Ex parte Robbins (560 S.W.3d 130, 2016)

Per curiam.

Having granted the State's motion for rehearing in this case, and having considered its merits, we now conclude that the State's motion for rehearing was improvidently granted. We deny the State's motion for rehearing. No further motions will be entertained.

Alcala, J., filed a concurring opinion.

Richardson, J., filed a concurring opinion in which Johnson, J., joined.

Newell, J., filed a concurring opinion.

Meyers, J., filed a dissenting opinion.

CONCURRING OPINION

Alcala, J., filed a concurring opinion.

I join this Court's order because its effect is to grant Neal Hampton Robbins, applicant, the relief to which he has been due but has been denied for half a decade. This concurring opinion marks the third time in less than five years that I must document my position in favor of granting post-conviction relief to applicant, who is incarcerated for capital murder in a case in which there is no competent evidence that a murder even occurred. See Ex parte Robbins, No. WR-73,484-02, 478 S.W.3d 678, 692, 2014 WL 6751684, at *11 (Tex.Crim.App. Nov. 26, 2014) ( Robbins II ) ("It is hard to imagine any reasonable jury's returning a conviction when no one can even say confidently that a murder has been committed."). As I have repeatedly stated, applicant should be granted habeas relief, and today that finally occurs. This is the correct result. But it is five years too late and it comes at the high cost of diminishing this Court's credibility. Today's decision should give no one any comfort about the actual viability of the current version of Article 11.073 of the Texas Code of Criminal Procedure, the new-science statute in Texas.

I. The Five Events that Have Finally Culminated in Habeas Relief

This years-long litigation serves as a prime example of the lengths to which some litigants must go in order to obtain relief from their wrongful convictions. I explain each of the five events to demonstrate that applicant has been incarcerated for more than a decade on a wrongful conviction where it was abundantly clear to me long ago that his conviction should have been vacated.

A. The Writ Application on the Basis of False Testimony

In 2007, applicant filed an initial writ application in which he sought relief on the basis that the trial testimony of the medical examiner, Dr. Moore, was both false and material to his conviction, in violation of the Due Process Clause of the Fourteenth Amendment. See Ex parte Robbins, 360 S.W.3d 446, 454 (Tex.Crim.App.2011) ( Robbins I ). This Court's then-majority denied relief. Id. at 463. It reasoned that, although Dr. Moore had "changed her position" regarding the cause and manner of the complainant's death from homicidal asphyxiation to "undetermined," her trial testimony was not false. Id. at 460-61. In my dissent in Robbins I, I disagreed with this holding, instead concluding that Robbins's due-process rights were violated by the false, material trial testimony of Dr. Moore, who was the State's sole medical expert establishing cause and manner of death at applicant's trial.See id. at 476 (Alcala, J., dissenting). I observed that Dr. Moore had indicated at trial that it was her scientific opinion beyond a reasonable doubt that the cause of Tristen Rivet's death was asphyxia due to compression of the chest and abdomen, and the manner of death was homicide. Id. at 477. Later, Dr. Moore revised her opinion to state that the cause of death was not compression asphyxia but was instead undetermined, and the manner of death was undeterminable as to homicide, asphyxial or otherwise. Id. Regarding this change in Dr. Moore's opinion, I observed that her "subsequent testimony was a complete refutation of her trial testimony" and that "[b]oth positions cannot be true." Id. Given that Dr. Moore's testimony was both false and material to the jury's determination of applicant's guilt, I would have granted applicant relief in 2011 on the basis of a due-process violation. Id. at 480. Because this Court denied his request for relief, applicant turned to the Legislature for a solution, and it responded by enacting a new-science statute to address wrongful convictions based on bad science.

B. The 2013 Version of Article 11.073

In 2013, the Legislature enacted a new-science statute, Code of Criminal Procedure Article 11.073, in order to provide a vehicle for granting post-conviction relief to individuals whose convictions were based on faulty or discredited science. See TEX.CODE CRIM. PROC. art. 11.073 (West 2013). Relying on that statute's authority, applicant filed an application for post-conviction habeas relief, and this Court's then-majority, including me, granted him relief. See Robbins II, 478 S.W.3d at 691-93, 2014 WL 6751684, at *10-11. In Robbins II, this Court's majority opinion explained that, in order to obtain relief under Article 11.073, the applicant must include in his application specific facts showing that the "relevant scientific evidence is currently available and was not available at the time of [his] trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during [his] trial." Id. at 690, 2014 WL 6751684, at *9 (quoting TEX.CODE CRIM. PROC . art. 11.073 ). Resolution of this case came down to the meaning of the term "scientific knowledge." This Court's majority held that Dr. Moore's revised opinion on the cause of death satisfied the requirements to be characterized as "scientific knowledge" because her opinion at trial was "admissible scientific evidence, based on inferences derived from the scientific method," and her new opinion was "also an inference or assertion supported by appropriate validation based on the scientific method." Id. at 692, 2014 WL 6751684, at *10. Given that Dr. Moore's original and revised opinions were both derived from the scientific method, this Court reasoned that the change to her opinion constituted a change in the relevant "scientific knowledge" as that term appears in Article 11.073. Id. ; see also TEX.CODE CRIM. PROC. art. 11.073(d). The Court then further concluded that, on the preponderance of the evidence, had Dr. Moore's revised opinion been presented at trial, applicant would not have been convicted, and it granted him relief. Robbins II, 478 S.W.3d at 692-93, 2014 WL 6751684, at *11. I continue to agree with the Court's reasoning in Robbins II, including its broad reading of the term "scientific knowledge." See id. at 691-92, 2014 WL 6751684, at *10. I also continue to believe that it was appropriate to grant applicant relief under the 2013 statute.

As will be more evident in my later discussions, the voting pattern of the judges participating in the Robbins II decision, which was reached by a five-to-four vote, is important to understanding my discomfort with today's decision. The Robbins II majority opinion was authored by Judge Womack and joined by Judges Price, Johnson, Cochran, and me. See Robbins II, 478 S.W.3d at 680-81, 2014 WL 6751684, at *1. The Robbins II dissenters were Presiding Judge Keller and Judges Meyers, Keasler, and Hervey. Id. at 692-93, 2014 WL 6751684, at *11. Because three of the judges who were part of this Court's then-majority in Robbins II have since retired and all of the dissenting judges remain on this Court, the continued viability of the Robbins II opinion remains uncertain in light of this Court's inconsistent rulings on the State's motion for rehearing in this case, which I turn to now.

C. The State's Motion for Rehearing in Robbins II

After the issuance of Robbins II, the State filed a motion for rehearing that was presented to the newly formed 2015 Court, which included Judges Richardson, Yeary, and Newell as replacements for Judges Price, Womack, and Cochran. On the notice granting the State's motion for rehearing, Judges Johnson, Newell, and I were shown as dissenting. Because this Court's granting of the State's motion for rehearing was a per curiam decision, it is apparent that at least five of the remaining six judges on the Court voted to grant rehearing. Thus, the per curiam Court that granted the State's motion for rehearing was comprised of at least five of these six judges: the four dissenters in Robbins II, Presiding Judge Keller and Judges Meyers, Keasler, and Hervey; Judge Richardson; and Judge Yeary. Because of this vote granting rehearing in Robbins II, it appeared that, as of early 2015, this Court's majority opinion to grant relief under the 2013 new-science statute might be in jeopardy. Thus, again, the Legislature stepped in.

D. The 2015 Present Version of the Amended Article 11.073

In mid-2015, the Legislature amended Article 11.073. See TEX.CODE CRIM. PROC. art. 11.073 (West 2015) (amended by Act of 2015, 84th Leg., ch. 1263 (H.B.3724), § 1, eff. Sept. 1, 2015). At the oral argument that followed this Court's granting of the State's motion for rehearing on Robbins II, applicant's counsel argued that, if this Court were to decide to withdraw its opinion in Robbins II, he would pursue relief under the 2015 version of Article 11.073. The State agreed that applicant likely would be entitled to relief under the amended statute. After the 2015 amendment, it appeared clear to applicant, the State, and to me that habeas relief for applicant was inevitable under the 2015 amendment. Thus, regardless of this Court having granted rehearing in Robbins II, applicant almost certainly would be entitled to relief under either the former 2013 statute or the present amended 2015 statute. The only real question for this Court at that point was whether it would (1) issue an opinion applying the 2015 amendment so that other litigants could understand this Court's position on it in light of the precedent set by the instant case, or, alternatively (2) withdraw the order granting rehearing on Robbins II so as to limit this Court's granting of relief in this case to the former statute and, perhaps, to leave the applicability of the present statute undetermined due to the resolution of the instant case under the former statute. Maybe because option two was deemed the lesser of two evils in the eyes of some of the members of this Court, most of the dissenters in Robbins II who had originally voted to grant rehearing in this case have changed their former votes to now vote against the State's motion for rehearing.

E. Today's Order Withdrawing the Granting of Rehearing of Robbins II

Having dissented in Robbins II, and having likely voted in favor of granting rehearing in this case, today at least two of these three judges, if not all three-Presiding Judge Keller and Judges Keasler and Hervey-rescind their latter vote to now vote to deny rehearing in Robbins II. It is apparent to me that they have not changed their views on the merits of Robbins II; they have not withdrawn or modified their dissenting opinions in Robbins II. Rather, although they apparently still believe that Robbins II was incorrectly decided, they now vote to reinstate the Robbins II majority opinion. To vote for the State, then again for the State, and now, while maintaining the correctness of their earlier opinions, vote against the State, can be described as curious, at best.

I note that Judge Meyers was part of this Court when Robbins II was decided, and he was one of the dissenters who also voted in favor of granting the State's motion for rehearing. Today, he votes consistently by again voting in favor of granting the State's motion for rehearing.

I believe that judges have the right to study the issues and, upon further reflection, change their minds. But that does not appear to be what is occurring here. This is an extremely strange and unprecedented turn of events. The three dissenting judges in Robbins II maintain their former dissenting opinions that relief should not have been granted to applicant under the 2013 statute, but they now appear to vote in a manner that has the effect of granting relief to applicant. Though their vote ends up at the right place in that the correct result occurs, it is a day late and a dollar short. Or, rather, it is about a year or more late and it is significantly short because the dissenters in Robbins II appear to maintain their view that similarly situated defendants are not entitled to habeas relief under the new-science statute. What is going on here? I do not envy the position of future litigants who must try to decipher this Court's position on when relief is warranted under the new-science statute. Because of the strategic maneuvering that has plagued this case now for more than a year, the answer to that question is entirely unclear.

II. Conclusion

This Court's judicial decisions should not require litigants to run to the Legislature for a statutory response to correct our judicial mistakes. This Court's judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result. And this Court's judicial decisions should not come half a decade too late while a defendant remains incarcerated based on what is clearly a wrongful conviction. I join this Court's order because it has the correct result, but this case will, for a very long time, leave an indelible stain on this Court's reputation for providing a fair forum for all litigants. With these comments, I join this Court's order.

CONCURRING OPINION

Richardson, J., filed a concurring opinion in which Johnson, J., joined.

I concur in this end result-that Applicant, Neal Hampton Robbins, be granted relief in the form of a new trial because the State's expert witness has since changed her opinion regarding the cause of Tristin Rivet's death. But I do not join the majority because I do not agree that resurrecting the Court's 2014 opinion is the best way to accomplish that end result. Instead, I would hold that Applicant is entitled to relief under the newly amended version of Article 11.073, which clearly and unambiguously speaks directly to Applicant's right to relief in this case.

I was not on this Court in 2011 and 2014 when the Robbins I and Robbins II opinions were issued. I voted to grant rehearing on Robbins II along with a majority of this Court. At the time, a motion for rehearing and a motion to reconsider on the court's own motion were pending in Robbins I and II. In order to fully consider the merits of both motions at the same time, I voted to grant rehearing in Robbins II (reconsideration of Robbins I is still unresolved). Had I been on the Court in 2014, I would have likely followed the logic set out by the three dissenting judges, Presiding Judge Keller, Judge Keasler, and Judge Hervey. I agree with them that the phrase "the scientific knowledge or method on which the relevant scientific evidence is based" refers to general science, not the testifying expert's particular knowledge or method of doing things. That is the very reason why I cannot join today's majority opinion deciding that we improvidently granted the State's motion for rehearing. I don't think that we did improvidently grant rehearing. It is my position that, since relief is clearly warranted under the amended Article 11.073, as detailed in this concurring opinion, the better approach is to resolve this case under the amended statute without having to resurrect the 2014 opinion.

BACKGROUND

In 1999, a jury found Applicant, Neal Hampton Robbins, guilty of the capital murder of his girlfriend's seventeen-month-old daughter, Tristin Rivet. The State did not seek the death penalty, and upon conviction Applicant was sentenced to life in prison. This Court affirmed the judgment and sentence on direct appeal. The relevant facts and procedural background have not changed since Applicant's first application for habeas corpus was denied by this Court in 2011.

A. The Trial

Tristin Rivet was a seventeen-month old girl, living with her mother, Barbara Hope, and Applicant (Hope's boyfriend). On the day of her death, Tristin was left in Applicant's care. Around approximately 3:30 p.m., Applicant spoke to Hope by phone and told her to hurry back to the house because he "had to go and had things to do." Applicant told Hope when she arrived home that he had laid Tristin down for a nap shortly after they spoke on the telephone, and Applicant departed. At approximately 6:00 p.m., Hope checked on Tristin and found that her body was cold and that she was not breathing. Hope attempted to revive Tristin, then carried her outside, where she laid Tristin down and called for help. Others attempted to perform CPR on Tristin, but were stopped by a neighbor who told them that they were performing CPR too forcefully, given the size of the child. An ambulance arrived at 6:08 p.m., and after several unsuccessful attempts to revive Tristin, a breathing tube was inserted into Tristin's larynx. Fire department personnel performed CPR and administered epinephrine during the trip to the hospital. Tristin arrived at the hospital at 6:36 p.m., and she was immediately examined by Dr. John Conner, who determined that Tristin "had been dead for some time."

Justice of the Peace Edie Connelly ordered an autopsy that was performed by assistant medical examiner Dr. Patricia Moore with the Harris County Medical Examiner's Office (HCMEO). Dr. Moore noted bruises and other markings and areas of discoloration. She also found hemorrhages underneath the bruising. When examining Tristin's internal organs, Dr. Moore discovered petechiae (small areas of hemorrhage). At trial, Dr. Moore, as the State's expert witness, testified that the cause of Tristin's death was asphyxia due to compression of the chest and abdomen and that the manner of death was homicide. Dr. Moore ruled out CPR as the cause of death because the injuries to Tristin's back were inconsistent with the administration of adult CPR and the injury to the kidney was deep down, requiring a lot of force. She also excluded sudden infant death syndrome (SIDS) because of the child's age "and the story doesn't fit the picture of a SIDS baby death." Additionally, Dr. Moore stated that Tristin may have been dead for at least three hours before her temperature was taken at the hospital, based upon an approximate post-mortem cooling rate of 1.5 degrees per hour, and that Tristin's body would not have sustained bruises as the result of the application of CPR that long after her death.

To contravene Dr. Moore's testimony, the defense called Dr. Robert Bux, the deputy chief medical examiner for Bexar County, Texas. Dr. Bux testified that the cause of Tristin's death could not be determined and that no anatomical reason demonstrated during the autopsy could have led to a specific cause of her death. In its rebuttal case, the State offered evidence to contradict Dr. Bux's testimony.

Applicant testified in his defense. He stated that Tristin was affectionate toward him and that on the day of her death, he did nothing to harm Tristin. In fact, he claimed that he had never struck her, abused her, disciplined her, or even raised his voice to her. Yet he admitted causing the injuries that resulted in Tristin's bruises, blaming the incidents on his "carelessness."

During closing arguments, the State emphasized Dr. Moore's testimony in arguing that it was Applicant, and only Applicant, who could have caused the asphyxia-related death of Tristin. On February 22, 1999, the jury found Applicant guilty of capital murder, and Applicant was sentenced to life imprisonment. Approximately one month later, Applicant filed a motion for new trial, arguing that evidence was legally and factually insufficient to establish that Tristin's death was a homicide, but the trial court denied the motion.

B. Reevaluation of Autopsy Findings

1. Dr. Dwayne Wolf

In March 2007, an acquaintance of Applicant contacted the Harris County Medical Examiner's Office and asked it to review Dr. Moore's (the medical examiner who conducted the autopsy and testified as the State's expert at trial) findings regarding the cause of Tristin's death. Dr. Dwayne Wolf, the deputy chief medical examiner for Harris County, undertook a re-evaluation of the autopsy findings. After reviewing the testimony adduced during Applicant's trial, the autopsy report, the EMS and medical records, and the police offense report, Dr. Wolf concluded that Dr. Moore's observations during the autopsy did not support a finding that the death resulted from a homicide, but rather that the cause of death was "undetermined." Consequently, on May 2, 2007, Dr. Wolf amended Tristin's autopsy report to reflect that both the cause and manner of death was "undetermined."

2. Dr. Joye Carter

On the following day, May 3, 2007, presumably due to the amended autopsy report, Judge Edie Connelly, Justice of the Peace Precinct 3 of Montgomery County, whose office handles Autopsy Reports and Death Certificates, formally reopened the inquest into the cause of Tristin's death. Shortly thereafter, the Montgomery County District Attorney's Office asked former Harris County Medical Examiner Joye Carter to review Dr. Moore's autopsy report. Dr. Carter had been Dr. Moore's supervisor when Dr. Moore performed the autopsy, and Dr. Carter had agreed with Dr. Moore's original opinion that the death was caused by asphyxiation by compression-a homicide. In a May 10, 2007 letter to the Montgomery County District Attorney, Dr. Carter wrote, "Upon my review of this case I would not concur with the opinion on the manner of death as a homicide but would reconsider this case as an undetermined manner," and "If the Harris County Medical Examiner intends to re-rule this case as an undetermined manner of death I would agree with that change."

3. Dr. Patricia Moore

Dr. Moore was also asked by the Montgomery County District Attorney's Office to review her autopsy report. In a May 13, 2007 letter to the District Attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined, undetermined is best for this case.

Dr. Moore explained that, since her original opinion, she has had more experience, and she has reviewed additional information that suggested that the bruises could have resulted from aggressive CPR and other efforts to assist the child.

C. Applicant's First Article 11.07 Application For Writ of Habeas Corpus

Armed with this new information regarding Dr. Moore's change of opinion, on June 4, 2007, Applicant filed his first writ application under Article 11.07, with the 410th District Court of Montgomery County. Applicant alleged that Dr. Moore's false testimony was newly discovered evidence. Applicant alleged that "[n]ewly discovered evidence shows that no rational juror would find Applicant guilty beyond a reasonable doubt of the offense for which he was charged and convicted." Shortly thereafter, Applicant filed a supplemental application alleging that his "right to a fair trial by a fair and impartial jury ... was violated because his conviction was based on testimony material to the State's case that has now been determined to be false."

In its original response to Applicant's first writ application, the State recommended that Applicant be granted a new trial because his due process rights to a fair trial and impartial jury were violated. The State claimed that, because it relied on Dr. Moore's original opinion in presenting its case, which has now been recanted, confidence in the outcome has been undermined. Citing to Ex parte Carmona, the State wrote, "While Dr. Moore's testimony is not perjured testimony, the effect of the change in her opinion is the same-the jury was led to believe and credit facts that were not true." Applicant and the State filed agreed findings of fact and conclusions of law.

1. Dr. Thomas Wheeler

Instead of signing the agreed findings recommending that relief be granted, on August 22, 2007, Judge Michael Mayes, Judge of the 410th District Court, who presided over the trial and who was presiding over the habeas proceedings, appointed Dr. Thomas Wheeler, the Chairman of the Department of Pathology at Baylor College of Medicine, with the task of conducting an independent pathological examination to address the following issues:

(1) What was the manner of Tristin Rivet's death?

(2) What was the means of Tristin Rivet's death?

(3) Are the manner and means of Tristin Rivet's death able to be determined?

(4) Does a change in the medical examiner's opinion about the manner and means of Tristin Rivet's death entitle Applicant to a new trial?

After reviewing the autopsy report, trial testimony, and exhibits, Dr. Wheeler concluded in a September 18, 2007, letter to the trial court that the cause and manner of Tristin's death were undetermined. Dr. Wheeler asserted that "[a]lthough the autopsy performed by Dr. Moore was thorough and well documented, her conclusion that the death of Tristin Rivet was caused by asphyxia secondary to chest compressions was not justified by the objective facts and pathological findings in this case." He could not rule out suffocation or asphyxiation as the cause of death, but he did not see any physical findings that would support any particular conclusion as to the cause of death.

2. Dr. Linda Norton In September of 2007, Dr. Linda Norton, a Forensic Pathologist in Dallas, was asked by the Montgomery County Sheriff's Office Cold Case Squad "to review this case, in an attempt to form an opinion regarding cause and manner of death." On March 28, 2008, Dr. Norton reported the results of her review during a recorded telephone conference call. Those present for the conference call were Detective Tommy Duroy (with the Montgomery County Sheriff's Office), Gail McConnell (with the District Attorney's Office), Brian Wice (Applicant's attorney), and Judge Edie Connelly (who was handling the inquest), Lt. Damon Hall (with the Sheriff's Office Crime Lab), and Terance Greenwood (Det. Duroy's partner in the Cold Case Squad). Dr. Norton stated that it was her opinion that Tristin's death was a homicide and that the manner of death was asphyxia by suffocation. She explained that her conclusion was supported by the petechial hemorrhages on Tristin's lungs and thymus, combined with the other evidence of trauma, and in the context of the other circumstances of Tristin's death. In addition, Dr. Norton stated that the correct rule of thumb for assessing temperature loss in a child's body after death is an approximate loss of three degrees per hour, depending upon ambient temperature and other environmental facts. Thus, combining that with Tristin's maximum rectal temperature of 94 degrees at the hospital and the descriptions of Tristin's condition by Sullivan and others, she believed that Tristin's death occurred between 2:30 and 5:00 p.m. Consequently, because the child had been dead for at least an hour before CPR was attempted, the external bruises observed during the autopsy could not have been inflicted during the CPR. Nonetheless, Dr. Norton acknowledged that she could not conclude beyond a reasonable doubt that Applicant, alone, committed the homicide.

Dr. Norton also recommended that authorities investigate reports that Applicant had written something on a dollar bill and placed it in Tristin's casket at the funeral home on the date of Tristin's funeral. Ruth Hope (Barbara Hope's mother) and Shelby Becker (Barbara Hope's sister) had executed affidavits indicating that they saw Applicant writing something on a money bill and then placing it in Tristin's coffin.

On April 4, 2008, as part of her inquest, Judge Connelly signed an order directing that Tristin's body be exhumed for the purpose of retrieving any evidence that might be found in the casket. Six days later, Tristin's remains were exhumed and remnants of a piece of paper resembling United States currency were recovered from the casket liner. Document preservation experts reported on May 6, 2008, that no markings of any kind could be identified due to the poor condition of the paper.

Although the autopsy report had been amended by Dr. Wolf to reflect that both the cause and manner of death was "undetermined," Judge Connelly amended Tristin's death certificate on May 13, 2008, to correspond with Dr. Norton's opinion that Tristin's death was caused by asphyxia due to suffocation, rather than asphyxia by compression. The "homicide" finding was not changed.

The following day, on May 14, 2008, Dr. Norton executed an affidavit regarding her findings, and this prompted the State to withdraw its previously agreed-upon recommendation to grant relief. Although the State was no longer willing to recommend a grant, it agreed not to oppose Applicant's request for a new trial. In its supplemental response, the State wrote that the "cause of death remains asphyxiation, albeit by suffocation rather than compression, and the manner of death a homicide as presented by the jury at Applicant's trial."

On August 6, 2008, Dr. Wheeler submitted a sworn affidavit, repeating what he had said in his September letter to the trial court, adding that he disagreed with Dr. Norton's opinions.

3. Additional Discovery

On August 19, 2008, Dr. Moore executed an affidavit incorporating the opinions she had expressed in the May 13, 2007 correspondence. After Dr. Moore's sworn affidavit, containing her explanation of why her opinion regarding the cause of death changed, was filed, the trial court (Judge Michael Mayes) ordered that the parties engage in discovery. Judge Mayes appointed John Milutin, an attorney experienced in the deposition of medical experts, to conduct the depositions of the forensic pathologists. Dr. Moore was deposed on December 10, 2008. Dr. Moore stated in her deposition that it was no longer her opinion that Tristin's death resulted from compression asphyxia, and she concurred in the decision to list the cause of death as "undetermined." Dr. Moore disagreed with Dr. Norton's conclusion that the petechiael hemorrhages of the thymus and lungs were "extremely specific" as indicators of the cause of death. Dr. Moore concurred with Dr. Wolf's opinion that the observations made during the autopsy were not sufficient to determine a cause or manner of death. Dr. Wheeler was deposed on December 19, 2008, and Dr. Wolf was deposed on February 10, 2009. They, too, testified that they could not conclude with a reasonable degree of medical certainty that the cause and/or manner of Tristin's death was homicide.

Dr. Norton's deposition was scheduled for July 31, 2009. On July 14, 2009, Dr. Norton's daughter contacted counsel for the State and reported that a close personal friend of Dr. Norton's had passed away, and Dr. Norton could not participate in a deposition. On two subsequent occasions, Dr. Norton's daughter informed counsel for the State that Dr. Norton was suffering from health problems and had taken a leave of absence from her medical practice. On September 24, 2009, the State filed a motion for an evidentiary hearing and the issuance of a subpoena to require Dr. Norton's appearance. The trial court granted the State's motion to depose Dr. Norton at the location of her choosing; however, investigators could not locate Dr. Norton to serve the subpoena. Dr. Norton contacted counsel for the State by telephone, and said that she could not be deposed due to medical problems. On December 17, 2009, Dr. Norton submitted a second affidavit in which she confirmed that she was incapable of preparing for or participating in a deposition, and she adopted and ratified under oath the statements and opinions she expressed during the previous telephone conference, including that she believed Tristin died from suffocation and that her death was homicide.

Based largely on Dr. Norton's opinion, on December 22, 2009, the State filed its second supplemental response and recommended that relief be denied. Shortly thereafter, Applicant filed an objection to Dr. Norton's affidavit, arguing that, given her unwillingness to be deposed, the trial court should not consider her affidavit.

4. Motion To Reopen Inquest

On December 7, 2009, Applicant filed a formal motion with Judge Connelly to reopen the inquest into the cause of Tristin's death and to permit consideration of additional expert medical testimony. On December 29, 2009, Judge Connelly conducted an evidentiary hearing on Applicant's motion. On January 6, 2010, Judge Connelly denied Applicant's motion to reopen the inquest, concluding in a written order that "on the basis of examination and investigation, in the opinion of this Court, the cause and manner of death of Tristin Skye Rivet, as shown on the amended death certificate dated 05/13/2008, is cause: asphyxia due to suffocation, manner: homicide."

5. The Trial Court's Recommendation and This Court's Holding in Robbins I

On January 15, 2010, the State filed its proposed findings of fact and conclusions of law, which recommended that relief be denied. Days later, Applicant filed his proposed findings and conclusions. On January 21, 2010, the State filed its first supplemental brief in support of its proposed findings and conclusions. While not willing to concede that Applicant properly raised a due process claim in his supplemental ground for relief, the State argued that, even if he did raise due process, the Court "has not yet held-and it seems unlikely that it will ever hold-that the Due Process Clause is violated when a witness provides, in good faith, an opinion that is believed to be true by both the witness and the prosecution at the time of trial, even if that opinion is subsequently challenged by other experts or reconsidered by the witness who offered it."

The next day, on January 22, 2010, the trial court permitted oral argument. Applicant argued that Moore's re-evaluation was newly available evidence and that Ex parte Elizondo requires that the newly available evidence be evaluated within the four corners of the trial transcript. Further, Applicant asserted that due process and fairness require that the jury have the opportunity to re-weigh the evidence. In contrast, the State contended that Applicant could not establish that he was actually innocent because the evidence is not newly discovered, the re-evaluation was not indisputable, and there was other evidence of Applicant's guilt. Regarding the due process claim, the State argued that Applicant had failed to raise it as a supplemental ground, and it doubted whether there was a legal and factual basis for his due process claim: "It's hard to believe that a violation of due process is established by evidence that an expert opinion may have been correct or it may have been incorrect."

The trial court made twenty-two pages of detailed findings of fact, much of which is summarized above, and five pages of conclusions of law. The trial court recommended that we grant Applicant a new trial because his due process and due course of law rights were violated, as was his right to an impartial jury.

However, this Court denied relief ( Robbins I ), holding that Dr. Moore's testimony was not false at the time that she rendered her opinion at trial, and she did not create a false impression simply because the professional opinion she gave at trial had since changed upon further reflection and re-evaluation based on becoming a more experienced forensic pathologist. This Court held in Robbins I that Applicant's due process rights were not violated.

ARTICLE 11.073

A. The Original 2013 Version of Article 11.073

On September 1, 2013, the Texas Legislature enacted Article 11.073. This prompted Applicant to file his second writ application on September 3, 2013, alleging the same factual basis for relief as he did in his first writ application-Dr. Moore's change of opinion regarding the cause of Tristin's death. However, in this second application, Applicant invokes Article 11.073 as a new legal basis for relief.

The original 2013 version of Article 11.073 provides as follows:

(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.

(c) For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.

(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed since:

(1) the applicable trial date or dates, for a determination made with respect to an original application; or

(2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

On November 26, 2014, this Court rendered its opinion on Applicant's second writ application, holding that "[Dr.] Moore's revised opinion on the cause of death satisfies the requirements to be called 'scientific knowledge,' and thus falls within the language of Article 11.073." Applicant was therefore granted relief pursuant to Article 11.073 ( Robbins II ). However, on May 13, 2015, this Court granted the State's motion for rehearing in Robbins II, which made Applicant's second writ application, filed on September 3, 2013, once again a pending writ application.

B. The 2015 Amendment to Article 11.073

While this writ was pending before the Court on the State's motion for rehearing, on September 1, 2015, Article 11.073 was amended by House Bill 3724. House Bill 3724 provides as follows (the underlined portions of the statute reflect the changes that were made to Article 11.073 ):

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Article 11.073(d), Code of Criminal Procedure, is amended to read as follows:

(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert's scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since:

(1) the applicable trial date or dates, for a determination made with respect to an original application; or

(2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

SECTION 2. This Act takes effect September 1, 2015.

The House Criminal Jurisprudence Committee's Bill Analysis of House Bill 3724 contains the following information reflecting the intent behind the passage of the 2015 Article 11.073 amendment:

BACKGROUND AND PURPOSE

Informed observers note that current law allows for the reexamination of certain cases based on new scientific evidence and requires a court, in finding whether new scientific evidence exists, to consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed. The observers contend that a recent Texas Court of Criminal Appeals opinion held that a change in the scientific knowledge of a testifying expert would be a basis for habeas relief under the law. C.S.H.B. 3724 seeks to codify this decision.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 3724 amends the Code of Criminal Procedure to require a court that is hearing an application for a writ of habeas corpus based on certain issues with respect to scientific evidence that either was not available to be offered by a convicted person at trial or contradicts scientific evidence relied on by the state at trial, in making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, to consider, among other possible changes, whether a testifying expert's scientific knowledge has changed since the applicable trial date or dates, for a determination made with respect to an original application, or since the date on which the original application or a previously considered application, as applicable, was filed for a determination made with respect to a subsequent application. The bill specifies that the change in scientific knowledge that the court is required to consider is a change in the field of scientific knowledge.

EFFECTIVE DATE

September 1, 2015

Significantly, the "Enrolled Bill Summary" of House Bill 3724, provides that "House Bill 3724 amends the Code of Criminal Procedure to expand the factors a court must consider when making a finding as to whether scientific evidence constituting the basis for an application for a writ of habeas corpus was not ascertainable."

ANALYSIS

A. The Applicability of the 2015 Version of Article 11.073 to Applicant's Claim For Relief

Applicant filed this second writ application on September 3, 2013, which was after Article 11.073 was enacted, but before the effective date of the September 1, 2015 amendment to Article 11.073. Since the time that Applicant filed his second writ application, there has been no new factual development in the case. Everything this Court needs to resolve Applicant's claim for relief brought in his second writ application is before the Court. Nothing has changed since September 3, 2013 except Article 11.073, which was amended on September 1, 2015 "to expand the factors"

supporting relief to include a change in the "testifying expert's scientific knowledge." In fact, the State's attorney conceded at the outset of his oral argument before this Court that he has "never had the Legislature respond to [a] motion for rehearing by passing an enactment that potentially invalidates [his] motion." Since we are supposed to "seek to effectuate" the intent of the legislators who enact a statute, and since the intent behind the amended language in Article 11.073 is clearly aimed toward providing an avenue of relief for Applicant, granting such relief to Applicant under the amended statute is the logical solution. However, rather than address the issue of the amendment's applicability-i.e., whether the Court can consider the claims raised in Applicant's second writ application under the newly amended version of Article 11.073, which came into effect during the thirteen-month-long period since the State filed its motion for rehearing-the majority of this Court, which includes three of the Judges who had dissented to the 2014 opinion, has instead chosen to go back to the 2014 opinion.

It is true that there is no provision in the 2015 amendment addressing the applicability of the amended statute to a pending writ application, even though the Legislature could have easily put such a provision into the amendment. Yet, by the same token, had the Legislature intended the 2015 amendment to apply only prospectively-to writs filed after the effective date-it could have included such a provision in the amendment, as it did in the original enactment of Article 11.073 on September 1, 2013.

In Boykin v. State we held that:

[w]hen we interpret statutes ... we seek to effectuate the "collective" intent or purpose of the legislators who enacted the legislation. We do so because our state constitution assigns the law making function to the Legislature while assigning the law interpreting function to the Judiciary.

* * *

..."Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute."

There is, of course, a legitimate exception to this plain meaning rule: where application of a statute's plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally. When used in the proper manner, this narrow exception to the plain meaning rule does not intrude on the lawmaking powers of the legislative branch, but rather demonstrates respect for that branch, which we assume would not act in an absurd way.

If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extra textual factors as executive or administrative interpretations of the statute or legislative history.

Although the September 1, 2015 "effective date" provision of the Article 11.073 amendment is not ambiguous, the Legislative history makes it clear that not applying the amended version of Article 11.073 to this pending writ would lead to an "absurd consequence that the Legislature could not possibly have intended." Although there is no clause in House Bill 3724 expressly making the 2015 amendments to Article 11.073 applicable to pending writ applications, it was clearly intended by the Legislature that such amendment apply to this pending writ application-the proverbial "silver platter." Therefore, this Court should not ignore the clear legislative intent that supports the 2015 amendment's application to Applicant's claim for relief. I am therefore baffled by the decision made by the Court today.

Further support for the amendment's application here is found in the "Criminal Justice Impact" portion of the Bill Analysis, with contains language clearly intending that the amendment not be viewed as an ex post facto law:

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

Article I, Section 16, of the Texas Constitution provides that "[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made." An "ex post facto law" is one that (1) punishes as a crime conduct previously committed, which was innocent when done; (2) makes more burdensome the punishment of a crime after its commission; (3) deprives one charged with a crime of any defense available at the time when the act was committed; or (4) alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. Early Supreme Court cases reflect that "ex post facto law" is a term of art that has an established meaning as a law which "in relation to the offense or its consequences, alters the situation of a party to his disadvantage. " Therefore, with regard to determining whether a law is an ex post facto law, the determinative issue is whether the retroactive application of the law would be punitive or non-punitive. If it is non-punitive, (i.e., remedial), then it is not an ex post facto law.

The Code Construction Act supports this conclusion. Although Section 311.022 of the Texas Government Code provides that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective," and Section 311.031(a)(1) provides that the amendment of a statute does not affect "the prior operation of the statute or any prior action taken under it," these rules do not apply to remedial or procedural statutes. Texas Government Code Section 311.031(b) specifically provides that "[i]f the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended. "

I believe that the amendment to Article 11.073 is remedial in nature-it was enacted to "expand" the opportunities for relief available under Article 11.073. Its application would result in a favorable outcome for Applicant. Therefore, in this case, because Article 11.073 was amended during the pendency of Applicant's writ application, and addressing his claims for relief under the amended statute would result in a favorable outcome for Applicant, then Article 11.073, as amended, should be applied here.

The Court's application of a newly amended statute to a pending writ application is not without precedent. Ex parte Johnson, involved a post-conviction writ of habeas corpus brought pursuant to Article 11.07. The applicant complained that his convictions for two aggravated robberies were void and requested a new trial. Specifically, the applicant asserted that the jury's assessment of $15,000 in total fines in addition to terms of years as punishment was unauthorized by law, which made the judgments and sentences void. This Court agreed and addressed the issue of what the proper remedy would be. This Court acknowledged case law holding that a trial court did not have the ability to change a verdict that was void at its inception, noting that they all involved "the lack of a specific vehicle by which the improper verdict could be reformed." The Court addressed the applicability of "a new law" that the Legislature had recently enacted that "enlarges the authority of courts to reform judgments, thus providing a way to cure the infirmity." Senate Bill 1349, effective June 11, 1985, amended Article 37.10 by allowing a court to reform a verdict and judgment containing an unauthorized punishment. This Court then addressed whether it could apply the new amendment to the pending writ application:

Since the amendment does not constitute substantive law defining criminal acts or providing for penalties, it is procedural in nature. Thus, in the absence of express legislative intent to the contrary, the new law controls litigation from its effective date and applies to both pending and future actions .... We must therefore follow the Legislature's mandate and reform that portion of the verdict unauthorized by law.

Under similar facts, in Ex parte Youngblood, the applicant requested in an 11.07 writ application that his conviction be set aside because it was void due to the imposition of an improper fine. However, this Court followed Ex parte Johnson in holding that the verdict and judgment could be reformed to delete the improper fine, as opposed to granting the applicant's request to set aside the conviction and judgment. The applicant then filed a writ application in Federal District Court, contending that the Ex Post Facto Clause of Article I, Section 10 of the United States Constitution was violated by the retroactive application to him of the Texas statute that allowed the Court of Criminal Appeals to reform the unauthorized verdict rather than set it aside. The Federal District Court denied Youngblood relief, concluding that, since his punishment was not increased (but actually decreased) and the elements of the offense or the ultimate facts necessary to establish guilt were not changed, there was no ex post facto violation. However, the Fifth Circuit reversed that decision. Relying on Thompson v. Utah, the Fifth Circuit held that retroactive procedural statutes violate the Ex Post Facto Clause unless they "leave untouched all the substantial protections with which existing law surrounds the person accused of crime." The Supreme Court granted certiorari, and in Collins v. Youngblood, the Supreme Court held that the Texas statute that allowed reformation of improper verdicts was not an ex post facto law. The following excerpts from the Supreme Court opinion are instructive:

Respondent Carroll Youngblood was convicted in a Texas court of aggravated sexual abuse. The jury imposed punishment of life imprisonment and a fine of $10,000. After his conviction and sentence were affirmed by the Texas Court of Criminal Appeals, Youngblood applied for a writ of habeas corpus in the State District Court. He argued that the Texas Code of Criminal Procedure did not authorize a fine in addition to a term of imprisonment for his offense, and, thus, under the decision of the Court of Criminal Appeals in Bogany v. State, 661 S.W.2d 957 (1983) [ (Tex.Crim.App.1983) ], the judgment and sentence were void, and he was entitled to a new trial. In April 1985, the District Court, feeling bound by Bogany, recommended that the writ be granted.

Before the habeas application was considered by the Texas Court of Criminal Appeals, which has the exclusive power under Texas law to grant writs of habeas corpus, see Tex.Code Crim. Proc. Ann., Art. 11.07 (Vernon 1977 and Supp.1990), a new Texas statute designed to modify the Bogany decision became effective. Article 37.10(b), as of June 11, 1985, allows an appellate court to reform an improper verdict that assesses a punishment not authorized by law. Tex.Code Crim. Proc. Ann., Art. 37.10(b) (Vernon Supp.1990); see Ex parte Johnson, 697 S.W.2d 605 (Tex.Crim.App.1985). Relying on that statute, the Court of Criminal Appeals reformed the verdict in Youngblood's case by ordering deletion of the $10,000 fine and denied his request for a new trial.

...Although the Latin phrase "ex post facto " literally encompasses any law passed "after the fact," it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them....

... The Texas statute allowing reformation of improper verdicts does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed. Its application to respondent therefore is not prohibited by the Ex Post Facto Clause of Art. I, § 10.

The Supreme Court reversed the Fifth Circuit's decision.

In this case, the amended language in Article 11.073, as well as the documents reflecting legislative intent, speak directly to Applicant's claim for relief. The new statute does not punish an act previously committed, nor make more burdensome the punishment for a crime, nor deprive Applicant of any defense previously available. While the amendment may not appear to be procedural, it is clearly remedial and, hence, favorable to Applicant. This Court's application of the 2015 version of Article 11.073 to Applicant's claim for relief brought in his pending 2013 writ application would not constitute the application of an ex post facto law. I would hold, therefore, that Applicant's claims for relief raised in his second writ application may be resolved under the 2015 version of Article 11.073.

B. Cognizability of This Subsequent Application Under Article 11.07 and Article 11.073 -One Hurdle or Two?

This is Applicant's second Article 11.07 writ application. Applicant's first writ application was also a claim for relief based upon Dr. Moore's change in opinion. However, because Article 11.073 had not yet come into existence, Applicant claimed in his first writ application that he had suffered a due process violation and that he was legally entitled to relief because Dr. Moore had given false and/or misleading testimony.

Article 11.07, Section 4(a) provides that,

[i]f a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: (1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.

Article 11.07 defines what makes a legal claim unavailable:

For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis 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 or before that date.

Article 11.073 was enacted on September 1, 2013, six years after Applicant filed his original application. In Robbins II, this Court held that Article 11.073 provided a new legal basis for habeas relief and that the subsequent writ bar did not preclude our review of his claims. I agree with that assessment.

It was suggested in Judge Keasler's Robbins II dissenting opinion that, "even if we accept that Dr. Moore's changed individual opinion meets the definition of scientific knowledge or method, it appears that such a change would not satisfy section (d) because it occurred after Robbins's trial and before Robbins's original application, not after." However, such application of section (d)(2) creates a paradox for Applicant, in that it would eliminate his right to relief under Article 11.073 before such right could ever have come into existence. In construing a statute, we give effect to the plain meaning of its language, unless the plain meaning would lead to absurd results that the legislature could not have possibly intended. Judge Keasler's inclination, expressed in his 2014 Dissenting Opinion, to dismiss this writ application pursuant to Article 11.073(d)(2) because it is based on the same factual assertions made in Applicant's original 2007 writ application, (the fact that Dr. Moore's opinion had changed from her trial testimony), would lead to an absurd consequence that was clearly not intended by the Legislature.

C. Applicant's Right To Relief Under The Current Version of Article 11.073

1. Article 11.073(a) -The relevant scientific evidence

Article 11.073(a)(2) (both the 2013 version and the 2015 ver