                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00188-CR


JENNIFER BANNER WOLFE                                                    APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


                                       ----------

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

                                       ----------

                                     OPINION 1

                                       ----------

      Appellant Jennifer Banner Wolfe pled not guilty to knowingly causing

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

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

allegedly unreliable medical expert opinion testimony on abusive head trauma.

We affirm.

                                 Background Facts

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

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

risk of abusive head trauma in small children.

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

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

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

he had been behaving normally.

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

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

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

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

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

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

to sit up by himself at that time.



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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

that she had “possibly” sat Jack down hard.

      Jack suffered multiple injuries, including a subdural hematoma and retinal

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

remained at the hospital for nine days after his surgery.




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


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

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

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

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

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

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

bleeding in Jack’s brain.

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

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

multilayered retinal hemorrhages that were consistent with nonaccidental trauma

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

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

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

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

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

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

      A grand jury indicted appellant with knowingly causing serious bodily

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

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

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


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

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

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

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

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

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

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

related subdural hematoma. The trial court convicted appellant and sentenced

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

                        Reliability of Expert Testimony

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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

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

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

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

S.W.3d at 435.

      The proponent of scientific evidence is not typically called upon to

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

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

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

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

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

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




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

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

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

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

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

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

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

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

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

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

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

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




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


                                            7
Dr. Roberts’s testimony

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

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

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

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

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

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

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

craniotomy and evacuation of the subdural hematoma to decrease the pressure

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

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

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

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

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

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

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

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


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


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

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

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

a sitting position.

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

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

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

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

nonaccidental trauma based on the finding of retinal hemorrhages (including

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

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

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

the medical community generally accepts.

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

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

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

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


       11
        Dr. Roberts testified,

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


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

bridging vein to avulse.

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

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

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

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

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

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

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

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

applied to avulse the bridging vein.

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

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

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

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

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

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

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

vein.

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

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




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

field of child abuse.

Dr. Ranelle’s testimony

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

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

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

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

retina in the left eye.

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

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

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

nonaccidental trauma caused by an accelerating and decelerating force may be

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

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

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

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

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

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


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

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

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

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

experienced.

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

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

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

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

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

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

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

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

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

suspicious of nonaccidental trauma when a child presents with retinal

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

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

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

             A. . . . [W]hat conclusion?

             Q. Of nonaccidental trauma.




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

              ....

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

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

              ....

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

              A. Yes.

              Q. Always.

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

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

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

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

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

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

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




                                        13
force. 14   When asked about the lack of external injuries to Jack, Dr. Ranelle

testified, “I don’t know what happened to [Jack].      Nobody came up with an

explanation of what happened to [Jack]. . . . All I can tell you is that with this

constellation of symptoms, you know, other children that I’ve seen, it is very

consistent with a violent shaking, traumatic abusive force.”

       Dr. Ranelle stated on cross-examination that she was not familiar with

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

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

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

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

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

without physical injuries.

Dr. Coffman’s testimony

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

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

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


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


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

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

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

combination of impact and shaking, causing sudden acceleration and

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

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

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

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

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

diagnosis for his injuries.

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

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

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

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

from severe trauma, both accidental and nonaccidental.

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

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

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

ongoing but that all fields draw similar conclusions that subdural hemorrhages

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

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

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


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

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

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

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

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

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

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

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

experience and read about cases with children sustaining injuries similar to

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

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

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

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

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

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

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

bridging veins and into what forces cause subdural hematomas and retinal

hemorrhages in infants.




                                         16
Defense witness Dr. Robert Rothfeder’s testimony

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

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

He stated that the medical community disagrees about the principles for

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

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

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

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

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

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

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

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

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

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

community disagree       about   the   validity of     the principle;   according   to

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

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

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

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

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

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




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

hematoma was caused by impact.”

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

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

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

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

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

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

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

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

retinoschisis was a progression of the retinal hemorrhages and explained that

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

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

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

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

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

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

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

perhaps causing intermittent fussiness and other nonspecific symptoms, and

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

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

birth.


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

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

Connection between Subdural Hematoma, Retinal Hemorrhage and Shaken

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

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

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

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

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

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

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

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

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

subdural hematoma.”

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

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

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

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

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

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

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

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

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


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

admitted that studies upon which he relied have been criticized.

Reliability of the State’s experts’ testimony

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

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

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

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

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

on debate and disagreement within the scientific community about the general

theory. Indeed, she summarizes her argument as follows:

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

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

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

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

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

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


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

theory of diagnosing abusive head trauma generally.           Only three sentences

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

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

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

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

diagnosing abusive head trauma. 17

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

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

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

demonstrated their unchallenged qualifications to testify about pediatrics

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

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


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

the pediatric medical community generally accepts the diagnosis of abusive head

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

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

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

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

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

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

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

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

pediatric neurosurgery, although she recognized unrest with medical examiners

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

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

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

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



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

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

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

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

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

the relation of subdural hematoma and retinal hemorrhaging in abusive head

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

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

hemorrhages in children and details several studies demonstrating the

“significant statistical association” of both subdural hematomas and retinal

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

international   and   domestic    medical    organizations   that   have    publicly

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

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

conclusions made by Dr. Rothfeder.




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


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

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

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

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

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

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

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

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

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

      Although evidence exists in the record that some doctors, biomechanical

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

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

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

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

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

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

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

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

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

automatically render one unreliable.”).

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

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


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

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

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

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

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

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



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

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

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


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

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

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

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

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

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

disagreement exists about the scientific reliability and admissibility of the

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

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

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

                                   Conclusion

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

judgment.

                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

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

WALKER, J., filed a dissenting opinion.

PUBLISH

DELIVERED: February 26, 2015




                                          26
