opined in his
      autopsy report that the manner of death was “homicide,” meaning that the only way
      the infant could have sustained his fatal injuries was by means of a deliberate and
      murderous blow struck by Applicant.

9.    Dr. Sparks Veasey, then the Deputy Chief Medical Examiner of Lubbock County, also
      testified for the State at the trial. He reviewed Dr. Bayardo’s autopsy report and
      photographs, and testified that the death resulted from blunt force trauma, probably
      resulting from “slamming into a wall or floor.” As Dr. Plunkett has pointed out,
      however, Dr. Veasey’s essentially repetitive testimony was uninformed by modern
      scientific learning and suffered the same vices as did the testimony of Dr. Bayardo.
      The State did not call Dr. Veasey as a witness at the evidentiary hearing. The Court
      does find that, if the jurors had heard Dr. Bayardo’s re-evaluation, they would not
      have credited the then-conflicting testimony of Dr. Veasey.

10.   Based on the trial court record and the Court’s personal recollection of the trial, the
      Court finds that the trial testimony of Dr. Bayardo was the critical evidence upon
      which the conviction of Applicant rested, and was the evidence upon which the
      essential element of culpable mental state hinged. The “impossible,” “incredible,”
      “two story building” and “slamming” testimony of the State’s chief expert medical
      witness ruled out accidental cause. On that basis, the State persuaded the jurors that
      Applicant was guilty of murder beyond a reasonable doubt.
      ...

13.   Dr. Bayardo and Dr. Plunkett both testified at the evidentiary hearing. Based upon
      the content of their written submissions, the testimony of each witness during direct
      and cross-examination, and the demeanor of each witness, the Court finds the
      Affidavit and testimony of Dr. Bayardo, and the Affidavit, report and testimony of Dr.
      Plunkett, are true, and that each of these witnesses is credible.
      ...
                                                 Henderson     Concurring Opinion     Page 19

17.   Dr. Bayardo testified at the evidentiary hearing that he continues to hold the opinions
      that he expressed in his Affidavit, and that [he] continues to share the views expressed
      by Dr. Plunkett in the latter’s evaluation. Addressing the words he used in his
      testimony to the jury in 1995, Dr. Bayardo testified at the evidentiary hearing that he
      would not use “impossible” or “incredible” were he to testify to the jury today,
      “because of the new knowledge about how these types of injuries occur.”

18.   Dr. Bayardo also explained that he used the “two-story fall” analogy in his 1995
      testimony because “that’s what I was taught during my residency and during my
      training that that’s the way that these types of injuries happen,” and “at that time, we
      didn’t have any information about the biomechanical way of explaining these
      injuries.” The two-story analogy “would have been my usual answer in cases like
      this” in 1995, but he would not say so today, because the new scientific developments
      in biomechanical investigations “put a doubt in my mind.”

19.   In his 1995 Medical Examiner’s Report Dr. Bayardo states that, in his professional
      opinion, the manner of the infant’s death was “homicide.” At the evidentiary hearing,
      however, Dr. Bayardo explained that he wrote “homicide” in 1994 because “at that
      time we didn’t have any information about the biomechanical way of explaining these
      injuries[.]” He then testified that if he were preparing his report today, he would not
      have opined that the manner of death was homicide, but instead, “I would leave it
      undetermined,” . . . .

20.   Applicant’s witness, Dr. Peter J. [Stephens], is also a former Medical Examiner. He
      testified that this re-evaluation of the manner of death by Dr. Bayardo–from
      “homicide” to “undetermined”–was a significant “paradigm shift” representing a very
      fundamental re-evaluation.

21.   In addition, Dr. Bayardo explained that there were other circumstances that now cause
      him to doubt that Brandon Baugh’s death was a homicide. He testified that

             All the previous cases I’ve seen that were the result of a
             homicide injury had the multiple, recent, and other injuries and
             also had multiple fractures of ribs and extremities, and they also
             had multiple bruises or scrapes of similar ages. And this baby
             did not have any of those injuries, and that the location [of the
             injury] was also different from the other cases I’ve seen . . . .

22.   Because Dr. Bayardo’s testimony at trial was the critical evidence upon which the
      conviction of Applicant rested, and was the testimony upon which the essential
                                                  Henderson     Concurring Opinion     Page 20

       element of culpable mental state hinged, the Court finds that if Dr. Bayardo’s re-
       evaluation had been presented to the jury in 1995, no rational juror could have or
       would have convicted Applicant of capital murder beyond a reasonable doubt in light
       of this new evidence.

In his Finding of Fact Number 23, Judge Wisser explicitly addressed the “guilty conscience”

evidence detailed by Judge Keasler:

23.    In making its Finding No. 22, the Court has not overlooked the State’s evidence at
       trial concerning Applicant’s flight after the death of the infant. While flight might be
       some evidence of a guilty conscience, it is equivocal evidence at best, and on the basis
       of personal recollection, the Court finds that the evidence of flight did not have the
       capacity to prove the mens rea of capital murder beyond a reasonable doubt.

24.    In making its Findings, the Court has also considered the Applicant’s evidence of the
       new scientific analysis, unavailable at the trial, upon which Dr. Bayardo based his re-
       evaluation. The Court has done so in order to assure itself that Dr. Bayardo’s re-
       evaluation is based upon a solid scientific foundation, and therefore supports the
       Court of Criminal Appeals’ statement that the re-evaluation is a “material exculpatory
       fact.”

25.    In this regard, the Court has read, heard, considered, and evaluated the reports and
       materials of Drs. Plunkett, Stephens, and Monson upon which Dr. Bayardo relied in
       his Affidavit, the trial testimony of these three experts, and the corroborating reports
       and evidentiary hearing testimony of Drs. Janice Ophoven and Chris Van Ee.

26.    The Court finds that Dr. Plunkett’s Affidavit, his own report and materials, as well as
       the report of Dr. Peter Stephens, and the report of Dr. Kenneth Monson and the
       observed testimony of each of these witnesses at the evidentiary hearing, are truthful
       and credible.

27.    Dr. Plunkett’s report in the present case, and those of the other experts, show that the
       1995 testimony of the State’s chief experts was, at bottom, scientifically flawed and
       grounded upon the belief that “short-distance falls” can never case fatal infant head
       trauma. This belief no longer enjoys acceptance in today’s scientific community.

28.    Dr. Monson made and explained a number of biomechanical calculations that he
       performed as an expert witness for Applicant, and concluded that the infant’s assumed
       fall from Applicant’s arms “had the potential to produce a serious injury,” and that
                                                  Henderson     Concurring Opinion     Page 21

      “the possibility [of accidental death] cannot be ruled out given the current state of
      knowledge.” The Court finds that Dr. Monson’s Report and testimony are truthful
      and credible.

29.   Dr. Monson testified that, from an assumed fall height of 46 inches from Ms.
      Henderson’s arms, the head of the infant would have been traveling at a speed of
      almost 11 miles an hour when it struck the floor, and that because the floor was a
      concrete, unyielding surface, the deceleration from 11 miles per hour to zero was
      virtually “instantaneous.”

30.   Applicant’s witness Dr. Kenneth Monson, and State’s witness Dr. Nagaranjan
      Rangarajan, largely agree that scientific evidence available today cannot rule out the
      possibility of accidental death.

31.   At trial, Dr. Bayardo testified that the fatal trauma sustained by Brandon Baugh was
      the product of a single blow to the infant’s head. This, of course, is consistent with
      the infant having fallen from Applicant’s arms, and reaching a speed of eleven miles
      per hour when the back of his head struck the concrete floor, and thereby absorbed all
      the energy (G force) of the fall “virtually instantaneously.” No evidence was
      introduced by the State that would have permitted the jury to find, much less beyond
      a reasonable doubt, that the infant sustained fatal trauma by reason of multiple blows
      to the head.

32.   At the evidentiary hearing, Dr. Bayardo provided a detailed explanation of his
      conclusion that the infant died as a result of a single blow to the head. He used his
      autopsy photos for this purpose, as well as explaining the “soft tissue” and other
      analyses that he observed or performed during the autopsy. Based both upon its
      assessment of Dr. Bayardo’s testimony at the evidentiary hearing, and upon its
      personal recollection of Dr. Bayardo’s testimony at the trial of this case in 1995, and
      at many other criminal trials at which this Court served as trial judge, this Court finds
      that Dr. Bayardo’s “single blow” analysis is truthful and credible.

33.   Drs. John Plunkett, Janice Ophoven, and Peter Stephens each testified at the
      evidentiary hearing that they agreed with Dr. Bayardo’s single blow analysis. The
      Court finds that all this testimony is truthful and credible.

34.   The reports of Drs. Plunkett, Stephens, Ophoven, and Monson, and these witnesses’
      corresponding testimony at the evidentiary hearing, support a finding that the
      biomechanical analysis that has been presented and used in this case was not available
      to Applicant in November 1998. Although biomechanical studies and analyses had
                                                   Henderson     Concurring Opinion     Page 22

       been used theretofore for accident prevention research and application–helmets,
       airbags, seatbelts, child restraint seats, etc.–it was not until the early 2000’s that
       research began to focus for the first time on short distance falls and other traumatic
       events involving head injuries to infants and young children.

35.    The Court also heard the testimony of the State’s experts, Drs. Mary Case, M.D.,
       Carole Jenny, M.D., N. Rangarajan, Ph.D., Stephen Pustilnik, M.D., and Harrell Gill-
       King, Ph.D. The Court finds that their testimony is truthful and credible.

36.    However, despite finding that both Applicant’s and State’s expert witnesses were
       truthful and credible, the Court finds that Dr. Bayardo’s re-evaluation is based upon
       credible, new scientific evidence, and that the re-evaluation is, as the Court of
       Criminal Appeals stated, a “material exculpatory fact.”

37.    Accordingly, the Court finds that Applicant has met her burden of proof under
       Sections, 5(a)(1) and 5(e) of Article 11.071, namely, that the factual basis of her claim
       was unavailable to her at the time she filed her prior application on November 17,
       1998, and that the basis of her claim was not ascertainable through the exercise of
       reasonable diligence on or before that date.

       Judge Wisser’s single Conclusion of Law is: “Applicant Cathy Lynn Henderson has

proved by clear and convincing evidence that no reasonable juror would have convicted her

of the capital murder of Brandon Baugh in light of the new evidence presented in her

Application.” Judge Wisser signed his findings and conclusions on May 14, 2012. On June

13, 2012, the State filed its response:

       The State has reviewed the habeas court’s findings and conclusions on the first
       subsequent writ application. Given that Dr. Roberto Bayardo, one of the
       State’s major witnesses, has changed his opinion concerning the cause and
       manner of death of the infant Brandon Baugh, and in light of the court’s
       findings that this new medical testimony would have impacted the jury’s
       decision, the State does not oppose the habeas court’s recommendation that the
       applicant’s cause be remanded for a new trial.

       The State’s position is not based on the belief that the applicant is not guilty.
       Nor do we agree with the theory of biomechanics as presented by defense
                                                       Henderson      Concurring Opinion      Page 23

       experts and relied upon by Dr. Bayardo. But we do believe that the community
       must have confidence in a fair process and accurate outcome. To this end, we
       believe Dr. Bayardo’s reevaluation and the habeas court’s recommendation are
       important enough to merit a reconsideration of all the evidence, including the
       new scientific theories, by a jury.

       Our decision not to file objections to the habeas court’s findings, nor to oppose
       the court’s recommendation for a new trial, is done so that this matter can be
       fully and fairly litigated.20

       Under the standard for determining a bare claim of actual innocence announced in Ex

parte Elizondo, an applicant must show “by clear and convincing evidence that no reasonable

juror would have convicted him in light of the new evidence.”21 This is what applicant

claims; this is what the trial court concluded–that no reasonable juror would have found

applicant guilty of the capital murder of Brandon Baugh–at least not to a level of confidence

beyond a reasonable doubt.

       Judge Wisser did not have to find that Brandon’s death was an accident to conclude

that applicant was entitled to a new trial based on Dr. Bayardo’s changed testimony and the

new expert testimony concerning scientific advances in biomechanics and forensic

pathology. Judge Wisser’s factual finding that “if Dr. Bayardo’s re-evaluation had been

presented to the jury in 1995, no rational juror could have or would have convicted Applicant

of capital murder beyond a reasonable doubt in light of this new evidence” is entitled to



       20
          The Travis County District Attorney’s Office should be commended for its fidelity to
the admonition that “[i]t shall be the primary duty of all prosecuting attorneys . . . not to convict,
but to see that justice is done.” TEX . CODE CRIM . PROC. art. 2.01.
       21
            947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
                                                      Henderson     Concurring Opinion      Page 24

deference because it is supported by the record.22 That does not mean that applicant is

actually innocent of capital murder. It simply means that the crucial evidence that had

supported both the cause of Brandon’s death and applicant’s intent to cause his death has

been retracted. The present guilty verdict is based on scientifically unreliable evidence, but,

after another capital murder trial, a guilty verdict could be based on scientifically reliable

evidence or evidence that forthrightly admits that science cannot resolve the question of

either causation or intent.

       Given Judge Wisser’s profound concerns about the impact of Dr. Bayardo’s expert

testimony at trial on the critical, disputed issue of applicant’s intent, I agree that applicant did

not receive a fundamentally fair trial based upon reliable scientific evidence.23          Despite


       22
            FF&CL 22.
       23
          See, e.g., State v. Edmunds, 746 N.W.2d 590, 592 (Wis. Ct. App. 2008) (defendant,
infant’s babysitter, was originally convicted of first degree reckless homicide based on evidence
of “shaken baby syndrome,” but was entitled to new trial based upon her claim of newly
discovered evidence in the form of advances in medical science that cast serious doubt upon the
cause of infant’s death).
        In Edmunds the court noted that the State had, in the original trial of the case, called
numerous expert witnesses who testified, to a reasonable degree of medical certainty, that the
cause of the infant’s death was violent shaking or violent shaking combined with an impact that
caused a fatal head injury. Id. The defense’s own expert agreed with that cause of death, but
suggested that the fatal injury could have occurred before the infant was brought to the
defendant-babysitter’s home. Id. Ten years after the original trial, the defendant filed a
subsequent motion for new trial alleging that there had been significant developments in the
medical community concerning whether the infant’s symptoms showed either “shaken baby
syndrome” or shaking combined with head trauma. Id. at 593. “The experts explained that there
was not a significant debate about this issue in the mid-1990s and that the opinions offered in
Edmunds’s first postconviction motion would have been considered minority or fringe medical
opinions.” Id. The State presented four experts who disagreed with the defense experts and
maintained that the evidence at trial established that the infant had been violently injured while in
the defendant’s care. Id. The trial judge agreed that the defense had presented newly discovered
                                                      Henderson      Concurring Opinion      Page 25



evidence, but denied relief because he concluded that Edmunds had not established that there was
a reasonable probability of a different result with the new expert evidence. Id. at 594. The court
of appeals reversed and remanded the case for a new trial based upon the new scientific
advances.
       The court of appeals explained,

       The newly discovered evidence in this case shows that there has been a shift in
       mainstream medical opinion since the time of Edmunds’s trial as to the causes of
       the type of trauma [the infant] exhibited. We recognize, as did the circuit court,
       that there are now competing medical opinions as to how [the infant’s] injuries
       arose and that the new evidence does not completely dispel the old evidence.
       Indeed, the debate between the defense and State experts reveals a fierce
       disagreement between forensic pathologists, who now question whether the
       symptoms [the infant] displayed indicate intentional head trauma, and
       pediatricians, who largely adhere to the science as presented at Edmunds’s trial.
       However, it is the emergence of a legitimate and significant dispute within the
       medical community as to the cause of those injuries that constitutes newly
       discovered evidence. . . . Now, a jury would be faced with competing credible
       medical opinions in determining whether there is a reasonable doubt as to
       Edmunds’s guilt. Thus, we conclude that the record establishes that there is a
       reasonable probability that a jury, looking at both the new medical testimony and
       the old medical testimony, would have a reasonable doubt as to Edmunds’s guilt.

Id. at 598-99. Thus, the court of appeals remanded the case for a new trial, not because the
defendant had established that she was actually innocent of the offense, but because she had
established a reasonable probability that a new jury, hearing both the new scientific evidence and
the old medical testimony, would have a reasonable doubt as to her guilt. Id. at 599. This is the
same standard as that for establishing prejudice in an ineffective assistance of counsel claim or
materiality in a Brady claim. The defendant’s position is not that he has proven actual
innocence, but that he has raised sufficient doubts as to the accuracy and reliability of the original
verdict, that he is entitled to a new trial. See also Burr v. Branker, No. 1:01CV393, 2009 WL
1298116, at *21 (M.D.N.C. May 6, 2009) (federal magistrate recommended granting habeas
relief to state-court death-sentenced capital murder defendant for death of child based on
counsel’s failure to call biomechanical experts, including Dr. Plunkett, and specialized doctors
who would have disputed cause of death as an intentionally inflicted blow to the head rather than
an earlier short-distance fall; “This court concludes that there is a reasonable probability that the
jury, or at least one juror, in Petitioner’s case would have formed a reasonable doubt as to his
guilt on the charge of first-degree murder had they heard the expert medical testimony that
should have, and could have, been presented on Petitioner’s behalf.”), report adopted, 2012 WL
1950444 (M.D.N.C. May 30, 2012) (not designated for publication). See generally “Shifted
Science,”supra note 2 at 267-71 (discussing Edmunds, “shaken baby syndrome,” traumatic head
injuries and the emergence of new scientific theories that undermine confidence in the original
                                                   Henderson    Concurring Opinion     Page 26

every participant’s honesty and good faith, this–as the District Attorney of Travis County

forthrightly recognizes–is a case that should be retried to ensure the accuracy of our verdicts

and the integrity of our system. With these comments, I join the Court’s order.

Filed: December 5, 2012
Publish




trial verdict).
