IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 94-2034 IN THE
299TH DISTRICT COURT OF TRAVIS COUNTY
CONCURRING STATEMENT
In order to proceed to the merits of her claims in this subsequent post-conviction application for writ of habeas corpus, the applicant must satisfy the criteria of Article 11.071, Section 5. (1) She argues that she should be allowed to proceed with her first claim of actual innocence under Article 11.071, Section 5(a)(1), which provides for consideration of the merits of a subsequent application upon a showing of "sufficient specific facts establishing that" her claim of actual innocence could not have been presented in a previous habeas application because "the factual . . . basis for the claim was unavailable" before. In my view, the applicant has presented sufficient newly available facts in the form of Dr. Bayardo's affidavit. Dr. Bayardo now avers that, given the new developments in the science of biomechanics, he could not now testify, as he did during the applicant's 1995 trial, that Brandon's head injury could not have been caused by an accidental fall such as that which the applicant described in her trial testimony. He now asserts that he "cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall." For the reasons that follow, I believe this constitutes a prima facie showing of a cognizable claim of actual innocence.
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." (2) In conducting this analysis, the reviewing court should view the newly available evidence in the context of the evidence developed during the course of the trial and ask whether any rational juror would still have convicted the applicant given whatever additional perspective the newly available evidence may provide, assuming the juror had also heard that newly available evidence. (3)
In my view, the applicant's newly available evidence is sufficient to establish a prima facie case under this standard. At trial, Dr. Bayardo testified that applicant's exculpatory version of how Brandon sustained his injuries could not possibly be true. Dr. Bayardo's affidavit demonstrates that, in light of the new scientific developments, he could no longer testify as he did at trial. This new evidence has the effect of totally nullifying Dr. Bayardo's trial testimony. Adding it to the evidentiary mix means that the jury would no longer have any affirmative evidence to cause it to prefer the theory that Brandon was murdered as opposed to the theory that he was killed accidentally or with some lesser culpable mental state than is necessary to sustain a capital murder conviction. (4) Under these circumstances, it is at least arguable that the evidence is not even legally sufficient to sustain a conviction; that is, a rational jury could not convict the applicant of capital murder. (5) In any event, it is evident that the applicant has presented a plausible claim that no reasonable juror would have found her guilty of a capital homicide-at least not to a level of confidence beyond a reasonable doubt. Thus, the applicant has at least pled facts sufficient to allow her to proceed with her claim of actual innocence.
This differs from the situation in which a lay witness later claims that his or her trial testimony was mistaken or untrue-an ordinary recantation. In that event the jury that we hypothesize in our Elizondo analysis has been presented with two different and conflicting versions of the facts from the same witness and must decide which version to believe. If the recantation is not particularly compelling under the circumstances, we have no basis to conclude that there is clear and convincing evidence that none of the jurors would have convicted the defendant anyway. Relief would not be warranted. But here we have a situation in which the State's expert, upon whose opinion testimony the essential element of culpable mental state hinges, has now withdrawn his earlier expert opinion in light of new scientific developments and has replaced it with a new, presumably better informed, expert opinion. (6) Accordingly, in applying the Elizondo standard, we do not hypothetically envision a jury that is now presented with two conflicting versions of the brute facts. Instead, we envision a hypothetical jury that has heard an expert who has renounced his own earlier opinion as scientifically invalid. I do not believe a rational juror would choose to rely upon the expert's abandoned view. This leaves our hypothetical jury with precious little evidence upon which to conclude that the applicant killed Brandon with the mens rea necessary to justify convicting her of an offense for which she could suffer the ultimate penalty of death.
Nor am I swayed by the fact that the trial evidence shows that the applicant fled. Of course, I acknowledge that we have said many times that evidence of flight amounts to some evidence of a guilty conscience. But I do not believe on the facts of this case that the applicant's flight provides the jury with any greater basis to prefer the conclusion that she killed Brandon with the requisite intent for capital murder versus some lesser culpable mental state or no mens rea at all. In short, 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. Neither does her statement to her friend that she "killed somebody or murdered somebody" provide a particularly compelling basis to differentiate her level of culpability. That the evidence may still be legally sufficient to convict the applicant even in the face of Dr. Bayardo's affidavit does not mean we cannot conclude that a prima facie case has been made that no reasonable juror would have convicted the applicant. In my view she should be permitted to proceed with the claim based upon her newly available evidence so that we may determine, in the normal course of habeas proceedings, whether she can ultimately convince us by clear and convincing evidence.
In her second claim the applicant asserts that she should be allowed to proceed with other constitutional issues under Article 11.071, Section 5(a)(2), which requires a showing of "sufficient specific facts establishing that . . . by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt[.]" This standard requires a lower threshold of confidence (preponderance of the evidence rather than clear and convincing evidence), but it also requires a showing that no rational juror "could" have convicted, rather than that no rational juror "would" have, as under the Elizondo standard governing bare claims of innocence. To me these differences in the applicable standards result in a wash. Given Dr. Bayardo's affidavit, I would also hold that the applicant has shown by a preponderance of the evidence that no rational juror "could" have found her guilty to a level of confidence beyond a reasonable doubt and that the merits of her constitutional claims should therefore be addressed.
With these observations, I join the Court in its order staying the applicant's impending execution and granting her leave to proceed with the first two claims of her subsequent writ application under Article 11.071, Section 5. (7)
Filed: June 11, 2007
Publish
1. Tex. Code. Crim. Proc. art. 11.071, § 5.
2. 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
3. 4. In his affidavit, Dr. Bayardo indicated that he had reviewed the affidavit of Dr. John Plunkett, "and
I agree with his opinion." Dr. Plunkett's affidavit is dated May 18, 2007, and it 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 the [sic] Brandon's injuries are such as to rule out an accidental cause.
5. 6. I say "presumably" better informed only because the record does not presently suggest otherwise.
This is not to say that on the remand the State cannot challenge the applicant's claims with respect to
validity and/or weight of the advances in biomechanical science upon which the applicant, and Dr. Bayardo
in his affidavit, rely. We are not called upon to address the merits of the applicant's claims at this juncture,
but only whether she has met the threshold showing for consideration of the merits in the ordinary course
of proceedings under Article 11.071. 7. It is my understanding that the District Attorney of Travis County has made public that he has sent
a letter to the Board of Pardons and Paroles in which he has recommended that the Board recommend that
the Governor grant the applicant a thirty-day reprieve.