Wolfe, Jennifer Banner

PD-0292-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/2/2015 12:04:39 PM
Accepted 11/2/2015 12:17:07 PM
ABEL ACOSTA
November 2, 2015
NO. PD-0292-15 CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JENNIFER BANNER WOLFE,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT’S BRIEF
Oral Argument Requested
02-12-00188-CR
IN THE SECOND COURT OF APPEALS
AT FORT WORTH
On appeal from Cause Number 1200447D
in 213th District Court of Tarrant County, Texas
Honorable Louis Sturns, Judge Presiding
DAVID A. PEARSON, P.L.L.C.
State Bar No. 15690465
Attorney at Law
222 W. Exchange Ave., Ste. 103
Fort Worth, Texas 76164
(817) 625-8081
(817) 625-8038 (Fax)
david@lawbydap.com
ATTORNEY FOR APPELLANT
 LIST OF PARTIES AND COUNSEL

MS. JENNIFER BANNER WOLFE APPELLANT
TDCJ #01776755
Lockhart Work Facility
P.O. Box 1170
Lockhart, TX 78644

HONORABLE DAVID A. PEARSON, IV ATTORNEY FOR APPELLANT
222 W. Exchange Ave., 103 (APPEAL)
Fort Worth, TX 76164

HONORABLE LISA MULLEN ATTORNEY FOR APPELLANT
1214 Fairmount (TRIAL)
Fort Worth, TX 76104

HONORABLE ROSE ANNA SALINAS ATTORNEY FOR APPELLANT
1214 Fairmount (TRIAL)
Fort Worth, TX 76104

HON. SHAREN WILSON DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TX
Fort Worth, TX 76196

HONORABLE TANYA S. DOHONEY ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196

HONORABLE KIM D’AVIGNON ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196

HONORABLE KEVIN BONEBERG ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196

-i-
HONORABLE LOUIS STURNS JUDGE PRESIDING
401 W. Belknap St. 213TH CRIMINAL
Fort Worth, TX 76196 DISTRICT COURT
TARRANT COUNTY, TX

-ii-
 SUBJECT INDEX

List of Parties and Counsel ........................................................................................i

Subject Index ........................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement Regarding Oral Argument ........................................................................ 1

Statement of the Case ................................................................................................ 2

Statement of Procedural History ................................................................................ 2

Grounds for Review ................................................................................................... 3

Statement of Facts ...................................................................................................... 3

Summary of Argument............................................................................................... 7

Arguments and Authorities:
Ground for Review One:
Whether the Court of Appeals wrongly decided that the Appellant‘s
point of error that the trial court abused its discretion by admitting
unreliable expert testimony of abusive head trauma based solely on a
constellation of symptoms did not fairly include the issue whether the
expert testimony was unreliable given this specific injured party’s
history. ............................................................................................................. 8

Ground for Review Two:
Whether the Court of Appeals wrongly decided that the trial court did
not abuse its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms. ............15

Prayer for Relief .......................................................................................................28

-iii-
Certificate of Service ...............................................................................................28

Certificate of Compliance ........................................................................................29

-iv-
 LIST OF AUTHORITIES
Cases Page
Cavazos v. Smith, 132 S.Ct. 2 (2011) ......................................................................27

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 572 (1993) .............9, 25

Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) ..................................20

Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) ................ 22, 23, 24

Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied, 2012 U.S.
LEXIS 3468 (U. S., May 14, 2012) ..................................................................24, 25

Ex parte Robbins, 2014 Tex. Crim. App. LEXIS 2014 (Tex. Crim. App.,
November 26, 2014) (Johnson, J., concurring), rehearing granted, In re Robbins,
2015 Tex. Crim. App. LEXIS 567 (Tex. Crim. App., May 13, 2015) ...................18

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007), cert denied, 128 S. Ct.
2872 (2008) .............................................................................................................20

Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) ........................................13

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) .................................13

Perry v. Cohen, 272 S.W.2d 585 (Tex. 2008) ........................................................14

State v. Bailey, 201 S.W.3d 739 (Tex. Crim. App. 2006) ................................13, 14

State v. Copeland, 2014 Tex. Crim. App. Unpub. LEXIS 929, No. PD-1802-13
(Tex. Crim. App. 2014) (not designated for publication) ......................................13

State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008), rev. denied, 749 N.W.2d
663 (Wis. 2008) ......................................................................................................25

State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) ..................................13

-v-
State v. Schoonmaker, 176 P.3d 1105 (N. M. 2008), overruled in part, 332 P.3d
850 (N. M. 2014) ....................................................................................................26
Constitutions, Rules, Statutes
TX. R. APP. P. 38.1(i) ......................................................................................10, 13

TEX. R. EVID. 702 ..........................................................................................7, 9, 20

TEX. R. EVID. 705 ................................................................................................7, 9

Secondary Sources
Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms,
151 Forensic Sci. Int’l 71 (2005) ............................................................................27

Brandon J. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 VA. L. REV. 1, 12 (2009) ............................................21

Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and
the Criminal Courts, 87 WASH. L. REV. 5 (2009) ...............................................22

DNA Exoneree Case Profiles, INNOCENCE PROJECT,
http://innocenceproject.org/know/ ...........................................................................20

Minns, Shaken Baby Syndrome: Theoretical and Evidential Controversies, 35 J.
Royal College of Physicians of Edinburgh 5, 10 (2005) .......................................27

NATIONAL ACADEMY OF SCIENCES STRENGTHENING FORENSIC
SCIENCE IN THE UNITED STATES: A PATH FORWARD 112 (2009) (“NAS
Report), note 4; Daniel G. Orenstein, Comment: Shaken to the Core: Emerging
Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome,
42 ARIZ. ST. L.J. 1305 (2010) ...............................................................................24

-vi-
Sabra Thomas, Addressing Wrongful Convictions: An Examination of Texas’s New
Junk Science Writ and Other Measures for Protecting the Innocent, 52 Hous. L.
Rev. 1037 (Winter 2015) ........................................................................................21

Steven C. Gabaeff, M.D., Challenging the Pathophysiologic Connection between
Subdural Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome, West J
Emerg. Med. 2011; 12(2) May 144-158 ..................................................................17

Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo)
57,59 (2006) ............................................................................................................27

Vinchon M, Delestret I, DeFoort-Dhellemmes S, et al. Subdural Hematoma in
Infants: Can It Occur Spontaneously? Data From a Prospective Series and
Critical Review of the Literature: Child Nerv Syst. 2010 .......................................17

-vii-
 NO. PD-0292-15
IN THE

COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

JENNIFER BANNER WOLFE,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE

APPELLANT’S BRIEF

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Jennifer Banner Wolfe, hereinafter referred to as the

Appellant, by and through her attorney of record, DAVID A. PEARSON, IV, and

respectfully files her brief in the above numbered cause, pursuant to the rules of

the Court.

STATEMENT REGARDING ORAL ARGUMENT

The Court gave notice on 16 September 2015 that oral argument will be
1 | Jennifer Banner Wolfe v. State, Appellant’s brief
permitted. The Appellant believes oral argument would be helpful to the Court’s

consideration of the issues in this case.

STATEMENT OF THE CASE

The Appellant was charged by indictment with Injury to a Child, Elderly or

Disabled, Serious Bodily Injury. (3 R. R. 10) (C. R. 10-11) The State and

Appellant waived a jury trial. The State waived paragraphs one through three of

the indictment, and proceeded on paragraph four plus the deadly weapon notices.

(C. R. 2-3) (3 R. R. 9) The Appellant entered a not guilty plea. (3 R. R. 9-11)

Following a bench trial the trial court found the Appellant guilty. (C. R. 268,

274-76) (8 R. R. 4) Following a brief sentencing hearing the trial court assessed

the punishment at 5 years in the Texas Department of Criminal Justice –

Institutional Division. (C. R. 274-76, 281) (8 R. R. 42-43) The trial court

certified that the Appellant had the right to appeal. (C. R. 277) Appellant timely

filed notice of appeal on 2 May 2012. (C. R. 278)

STATEMENT OF PROCEDURAL HISTORY

In a published opinion dated 26 February 2015, the Court of Appeals

affirmed, with one Justice dissenting, the judgment of the trial court. Jennifer
2 | Jennifer Banner Wolfe v. State, Appellant’s brief
Banner Wolfe v. State, 459 S.W.3d 201 (Tex. App.—Fort Worth 2015, pet.

granted) (Walker, J., dissenting). Neither party filed a motion for rehearing.

Pursuant to one extension granted by this Court, the Appellant’s Brief is timely if

filed on or before 2 November 2015.

GROUNDS FOR REVIEW

Ground for Review No. 1

Whether the Court of Appeals wrongly decided that the Appellant‘s point of error
that the trial court abused its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms did not fairly
include the issue whether the expert testimony was unreliable given this specific
injured party’s history.

Ground for Review No. 2

Whether the Court of Appeals wrongly decided that the trial court did not abuse its
discretion by admitting unreliable expert testimony of abusive head trauma based
solely on a constellation of symptoms.

STATEMENT OF FACTS

Joseph Bruce Casseaux, a paramedic at Medstar, received a call from

dispatch to go to a single-family home at 10:22 a.m. on April 1, 2010. When he

arrived, a firefighter was doing CPR on a very small child (“Jack”).1 Mr.

Casseaux was told that the child had choked on some food because the child was

1
To protect the anonymity of the child at issue, the Court of Appeals used aliases to refer to him and his mother.
3 | Jennifer Banner Wolfe v. State, Appellant’s brief
crying and screaming and just fell back unconscious. The child was blue,

indicative of low blood circulation. There was no spontaneous respiration, so the

child was clinically dead. (4 R. R. 11-15) Mr. Casseaux continued CPR and

started advanced life support. On the ride to Cook Children’s Medical Center, the

child began to have spontaneous respirations. (4 R. R. 16-17) The child had no

bruising, no physical signs of injury, and no injury on his head or face. (4 R. R.

31)

Months before, Mrs. “Smith”, Jack’s mom, interviewed Jennifer Wolfe for

in-home child-care for Jack. Mrs. Smith chose someone off a website with a list

of state certified providers. (4 R. R. 34, 38-39) Mr. and Mrs. Smith decided to

hire Ms. Wolfe. (4 R. R. 42) At seven months old, Jack could sit if he was

propped up, then he would go to one side or the other. (4 R. R. 46)

Mrs. Smith dropped Jack off at Ms. Wolfe’s house on April 1, 2010. (4 R.

R. 55) At about 10:40 a.m. Ms. Smith received a call at school. The fireman on

the phone told her she needed to go to Cook Children’s Medical Center. (4 R. R.

59) Ms. Wolfe told Mrs. Smith that Jack had eaten, was crying, so she set him

down, and he fell backward. (4 R. R. 61) Physicians treating Jack determined that

they needed to do surgery due to bleeding in his brain. (4 R. R. 63) Jack was in

Cook Children’s Hospital for nine days. The side of his head, where he had

4 | Jennifer Banner Wolfe v. State, Appellant’s brief
surgery, was very swollen, and he could not move his right side. (4 R. R. 65)

Brandy Pollifrone, an employee of the Texas Department of Human

Services, worked with child-care licensing and conducted abuse and neglect

investigations. (4 R. R. 103) Ms. Pollifrone was assigned to this case involving

in-home day care provided by Ms. Wolfe. (4 R. R. 105) Because Ms. Wolfe was

with Jack when he became symptomatic, (4 R. R. 112), Ms. Pollifrone went to Ms.

Wolfe’s home to investigate. (4 R. R. 114) Ms. Wolfe explained to Ms.

Pollifrone that Jack arrived at 7:15 a.m., had breakfast, and she put him down for a

nap. Jack woke up from the nap earlier than usual and was fussy, so she tried to

calm him. Ms. Wolfe received a text that her daughter was sick at school, so she

loaded up the children and drove to pick up her daughter. She returned home at

about 10:05 a.m. Ms. Wolfe set Jack down on the floor and went to get another

child out of the car seat. Jack fell back, crying, and Ms. Wolfe picked him back

up. Ms. Wolfe told him that he needed to sit. (4 R. R. 118-119) Jack fell back

again, and then he went quiet. Ms. Wolfe walked up to him and realized that Jack

was limp. (4 R. R. 122) Ms. Pollifrone determined from her investigation that

Jack was not sitting up on his own at that time. (4 R. R. 123)

Chelsea Adams, a friend of Ms. Wolfe, remembers Ms. Wolfe saying that

Jack cried all the time and that she felt bad for him because he cried all the time.

Ms. Adams spoke to Ms. Wolfe after the incident, and she said that Ms. Wolfe was
5 | Jennifer Banner Wolfe v. State, Appellant’s brief
very upset and shocked. (4 R. R. 158-161)

Dr. Richard Roberts, pediatric neurosurgeon at Cook Children’s Medical

Center, treated Jack beginning on April 1, 2010. (4 R. R. 167-69, 180) Jack’s

condition was compression of the brain. (4 R. R. 181) Dr. Roberts performed a

craniotomy and evacuation of a subdural hematoma. This is a procedure designed

to get the blood and anything that was causing the shift or increased pressure off

the brain and allow the brain to return to its normal state. (4 R. R. 200) When Dr.

Roberts opened the dura, he saw a rapid efflux of older-appearing blood. The

bleeding was representative of a torn or avulsed vein. (4 R. R. 203) Jack was in a

condition which if untreated presented a substantial risk of death. (4 R. R. 212)

His condition, as he presented, can result in a protracted loss of some body organ

or his brain. (4 R. R. 213) In a case where force is enough to avulse a bridging

vein from the sagittal sinus in a normal brain, the injury cause would typically be a

car accident or a fall from a second story window. (4 R. R. 218) Dr. Robert’s

opinion was that more force than was reported occurred to generate these injuries.

(4 R. R. 220) His opinion was that this was a non-accidental trauma. Jack had a

subdural hematoma with some brain swelling, retinal hemorrhages, and retinal

tears, which in Dr. Roberts’s opinion did not fit the story of a seven-month-old

falling on his back from a seated position. (4 R. R. 227)

Ann Ranelle, D.O., an employee of Fort Worth Eye Associates, consulted
6 | Jennifer Banner Wolfe v. State, Appellant’s brief
on Jack’s case. A trauma nurse at Cook Children’s Medical Center requested that

she check Jack to see if he had hemorrhages in the eye. (5 R. R. 5-6, 12-13) Dr.

Ranelle saw Jack in the pediatric intensive care unit. (5 R. R. 16) During Dr.

Ranelle’s exam, she didn’t see any hemorrhages in his right eye, but did see intra-

retinal hemorrhages in his left eye. The hemorrhages were only in the left eye. (5

R. R. 38-39) She found positive results for chemosis, which meant swelling in the

conjunctiva of the left eye. Chemosis can happen with traumatic injury. (5 R. R.

42-43) Dr. Ranelle saw multilayered, confluent hemorrhaging in Jack’s eye,

consistent in her opinion with non-accidental trauma. (5 R. R. 47)

SUMMARY OF THE ARGUMENT

The Appellant urged due process of law and Texas Rules of Evidence 702

and 705, to complain that the State experts issued the opinion of non-accidental,

intentional injury based upon finding subdural hematoma, retinal hemorrhage, and

brain swelling. Furthermore, in trial and appeal, the Appellant argued that given

no external, physical signs of trauma or injury to this complainant, the State

experts were improperly calling the injury intentionally inflicted based on the triad

of symptoms. Appellant incorporated in her brief the juxtaposition of the state

experts—even with this particular child and his old bleed—sticking to their

7 | Jennifer Banner Wolfe v. State, Appellant’s brief
diagnosis that if a certain constellation of symptoms is present—then, no matter

what, the injury is intentional. Therefore, Appellant precisely preserved and

argued on appeal whether the abusive head trauma expert testimony should have

been admitted—given this injured party and his history.

The trial court abused its discretion by allowing medical expert opinion that

shaken baby syndrome (SBS) or its current nomenclature, “abusive head trauma”

(AHT)) 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 an ongoing debate supported from

multiple sources and studies against the stock opinion that subdural hemorrhage,

retinal hemorrhage, and brain swelling in an infant is exclusively AHT.

There is instead disagreement in the medical community regarding the

diagnosis of abusive head trauma exclusively based upon subdural hematoma,

retinal hemorrhaging, and brain swelling. Against the backdrop that this

complainant had two preexisting and undetected old bleeds due to some

unestablished cause or causes, the trial court abused its discretion to admit and

consider the opinions tied strictly to these markers.

ARGUMENT

8 | Jennifer Banner Wolfe v. State, Appellant’s brief
 Ground for Review No. 1:

Whether the Court of Appeals wrongly decided that the Appellant‘s
point of error that the trial court abused its discretion by admitting
unreliable expert testimony of abusive head trauma based solely on a
constellation of symptoms did not fairly include the issue whether the
expert testimony was unreliable given this specific injured party’s
history.

Jennifer Banner Wolfe voiced her objection and challenge to the State’s

experts and their reliance upon the scientific basis and theory of shaken baby

syndrome. (4 R. R. 6-8) Ms. Wolfe clarified and the trial court accepted that her

challenge to the scientific theory and method she referred to as “shaken baby

syndrome , would also refer to ”abusive head trauma (AHT)”, or “sudden impact

injury”. (4 R. R. 168) Ms. Wolfe specifically proposed and the trial court agreed

and acknowledged that her Daubert/Kelly challenge could be heard

contemporaneous with the State and Defense presentation of evidence. (4 R. R. 6-

8) (8 R. R. 4-5) The trial court ruled that it would hear the case as fact-finder, and

also perform the necessary gate-keeping function and rule on Ms. Wolfe’s

challenge. (4 R. R. 7-8)

At the close of evidence, the trial court carried the Daubert /Kelly challenge,

in order to have further time to review the materials presented on the issue. Prior

to sentencing, the trial court overruled Ms. Wolfe’s Daubert /Kelly challenge. (8

R. R. 4-5)
9 | Jennifer Banner Wolfe v. State, Appellant’s brief
 In support of her challenge, Ms. Wolfe urged due process of law and Texas

Rules of Evidence 702 and 705. (7 R. R. 5) Specifically, Ms. Wolfe complained

that the State experts issued the opinion of non-accidental, intentional injury based

upon finding subdural hematoma, retinal hemorrhage, and brain swelling.

Furthermore, Ms. Wolfe, in trial and appeal, argued that given no external,

physical signs of trauma or injury, the State experts were improperly calling the

injury intentionally inflicted based on the triad of symptoms. (7 R. R. 6-7) Ms.

Wolfe argued in essence that the trial court should disregard 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. (7 R. R. 10-

11)

Citing default, the Court of Appeals declined to review the issue of whether

the diagnosis of abusive head trauma could be reliable with respect to Jack, given

Jack’s prior medical history, including the prior bleeding in his brain. (Opinion, p.

3, n. 3, p. 20-21) The Court of Appeals limited its analysis to “only the general

reliability of testimony relating to diagnosing abusive head trauma.” (Opinion, p.

21) Even assuming for the sake of argument that the issue was not briefed—that

the expert testimony was unreliable given this injured party’s medical history—the

Court of Appeals wrongly determined that the issue of whether the abusive head

trauma diagnosis applied to this complainant with his history, was not a
10 | Jennifer Banner Wolfe v. State, Appellant’s brief
“subsidiary question that is fairly included.” TEX. R. APP. P. 38.1(f). The Court

of Appeals claimed that Ms. Wolfe did not alternatively argue that the diagnosis of

abusive head trauma was unreliable as to this complainant. However, the record

below belies the Court of Appeals’ foundation for procedural default. Ms. Wolfe

did specifically cite the record reference to the “old bleed.” (4 R. R. 195, 199,

201, 238) Furthermore, Ms. Wolfe’s appellant’s brief included the following:

“According to Dr. Roberts, [the child] must have had another prior
hemorrhage, but according to Dr. Roberts the old blood would not
have caused the constellation or entirety of the injuries. (4 R.R. 222-
23) Dr. Roberts further acknowledged that there were two older
bleeds, and both were subdural. (4 R.R. 239-240, 243) On cross-
examination, Dr. Roberts unequivocally stated more than once that
his opinion that non-accidental trauma (child abuse) occurred was
based upon a patient with a subdural hematoma, retinal
hemorrhaging, and brain swelling. (4 R.R. 272-73, 280-81)”

So, clearly Ms. Wolfe incorporated in her brief the juxtaposition of the state

experts—even with this particular child and his previously undetected old

bleeds—sticking to their diagnosis that if a certain constellation of symptoms was

present, then, no matter what, the injury is intentional. Therefore, Ms. Wolfe

precisely briefed whether the abusive head trauma expert testimony should have

been admitted—given this complainant and his medical history.

Moreover, the dissenting Justice believed the issue was “fairly included” in

Ms. Wolfe’s point of error as presented. The dissent disagreed with the majority,

11 | Jennifer Banner Wolfe v. State, Appellant’s brief
stating that Ms. Wolfe fairly raised the issue whether the trial court erred to rely

upon the state experts’ opinions that the injuries sustained by Jack were “non-

accidental.” (Walker, J., Dissenting Opinion, p. 2)

Moreover, based on my review of the State’s expert testimony, a
serious question exists as to the reliability of their conclusion that
Jack suffered abusive head trauma. The undisputed evidence at trial
established the following: that seven-month-old Jack had experienced
at least two prior brain bleeds in his head and did not have a normal,
healthy brain at the time he became unconscious at Appellant’s home;
that according to Jack’s preoperative CT scan, the chronic bleeding in
Jack’s head and the brisk bleeding observed by Dr. Roberts during
Jack’s surgery were ‘side by side’; and that all three of the State’s
experts concluded that Jack’s injuries could not have been caused by
shaking alone but required a high-energy impact to Jack’s head, yet
Jack had no external injuries, marks, bruises, fractures, spinal or neck
injuries, or grip marks on his body. All three of the State’s experts
agreed that when a child with a normal, healthy brain experiences the
constellation of subdural hematoma, retinal hemorrhages, and no
explanation for the injuries, the typical diagnosis is abusive head
trauma. And all three of the State’s experts agreed that Jack did not
have a normal, healthy brain before he experienced this diagnostic
constellation. Yet, all three still opined that despite Jack’s already-
injured brain, the existence of this diagnostic constellation in Jack
meant that Jack’s head trauma was intentionally inflicted—abusive
head trauma.

(Walker, J., Dissenting Opinion, p. 3-5)

“I write additionally only to point out that serious questions exist regarding

the reliability of the experts’ opinions as applied to the undisputed facts

concerning Jack’s unhealthy brain and the lack of any physical injury to Jack.”

(Walker, J., Dissenting Opinion, p. 5-6)

12 | Jennifer Banner Wolfe v. State, Appellant’s brief
 If the dissenting opinion author sees the issue, and writes separately to state

that the issue was fairly included, then that necessarily meant the subsidiary issue

was met the burden of “fairly included.”

“The standards of procedural default … are not to be implemented by

splitting hairs in the appellate courts.” Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992). The Texas Rules of Appellate Procedure require that

issues be “construed liberally” and that every subsidiary question, which is fairly

included, must be addressed. State v. Bailey, 201 S.W.3d 739, 743-44 (Tex. Crim.

App. 2006); TEX. R. APP. P. 38.1(f). An appellant’s brief must contain “a clear

and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” TEX. R. APP. P. 38.1(i). According to TEX. R.

APP. P. 38.1(f), the statement of an issue or point will be treated as covering every

subsidiary question that is fairly included.

An appellate court may not reverse a trial court “’on a theory that the trial

court did not have the opportunity to rule upon and upon which the non-appealing

party did not have an opportunity to develop a complete factual record.” Id. at

743, quoting Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002).

Procedural default rests on the basic principle of appellate jurisprudence that

points not argued at trial are deemed to be waived. State v. Mercado, 972 S.W.2d

75, 78 (Tex. Crim. App. 1998). This Court explained a two-fold purpose behind
13 | Jennifer Banner Wolfe v. State, Appellant’s brief
this principle: (1) To inform the trial judge of the basis of the party’s argument

and afford him an opportunity to respond to that argument, and (2) to give

opposing counsel the opportunity to respond to that argument. State v. Copeland,

2014 Tex. Crim. App. Unpub. LEXIS 929, No. PD-1802-13 (Tex. Crim. App.

2014) (not designated for publication). The Texas Supreme Court opined as

follows: “Appellate briefs are to be construed liberally, so that the right to

appellate review is not lost by waiver. Simply put, appellate courts should reach

the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272

S.W.2d 585, 587 (Tex. 2008).

In the record below, the State clearly had ample opportunity and actually did

develop its evidence and respond to the Appellant’s argument regarding the expert

testimony. In State v. Bailey, above, appellant who was charged with violations of

the Texas Securities Act claimed on appeal that the certificates of deposits at issue

were not securities under the Act as a matter of law. The appellant sought a trial

court ruling on that issue. On appeal, the Eighth Court of Appeals re-framed the

appellant’s complaint finding that the trial court erred in not charging the jury to

determine of whether or not a certificate of deposit is a security. Id. at 740. This

Court granted review and determined that the Court of Appeals committed error

when it addressed an issue not presented to the trial court or raised by the parties

on appeal. Id. at 742. This Court held that the Court of Appeals reformulated the
14 | Jennifer Banner Wolfe v. State, Appellant’s brief
issue to be that the trial court erred in charging the jury that the CDs were

securities and reversing on those grounds. This Court found that the issue of who

should make the determination of whether CDs qualify as securities is clearly

separate from whether the trial judge, in response to the agreement of the parties,

erred in deciding that the CDs were securities as a matter of law. Id. at 743. This

Court acknowledged that T.R.A.P. 38.9(b) instructs that briefing rules are to be

construed liberally, and gives the appellate courts some discretion in remedying

substantive defects in parties’ briefs, but it does not allow the court of appeals to

“reach out and reverse the trial court on an issue that was not raised.” Id. at 744.

As the dissent recognized in this case, Ms. Wolfe’s brief did not require nor

invite the Court of Appeals to “reach out” and create an issue on which to reverse.

The Appellant’s Brief squarely raised the issue whether this expert testimony in

this case with this complainant—was reliable in its conclusion that there was

intentional head trauma. In its Brief, the State never argued that this issue was

defaulted, yet the Court of Appeals “reached out” and found default.

Ground for Review No. 2:

Whether the Court of Appeals wrongly decided that the trial court did
not abuse its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms.

15 | Jennifer Banner Wolfe v. State, Appellant’s brief
 Before testimony began, Jennifer Banner Wolfe voiced her objection and

challenge to the State’s experts and their reliance upon the scientific basis and

theory of shaken baby syndrome. (4 R. R. 6-8) Ms. Wolfe clarified and the trial

court accepted that her challenge to the scientific theory and method she referred

to as “shaken baby syndrome (SBS),” would also incorporate the affiliated terms,

“abusive head trauma” (AHT), or “sudden impact injury”. (4 R. R. 168) Ms.

Wolfe complained that the State experts based their opinion of non-accidental,

intentional injury exclusively upon finding subdural hematoma, retinal

hemorrhage, and brain swelling, without regard to the child’s prior undetected old

bleeds. Also, given no external, physical signs of trauma or injury, the State

experts’ myopic “medical diagnosis” of abuse was unreliable. (7 R. R. 6-7) Ms.

Wolfe complained in essence that the trial court should not rely upon 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.

(7 R. R. 10-11)

In this record, without a shred of external damage, and no mark, bruise, or

any other physical sign of impact, the State experts bootstrap that an impact

occurred, and opined that Jack’s head trauma was intentional. Thus, the past

discredited science due to concluding head trauma was intentional in SBS without

any sign of external injury is germane to the point. This trial court was told—and
16 | Jennifer Banner Wolfe v. State, Appellant’s brief
the Court of Appeals was equally enthralled by—the assumption that an

intentional impact must have occurred, based on the same triad of symptoms that

are not sustainable to support SBS.

Ms. Wolfe presented to the trial court a peer-reviewed medical opinion

evidence (9 R. R.: Defense Exhibit 15) with the following relevant conclusion: “It

appears that the weight of evidence, bold old and new, suggests that increased ICP

is a valid, common and predictable cause of RH (retinal hemorrhage) and that

human shaking, by itself, in a healthy child, is insufficient to cause this.

Furthermore, children with perinatal SDH (subdural hematoma), or pre-existing

SDH of any cause, are prone to re-bleed, resulting in episodes of increased ICP

(increased intracranial pressure), new RH and more symptoms, which may occur

with minimal force applied to the head or with normal handling.” Steven C.

Gabaeff, M.D., Challenging the Pathophysiologic Connection between Subdural

Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome, West J Emerg. Med.

2011; 12(2) May 144-158. (emphasis added)

“IDH (intradural hemorrhage) can occur in response to a variety of primary

insults. However, if a child has a preexisting SDH (subdural hematoma) of any

etiology, and chronic SDH has developed, shaking or even normal handling can

result in spontaneous re-bleeding of the previous SDH (subacute or chronic SDH).

Vinchon et al (Vinchon M, Delestret I, DeFoort-Dhellemmes S, et al. Subdural
17 | Jennifer Banner Wolfe v. State, Appellant’s brief
Hematoma in Infants: Can It Occur Spontaneously? Data From a Prospective

Series and Critical Review of the Literature: Child Nerv. Syst. 2010) in 2010

found 10% of all SDH cases over a three year period at his institution (16 children

total) had spontaneous re-bleeds without evidence of abuse. Again the distinction

between the previously healthy child and the previously damaged child must be

made.” Id. (emphasis added)

“As has been noted, some examples of ‘contradicted scientific evidence

relied upon by the state at trial’ included arson, infant trauma, bullet-lead analysis,

bite marks, some ballistics tests, blood splatter patterns, and scent line-ups.” Ex

parte Robbins, 2014 Tex. Crim. App. LEXIS 2014 (Tex. Crim. App., November

26, 2014) (Johnson, J., concurring), rehearing granted, In re Robbins, 2015 Tex.

Crim. App. LEXIS 567 (Tex. Crim. App., May 13, 2015).

The State called Dr. Richard Roberts who opined that in his medical

opinion, the retinal hemorrhage combined with the tearing of the retina, and

combined with the avulsion of the bridging vein, were classically associated with

high-energy input to the head. (4 R. R. 203, 220) He based his opinion on the

presence of subdural hematoma with some brain swelling, retinal hemorrhages,

and also retinal tearing. (4 R. R. 227)

Dr. Roberts also noted from the CT scans a chronic, or “old bleed”. (4 R.R.

195, 199, 201, 238) According to Dr. Roberts, Jack must have had another prior
18 | Jennifer Banner Wolfe v. State, Appellant’s brief
hemorrhage, but according to Dr. Roberts the old blood would not have caused the

constellation or entirety of the injuries. (4 R.R. 222-23) Dr. Roberts further

acknowledged that there were two older bleeds, and both were subdural. (4 R.R.

239-240, 243) On cross-examination, Dr. Roberts unequivocally stated more than

once that his opinion that non-accidental trauma (child abuse) occurred was based

upon a patient with a subdural hematoma, retinal hemorrhaging, and brain

swelling. (4 R.R. 272-73, 280-81) However, Dr. Roberts agreed on cross-

examination that because of Jack’s prior brain bleeds, “we are not talking about a

healthy brain.” (4 R. R. 243)

The State also called Dr. Ann Ranelle, with Fort Worth Eye Associates, who

testified that Jack was referred for non-accidental trauma, and she examined him

for hemorrhages in his eyes. (5 R. R. 13) As to the unilateral hemorrhaging, Dr.

Ranelle candidly stated that it is seen in non-accidental trauma, and “nobody has

ever said to me a reason why it’s – there’s just – there’s nobody who can come up

with anything that describes this amount of traumatic injury to the eye.” (5 R. R.

55) Dr. Ranelle acknowledged on cross-examination that given the prior bleeds,

Jack was not a “completely healthy child.” (5 R. R. 88)

The State called Dr. Jayme Coffman, CARE Team medical director at Cook

Children’s Medical Center. Dr. Coffman testified that the avulsed or torn bridging

vein had to be from trauma. (6 R.R. 95-96) She also testified that the
19 | Jennifer Banner Wolfe v. State, Appellant’s brief
retinoschisis, observed by Dr. Ranelle, is “only seen in trauma”, but for “one case

of leukemia.” (6 R.R. 96) Ultimately, Dr. Coffman opined that in this case there

had to be “impact or shaking and impact.” (6 R.R. 105) Dr. Coffman explained

away the lack of external injuries circumstantially as impact on something

“padded”. (6 R.R. 105-106) Regarding any current scientific discussion or

uncertainty, Dr. Coffman claimed that there is “no unrest” in the pediatric world or

the pediatric ophthalmology world or the pediatric neurosurgery world, only in the

medical examiner or biomechanical world.2 (6 R.R. 108)

A trial court’s decision to admit expert testimony is reviewed for abuse of

discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A

trial court abuses its discretion when its decision lies outside the zone of

reasonable

disagreement. Id. Concerning the admissibility of expert testimony, Texas 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.” The

2
Dr. Coffman’s claim is unsubstantiated given Justice Ginsberg dissent in 11 v. Smith, 132 S.Ct. 2 (2011), and given
that the Court of Criminal Appeals recently recognized the current debate in pediatric head trauma. See Ex parte
Henderson, 384 S.W.3d 833, 834 (Tex. Crim. App. 2012).
20 | Jennifer Banner Wolfe v. State, Appellant’s brief
proponent of the scientific evidence must show, by clear and convincing proof,

that the evidence is sufficiently relevant and reliable to assist the jury in accurately

understanding other evidence or in determining a fact in issue. Gallo v. State, 239

S.W.3d 757, 765 (Tex. Crim. App. 2007), cert denied, 128 S. Ct. 2872 (2008).

The legal proposition that scientific evidence must be “reliable” in theory

and application, and the consequent correlation to fairness in prosecutions, cannot

be overstated. To underscore, as of January 2015, there have been 325 post-

conviction DNA exonerations in U. S. history. DNA Exoneree Case Profiles,

INNOCENCE PROJECT, http://innocenceproject.org/know/. In a 2009 study on

the first 232 exonerees, 156 men and women were identified as having trials in

which forensic evidence was presented. Brandon J. Garrett & Peter J. Neufeld,

Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1,

12 (2009). “An examination of the trial transcripts from 137 of those cases

revealed that 60% of the cases involved inaccurate forensic science testimony.”

Sabra Thomas, Addressing Wrongful Convictions: An Examination of Texas’s New

Junk Science Writ and Other Measures for Protecting the Innocent, 52 Hous. L.

Rev. 1037, 1038 (Winter 2015). “The Innocence Project, a national organization

dedicated to exonerating the wrongfully convicted, estimates that DNA testing is

not an option in 90% to 95% of criminal cases due to a lack of biological evidence

21 | Jennifer Banner Wolfe v. State, Appellant’s brief
that can be subjected to testing.” Id. There is no relevant DNA issue to later

correct any specious scientific conclusions used against Ms. Wolfe.

An Abusive Head Trauma (AHT) determination, just as Shaken Baby

Syndrome (SBS), is unique in prosecution because it relies upon three diagnostic

symptoms comprising the classic “triad” of symptoms: retinal hemorrhages;

subdural hemorrhages; and cerebral edema (brain swelling). According to the

State experts’ views in this case, this triad of physical findings was

pathognomonic (i.e., diagnostic of to the exclusion of other causes) for non-

accidental trauma. Their opinions were unreliable in part because there is far too

much documented retraction in the medical community associated with SBS

relative to this same classic triad of symptoms.

“Unlike any other category of prosecution, all elements of the crime—mens

rea and actus rea (which includes both the act itself and causation of the resulting

harm)—are proven by science. Degree of force testimony not only establishes

causation but also the requisite state of mind.” Deborah Tuerkheimer, The Next

Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 WASH.

L. REV. 5 (2009).

This Court granted relief and vacated a death sentence in Ex parte

Henderson, 384 S.W.3d 833, 833-34 (Tex. Crim. App. 2012). Henderson

involved an infant death where the applicant claimed at trial that the infant fell
22 | Jennifer Banner Wolfe v. State, Appellant’s brief
from her arms to the concrete floor, a distance of approximately four-and-one-half

feet. At trial the medical examiner, Dr. Roberto Bayardo, strenuously disagreed

that the infant’s death could have been accidental. Dr. Bayardo testified that “it

would have been impossible” for an accidental fall to produce the injuries

sustained by the infant. Dr. Bayardo testified “unequivocally” at trial that the

three-and-a-half-month-old child “came to his death as a result of a severe closed

head injury…characteristic of abuse, homicide.” Id. However, since the time of

trial, Dr. Bayardo changed his mind based upon “advances in the science of

pediatric head trauma.” Id. (emphasis added) Dr. Bayardo declared that, based

upon the physical evidence, he could not determine with a reasonable degree of

medical certainty whether the child’s injuries resulted from an intentional act or an

accidental fall. Id.

Dr. Bayardo further recanted that “because of recent scientific knowledge”

about how head injuries occur, he no longer believed if the injuries were from an

accidental fall, it would be the result of a fall from a height of over two stories. He

changed his manner of death finding from homicide to “undetermined”. The

applicant in Henderson also called two experts in biomechanical engineering who

both testified, “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 recent and still developing.” Id. (emphasis
23 | Jennifer Banner Wolfe v. State, Appellant’s brief
added)

Judge Cochran also cited the testimony of pediatric forensic pathologist and

medical examiner, Dr. Ophoven, who described a ‘pendulum swing’ in the

medical community with respect to pediatric injuries. “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

accidentally.” Id.

The expert in Henderson changed his opinion “based on medical advances”, and

based “upon advances in the science of pediatric head trauma.” Id., 384 S.W.3d at

834.

In Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied,

2012 U.S. LEXIS 3468 (U. S., May 14, 2012), habeas relief in a capital case was

denied. At trial, the medical examiner ruled the death caused by asphyxiation by

compression and the manner of death was homicide. At some point post-

conviction, the deputy chief medical examiner re-evaluated the autopsy findings

and changed the ruling from homicide to undetermined. The medical examiner

that performed the autopsy agreed with the change and explained that since her

original opinion she had more experience and had reviewed additional

information. Her opinion changed to manner of death of undetermined. Id.

In the dissenting opinion, Judge Cochran expressed her legitimate concern
24 | Jennifer Banner Wolfe v. State, Appellant’s brief
for convictions that rest upon specious forensic science. Id., (Cochran, J.,

dissenting). Judge Cochran, joined by two other judges, relied in part upon the

NATIONAL ACADEMY OF SCIENCES STRENGTHENING FORENSIC

SCIENCE IN THE UNITED STATES: A PATH FORWARD 112 (2009) (“NAS

Report), note 4; Daniel G. Orenstein, Comment: Shaken to the Core: Emerging

Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome,

42 ARIZ. ST. L.J. 1305 (2010) (arguing that the criminal justice system must be

prepared to reexamine cases in which the conviction, was based entirely or

principally, on unsettled science when the science evolves substantially enough to

undermine confidence in a verdict).

Judge Cochran also made the somewhat poignant comparison to an arson-

murder case in which the experts at trial were confident that the fire that killed the

victim was set intentionally, but later experts reviewed the evidence and science

and could not determine whether the fire was arson or not. It was a fire of

undetermined and undeterminable origin and not capable of being scientifically

determined as arson or accidental. Ex parte Robbins, 360 S.W.3d at 469,

(Cochran, J., dissenting).

In the Daubert/Kelly hearing Ms. Wolfe directed the trial court’s attention

(7 R. R. 8-9) to an overturned conviction in State v. Edmunds, 746 N.W.2d 590

(Wis. Ct. App. 2008), rev. denied, 749 N.W.2d 663 (Wis. 2008). A jury convicted
25 | Jennifer Banner Wolfe v. State, Appellant’s brief
Edmunds on the basis of expert testimony that the child died as a result of Shaken

Baby Syndrome (SBS). The state experts testified that only shaking, possibly

accompanied by impact could explain the injuries. Ms. Edmunds filed her motion

for new trial in 2006, asserting that there were significant developments in the

medical community around “shaken baby syndrome” in the ten years since her

trial. The appeals court granted Ms. Edmunds a new trial due to a “shift in

mainstream medical opinion.” Id., 746 N.W.2d at 598-99. The Edmunds Court

was persuaded that “the emergence of a legitimate and significant dispute within

the medical community” and “medical developments and literature” in the ten

years since her trial provided new evidence that created a reasonable probability

that a different result would be reached in a new trial. Id.

The New Mexico Supreme Court reversed a child abuse conviction due to

ineffective counsel assistance where counsel was denied funds for a defense expert

to challenge the state expert’s opinion that the child suffered intentional abuse.

State v. Schoonmaker, 176 P.3d 1105 (N. M. 2008), overruled in part, 332 P.3d

850 (N. M. 2014). The appellant contended the child had been injured after falling

from a couch, combined with the child’s medical history including premature birth

and subsequent hospitalization. In Schoonmaker the state presented no external

evidence of shaking such as a neck injury or ‘gripping’ injuries. The case is

notable because the New Mexico Supreme Court specifically acknowledged the
26 | Jennifer Banner Wolfe v. State, Appellant’s brief
“disagreement” in the medical community as to the amount of time between when

injuries occur and when the child becomes symptomatic, and “whether injuries

like Child’s can be caused by short-distance falls, particularly in light of Child’s

medical history.” Id. at 1114.

Also noteworthy—given the complete absence of any physical sign of

external injury to Jack—is the significance of Justice Ginsberg’s mention of

multiple sources all pointing to the consensus that the commonly held opinion that

subdural hemorrhage and retinal hemorrhage in an infant was strong evidence of

SBS was unsustainable. Cavazos v. Smith, 132 S.Ct. 2 (2011) (Ginsberg, J.,

dissenting); See Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of

Injury Mechanisms, 151 Forensic Sci. Int’l 71, 78 (2005) (“’Head acceleration and

velocity levels commonly reported for SBS generate forces that are far too great

for the infant neck to withstand without injury ….[A]n SBS diagnosis in an infant

…without cervical spine or brain stem injury is questionable and other causes of

the intracerebral injury must be considered.’”); Minns, Shaken Baby Syndrome:

Theoretical and Evidential Controversies, 35 J. Royal College of Physicians of

Edinburgh 5, 10 (2005) (“’[D]iagnosing ‘shaking’ as a mechanism of injury …is

not possible, because these are unwitnessed injuries that may be incurred by a

whole variety of mechanisms solely or in combination.’”); Uscinski, Shaken Baby

Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo) 57, 59 (2006) (“’[T]he
27 | Jennifer Banner Wolfe v. State, Appellant’s brief
hypothetical mechanism of manually shaking infants in such a way as to cause

intracranial injury is based on a misinterpretation of an experiment done for a

different purpose, and contrary to the laws of injury biomechanics as they apply

specifically to the infant anatomy.’”) Cavazos v. Smith, 132 S.Ct. 2 (2011)

(Ginsberg, J., dissenting).

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that the Court of Criminal Appeals reverse the judgment of the Court of Appeals

and remand this case for a new trial; or, in the alternative, remand this case to the

Court of Appeals for full consideration of the merits of whether the trial court

abused its discretion by admitting unreliable expert testimony on abusive head

trauma, and for such other relief as she may show herself deserving at law or in

equity.

Respectfully submitted,

DAVID A. PEARSON, P.L.L.C.

By: ______________________
David A. Pearson, IV
28 | Jennifer Banner Wolfe v. State, Appellant’s brief
 Attorney for Appellant
222 W. Exchange Ave., Ste. 103
Fort Worth, Texas 76164
(817) 625-8081
FAX (817) 625-8038
State of Texas Bar Card
Number 15690465
david@lawbydap.com

CERTIFICATE OF SERVICE

I hereby certify that upon submission for filing a true and correct copy of the
foregoing APPELLANT’S BRIEF was e-served to Hon. Tanya S. Dohoney,
Assistant District Attorney, Tarrant County District Attorney’s Office at
CCAAppellateAlerts@TarrantCounty.com and was e-served to Hon. Lisa C.
McMinn, State Prosecuting Attorney at information@spa.texas.gov, and a file-
stamped copy will be served by U.S. mail to the Appellant, Jennifer Banner Wolfe,
TDCJ#01776755, Lockhart Work Facility, P.O. Box 1170, Lockhart, TX 78644.

David A. Pearson, IV

CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with Texas Rule of Appellate
Procedure 9.4( e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document complies
with Texas Rule of Appellate Procedure 9.4 (i)(1)and (2)(B), containing
7,558 words, including the caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix. Signed on this the 2 November 2015.

___________________________
David A. Pearson, IV
29 | Jennifer Banner Wolfe v. State, Appellant’s brief