Opinion
WR-56,380-03
10-09-2024
EX PARTE ANDREW WAYNE ROARK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. W99-02290-L(C) IN CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS COUNTY
HERVEY, J., delivered the opinion of the Court in which RICHARDSON, NEWELL, WALKER, and MCCLURE JJ., joined. SLAUGHTER J., concurred. KELLER, P.J., filed a dissenting opinion in which YEARY and KEEL JJ., joined.
OPINION
HERVEY, J.
Andrew Wayne Roark, Applicant, was convicted by a jury of injury to a child and was sentenced to 35 years' confinement. This case involves a prosecution under the theory of Shaken Baby Syndrome (SBS). The State theorized that Applicant caused the infant victim serious bodily injury by violently shaking her and possibly striking her with or against something, respectively referred to as Shaken Baby Syndrome and Shaken Impact Syndrome. The defense argued that the injuries were caused by an old brain injury that began bleeding again either spontaneously or due to accidental trauma. In two issues, Applicant argues that he is entitled to a new trial under Article 11.073 of the Texas Code of Criminal Procedure and the Due Process Clause. We grant Applicant relief under Article 11.073 of the Texas Code of Criminal Procedure. The Applicant's conviction is therefore vacated and the case is remanded to the trial court for a new trial.
I. Background
Only July 16, 1997, the date of the offense, Applicant was babysitting his girlfriend's 13-month-old child, B.D. He was her sole caretaker that day. That morning, Applicant took B.D. to her 12-month-old appointment with her primary care physician, Doctor Padma Bala. Dr. Bala physically examined B.D. and found nothing wrong with her. Applicant and B.D. left the doctor's office and returned home at around 11:30 a.m. At 4:00 p.m., he called 911 because B.D. was unconscious, barely breathing, and near death. B.D. was transported to Methodist Charlton Medical Center in Dallas, where she was stabilized, then transported to Children's Medical Center in Dallas. She was later discharged after her brain swelling (edema) subsided, but B.D. suffered permanent brain damage.
A. Trial Theories
The State primarily argued Applicant hurt B.D. after they returned home from Dr. Bala's office. It conceded that there were no eyewitnesses to the crime, but it asserted that the medical evidence would show that B.D. was violently shaken and possibly struck against an object, which led to her brain swelling and eventually permanent brain damage. The defense primarily argued that the medical evidence would show B.D. sustained an injury two weeks before the day in question, which caused her brain to hemorrhage and a subdural hematoma to form. It further argued that, the day of the incident, the old injury began bleeding again (rebled), which when combined with the preexisting subdural hematoma, led to her injuries. According to the defense, the old injury rebled spontaneously, when she hit her head in the bathtub, or when she rolled off her toddler bed.
A subdural hematoma is a collection of blood outside the brain but within the skull.
B. Trial Evidence
1. State
Marcus Jennings, a DeSoto Fire Rescue paramedic, was dispatched at about 4:00 p.m. to respond to a report that a baby had fallen off her toddler bed and was unconscious. When Jennings arrived, he saw Applicant was holding B.D. on the porch. She was still unconscious. Jennings administered first-aid and noted that B.D.'s blood pressure and pulse were low. He also noticed that her pupils were slightly constricted, which he thought meant that B.D. might have a neurological issue. Jennings testified that Applicant asked to ride in the ambulance but that he told Applicant no because there was not enough room, which was not true. He said he lied because he saw fresh bruising around B.D.'s vagina and did not want Applicant in the ambulance. Jennings transported B.D. to Methodist Charlton Hospital.
Doctor Brenna Nance, who worked in the emergency room of Methodist Charlton Hospital, was the first doctor to treat B.D. She testified that B.D. was minimally responsive, had difficulty breathing, and an elevated heart rate. Dr. Nance also saw that B.D. had bruising in her genital area. After Dr. Nance stabilized B.D., she arranged for B.D. to be transported to Children's Medical Center for further treatment. Dr. Nance wrote in her notes that she suspected child abuse based on the extensive bruising and sudden onset of devastating neurological problems given that B.D. appeared healthy that morning according to the history provided to her by Applicant.
In Dr. Nance's notes, she wrote:
13 m/o female BIB [brought in by] ambulance after being found by father with AMS [altered mental status]. Father states the child was fine until today. She had a well-baby check at PMD Dr. Bala at Baylor Mesquite and had vaccinations. She then went home for a nap and when father checked on her, she could not be aroused. N[o] hx [history] of fever. No hx of recent trauma but child fell and struck her head two weeks ago. No [nausea], No witnessed seizure activity. Positive problems breathing and foaming from the mouth.
I would also deny relief on Applicant's due-process claim because he has not shown that the scientific testimony at trial-which comported with the known science at the time-was false. See Ex parte Robbins, 360 S.W.3d 446, 460-63 (Tex. Crim. App. 2011). Because the Court does not grant relief on the due-process claim, I do not further detail my reasoning.
Doctor Kathleen Murphy, the head of the pediatric intensive care unit at Children's Medical Center and the first doctor to treat B.D. there, said that she immediately ordered a diagnostic examination, including a CT scan, and that she examined B.D. and saw that she had a retinal hemorrhage in her left eye and possibly her right, as well as fresh bruising in the genital area. Because of the bruising, Dr. Murphy called REACH, a team of doctors who worked in the hospital and specialized in child-abuse investigations. She learned a few days later that B.D. had not been sexually assaulted.
According to Dr. Murphy, the CT scan showed both acute and chronic blood. The acute blood was from a subdural hemorrhage on the left side of B.D.'s brain, which was causing it to swell and push the right side of her brain against the inside of her skull. Dr. Murphy did not believe that slipping in the bathtub or rolling off a toddler bed could have caused B.D.'s injuries. Dr. Murphy testified to the following regarding what could cause B.D.'s injuries:
Acute blood is three-days old or less.
Chronic blood is more than three-days old.
Dr. Murphy wrote:
V was a previously healthy child who -- a thirteen[-]month old, who was seen by her pediatrician that morning and apparently was deemed healthy. She was at home with her primary caretaker who was her mother's boyfriend, her mother was at work. The caretaker bathed her and she apparently fell from a sitting position in the bathtub and hit her head on the side of the bathtub, but she did not go under water or lose consciousness and she appeared normal afterwards. She was put to bed for a nap, and when she was -- she was difficult to arouse and was napping longer than usual, her caretaker tried to awaken her and it was unclear at the time. The history was she also fell from the bed that was one to two feet off the ground or she was awakened from the bed. But the caretaker then called 911 because she was not awakening.Dr. Murphy did not remember who she obtained the history from, but she knew that it was not Applicant because he was in jail at that time.
Q. A brain injury of the magnitude that this baby had, have you seen that in other patients?
A. Yes.
Q. And in the other patients that you've seen, did some of them have histories that would explain the injury and some have histories that don't explain the injury?
A. Correct.
Q. And the histories that explain that type of injury, what kind of histories are those?
A. Those are high speed impacts, like in motor vehicle accidents, falls from usually a second story house. I mean, these are just examples. You can see it
-- I have seen it on children riding bicycles without helmets, who fall going -- or reportedly going fast.
Q. What about babies, though?
A. Babies who have this kind of head injury, given that they can't attain rapid speeds without the help of an adult or a larger person, typically are either involved in a motor vehicle accident or a fall or nonaccidental trauma. That's typical.
(4 RR 139).
Dr. Murphy repeated this assertion multiple times when testifying.
(4 RR 148, 167-68, 179).
Dr. Murphy also testified B.D. would have had obvious physical neurological symptoms if her brain had been swelling when Dr. Bala examined her earlier that day. Dr. Murphy also testified that subdural hematomas usually heal as a person's body reabsorbs the blood but that sometimes there can be more bleeding if the body has difficulty. Dr. Murphy thought that the combination of B.D.'s retinal hemorrhages and edema were consistent with B.D. having been shaken or struck against something, especially when she compared the injuries to the medical history provided to her, which she thought did not line up.
Doctor Janet Squires was the Director of General Pediatrics at Children's Medical Center, and treated B.D. after Dr. Murphy stabilized her in the Pediatric Intensive Care Unit. During Dr. Squires's physical examination, she noted retinal hemorrhages in both of B.D.'s eyes and bruising in the genital area. She explained that, while some retinal hemorrhages are common, like "flame hemorrhages," which are caused when tiny blood vessels in the eye break, B.D. had "big blobs of blood" in her eyes, which are usually associated with major trauma, including Shaken Baby Syndrome (SBS). Dr. Squires wrote in her notes that she thought the genital bruising was "most consistent with a pinching or grabbing mechanism, and suggests to me physical abuse used at the time of cleansing of the diapered area."
Doctor Squires testified to the following regarding the specific retinal hemorrhages she observed and its association with SBS:
A. . . . In this case, you could see these big blobs of blood. And the significance are that they are broken blood vessels and there's several things that can cause them, but it is very -- and particularly the kind that we saw are associated with major trauma. They are actually very, very classically seen in the Shaken Baby Syndrome.
Q. And what is it about the type of retinal hemorrhages that you saw?
A In many conditions the retinal hemorrhages are called flame hemorrhages. They're little hemorrhages, they're just like little broken blood vessels. That's what we most typically see with infections and some of the other things. What was different about this is there were big -- they called them dot blots. They're big globs of blood. And that is very, very characteristic of trauma. And that was what was unique to this or classical about these findings.
Q. And how does the presence of retinal hemorrhaging help your diagnosis?
A. It helps a lot in that retinal hemorrhages - - Again, there's a lot of things that cause retinal hemorrhages, but when you see these retinal hemorrhages it is very classic and it is literally thought now that the eyes themselves, in this rotational motion, that the retina is actually -- they separate sometimes a little bit and you tear blood vessels. Just like the damage to the brain, you literally are tearing blood vessels and then you get these kind of blood clot, dot blot feature which is almost pathognomonic for child abuse. It's not
seen in very many other things, although you could think of certain things.
(5 RR 61-62).
Doctor Squires states that there are potentially other causes for a retinal hemorrhage such as a major car accident, cardiopulmonary resuscitation, infections, bleeding disorders, etc. However, she stated "this particular pattern, it's very hard to think of much else besides trauma, and a lot of trauma." In addition, the increase in intracranial pressure from the bleeding subdural hematoma would only cause a "small amount of hemorrhages around the optic disc."
(5 RR 101-02).
(5 RR 197).
Dr. Squires testified that B.D.'s CT scan "was very abnormal, full of brain swelling" and that B.D.'s brain had shifted across the midline. She also saw "abnormal fluid collections over the top of the brain, some of which was clearly fresh blood, and some of which was an abnormal collection interpreted as old blood." Dr. Squires suspected that the old blood was probably from a previous shaking event but provided no evidence to this claim. Her testimony read as follows:
Q. In this case with [B.D.] what was the significance of the old blood that was found?
A. It was an abnormality and it needed to be explained. And in my assessment the most likely - - in my assessment the most likely thing is that this was old blood from - - probably a previous shaking event that had not come to medical attention.
(5 RR 97).
When asked whether the acute blood could have been from a rebleed of an old injury, Dr. Squires said no because the brain swelling was "all fresh and new . . . ." When asked later (when she was called as a State's rebuttal witness) if an old brain injury can rebleed, the following exchange occurred:
A. It's controversial and it's rare, but everybody suspects that there are some children who have abnormal spaces over the brain, usually it's like after a brain tumor is removed or something, who have abnormal spaces that either spontaneously or sometimes after a minor fall that get a little bit of fresh blood. And that is pretty well accepted.
Q. And in this particular case would that be applicable or-with regard to [B.D.]?
A. No.
Q. Why not?
A. Well, it doesn't cause brain injury. If these kids present they usually have headaches, sometimes they have a seizure, they can have a little vomiting or something like that, and it's from that scenario that people get a CT scan and see this. It has nothing to do with their baseline neurologic status. They do not become comatose and they don't have edema. I mean, where the whole brain swells up and shifts. And, also, typically when we see this it's a small amount of blood usually in a fairly localized area in an abnormal space.
A. As I commented on, this whole area about rebleed is controversial and there are a lot of studies and people are trying to pick out children with abnormal spaces and do serial CTs and follow them. If it occurs, some people don't even think it occurs, but if it occurs it's rare and the amount of blood is a very small amount of blood. Veins, these bridge veins are thought to be stretched and possibly bleed into a little bit and leak into the abnormal space area. I do believe it and I have seen it and I have made that call in other children, but I don't think it's at all appropriate to a neuro[-]devastated child like this.
Q. All right. And you mentioned earlier that you would not expect to see edema. What about [B.D.]'s case is not-does not fit with that rebleed scenario?
A. This whole brain was swollen. It was all shifted over. It was so swollen that later on the blood couldn't get through and parts of the brain died. So, I mean, that's not at all what you would see with a rebleed. There is a little bit of fresh blood.
(4 RR 141-43).
Dr. Squires concluded that B.D. had been shaken because B.D. was "totally normal" at Dr. Bala's office, but she was unconscious and near death by 4:30 or 4:45 p.m.
Dr. Squires also said that the X-ray was "absolutely classic for shaken baby [syndrome.]" She testified the following:
(5 RR 70).
Q. Dr. Squires, we need to talk about the type of force that's necessary to create an injury like this in a shaking mechanism or a striking mechanism. What is the type of force that causes this injury?
A. The type of injuries that were seen on the CT scan here are caused by vigorous shaking forces. They are movement forces of a rotational nature that cause tearing of some veins, which cause bleeding, but the injury is really to the brain, to the brain tissue itself, particularly the axons. So it is vigorous shaking motion of the head that causes these types of injuries in young children.
A. The act is one of picking up a child and extremely vigorously shaking the child so that the head is flopping back and forth. And in most cases, although not all cases, there's an impact. The shaken baby syndrome is sometimes called shaken impact because we think in most cases there's a slamming
event where the head, which is moving fast, suddenly stops, and perhaps that's where a lot of the injury occurs.
(5 RR 8-10).
She went on to testify there was no evidence of an impact to B.D.'s head. Dr. Squires testified to the following:
Q. Did [B.D] have any external injuries in her head?
A. No, other than this which was older.
Q. There was no skull fracture?
A. No. No skull fracture.
Q. And what's the significance of that?
A. If there had been a skull fracture we could say that there had been an impact. Either she had been against something or something had gone against her head. Without that you really can't assess that there has been that impact for sure.
(5 RR 71).
Dr. Squires testified that SBS was a well-documented theory and had been widely accepted since the 1960s. According to Dr. Squires, the brain sits in cerebral fluid and can move, but it is connected to the dura, which is fixed in place, by small blood vessels all over the outside of it called "bridging veins." And it is thought, Dr. Squires explained, that those vessels stretch and can break when a child is violently shaken. Dr. Squires testified that the primary injury with SBS is usually the stretching and shearing of axons, which is called a Diffuse Axonal Injury (DAI), not subdural bleeding. According to her, axons are long nerve-fibrous connections that run from brain cells on the surface of the brain down through the base of the brain, into the spinal cord, and out to the arms and legs. She also noted that a DAI implies brain-cell death, not just subdural bleeding.
Dr. Squires explained that,
The baby's head -- Our head is about a seventh of our weight, but a baby is a quarter of their weight and they have very weak neck muscles. And, so, when a baby is shaken their head flops back and forth like this (indicating), and the rotational forces through the brain literally sort of shear the tissues of the brain. And then there is some -- sometimes there is hemorrhaging, sometimes it swells and blood can't get through, so the damage is really the brain damage. Overlying that is often some blood, and the blood results from the tearing of the bridging veins that go between the brain and the membranes, the dura and the bony parts. So, when you shake a baby these blood vessels get broken and then there's blood over the top of the brain. And both of them can cause damage, but by far the most part of the damage is the brain itself.
Dr. Squires testified that,
In the wiring of the brain is what's called the gray matter, which is what's on the outside, and then the part of the brain deeper [sic] is the white matter. And there are nerve tracts and all these connections then go into these long fibers that come down through the base of the brain, through this tiny opening, and go down to our spinal column, and then out to our arms and legs.
Dr. Squires also testified that B.D.'s injuries could not have occurred from a short-distance fall, and B.D. had definitely been shaken. She testified to the following.
Q. Dr. Squires, do you have an opinion whether this was accidental or non-accidental trauma?
A. Yes.
Q. And what's that?
A. My opinion is it's non-accidental.
Q. An injury of this nature, is that something that a thirteen[-]month[-]old could inflict on herself?
A No.
Q. In this case are you able to determine if she was just shaken or if she just had an impact, one or the other?
A. In this case, no. I can say she did not just have an impact. (emphasis added)
Q. Okay. Is it possible that she had a shake and an impact?
A. Yes.
A. In my education and attending meetings, to me it seems that at the current time most experts don't think you have to have an impact, although that probably happens most of the time. So, they're used sort of synonymously. We think most of the injury is the shaking, but perhaps in the stopping of the shaking there is quite a bit of damage done.
Q. So, the history that you had was that she had fallen backwards in the bathtub from a sitting position?
A. Yes.
Q. Is that fall backwards, is that going to cause the type of head injury and brain swelling that Brook had that day?
A. No. That's not consistent with the injury.
(5 RR 110, 113, 70, 167-68).
Dr. Squires also testified that B.D. would not be neurologically normal, or have a lucid interval, between the time of the injury and being brought to the emergency room. This pinpointed the time of the injury which caused B.D.'s injuries to have occurred (and been neurologically continuous) between the pediatric appointment and arriving for emergency care. Dr. Squires testified as follows.
Q. Based on the history that you have that she was seen by the pediatrician earlier that day, what is your opinion on when this injury took place?
A. After this injury this child would not have been neurologically normal. Very quick. It would be hard to date this, to say four hours, or six hours, or twelve hours with great certainty, but after this injury she wouldn't have been normal. . . . as I've stated in my affidavit, I think we can say that this injury occurred on that day between 12:30 and 4:30 or the time after the doctor's visit until the time she presented into the emergency room.
A. When you sustain this amount of injury, you don't walk and talk and do normal things. And any person seeing a child after this would have known she was abnormal.
(5 RR 108-09).
Doctor Nancy Rollins, a pediatric neuroradiologist, consulted with Dr. Squires and reviewed B.D.'s CT scan. She saw chronic blood on the left side of B.D.'s brain and acute blood that was underneath the chronic blood and went "all the way up over the top of the head" between the two halves of the brain. It also showed that the left side of B.D.'s brain was swollen, which was compressing the ventricle at the midline of the brain. According to Dr. Rollins, bleeding in the subdural space is caused by a pretty severe accident or severe non-accidental trauma. Dr. Rollins concluded that B.D.'s injuries were consistent with SBS as seen in the following testimony.
A. The Shaken Baby Mechanism is physically taking of the child and shaking back and forth, often by the neck, and that causes - the baby's head is big, relative to the size of the neck, the baby doesn't have good strength in the neck muscles, and it causes kind of a whiplash injury to the baby's brain.
Q. And are the injuries you saw in [B.D] consistent with that type of violent injury?
A. Absolutely.
(5 RR 208).
Doctor Rollins also reiterated the assertion that B.D.'s injuries were not possible from a short-distance fall in the following testimony.
Q. No. What I mean, I guess, is if you see this type of injury and you heard a history that you thought would be consistent with this type of injury, what kind of history do you think you would hear?
A. Major car accident, child falling from a two story building, that kind of severe injury could potentially cause that.
(5 RR 205).
B.D.'s brain swelling eventually began to subside, and she was discharged to the Baylor Institute of Rehabilitation, an in-patient facility, where she stayed for about six weeks before being discharged to attend out-patient rehabilitation.
Doctor Frank McDonald, who was board certified in pediatrics and physical medicine and rehabilitation, treated B.D. at the Baylor Institute of Rehabilitation. He testified that B.D. could not do much more than roll over when admitted. Dr. McDonald believed that B.D. did not sustain a DAI based on the earlier scans or from an MRI he and another radiologist read. He also said that "[a]s a rule, DAI . . . is associated with prolonged or longer length of loss of consciousness or coma, and [B.D.] was not unconscious for that long of time," and that "her recovery was quicker than I usually see with DAI." But, he said, that she still had significant problems when she was discharged to outpatient rehabilitation, including difficulty using her right arm, hand, and leg for fine motor skills. Dr. McDonald testified that his "assumption from the history and the retinal hemorrhages were that the baby was battered."
Investigator Michael Crum was dispatched to the home after Applicant called 911. When he arrived, Jennings (the original paramedic) was already there. Crum saw that B.D. was having difficulty breathing and noticed the bruising in her genital area. Applicant told Crum that he had been taking care of B.D. since about 8:00 a.m., that he took her to her doctor's appointment late that morning, and that everything was fine when they left the office at about 11:30 a.m. He also told Crum that he found B.D. on the ground unconscious when he went into her room to wake her up after a nap at about 4:00 p.m. After they spoke, Applicant and Crum went to Methodist Charlton where Dr. Nance was already treating B.D.
Sergeant Carl Smith was dispatched to Methodist Charlton. When he arrived, Applicant and Crum were already there. Applicant told Sgt. Smith that he drove his fiancé (Bridgette) to work with B.D. that morning, then returned home with B.D. and put her down for a nap. He also told Sgt. Smith that Bridgette called him later that morning and told him to take B.D. to her doctor appointment, which he did, and that he left the office with B.D. at about 11:30 a.m. According to Applicant, he gave B.D. a bath that afternoon, which is when she slipped and hit her head while sitting down, then he put her down for a nap because she seemed fine. She was fine, he claimed, when he checked on her while she was napping, but when he walked into her room to wake her up just before 4:00 p.m., he found her on the ground. Sgt. Smith asked Applicant about B.D.'s bruising, and he responded that he saw the bruises the night before but did not know where they came from. He suggested that B.D. fell a lot and that she might have fallen while she was playing.
As we note later, Bridgette testified that B.D. had no bruises when she left for work the morning of the offense.
B.D.'s maternal step-grandmother, J.D., also testified. She said that Bridgette and Applicant used to live at her house but that the couple eventually started staying at the Applicant's parents' house. She also said that Bridgette stopped talking to her after the incident and that she thought it was because they had "different opinions" about what happened. According to J.D., she initially believed that Applicant was a good father figure, but later she noticed that B.D. would cry when Applicant held her. J.D. testified that she was the first family member (other than Applicant) to arrive at the hospital, and Applicant told her that he found B.D. on the floor unconscious when he entered her room to wake her up. J.D. said that Applicant was "real quiet" at the hospital, and it was like he had "no reaction." She also said that she overheard Applicant tell Bridgette that B.D. had slipped in the bathtub, and Bridgette asked Applicant why he did not tell her. J.D. testified that she heard Applicant tell Bridgette that he forgot.
2. The Defense
The first defense witness was Doctor John Brett Dietze, B.D.'s neurosurgeon at Children's Medical Center. He was brought in to drain the blood in B.D.'s subdural space to relieve pressure on her brain. Dr. Dietze could not remember if the blood he drained was old or new, but his records showed that B.D. had a left-frontal chronic subdural hematoma measuring 8 millimeters.
Doctor Allen Marengo-Rowe, the Director of Special Hematology and Transfusion Medicine at Baylor Medical Center, also testified. He was a pathologist and board-certified hematologist, and he testified about the effects of edema, the body's fibrinolytic system, and rebleeds. Dr. Marengo-Rowe explained that "any hemorrhage or any clot, any space-occupying lesion inside the head is bad news" and can cause edema because "the head cannot expand." He explained, however, that the body has a system to dissolve clots called the fibrinolytic system. He testified people are particularly susceptible to spontaneous bruising or rebleeding when the fibrinolytic system is active. According to Dr. Marengo-Rowe, no doctor now could become a board-certified hematologist if they did not know about the fibrinolytic system and how it can cause rebleeds.
Dr. Marengo-Rowe also testified about DAIs and retinal hemorrhages. He said that DAIs tend to cause permanent brain damage, whereas a patient might recover from subdural-hematoma induced edema in only a few days if the blood is drained. He explained that people who sustain DAIs quickly exhibit neurological symptoms, like loss of consciousness, but that people who sustain a subdural hematoma might not exhibit neurological symptoms for weeks, if at all. Dr. Marengo-Rowe testified that he did not know if B.D. sustained a DAI or was only suffering from a subdural hematoma because DAI can only be definitively diagnosed after an autopsy. He also said that retinal hemorrhages are common with SBS, but that they also frequently occur other ways, like from edema, when a person experiences apnea, or even after a bad cough or a large bowel movement.
Doctor Robert Bux, the Chief Deputy Medical Examiner for Bexar County, was the primary defense expert witness. He testified that, when a DAI is sustained, the long tail of axons break and rupture, then "curl[] up into a little ball . . ." and die. According to him, some people think that violently shaking a baby can cause a DAI because SBS is an "acceleration/deceleration" injury, but he did not believe that a person could shake a child with sufficient force. He said that people generate only about 8 to 9 G forces shaking something with their hands and arms, but "you need somewhere around 250 or 300 G forces" to cause a DAI. Biometrically, it did not make any sense, based on what was done in the laboratories, to think that simple shaking can cause that kind of injury to the brain. He also noted that people who sustain DAIs experience a rapid onset of symptoms, such as a loss of consciousness or obvious neurological deficits: "It's like a light switch going out . . . ." He did not think that B.D. sustained a DAI because there was no evidence of cortical atrophy, and the clinical course did not support it. Dr. Bux testified the following:
Dr. Bux said he was also aware of literature, including a paper by B.D.'s attending neurosurgeon's partner that SBS usually is not caused by shaking alone.
Dr. Bux testified that,
[N]obody has taken babies and tried to see what would happen. But they have taken models, while not exactly the same as a baby, at least weight-related and flexibility-related the same as various ages of infants, and then measured the amount of G forces that somebody could get by either shaking the model or by impacting it on a surface.
And what they found was that shaking it, they could only get 8 to 9 G forces, which is about the same kind of G forces that a fighter pilot pulls in a steep dive.
They also found that if you impacted it on something that was soft, you'd get well over 300 G forces, and then if you did it on something that was round and hard, like, say, an ungiving metal bar, that you could increase the G forces about another 20.
So biomechanically, it doesn't make any sense. Based on what was done in the laboratories, to think that simple shaking can cause that kind of injury to the brain.
On the 19th, which is two and-a-half days after she's admitted, she's transferred to the floor. She's alert. She's feeding. She's moving. In the next few days she starts saying words, becomes more active. She's discharged to rehab and by the end of rehab is walking and moving everything, and the only real deficits that are apparent are eye deficits which are a consequence of that part of the brain being lost due to the compression of that artery.
There was some weakness that was found on the right side and again that goes with the same area of the brain, but that resolved fairly quickly, and the big thing is, she's alert and eating and moving and progressing, and that's not what you see with somebody with [DAI].
Those people stay in a coma for a long time. If they're ever going to come out of it, they'll slowly come out. They typically will stay neurologically devastated for the rest of their lives.
. . . Again, the areas that are defected by her are the areas that are just in that one area that's ischemic from the pressure. The rest of her brain appears to be working normally and that would not be in keeping with somebody that had a [DAI].
(7 RR 140-41).
Dr. Bux agreed that rebleeds can happen due to minor trauma or even spontaneously, and he agreed that falling in a bathtub is the type of "seemingly inconsequential" trauma that could cause a rebleed. Dr. Bux thought that B.D. sustained a subdural hematoma as long as four to five weeks before the incident and that it rebled spontaneously or due to minor trauma, eventually preventing blood from passing through the left parietal occipital region, which died as a result. He determined that the rebleed could have happened "anytime, certainly, up to 48 to 72 hours . . . ." before B.D. lost consciousness.
The defense also called Mickie Roark (Applicant's mother) to testify. She said that she was at the house when Applicant left to drive Bridgette to work the morning of the incident and that she left afterwards. The next time she spoke to Applicant that day, she said, was at about 1:00 p.m. when she called to see how B.D.'s doctor's appointment went and to make sure that Applicant told Dr. Bala that B.D. was running a temperature the night before. Mickie next spoke to Applicant at about 3:00 p.m. to tell him that she was headed home but was stopping at the grocery store first. While they were on the phone, Mickie heard B.D. making noises in the background and asked Applicant to put B.D. up to the phone so she could hear B.D. better. When Mickie arrived home, three police officers were there. They asked to look around the house, including to take pictures of the bathtub and where B.D. slept and to measure the height of the bed off the ground. Mickie testified that she voluntarily let them in and that, while they were in the house, Applicant called. Mickie said that she told Applicant to tell the doctors everything that he could remember. Shortly thereafter, Mickie's husband returned home, and they drove to Children's Medical Center.
When Mickie arrived at the ICU, she said that she saw Dr. Dietze talking to Bridgette and Applicant. He was telling them, according to Mickie, that he had just drained blood from B.D.'s subdural area that was "two and a half weeks old," and Mickie said that she told Dr. Dietze that two weeks earlier B.D. fell and hit her forehead on the edge of their coffee table, leaving a mark. Mickie also said that she spoke to Dr. Murphy at Charlton Methodist and quickly realized that she had gotten only a "very brief history from Bridgette." Mickie was a registered nurse and thought that Dr. Murphy also needed to know that B.D. had tubes inserted into her ears a week before and that B.D. developed two bruises on her head that were obviously thumb prints left where the anesthesiologist would have pulled back her head to sedate her. Mickie thought those things were important because B.D.'s bruising, in her experience, was abnormal for a toddler. She also wanted to ask Dr. Murphy if she was going to get a hematology consult "because [she] felt like this bleeding was very scary and not expected, I mean, unusual." To Mickie's knowledge, Dr. Murphy never consulted with a hematologist. Mickie testified that she told Dr. Squires about the coffee-table incident and ear surgery and that she also asked Dr. Squires to get a hematology consult, but she never did. Mickie said that, when she asked Dr. Squires if she was going to investigate possibilities other than SBS, Dr. Squires "[v]ery clearly" responded "absolutely not, she was finished." Mickie also disputed J.D.'s testimony that B.D. cried every time Applicant picked her up, noting that she spent a lot of time with Applicant, Bridgette, and B.D. since they were mostly staying at her house, and she said that she would not have left B.D. alone with her son if she did not trust that he could take care of her.
Applicant testified next. He said that he woke up at about 6:30 a.m. the morning of the incident, then woke up Bridgette and B.D. before driving Bridgette to work with B.D. After returning home with B.D., Applicant said that he laid down on the couch in the living room and watched television with B.D. until his mother (Mickie) called him around 9:30 a.m. to remind him about B.D.'s doctor appointment and that he told a nurse at Dr. Bala's office that B.D. had a bad diaper rash, diarrhea, and a fever the night before. According to Applicant, he and B.D. left Dr. Bala's office around noon, then he fed her ravioli when they arrived home, and his mother called while B.D. was eating. Applicant decided to give B.D. a bath, he said, because she had ravioli on her face and in her hair. Applicant claimed that this is when B.D. slipped backward while she was sitting in the bathtub and hit her head. Applicant also testified that B.D. cried but that he put her down for a nap because she quickly calmed down and was acting normal.
Applicant testified that he checked on B.D. a few times while she was sleeping and that his mother called again at 3:00 p.m. to check in. Applicant said that, while he was on the phone with Mickie, he went into B.D.'s bedroom to wake her up because Applicant needed to pick up Bridgette from work, but he decided to leave her in bed a little longer and to watch television in the living room for 15 to 20 minutes because she was still tired. When he entered B.D.'s room to wake her up, Applicant said that he found her on the ground beside her bed. At first, Applicant thought that she had climbed down when he went into the living room to watch television, but then he noticed that she was face down on the comforter on the ground next to the bed. He said that she was limp and pale when he picked her up and that she had a little blood in her mouth. He thought that was because she bit her tongue. Applicant said that he immediately tried to rouse her, and he called 911 when he could not. That was at about 4:00 p.m. Applicant testified that he administered CPR while he was on the phone with the dispatcher, tilting B.D.'s head back, checking her airway for blockages, and blowing into her mouth three times. The State played the 911 recording, and Applicant identified at which point during the call that he began to administer CPR. However, the State continued playing the tape, and Applicant told the dispatcher a few seconds later that B.D.'s jaw was locked, at which point Applicant conceded that he could not recall exactly when he administered CPR.
Bridgette testified that Applicant drove her to work with B.D. at about 8:00 a.m. and that she called Dr. Bala's office about an hour later to schedule B.D.'s yearly checkup and because B.D. had a fever the night before. She also said that she called Applicant after she hung up with Dr. Bala's office and told him about the appointment. She and Applicant spoke again at 1:30 p.m. when she called to see how the doctor's appointment went. Applicant told her that everything was fine and that B.D. was eating ravioli. They next spoke between 4:00 and 4:15 p.m. when Applicant called and told her about B.D. and that she needed to go to Charlton Methodist Hospital at once. Bridgette said that she arrived at the hospital between 4:30 and 4:45 p.m. She could not visit B.D. in the ICU, but someone told her that B.D. was being transported to Children's Hospital, and she rode in the ambulance with B.D.
Bridgette said the doctors in the ICU at Children's Hospital told her they needed a CT scan of B.D.'s head. She said that doctors showed her blood in B.D.'s cranial cavity and told her that it needed to be drained. Bridgette, Applicant, his parents, and his sister all waited in the waiting room with several other family members. Bridgette testified that four to five hours later, Dr. Dietze announced that the procedure went well, and she told him about B.D.'s ear surgery three weeks earlier and the bruising on her chest, jaw, face, and behind one of her ears after the surgery. She also told Dr. Dietze that a week after her surgery (two weeks before the offense), B.D. hit her head on a coffee table. Bridgette said that Children's Hospital discharged B.D. to Baylor Rehabilitation Center, where B.D. stayed for about six weeks, before being discharged to attend outpatient rehabilitation. According to Bridgette, right before Applicant's trial began, B.D. was learning to speak Spanish, was getting good grades, and was getting good reports from her teachers. Bridgette agreed, however, that B.D.'s "right [arm], it doesn't -- It doesn't like to relax. It's real stiff, but she moves it around. She'll do flips and stuff, but if she's just standing like this, her arms tend to stay up."
Bridgette testified that Applicant babysat B.D. alone only a few times and for only an hour or two at a time before she moved into the Applicant's family home, but after he quit his job around the time of B.D.'s ear surgery, he spent a lot of time babysitting. She conceded, however, that Applicant's mother (Mickie) was with him most of that time because she took leave from work to be with B.D. after the surgery. When asked whether Bridgette had noticed bruises in B.D.'s genital area, she said that B.D. had no bruising when she left that morning, which concerned her, and when asked whether Applicant called her or 911 first, she could not recall. But when her memory was refreshed, she agreed that she previously testified that Applicant called her before he called 911 and that he was "frantic" and "crying" when he called. She also remembered that Applicant told her that he lightly "shook [B.D.] to see if she was responsive" after he performed CPR. When presented with a diary entry, Bridgette claimed that she did not type it, but later admitted that she did. It read,
Applicant testified that he saw bruises on B.D. the night before the offense.
Her memory was refreshed from a transcript of her testimony at a prior proceeding.
Everything was going as expected on Wednesday, July 16th, 1997, until about 4:20 p.m. That is about what time I got a phone call from my fiancé stating that my little girl was unconscious and barely breathing. My heart fell to the floor, as well as my mouth. Tears automatically formed, building up a rapid speed. Panic and confusion just took over every action of my body. I wasn't prepared to hear him crying on the other end of the phone telling me what he did. My main thought was what had happened. I told him to come get me, as stupid as realistically it really would have been. He hung up the phone. Everyone at work was in awe at my face, it being as white as a ghost and it being as still as a wall. I told them, my co-worker, what had been said. I noted the severity of the situation and what exactly happened. Then Ethel, my supervisor, brought it 27 to my attention that him coming to get me would be stupid. I completely
C. Closing Arguments
The State argued that the defense's rebleed theory was a hypothetical conjured by experts who never examined B.D. and that the argument that B.D. did not sustain a DAI was a red herring because none of the State's doctors diagnosed B.D. with a DAI. The State theorized that Applicant snapped because he was caring for another person's child, who was fussy and crying, had diarrhea, and threw food all over herself while she was eating ravioli. It also pointed out that Applicant said on the 911 call that he found B.D. five minutes before he called,
That's where the five minutes occur because no reasonable person is going to walk in and find a baby not breathing and immediately run to the phone and not call 911, unless you did something really wrong, unless you really screwed up and you know that you've hurt this child and you're going to get in big trouble for it.
(11 RR 40).
It also highlighted Dr. Squires's rebuttal testimony that, when retinal hemorrhages are sustained during CPR, they are caused by the chest compressions, but Applicant testified that he never performed chest compressions. The State also attacked the credibility of Applicant's witnesses. According to the State, Mickie and Bridgette lied to protect Applicant. Mickie lied about asking Dr. Murphy to run a specific hematology blood-clot test, and they both lied about the coffee-table incident. The State also argued that no one claimed that B.D. had fallen and hit her head on a coffee table until Mickie testified and that Bridgette lied about whether Applicant called her or 911 first, about whether Applicant shook B.D. when he was administering CPR, and about not writing the journal entry that appeared to implicate Applicant to at least some degree.
The test was to determine whether B.D.'s blood clotted within a time frame expected for a child her age.
The record actually shows that Applicant told Dr. Nance that B.D. had fallen and struck her head two weeks before the incident. However, her notes do not indicate what B.D. hit her head on. See supra, note 2.
The defense argued that Dr. Squires wrongly diagnosed B.D. with DAI, the type of injury that causes the immediate onset of neurological symptoms, because people who sustain DAIs do not recover as quickly as B.D. According to the defense, B.D. had a prior brain injury that spontaneously rebled or rebled after B.D. slipped and hit her head in the bathtub or after she rolled off her toddler bed, and the additional blood caused her brain to swell, leading to her injuries. It acknowledged that Dr. Bala gave B.D. a clean bill of health the morning of the incident, but it argued that the reason B.D. appeared fine was because her chronic subdural hematoma was not big enough to cause physical neurological symptoms. The tipping point at which the pressure in B.D.'s head began to increase and physical symptoms began to manifest, the defense claim. was after the rebleed.
II. Procedural History
Applicant was convicted of injury to a child in March 2000 and was sentenced to 35 years' imprisonment. He appealed to the Dallas Court of Appeals, raising eleven points of error, but the court affirmed his conviction. Roark v. State, No. 05-00-00584-CR, 2001 WL 1173916 (Tex. App.-Dallas Oct. 5, 2001, pet. ref'd) (not designated for publication). Applicant filed a petition for discretionary review, which we refused, and we denied relief on his initial writ application.
Three months later, Applicant filed a habeas corpus petition in the Northern District of Texas raising a variety of claims. Roark v. Quarterman, No. 3:06-CV-00714-P (N.D. Tex., filed Apr. 20, 2006); see 28 U.S.C. § 2254. He later filed a motion to abate so that he could return to state court to exhaust his claims that newly discovered scientific evidence contradicts the State's scientific evidence at trial and that he is actually innocent of the offense. The court granted the motion in July 2008.
In August 2008, Applicant filed a second state writ application, which we filed and set for submission, but we later dismissed it at Applicant's request once Article 11.073 became effective. Act of May 20, 2013 83rd Leg., R.S., ch. 410, § 1, 2013 Tex. Sess. Law Serv. 410, 410 (codified in the Texas Code of Criminal Procedure in Article 11.073). Applicant then filed his third writ application relying on Article 11.073. That application is the subject of this opinion.
In December of 2014, the habeas court filed extensive conclusions of facts and recommendations of law recommending that we grant Applicant relief on both Article 11.073 claim and due-process grounds. Tex. Code Crim. Proc. art. 11.073; Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (per curiam). Applicant submitted additional supporting evidence after the findings were entered, and two days of live hearings were held. These hearings focused on the new science involving rebleeds of subdural hematomas.
In April of 2019, the habeas court filed findings of fact and conclusions of law with the limited scope of reviewing rebleeds. This Court remanded the application back to the habeas court to fully brief all of Applicant's claims. The habeas court subsequently issued agreed supplemental findings of fact and conclusions of law recommending, again, that we grant relief under Art. 11.073 and on due-process grounds. We filed and set Applicant's third application for submission.
The habeas court concluded that Applicant's Article 11.073 claim was also based on new facts, but we need not address that issue because a new legal basis is sufficient to overcome Section 4(a)(1).
III. Subsequent Writ Bar
Section 4 of Article 11.07 prohibits this Court from considering the merits of, or granting relief on, a subsequent writ application unless the applicant can show a new legal or factual basis for bringing the claim or claims. Tex. Code Crim. Proc. art. 11.07, § 4(a)(1). There is no dispute that Applicant's application is a subsequent one and that Section 4(a)(1) applies. A legal basis is unavailable if it "was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state" on the date the previous application was filed. Id. art. 11.07, § 4(b). An applicant must allege facts that are "at least minimally sufficient to bring him within the ambit of that new legal basis for relief." Ex parte Oranday-Garcia, 410 S.W.3d 865, 867 (Tex. Crim. App. 2013). The same requirement applies when an applicant's claim is based on a new factual basis or bases.
The habeas court concluded that Applicant met his Section 4 burden as to his Article 11.073 claim because the claim is based on both new legal and factual bases. It did not address Applicant's due-process claim. Applicant filed his initial writ application in 2003 and his second writ application in 2008. Article 11.073 became effective in 2013. Plainly, Article 11.073 was not an available legal remedy when Applicant filed his most recent subsequent writ application. Also, Applicant relies on many affidavits from doctors, published articles in medical and law review journals, and testimony and exhibits from multiple new court cases dealing with the same issues. Part of that new evidence is the basis for his due-process claim: an affidavit from Dr. Squires in which she said that she would no longer testify that rebleeds are controversial, rare, or limited to children with abnormal spaces above their brains. Applicant has alleged facts that are at least minimally sufficient to show that he might be entitled to relief under Article 11.073 and on due-process grounds.
We now turn to the merits of Applicant's claims.
IV. Habeas Proceedings
Findings of Fact and Conclusions of Law from 2014 and 2019 are incorporated into the current, amended habeas application before the Court. The 2014 and 2019 findings have been reduced to primary points as all supplemented arguments before the habeas court will be discussed when discussing the current 2023 amended application. It should be noted the medical testimony, affidavits, and related literature is voluminous. Portions of each have been highlighted to illustrate the argument that science has evolved in these areas.
A. 2014-Findings of Fact and Conclusions of Law
The habeas court, in its original agreed findings of fact and conclusions of law, generally found that SBS, upon which the prosecution based the theory of the crime, is not a valid scientific theory based on current scientific knowledge. It also found that new scientific evidence supported the following,
• Short-distance falls can cause the injuries B.D. suffered,
• People cannot shake an infant hard enough to generate the force necessary to cause the injury seen in this case, and even if it could, the shaking would break the infant's neck,
• People can experience lucid intervals of up to several days after sustaining a head injury,
• Many causes of retinal hemorrhages are associated with accidental trauma, not just SBS, and
• Dr. Squires's testimony that rebleeds of a prior head injury rarely occur is inaccurate.
B. 2019-Supplemental Findings of Fact and Conclusions of Law Regarding Rebleeds and Dr. Squires's Partial Recantation
The habeas court's supplemental findings of fact and conclusions of law are narrower, focused on rebleeds of subdural hematomas and a recantation by Dr. Squires. The habeas court found that the jury convicted Applicant of causing serious bodily injury by shaking B.D. and that it rejected the defense's chronic-subdural hematoma rebleed argument based mainly on Dr. Squires's testimony. According to the habeas court, B.D.'s brain swelling was caused by a subdural hematoma, and if the jury had not heard Dr. Squires say that chronic subdural-hematoma rebleeds may not occur at all and that, if they do, they are controversial, rare, and limited to children with abnormal spaces over their brains, the jury would have had before it undisputed evidence of the likelihood that a rebleed caused B.D.'s condition.
It further found that Dr. Squires's testimony refuting the possibility of a rebleed was crucial to the State's case and that a jury "hearing this case today would learn from the State's own expert, as well as others, that rebleeding of chronic subdural hematomas in young children occur frequently [and] can be caused by minimal trauma or occur spontaneously." The court concluded that a jury today would probably find the defense's rebleed theory "significantly more convincing" and "very likely [would] have accepted it."
C. 2023-Supplemental Findings of Fact, Conclusions of Law, and Trial Court's Recommendation (Pursuant to Remand)
The habeas court incorporated previous findings. Applicant informed the court that he was withdrawing grounds 2, 7, and 8. Ground 2 was a claim of actual innocence. Grounds 7 and 8 were regarding Dr. Squires "fudging" on her affidavit. The habeas court heard evidence and made findings regarding Applicant's claims that relief should be granted under Article 11.073 due to new scientific evidence that was not available during Applicant's trial and which contradicted scientific evidence relied upon by the State. In addition, the habeas court addressed the recantation of a portion of Dr. Squires's testimony. The evidence heard was based around five primary contentions raised by the Applicant and the changing science around them. First, is whether short-distance falls can account for the injuries to B.D. Second, is whether shaking alone can cause B.D.'s injuries. Third, is whether B.D could have had a lucid interval after a subdural hematoma. Fourth, is whether B.D.'s subdural hematoma could have rebled without an assault by Applicant. Fifth, is whether B.D.'s retinal hemorrhaging was significant in pointing to Applicant committing an assault.
Short-Distance Falls
The habeas court found there was evidence presented at trial that B.D. had several short-distance falls which included hitting her head on a coffee table, hitting her head in the bathtub, and falling from a bed. The habeas court found that new scientific evidence greatly overwhelmed and contradicted the statements made by the State's medical professionals at trial. The evidence presented included affidavits and testimony from a variety of doctors including Dr. Cox, Dr. Plunkett, Dr. Galaznik, and Dr. Van Ee. In addition, the habeas court cites this Court's decision in Henderson, in which Dr. Plunkett and Dr. Van Ee also testified, as an acceptance of the scientific community's current view that short-distance falls can cause serious injury or death.
Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012).
Dr. Plunkett, a medical examiner board certified in Anatomical Pathology, Clinical Pathology, and Forensic Pathology, testified during a writ hearing in 2014. He was explicit that what the medical community thought-just a few years prior-was already changed regarding short-distance falls. He testified as follows:
Q. So would you agree that the current scientific knowledge really - - there's just no question that a short-distance fall could cause the type of injury that the child had in this case we're dealing with today?
A. There is no question.
Q. And - -
A. It doesn't - - it doesn't mean that that's what happened, okay, but there is no question that what Mr. Roark said happened could have occurred.
(p. 41, Jun. 17, 2019 supp.) (Dr. Plunkett's writ testimony, Dec. 17, 2014, p. 39).
In Henderson, the issue of whether a short-distance fall could have caused the child's injury was of major contention. The Court in that case held that advancements in relevant scientific knowledge called into question the belief that short-distance falls could not cause severe head injuries in children. The trial court made findings of fact regarding short-distance falls in conformity with Dr. Plunkett's testimony. The habeas court notes that this Court adopted the trial court's findings of fact in Henderson. Ex parte Henderson, 384 S.W.3d 833, 834 (Tex. Crim. App. 2012).
The medical examiner in Henderson, Dr. Bayardo, wrote an affidavit in 2007 recanting his testimony in part, which changed the manner of death from homicide to undetermined. The recantation read,
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.
Ex parte Henderson, 384, S.W.3d 833, 839 (Tex. Crim. App. 2012).
Dr. Plunkett testified as follows in Henderson.
Q. As a pathologist who has done intensive work in this area and now is an author and speaker and expert in the field, do you think it's scientifically plausible to offer an opinion on the cause of an infant's death in a case like this without any review or application of biomechanics?
A. Not today, that's not acceptable.
Q. Why not?
A. Unless your experience is in the area of bioengineering, very few physicians have the necessary knowledge to evaluate, to rigorously evaluate, [child-in-question's] injury. It's got to go beyond medicine.
Q. Could [child-in-question], in your opinion, have suffered a complex comminuted skull fracture from a drop of four feet-four and a half feet landing on the back of his head on a hard floor?
A. Yes.
Ex parte Henderson, 384 S.W.3d 833, 840-41 (Tex. Crim. App. 2012).
Dr. Galaznik, a board-certified pediatrician with a special interest in issues of alleged physical injury in infants and small children, stated in an affidavit the following regarding short-distance falls:
Since 2000, there have been videotaped short[-]distance falls that have resulted in death with subdural bleeding and retinal hemorrhage. Furthermore, the biomechanical research since 2000, has established that the accelerations and requisite forces which can be generated in a short[-]distance fall are adequate to result in subdural bleeding, retinal hemorrhages, and death. I am familiar with this biomechanical research and it is consistent with my opinion. The current scientific belief is that a short[-]distance fall can cause a subdural hematoma and death.
Dr. Galaznik referenced biomechanical research conducted by Dr. Van Ee who also provided an affidavit with a large amount of studies. Dr. Van Ee testified to these studies which ranged from mechanical tests to, sometimes disturbing, animal studies.
Dr. Matthew Cox, a pediatrician employed by the University of Texas Southwestern Medical School and successor to Dr. Squires as the director of the REACH Clinic at Children's Hospital, has also testified in a markedly different way regarding whether short-distance falls can cause injuries similar to those which B.D. suffered. In (expunged case), No. F05-35835-H from Criminal District Court No. 1 of Dallas County, Dr. Cox testified to the following.
The case referenced involved the defendant being found not guilty and was later expunged, therefore the name is not being used.
Q. Do you agree that a simple fall can cause a subdural?
A. Yes, it can.
Q. Do you agree that currently there is no established standard to determine the minimum amount of force it would take for a child to sustain a head injury from a short[-]distance fall?
A. Correct. We don't have the data. We can't do that study to quantify it, that's correct.
Q. There are documented cases and studies, I'm sure you're aware of, that children have died from short[-]distance falls?
A. Yes.
Q. From banging their heads on objects?
A. Yes, sir.
Shaking Alone Causing Injury
The habeas court found there was evidence presented by the State at Applicant's trial that shaking alone could cause the injury suffered by the child and that this injury is caused by shaking a child with extreme vigor that creates force similar to a high-speed motor vehicle accident or a fall from the second story of a building, as referenced in the previous section. The habeas court further found that there is no scientific validation to the claim that shaking alone can cause the injuries to B.D. The current science indicates there must be an impact. The evidence the court used to formulate this finding is based on changing testimony by State's witnesses in other trials, and medical professionals who testified or provided affidavits.
Dr. Rollins testimony in the case of State v. Maria Isabel Hurtado, No. F04-49745-L, from Criminal District Court No. 5 of Dallas County appears markedly different than her testimony in Applicant's case. Dr. Rollins testified to the following.
Okay. Initially, it was thought that the baby was shaken vigorously to and fro and that enough force was generated on the baby that - the head for babies is relatively big, compared to the body. The muscle in the neck are weak, and the head whiplashes back and forth. There were some studies done a few years ago, where they took poor baby gorillas and they tried to do the same maneuvering to see if a human being shaking a baby could generate enough G-force to actually do that. They concluded it was probably unlikely. That was in addition to the shaking. Because you just don't shake the baby and put them down in the crib and give them a pat on the back. Whatever. The tendency- they kind of threw the baby to the mattress or the couch or whatever. And so they felt it was probably a combination of shaking the baby and then throwing the baby, as well.
(RR Hurtado, September 29, 2005, pp. 149-150).
Dr. Chris Van Ee wrote an affidavit in support of scientific changes related to SBS. The following are relevant data he points out in assessing whether shaking alone can cause subdural hematomas, retinal hemorrhaging, and neurological symptoms. Dr. Van Ee wrote the following in his affidavit:
Since Mr. Roark's trial in March of 2000, there have been a number of important scientific studies that shed additional insight on the hypothesized mechanics of the shaken baby syndrome hypothesis, the head accelerations produced during shaking, and the head accelerations produced during low level falls.
Based on a review of the current scientific data, the hypothesis that shaking is likely to result in injurious angular acceleration/deceleration resulting in direct damage to bridging veins and diffuse axonal injury cannot be scientifically supported. While this was voiced in 1987 by Duhaime and colleagues, new studies since 2000 have further identified the lack of a scientific foundation for this shaken baby syndrome hypothesis.
After their publication in 2003, Prange, Coats, Duhaime and Margulies wrote regarding questions surrounding the hypothesis of shaken baby syndrome in the Journal of Neurosurgery ln 2004:
"… Therefore, we cannot yet answer if shaking can cause intracranial injury in infants, and use of terminology that includes this mechanism should be avoided "
Even the the recent 2010 text Child Abuse and Neglect: Diagnosis, Treatment and Evidence - Expert Consult underscores the lack of any scientific foundation for the shaken baby syndrome hypothesis stating: (Jenny 2010)
"Unfortunately, nobody has yet marshaled a coherent and comprehensive argument in support of shaking as a causal mechanism for abusive head injury. "
And in 2015 after reviewing the available literature including his own studies, Jones et al. wrote in the journal Medical Science and the Law (the official journal of the British Academy for Forensic Sciences):
["]..., no study has to date demonstrated that shaking alone. without an associated impact, exceeds the injury thresholds associated with SDH. (subdural hemorrhages)["]
Therefore it is only with great speculation devoid of adequate scientific basis that shaken baby can be diagnosed, that the timeline for the injuries can be inferred, and that ultimately a perpetrator of the abuse, if it occurred, can be identified. This position is supported by a recent study performed by an independent group of scientists from Sweden charged by the government to assess health technology and social services. After performing an extensive review of the scientific basis of the 'shaken baby syndrome' (Lynøe et al. 2017) these authors concluded:
The systematic review indicate that there is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking (very low quality evidence). It was also demonstrated that there is limited scientific evidence that the triad and therefore its components can be associated with traumatic shaking (low quality evidence).
Dr. Galzanick also supports the concept that there is no scientific data to back up the concept that shaking a baby will alone produce the required G-forces or axonal energy to create the injury B.D. suffered. He states in his affidavit that current biomedical research indicates an attempt to shake B.D. would produce 500-1000rad/sec2 at most. There is human data with infants and children producing 1600rad/sec2 from jumping rope and up to 7000rad/sec2 from playing Pee Wee football.
Radians are a measure of angular distance. Radians over squared time provides angular acceleration or deceleration.
Lucid Interval
The State's witnesses testified that B.D. would not have appeared neurologically normal from the onset of injury. This limited the time upon which the injury could have occurred between the pediatric appointment and arriving at the emergency room. The habeas court found that new scientific evidence has developed since Applicant's trial that refute this. In coming to this conclusion, the habeas court reviewed Dr. Plunkett's, Dr. Galaznik's, and Dr. Bux's testimony at writ hearings, Dr. Cox's testimony from a similar trial, and other medical professionals from similar cases which involved the contention of lucid intervals.
Dr. Plunkett testified extensively at a writ hearing to the advancement, knowledge, and acceptance of lucid intervals in patients with subdural hematomas. He contends, logically so, that it is axiomatic to accept lucid intervals given that chronic subdural hematomas exist. He stated this in the following manner.
Now, be that as it may, the pediatricians and most pathologists at the time in 2000, did not believe that a toddler, even with a serious head injury could have a lucid interval. Now, that was clearly not true if there had not been a failure of curiosity. And the example I gave earlier of a chronic subdural hematoma, I think is appropriate, because if there were not
lucid intervals, you would never develop a chronic subdural hematoma. You'd become symptomatic immediately, and someone would be alerted to the fact that something was wrong.
(Dr. Plunkett's writ testimony, Dec. 17, 2014, p. 47) (p. 49, Jun. 17, 2019 supp.).
Indeed, B.D. appeared to Dr. Plunkett to be just such a case. B.D. had old blood when assessed which is indicative of a chronic subdural hematoma which has worsened by rebleeding.
Dr. Cox testified in another case regarding lucid intervals and subdural hematomas. In State v. (expunged case), No. F05-35835-H from Dallas County, Texas, Dr. Cox testified as a prosecution witness and made the following statements:
A. . . . There are circumstances where a child with a subdural can be alert and interactive.
Q. All right. As a matter of fact, if a child has a subdural hematoma, just as an adult, some children have subdural hematoma, they resolve themselves without any medical treatment?
A. That's true.
Q. Okay. And some people have subdural hematomas and they continue to slowly bleed for a period of several days?
A. There are circumstances, sure.
Q. And at some point in time, if you had a subdural hematoma, I suppose, and it was like that, there would be a tipping point at which the brain would cease to function properly?
A. I mean, the subdural is part of the equation for brain function. There can be an accumulation of blood that can cause the brain to stop functioning because of the pressure exerted on it, yes, sir.
Q. Okay. Well, I'm not a doctor, and I'm trying to get this in as plain terms as I can understand.
A. Okay.
Q. But you're familiar with periods of lucidity that people with head trauma have?
A. Yes.
(RR I, expunged case, No. F05-35835-H, p. 35).
Dr. Bux also testified during a writ hearing to the following regarding lucid intervals.
And since then, there's been more evidence. There's been other case reports showing that, again, you can have a short [-]distance fall. You can have impacts. And the other part of that equation was that, it's now recognized and agreed that you can have a lucid interval, after you receive head injury. The common belief in 2000 was that there was no neuro lucid interval and therefore, whoever was with the child or the infant at that time, is the person who was guilty of doing something. So that has also changed.
(Bux writ hearing testimony, p. 24) (Jul. 12, 2019 supp.).
Rebleeding of a Subdural Hematoma
The habeas court found there was evidence presented by the State at Applicant's trial that is contradicted by new scientific knowledge, including the recantation of Dr. Squires's testimony regarding rebleeds. The habeas court reviewed Dr. Squires's testimony at trial and her recantation in light of several other scientific experts and opinions.
Dr. Squires swore out an affidavit in 2018 in which she said she had considered her trial testimony and would change two things about it. She wrote:
1. I testified that the medical theory that a subdural hematoma from a prior injury can rebleed into the same area, either spontaneously or as the result of a mild trauma, was controversial, rare, and limited to cases of children with
abnormal spaces over the brain. Since the time of my testimony there have been studies showing that prior subdural hematomas can rebleed small amounts of fresh blood without a subsequent trauma having occurred. I would no longer testify that this theory is controversial, rare, or limited to children with abnormal spaces over their brains.
2. I testified that the brain does not regenerate after an injury. Since the time of trial, there is more recent data that suggests this might not always be the case.
Dr. Squires swore out an additional affidavit in 2023 in which she further explained what she meant by "small amounts" of fresh blood occurring during a rebleed. She stated the rebleed can be more than small amounts of fresh blood and that rebleeds can be symptomatic.
Dr. Cox explained that it is now well-accepted in the scientific community that chronic subdural hematomas in young children can rebleed and that rebleeds can happen spontaneously or due to minor trauma. He also said that he frequently sees chronic subdural hematomas rebleed (called acute-on-chronic subdural hematomas) and that, when they do, it makes it difficult to support a claim that a child was shaken. At a trial today, Dr. Cox would testify that the State's theory in which Applicant injured B.D. by shaking her was undermined by the fact that B.D. had an acute-on-chronic subdural hematoma.
Dr. Laposata, the chairman of the Department of Pathology at the University of Texas Medical Branch with a clinical focus on bleeding and blood-clotting disorders, agreed with Dr. Cox that chronic subdural hematomas in young children can rebleed and that recent medical literature confirms that rebleeds are a common occurrence. He also said that it is unpredictable how long a rebleed will continue or what the ultimate clinical outcome will be because each patient is unique, but even a small amount of additional blood can markedly increase the intracranial pressure, which can lead to edema, ischemia of brain tissues (inadequate oxygen supply), respiratory depression/hypoventilation, altered neurologic status, brain injury, and coma. The amount of blood from a rebleed is different in each case, he said, and he disagreed with Dr. Squires that a rebleed or expansion of a subdural hematoma in a child will always create only a small amount of additional blood. He thought, however, that the amount of blood from a rebleed is not the pertinent question because even a small amount of blood can cause a tipping point when combined with the amount of blood existing from the original bleed.
Dr. Bux testified that medical knowledge concerning the rebleeding of chronic subdural hematomas in children has grown since the time of trial, and it confirms, contrary to the testimony of Dr. Squires, but in accordance with her affidavit, that rebleeds are common and are not limited to children with abnormal spaces above their brains. It is also now widely accepted, according to Dr. Bux, that rebleeds can happen spontaneously, due to minor trauma, or due to severe trauma, and that spontaneous rebleeds can be caused when the fibrinolytic system is actively breaking down clots. He further testified that, in his experience, when a person has an acute-on-chronic subdural hematoma, the acute blood is from a rebleed 99% of the time.
Dr. Bux thought that Dr. Squires was also mistaken when she said that B.D. did not suffer from a rebleed because, according to her, there should have only been "a little bit of fresh blood." Dr. Bux said that the amount of blood from a rebleed is variable and that rebleeds can cause serious injuries or death. Dr. Bux also thought that Dr. Squires was wrong to say that the acute blood was probably from another shaking incident because the chronic subdural hematoma and the cause of the rebleed might not be related, and there was no evidence in this case that they were related. He still believed that B.D.'s chronic subdural hematoma was caused by a significant trauma weeks before the incident and that her brain injuries were caused by a subsequent rebleed that was the result of minor or severe trauma. He said that slipping in the bathtub or rolling off her toddler bed could have caused the rebleed but that he could not rule out child abuse. Dr. Bux also testified that B.D. apparently experienced a lucid interval between sustaining the chronic subdural hematoma and the rebleed because no one noticed that she was lethargic, had a staggered gait, or was vomiting, all of which are symptoms of a head injury.
Dr. Plunkett testified that there is new scientific evidence since the time of Applicant's 2000 trial showing that Dr. Squires was wrong when she said that rebleeds were controversial, rare, and limited to children with abnormal spaces above their brains. The medical consensus, Dr. Plunkett explained, has changed since the time of trial. New scientific evidence shows that a chronic subdural hematoma in a young child can rebleed with minor or no impact, and according to Dr. Plunkett, B.D.'s condition was consistent with having suffered from a rebleed.
Dr. Galaznik said that there is new knowledge in the medical and scientific community that rebleeds occur often and are not limited to only certain children and that they can happen spontaneously or due to trauma. He also said that new evidence shows even a short-distance fall can cause a rebleed of a chronic subdural hematoma and that a person who sustains a rebleed can experience an extended lucid interval, showing no signs of a head injury. With respect to B.D., Dr. Galaznik said that the chronic blood in her cranial cavity (8 millimeters) stressed the bridging veins by stretching them, which made them more prone to rupture and bleed, from any kind of impact, or spontaneously.
Retinal Hemorrhaging
The habeas court found that the State's witnesses testified that the retinal hemorrhages B.D. sustained were very likely caused by classical SBS effects. The habeas court found that this representation was based on scientific evidence that has evolved to refute such accusations. The habeas court found several publications convincing of this evolution. See Lantz et al, Evidence Based Case Report: Perimaculer Folds From Childhood Head Trauma, 328 Br. Med. J. 754 (2004); Retinal and Optic Nerve Sheath Hemorrhages Are Not Pathognomonic of Abusive Head Injury, American Academy of Forensic Sciences (2010). Additionally, Dr. Galaznik testified that the science has evolved since Applicant's trial which refute the testimony of the State's witnesses. The current medical understanding is that intracranial pressure from a subdural hematoma causes retinal hemorrhaging, therefore removing its significance in B.D.'s case. Additionally, B.D.'s retinal hemorrhaging viewed through today's scientific understanding would not be severe hemorrhaging but considered non-specific in nature. Dr. Galaznik stated the following in his affidavit:
The current science has established that a rapid increase in the intracranial pressure is a recognized cause of retinal hemorrhages. (citations omitted).
The retinal hemorrhages, which in [B.D.'s] case were not severe (i.e. - confined to the posterior pole and not over the macula), would be considered "non-specific" by the AAP
[American Academy of Pediatrics] Levin/Christian statement of 2010. They would be an expected finding given the large volume, brain-shifting subdural hematoma. Hence, under current scientific and medical understanding, retinal hemorrhages should serve no purpose in any attempt to distinguish accidental injury from inflicted injury.
The habeas court also made findings about various scientific and medical studies. It found that these studies, published since the time of the trial, reflect that the cause of a chronic-subdural hematoma rebleed is the same in infants as in adults and that "the histopathology of subdural membranes in infants is similar to that in adults." It also found that it is now generally accepted that a healing hemorrhage membrane can, and often does, rebleed.
Patrick D. Barnes, Imaging of Nonaccidental Injury and the Mimics Issues and Controversies in the Era of Evidence-Based Medicine, 49 Radial. Clin. N. Am .205, 212 (2011); Jennian Geddes, Pediatric Head Injury, Developmental Neuropathology 185, 186 (Jeffrey A. Golden, et al, eds. 2006).
Randy Papetti, The Forensic Unreliability of Shaken Baby Syndrome 119 (Christopher Milroy, MD ed. 2018) (quoting Janice J. Ophoven, et al., Childhood Head Trauma: Forensic Approach in Forensic Sciences §25G.04(f)(1) (Cyril H. Wecht, ed. 2008)).
Id. at 119.
Overall Findings
The habeas court concluded that Applicant is entitled to a new trial because he has shown by a preponderance of the evidence that he would not have been convicted had his new scientific evidence about rebleeds been presented at trial, as also would be entitled to relief based on a combination of other factors discussed which new scientific evidence has evolved. Tex. Code Crim. Proc. art. 11.073(b)(2). It wrote that,
The Court FINDS and CONCLUDES that, had this new scientific evidence been presented at trial, on the preponderance of the evidence, [Applicant] would not have been convicted. This is because the trial evidence clearly showed old blood and new blood in the child's CT scan. This fact is consistent with the defense testimony that the child had a prior existing injury that rebled as a result of a minor bump on the head. The new scientific evidence supports the defense theory and completely refutes and contradicts the State's position at trial denying and disputing the possibility of a rebleed. The Court FINDS and CONCLUDES that if a jury was told by the State's own witnesses that subdural hematomas in young children happen (frequently) and can occur from minor trauma or spontaneously, the defense position that the child's condition was the result of a rebleed would have been significantly more convincing and the jury would very likely have accepted it.
The Court FINDS and CONCLUDES that the State presented evidence at trial that short[-]distance falls do not cause serious head injuries, shaking alone can cause serious head injuries, and retinal hemorrhaging is almost exclusively a component of child abuse injuries. New scientific developments now challenge those theories. The Court therefore FINDS and CONCLUDES that, even though some of these issues, when raised individually, are sufficient for relief, there remains some controversy on other issues regarding some of these new scientific developments. Nevertheless, the Court FINDS that when some of these issues are raised individually they may not be sufficient to obtain relief in this case, but when all of this new scientific knowledge is considered as a whole in this case, had the new scientific evidence been presented at trial, on the preponderance of the evidence, Applicant would not have been convicted.
(Agreed Findings of Fact and Conclusions of Law and Trial Court's Recommendation on Application for Writ of Habeas Corpus, Nov. 3, 2023, pp. 36-38).
V. Article 11.073
A. Applicable Law
Article 11.073 of the Texas Code of Criminal Procedure permits an applicant to obtain postconviction relief based on a change in science relied on by the State at trial if certain requirements are met. Tex. Code Crim. Proc. art. 11.073. That statute provides that,
(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the convicted person's trial; or
(2) contradicts scientific evidence relied on by the state at trial.
(b) A court may grant a convicted person relief on an application for a writ of habeas corpus if:
(1) the convicted person files an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:
(A) relevant scientific evidence is currently available and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial; and
(B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and
(2) the court makes the findings described by Subdivisions (1)(A) and (B) and also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.
art. 11.073(a)-(b).
In assessing whether the scientific evidence was ascertainable through the exercise of reasonable diligence, courts consider whether "the field of science, a testifying expert's scientific knowledge, or a scientific method on which the relevant scientific evidence is based" has changed since the applicant's trial. Id. art. 11.073(d). "Scientific method is defined as '[t]he process of generating hypotheses and testing them through experimentation, publication, and republication.'" Ex parte Robbins, 478 S.W.3d 678, 691 (Tex. Crim. App. 2014). "'Scientific knowledge' includes a change in the body of science (e.g., the field has been discredited or evolved) and when an expert's opinion changes due to a change in their scientific knowledge (e.g., an expert who, upon further study and acquisition of additional scientific knowledge, would have given a different opinion at trial)." Ex parte Chaney, 563 S.W.3d 239, 255 (Tex. Crim. App. 2018).
B. Analysis
After independently reviewing the record, we conclude that Article 11.073 applies and Applicant has met his burden for relief. We find that scientific knowledge has evolved regarding SBS and its application in Applicant's case. Additionally, we find that given further study, the experts would have given a different opinion on several issues at a trial today-some already have. The admissible scientific testimony at trial today would likely yield an acquittal.
i. Scientific Evolution
The doctors and literature brought forward under this writ application make it clear the State's medical witnesses were not malicious in any way because their testimonies were considered mainstream science at the time of the trial. We believe there would be a marked shift in the testimony today concerning the effect of a short-distance fall to a child, the effect of shaking a child, rebleeds in subdural hematomas, lucid intervals, retinal hemorrhaging, and SBS in general as applied to B.D.'s injuries.
We find it persuasive that as early as 2004, the Journal of Neurosurgery published an article stating the terminology of "shaking" should be avoided. In 2015, the journal for the British Academy for Forensic Sciences included writings that showed no study has demonstrated that shaking alone, without an associated impact, could create a subdural hematoma. Research ranging from mechanical dolls to animal abuse has yet to bridge the gap between theory and reproduceable results which the scientific method demands. Essentially, science has evolved to a degree that has removed "Shaken" from "Shaken Baby Syndrome." This is evident from the need to vague the terms to "Impact Syndrome" and then to "Abusive Head Trauma."
We also find it persuasive that doctors who testified for the State in Applicant's trial have shifted their testimony in later trials. And successors to the doctors in their position have testified differently in later trials. We find it likely the State's witness testimony would shift even further given the weight of scientific research today. Some examples are as follows:
(1) Dr. Rollins testified B.D.'s injuries were "absolutely" consistent with the "Shaken Baby Mechanism." Later at another trial, after reading the animal-abuse studies, she then agreed shaking alone was insufficient;
(2) Dr. Squires testified that B.D.'s injuries were of a nature that B.D. could not have caused herself. Her successor, Dr. Cox, later refuted this testimony in a later trial testifying that a simple fall can cause a subdural hematoma and that there is no data to quantify the amount of force necessary to cause one;
(3) Dr. Squires testified at Applicant's trial that B.D.'s retinal hemorrhaging was specific in nature to having been shaken and that only trauma, "a lot of trauma," would cause this. However, Dr. Galaznik, using the 2010 Levin/Christian statement from the American Academy of Pediatrics as a standard, stated B.D.'s injuries were not severe. They were non-specific in nature because the hemorrhaging was confined to the posterior pole and not over the macula, which would be expected after a subdural hematoma caused swelling on the brain;
(4) Dr. Squires pinpointed the time of the injury between the primary care physician appointment and emergency room arrival because if a child has this injury, it would be readily apparent to anyone. However, Dr. Cox testified at later trial that a child can be alert and interactive with a subdural hematoma. This calls into question the time of injury; and
(5) Dr. Squires went even further and recanted her trial testimony regarding rebleeds of subdural hematomas because of studies she read after the trial.
We find the testimony during writ hearings from Dr. Plunkett, Dr. Bux, and Dr. Galaznik to be credible in demonstrating the change in medical science. The science today supports the proposition that B.D.'s injury could have been sustained by a short-distance fall, or occurred spontaneously, due to the acute-on-chronic subdural hematoma. We find the retinal hemorrhaging, applied through today's scientific method, to be non-specific and of no value in assigning causation for its existence. We accept Dr. Squires's sparse recantation that rebleeds are not controversial, rare, and limited to children with abnormal spaces above the brain. They are in fact not controversial but are common and could happen to any child with a chronic subdural hematoma.
Dr. Squires affidavit does not cover any other potential change to her testimony regarding the advancement of science in short-distance falls, SBS, etc. Her latest affidavit was signed in 2023. The habeas court commented the following regarding Dr. Squires's recantation:
In the course of her interview by the State, Dr. Squires also revealed that her trial testimony explaining that the most likely cause of the existence of old blood was a prior shaking incident was incorrect and that, in fact, "old blood is not synonymous with a shaking mechanism." Dr. Squires refused to include this statement in her affidavit. . . . However, if the Court of Criminal Appeals does not accept these findings, it will be necessary to have a further evidentiary hearing where Dr. Squires will be required to testify. (Agreed Findings of Fact and Conclusions of Law and Trial Court's Recommendation on Application for Writ of Habeas Corpus, Nov. 3, 2023, n. 12).
This Court, in Henderson, has already shown its findings to support short-distance falls can cause serious injury, which contradicted State's testimony. In Henderson, the medical examiner recanted his statement regarding the impossibility of a short-distance fall causing the injury to the child in the case. This Court accepted the findings of fact in Henderson because new, credible scientific evidence was put forward that showed the falsity of the trial testimony regarding short falls. It found short-distance falls can cause serious injury.
This Court is not alone in finding that science can change to undermine the State's theory of a case involving SBS. In Del Prete v. Thompson, a federal district court faced a similar case in which it vacated a conviction for first-degree murder. A child collapsed at a daycare, and the question was whether abuse was the cause of the child's injuries or were they were explainable by any other means. The court found that a chronic subdural hematoma can rebleed without abuse, that the evidence supporting shaking alone could cause the subdural hematoma was "non-scientific," and that an acute-on-chronic subdural hematoma stretched the timeline for when the injury occurred. Del Prete v. Thompson, 10 F.Supp.3d 907, 955-57 (N.D. Ill. 2014). There are multiple similar cases in which the relevant medical areas were assessed with new science and have come to the same conclusion as this Court in Applicant's case.
See People v. Bailey, 144 A.D.3d 1562, 1564 (N.Y.App.Div. 2016) (finding "the cumulative effect of the research and findings on retinal hemorrhages, subdural hematomas or hemorrhages and cerebral edemas as presented in SBS/SBIS cases and short-distance fall cases supports the court's ultimate decision that, had this evidence been presented at trial, the verdict would probably have been different."); In re Pers. Restraint of Fero, 367 P.3d 588 (Wash.Ct.App. 2015) (finding there has been a paradigm shift in child head trauma, the child may be lucid for days and short-distance falls can cause subdural hematomas, and "it is not medically possible to determine that [the child's] injuries occurred when she was with Fero, nor is it medically possible to determine how Brynn's injuries were caused.); State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008) (finding a shift in mainstream medical opinion since the accused's trial, that short-distance falls can cause subdural hematomas and rebleeds can occur, and "[n]ow, a jury would be faced with competing credible medical opinions in determining whether there is a reasonable doubt as to Edmunds's guilt. Thus, we conclude that the record establishes that there is a reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds's guilt.").
ii. Applicant Likely Would Not Have Been Convicted
We find that if the newly evolved scientific evidence were presented at Applicant's trial, it is more likely than not he would not have been convicted. This was a circumstantial case against Applicant. There were no eyewitnesses to the events that transpired between B.D. and Applicant between seeing B.D.'s primary care physician that morning and the arrival of first responders. The most persuasive evidence in trial was medical testimony. More precisely-the most persuasive evidence at trial was medical testimony which involved the mechanism of injury to B.D. The only way to assign criminal responsibility to Applicant given the evidence in this case was for B.D.'s injuries to be non-accidental or accidental in a way B.D. could not have performed alone.
The jury heard dueling experts at Applicant's trial. Today, the jury could hear consensus on primary issues (such as short-distance falls, shaking causing injury, retinal hemorrhaging, lucid intervals, and chronic rebleeds). If not, it is doubtful the State's witnesses would speak with the same confident manner. The experts would be confronted with twenty years of reputable scientific studies and publications that, if graphed, continually point away from their stated positions. If the expert were to experience the ostrich effect and wish to bury his or her head in the sand, then that expert would have to bear the brunt of a grueling cross-examination. One in which they would be confronted with twenty years of reputable scientific evidence that contradicts their trial testimony.
But the jury would still hear experts on both sides arguing their position. B.D.'s injuries were consistent with abusive head trauma. An expert could still attest to the "consistent with" argument. Importantly, there would likely be no statements that it is "almost certainly" or "classically aligns with" a particular mechanism. This leaves the jury with little help. B.D.'s injuries were consistent with abusive head trauma, consistent with an acute-on-chronic rebleed from an accidental fall, and consistent with a spontaneous rebleed that had reached the tipping point where there was no more room in her skull to hold the fluid. The mechanism of injury is the primary evidence in the case and the jury is left with criminal and non-criminal alternatives that are all consistent with the evidence. We find it unlikely a jury would convict. For these reasons, we grant relief.
VI. Conclusion
We grant Applicant relief under Article 11.073 of the Texas Code of Criminal Procedure. The Applicant's conviction is therefore vacated and the case is remanded to the trial court for a new trial.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Yeary and Keel, JJ., joined.
In order to get relief under Article 11.073, a habeas applicant must show that if relevant, newly available scientific evidence had been presented at trial, "on the preponderance of the evidence" he would not have been convicted.1 In my view, Applicant has not satisfied that standard.
Applicant was 13-month-old B.D.'s caretaker on July 16, 1997, while the child's mother was at work. That morning, Applicant took B.D. to her pediatrician for her annual check-up. The pediatrician conducted a full and complete examination, during which nothing was found wrong with the child. B.D. was friendly, healthy, and neurologically intact. She was totally normal at noontime. But around 4:00 p.m. that afternoon, Applicant called 911. Paramedic Marcus Jennings was one of the emergency responders. When he arrived, B.D. was near death. A CT scan at the hospital revealed that she suffered from brain swelling and subdural (brain) bleeding. Some of the blood showed up as dark on the CT scan, meaning that it was blood from an injury more than a few days old, and some of the blood showed up as light, meaning that it was more recent.
Applicant now claims that the presence of old blood shows an earlier injury that might have occurred when Applicant was not the sole caregiver. He contends that the new blood could have been a rebleed from that earlier injury. He now points to new science suggesting that rebleeding can occur more easily than previously thought.
But there was other significant evidence pointing to Applicant's guilt. First, there was "very significant, unusual bruising" in B.D.'s genital area. The bruises appeared to be from pinching. According to Dr. Squires, this bruising was bluish-red on both sides, "sort of in the middle and both sides, and then extended down onto one leg or into the groin area of one side more than the other." The bruises were fresh. Dr. Squires testified that this was not the sort of injury a 13-month-old child could inflict on herself. Dr. Bux has suggested that a catheter might cause such injuries, but emergency responder Jennings saw the bruises when he first took B.D. to his vehicle and unfastened her diaper in order to take her temperature. They were not caused by a catheter. Also, Applicant told a police officer at the hospital that the genital injuries had been present the night before, which is inconsistent with the testimony of the pediatrician who saw B.D. that morning. At one point, Applicant had no explanation for the genital injuries, at another point he said the child fell a lot and might have fallen while she was playing, and later Applicant suggested he might have caused the injuries by cleaning the area too aggressively.
Also, much of the new blood was found in different places in the brain than the old blood. Dr. Janet Squires testified that the old blood was on "the left side of the brain" while the fresh blood "was in multiple areas."
And the blood found in the retina of B.D.'s eye was far more substantial than was expected. Dr. Squires testified that usually a special instrument and dilation of the eyes was needed to see blood from hemorrhaging, but that "big blobs of blood" could be seen in B.D.'s retina.
Furthermore, a police officer testified that Applicant was not crying at the hospital and did not appear to be expressing any concern for the well-being of the child. Instead, Applicant appeared to be extremely nervous.
Also, Applicant told medical personnel that B.D. had rolled out of bed onto the floor. But he later told a police officer at the hospital that the child fell in the bathtub that day after the doctor visit. When asked why he did not tell the doctors about the bathtub incident, Applicant said he was afraid.
Even with the new evidence, the jury would have been confronted with the fact that the child went from appearing normal to being near death within just a few hours during which time Applicant was the sole caregiver.
The presence of extensive, fresh bruises in B.D.'s genital area-bruises that were inflicted after the doctor's appointment earlier that day and during a time that only Applicant was present-is, in my opinion, evidence that would lead a jury to believe that Applicant was responsible not only for the bruises, but for the injury to B.D.'s brain.
In light of all the evidence, both new and at trial, I would hold that Applicant has failed to meet his burden to show by a preponderance of the evidence that a jury would not have convicted him.
I respectfully dissent.2