Henderson, Cathy Lynn















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. WR-49,984-02


EX PARTE CATHY LYNN HENDERSON, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 94-2034 IN THE 299TH DISTRICT COURT

TRAVIS COUNTY


Per Curiam. Keller, P.J., filed a dissenting opinion in which Hervey, J. joined. Price, J., filed a concurring statement. Keasler, J., filed a dissenting statement. Meyers, J., not participating.

ORDER



This is a subsequent application for writ of habeas corpus filed pursuant to article 11.071, § 5, of the Texas Code of Criminal Procedure. Applicant raises three claims in which she asserts that she has newly available evidence that shows that: (1) she is innocent of capital murder; (2) but for constitutional errors she would not have been found guilty; and (3) she is no longer death eligible.

Applicant was convicted of capital murder in May 1995. This Court affirmed her conviction and sentence on direct appeal. Henderson v. State, 962 S.W.2d 544 (Tex. Crim. App. 1997). In October 1998, applicant timely filed her initial application for writ of habeas corpus and amended it on November 17, 1998. We denied relief. Ex parte Henderson, No. WR-49,984-01 (Tex. Crim. App. March 6, 2002) (not designated for publication).

Applicant asserts that the critical issue in her trial was whether she intentionally caused Brandon Baugh's death as asserted by the State or whether Brandon's death was the result of an accidental fall. In this subsequent application, applicant has submitted significant recent scientific research and the affidavits and reports of several scientists. That material indicates that what is called the biomechanical analysis of infant head trauma (an area of scientific research that was beginning to develop in 1995 when applicant was tried and convicted) now shows that the type of head injuries that Brandon Baugh suffered could have been caused by an accidental short fall onto concrete. Although the details have varied, applicant's position throughout has been that Brandon fell out of her arms as she was carrying him and hit his head on the concrete playroom floor.

At the time of trial Dr. Roberto Bayardo, the highly 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 testified that her story was false and "incredible." In his opinion (and that of Dr. Sparks Veasay of Lubbock County), Brandon's injuries had to have resulted from a blow intentionally struck by applicant. 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 flat surface." In his 1995 opinion, Brandon was an abused baby whom applicant had intentionally murdered.

But according to the affidavits and/or reports submitted by Drs. John J. Plunkett, Peter J. Stephens, Janice J. Ophoven, and Kenneth L. Monson, recent advances in the area of biomechanics and physics suggest that it is perhaps possible that Brandon's head injuries could have been caused by an accidental short-distance fall.

The Honorable Jon Wisser presided over applicant's 1995 trial and is currently presiding over her subsequent writ application. He was sufficiently troubled by the initial scientific evidence presented to him that, on April 4, 2007, he recalled applicant's original death warrant and rescheduled her execution for June 13, 2007, to give her sufficient time to gather additional material for this subsequent writ application. (1)

Applicant did so. Dr. Bayardo has now submitted an affidavit which, in essence, recants his trial-time conclusive opinion. His affidavit states the following:

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.



I have reviewed the affidavit of John Plunkett dated May 18, 2007, 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.



Dr. Bayardo's re-evaluation of his 1995 opinion, which he states is based upon new scientific developments, is a material exculpatory fact. In our view, the current application contains sufficient specific facts establishing that applicant's first two claims satisfy the requirements of article 11.071, § 5(a).

We therefore grant applicant's request for a stay of execution and remand this subsequent application for writ of habeas corpus to the trial court for further proceedings on applicant's first two claims. We dismiss her third claim-that she is no longer death eligible- because it is not legally cognizable under article 11.071, § 5.

IT IS SO ORDERED THIS THE 11th DAY OF JUNE, 2007.

Publish

1. Judge Wisser wrote, "I decided, although not convinced of the legal correctness of the defendant's position, it is in the interest of justice and the criminal justice system of this state, that the execution date of April 18th be reset to June 13th, 2007. This should permit the defense adequate time to perfect any subsequent writ."