Ex parte Chaney (563 S.W.3d 239, 2018)

Hervey, J., delivered the opinion of the Court in which Keasler, Alcala, Richardson, Newell, and Walker, JJ., joined.

Applicant, Steven Mark Chaney, was convicted of murder and was sentenced to life imprisonment and fined $5,000. His conviction was affirmed on appeal. Chaney v. State , 775 S.W.2d 722 (Tex. App.-Dallas 1989, pet. ref'd). He now claims that he is entitled to relief because (1) new scientific evidence contradicts bitemark-comparison evidence relied on by the State at trial, (2) his conviction was secured using false evidence, (3) the State violated Brady , and (4) he is actually innocent. The State and habeas court agree that Chaney is entitled to relief on all grounds. After reviewing the record, we agree and relief is granted.

I. BACKGROUND

On June 20, 1987, Rhea "Jack" Rasnic and his girlfriend, Nicole Strange, found the bodies of John and Sally Sweek in their apartment. Their throats were slashed, and they had been stabbed multiple times. Police also found what they believed to be a human bitemark on John's left forearm. There were no eyewitnesses to the offense.

a. Discovery of the Bodies

The day of the murders, Rasnic and John were supposed to go fishing, but they never went because Rasnic was unable to reach John. Throughout the day, Rasnic called John's apartment phone almost a dozen times, and he stopped by his apartment a few times, but no one answered the door when he knocked. Because they had plans, he thought it was odd that John had not gotten in touch with him, but he decided that he and Nicole would try to meet up with John and Sally that evening at a pool party at the Sweek's apartment complex. However, John and Sally never showed up at the party. Rasnic and Nicole walked over to John and Sally's apartment and knocked on the door, but again no one answered. The pair went back to the party for a while, then returned to the apartment between 9:00 p.m. and 9:30 p.m. Rasnic and Nicole looked through one of the windows and saw two bodies lying on top of each other on the floor. After discovering the bodies, they went home, and Nicole called her brother Gary Strange, John's best friend. Gary called John's father, Henry Sweek, and one of John's brothers, Rick Sweek. Afterward, Rasnic, Nicole, and Gary went to John and Sally's apartment to meet Rick. Between 10:30 p.m. and 11:00 p.m., Rasnic, Gary, and Rick walked to the apartment window together and looked in. Rick fell to his knees and started crying. After Rasnic and Gary comforted him, Rick called his father, and Rasnic went back to the pool and called the police from a pay phone.

b. The Crime Scene

When Officer Robert Hinton arrived at the scene, he entered the apartment and found the bodies of John and Sally in the kitchen lying in a pool of blood. He also noticed shoeprints made of dried blood on the carpet. Investigator James Vineyard and his supervisor from the Dallas Police Department Physical Evidence Section processed the crime scene, which included photographing, collecting evidence, and searching for fingerprints. They noticed some bloodstains in the foyer that Hinton had not seen. The shoeprints began on the linoleum in the kitchen and went into the carpeted dining room and through the living room to the front door. Vineyard thought that the prints had been made within the last day. He also thought that they could have been made by two different shoes because some prints appeared to have been made by a flat-heeled shoe, while others had a gap between the sole and the heel. One of the bloody shoeprints in the kitchen appeared to show a pattern of parallel lines from a design on the sole of the shoe. After photographing the shoeprints, Vineyard removed portions of the carpet to preserve some of the prints.

In the kitchen, Vineyard found the bloodied bodies of John and Sally. He saw a large amount of both dried and wet blood on the bodies and on the kitchen floor. He also saw blood spatter on the kitchen counter, the refrigerator, the stove, and the dishwasher. Some of the spatter was between three and three-and-a-half feet across. He also found blood smears and spatter on the wall dividing the dining room from the kitchen. According to Vineyard, "with the amount of blood that was present in the kitchen area, any individual that walked away from there probably had a large quantity of blood on his shoes, his pant-leg area, maybe even higher than that."

After documenting the crime scene, Vineyard began collecting evidence, including dusting the apartment for fingerprints. He and his supervisor processed the inside and outside of the front door, portions of the foyer wall, areas around the dining room and kitchen, window sills, the entrance way to the kitchen, countertops, appliances, and some countertop items. They found no fingerprints outside of the apartment, but inside they found between three and four dozen. Some of them were bloody or near blood. Of the dozens found, only one partial fingerprint was identified as Chaney's: a partial left-thumb print found on the small wall abutting the entrance to the kitchen. It was not bloody. The print was two-and-a-half to three feet above the floor pointing up and was a few feet from John's body. Vineyard thought that the print could have been left by someone who had been crouching down over someone and grabbed the wall (the State's theory), but he also thought that it could have been left by someone who walked past the wall and touched it, or even by a person leaning down to pet John and Sally's small dog (the defense theory), which was found alive in the apartment under the bed.

c. The Investigation

Homicide Investigator John Westphalen arrived on scene shortly after Vineyard and Vineyard's supervisor. He walked through the apartment and spoke to people who had been gathering in the parking lot outside, including some Sweek family members. No one that Westphalen spoke to saw or heard anything. A few hours later, Westphalen spoke to members of the Sweek family again and learned that John and Sally were involved in selling drugs and that a man named Juan Gonzalez, who supplied drugs to John, might be a person of interest. About a week after the murders, one of Sally's sisters, Mary Sweek, gave Westphalen a spiral notebook that she found in the apartment after the police left. The notebook appeared to be a drug ledger, and it had names, weights, and the amount of money people owed John. Chaney's name was in the notebook with some others, including members of the Sweek family.

A few days later, Westphalen received an anonymous call suggesting that Chaney might be a person of interest. The caller told Westphalen that he and Chaney bought cocaine at the Sweek apartment three to four times a week for months before the murders and that they went to the apartment a week before the murders. He also told Westphalen that Chaney owed John money when he was killed and where Chaney worked in case he wanted to talk to him.

Based on the phone call and the fact that police found a partial thumb print from Chaney's left thumb, Westphalen and his partners visited Chaney at his construction job. When Westphalen approached Chaney and identified himself, Chaney immediately asked Westphalen if his visit was about the murders. Westphalen responded that it was, and Chaney told him that he had "eight witnesses who knew where he was on the night of the 20th and he had not been in that apartment in three weeks." Westphalen arrested Chaney for two outstanding tickets, took him back to the police station, and interviewed him before releasing him.

When Westphalen questioned Chaney again on July 20, he noticed that Chaney was wearing tennis shoes that, in his opinion, resembled some of the bloody shoeprints on the apartment floor. Westphalen seized Chaney's shoes and arrested him on suspicion of capital murder.

II. PROCEDURAL HISTORY

a. The Mistrial

On October 28, 1987, the trial court held a pretrial hearing about the admissibility of oral statements made to Westphalen and Hilton (the anonymous caller) by Chaney; the extent to which the defense could introduce evidence about Gonzalez, a drug supplier for John (and an alternate suspect according to the defense); and extraneous offenses committed by Chaney. Westphalen testified first. During his testimony, it became clear that he had notes and other evidence that were not disclosed to the defense in violation of the parties' agreed discovery order. At the end of the testimony, the trial judge adjourned the hearing, so he could examine Westphalen's file for other exculpatory evidence. The following morning, the judge held an in-chambers meeting with the attorneys and told them that he found "several things" that he thought might be exculpatory, including evidence regarding Gonzalez, an alternative suspect. The defense was granted a two week continuance.

When the pretrial proceedings resumed on November 16, Hilton testified about the statements Chaney made to him and Chaney's extraneous offenses. He said that Chaney asked him to re-pay the money he owed Chaney because Chaney needed to buy a car, and he needed to send child support to Houston. He also told him that he might leave town. The defense objected to the admission of the oral statements because they had not been disclosed by the State. The judge ruled that the statements and extraneous offense evidence were admissible.

After the ruling, the jury was brought back in and the trial began. The State called Hilton as its first witness. On cross-examination, Hilton testified that Chaney told him that he "cleared up [his debt] with John." The defense objected because that statement had never been disclosed by the State or raised during the pretrial hearing. The court sustained the objection. The jury was excused, and the judge asked the State whether there were any other statements that would come out that the court and the defense had not heard about. Defense counsel asked for an instruction to disregard and moved for a mistrial because of bad faith on the part of the State. The judge granted the request for a mistrial after the jury returned.

b. Second Trial

The State reindicted Chaney, and the defense filed a plea in bar. The judge denied the motion, and Chaney's second trial commenced later that day. At his second trial, the State tried Chaney only for the murder of John. The jury convicted him, sentenced him to life imprisonment, and fined him $5,000. The Dallas Court of Appeals affirmed his conviction. Chaney , 775 S.W.2d at 722.

III. EVIDENCE

a. State's Case

The State's case was mostly circumstantial. According to the State, Chaney might have left some of the shoeprints in the apartment because some of the prints were consistent with tennis shoes, and Chaney was wearing tennis shoes when Westphalen first interrogated him. It also argued that subsequent presumptive blood testing of the shoes revealed non-visible traces of an unknown substance that might have been blood. According to the forensic serologist, Carolyn Van Winkle, presumptive blood tests can return false positives, but in her experience, the substance is more likely to be blood when there is a quick positive result, as happened in this case. She also said, however, that she could not say if the substance was blood because there was so little material to test and that, even if it was, she did not know whether the blood was from a human or another animal. The State also relied on a partial thumb print found on a wall abutting the kitchen entrance to place Chaney at the scene. It further argued that, given the location and orientation of the partial thumb print, Chaney might have been bending over something, like John's body, which was a few feet away, when he left that print.

In addition to the tennis shoes and partial thumbprint, the State relied on the statements that Chaney made to Westphalen and Hilton. According to the State, Chaney's statements to Westphalen showed consciousness of guilt in that Chaney was overly interested in the murders, and he immediately tried to convince Westphalen that he had nothing to do with the murders even though Westphalen had not yet told Chaney why he was looking for him. The State also used Hilton's testimony to show Chaney's motive for murdering John, which was that Chaney owed John money and that Chaney wanted more cocaine badly enough that he was willing to kill John to get it. Hilton testified that he had overheard John and Chaney talking about money that Chaney owed John and that Chaney needed to "clear his debt." The next day, Hilton went to John's apartment by himself to get more cocaine, and John mentioned to him that he needed the money Chaney owed him. Hilton saw $500 written on a piece of paper and assumed that was how much Chaney owed John. The following week, according to Hilton, he spoke to Chaney and again asked him if he had "cleared his debt with John," to which Chaney replied that he had. Chaney also asked Hilton for the money that Hilton owed him again because he needed to pay for a car that he bought, he needed to pay child support, and he needed to go to Houston to see his wife and kids. Chaney told Hilton that he was his "alibi" because the last time he was at the apartment was with Hilton. This conversation took place almost two weeks after the murders.

Based on their conversations, Hilton testified that he was concerned that Chaney might have been involved in the murders because "[t]here was a conflict in the story [Chaney] told me on whether he had cleared his debt or not and the last time that he had been over there, and it scared me." Hilton anonymously called Westphalen because of his concerns and told him that he and Chaney had been at the Sweek apartment the week prior to the murders and that, when they went, Chaney bought cocaine from John, and he bought cocaine from Chaney. He also told Westphalen that he and Chaney owed John money when John was killed and where he could find Chaney.

Hilton further testified that, after the phone call, and after Westphalen and his partners visited Chaney, Chaney showed up at his house unannounced and told him that he had been picked up for questioning at work and could not "believe that this was happening to him, [and] that he didn't have a damn thing to do with it ...." According to Hilton, Chaney again reiterated that Hilton was his "alibi" and that he could not believe what was happening. He also asked Hilton about the money he owed him because he needed to make his child support and car payments, and he told him that he "needed to go to Houston to get out of town until this kind of blows over." Hilton thought that Chaney was talking about the murders. Before Chaney left, Hilton again asked Chaney if he had paid John, and Chaney responded again that he had. During their third and final conversation a few weeks later, Chaney told Hilton that their fingerprints had been found "all over the apartment." He also reiterated that Hilton was his alibi and asked for the money Hilton owed him. Hilton told Chaney that he was never going to pay him and that they should not talk to each other anymore.

The final piece of the State's case was testimony from two forensic odontologists that a mark found on John's left forearm was a human bitemark made by Chaney at the time of the murders. One of the witnesses, Doctor James Hales said that there was only a "[o]ne to a million" chance that someone other than Chaney bit John because the mark was a "perfect match" with "no discrepancies" and "no inconsistencies." He claimed that the "one to a million" statistic was found in "the literature." He also testified that the injury was inflicted at the time of the murders. Hales's testimony was damning, placing Chaney at the scene of the crime when John and Sally were murdered. The other witness, Doctor Homer Campbell, testified that the mark was actually at least four separate human bitemarks and that, after comparing dentition models and examining photographs, he was certain to a "reasonable degree of dental certainty" that Chaney was the one who bit John. The bitemark evidence was the State's strongest evidence according to its own closing arguments.

b. Defense Case

1. The Alibi

Chaney claimed that he had an alibi. He also sought to create reasonable doubt by impeaching the State's theory of the crime. According to Chaney's alibi witnesses, he lived in Millsap on property owned by his girlfriend's father, John Hooper, Sr. According to Hooper, Chaney left the property the day of the murders at about 5:15 a.m. Hooper's wife, Dora Hooper, saw Chaney leave between 5:00 a.m. to 5:30 a.m., and Barry Hines, Chaney's girlfriend's son from a prior marriage, testified that Chaney had already left for work when he woke up around 6:00 a.m.

According to the foreman at the construction site and another one of Chaney's colleagues, both of whom did not socialize with Chaney, Chaney worked the day of the murders, arriving just before 7:00 a.m., and he left around 9:00 a.m. after it began to rain. Hooper Sr. remembered Chaney returning to the property at about 9:30 a.m., Dora thought that Chaney returned between 9:30 a.m. and 10:00 a.m. Lenora "Lindy" Murley, Chaney's girlfriend, testified that she knew that Chaney was home at 9:30 a.m. because that is when he woke her up and told her that he was going to do some work around the property. Hines said that Chaney returned home around 9:00 a.m.

After Chaney returned, he helped Hooper Sr. hang some sheetrock in Hooper's kitchen and then worked on Dora's car until the middle of the afternoon when he received a phone call at about 2:30 p.m. After the phone call, Chaney told Hooper Sr. that he needed to pick up some furniture. Murley's sister, Janey Hunter, was moving into a new house and needed to empty her trailer, which included Chaney and Murley's furniture. Murley testified that she borrowed her parents' rusty 1976 Chevy pickup and some gas money, then she left with Chaney and her son at about 5:00 p.m. to pick up the furniture. Hooper Sr. remembered them leaving between 4:00 p.m. and 5:00 p.m.

While driving to Hunter's trailer in Cedar Creek (about a four-hour drive from Millsap), one of the truck's tires blew out in Fort Worth. Murley and Chaney needed a ride to get another tire because theirs could not be fixed, and the only nearby tire shop was closed, so Murley tried to call her sister Nina, who lived in Fort Worth. Nina was not home, but two of her friends were house sitting, and they answered the phone-Rebecca "Becky" Edwards and her husband Keith Edwards. They offered to help Murley and drove out to meet them. Chaney and Keith removed the blown-out tire and went to get a replacement. Murley testified that they came back between an hour and an hour-and-a-half later. After replacing the tire, Murley, Chaney, and Hines left the gas station around 7:30 p.m. or 8:00 p.m. and arrived at the trailer at about 9:30 p.m. They found a note from Hunter at the trailer with directions to her new house. Because it was dark outside, they decided to move the furniture the next day and drove to her house to spend the night. Hunter remembered that they arrived at about 10:30 p.m. According to Hunter and Hines, Hines watched cartoons for a while, and the other three talked for a bit, before everyone went to bed between 11:00 p.m. and 11:30 p.m.

2. Other Evidence

The defense called Charles Currier, a Footlocker manager, to lessen the impact of the State's argument that a pattern in some of the bloody shoeprints could have been left by one of Chaney's tennis shoes when he committed the murders. He testified that he had been selling shoes for 23 years and that the pattern that the police thought might have been reflected in the shoeprint was "probably the most widely used sole in athletic footwear." He also said that for 15 years, 50% to 80% of all athletics shoes used that sole pattern. The defense also pointed out that even the police's own expert reached inconclusive results after comparing Chaney's tennis shoes to the bloody shoeprints.

The defense called two witnesses to testify about the mark on John's left forearm. The first expert, Linda Norton, testified that the mark was a human bitemark but that it was "virtually unsuitable for making a good dental comparison ...." because "almost anyone who has relatively even top and bottom teeth is going to be capable of leaving this bite mark." According to her, she would not have submitted the mark for comparison. Chaney's second witness, Doctor John McDowell, a forensic odontologist, agreed with the State's experts that the mark on John's left forearm was a human bitemark, and he agreed that the photographs from Weiner's office were of good quality, but his comparisons were nonetheless inconclusive.

c. Closing Arguments & Verdict

1. The State-First Closing

The State argued, relying on only Hilton, that Chaney killed the Sweeks because he owed John money for cocaine John had fronted him and because he was addicted to cocaine and was willing to do anything to get more. The State also urged the jury to rely on Chaney's statements to Westphalen and his statements to Hilton, as well as its blood and fingerprint evidence, and it attacked Chaney's alibi, pointing out that almost all of the witnesses were his girlfriend's family members and that even they could not agree when Chaney returned home the morning before the murders. The State also cited testimony from the foreman at the construction site and Chaney's colleague, both of whom testified that Chaney was in Irving at the Las Colinas construction site at 9:00 a.m.

2. The Defense

According to the defense, Chaney went to work the day of the murders, and after the crew was "rained out," he went home. He spent the rest of the day hanging sheetrock and working on cars before spending the night at Hunter's and picking up some furniture the next morning. The defense conceded that its witnesses did not agree about exactly when Chaney left the day of the murders or when he returned home, but it asserted that it would be unusual if the witnesses had all testified to identical times. It also pointed out that, despite those small discrepancies, all the witnesses' testimony placed Chaney in a different county-Parker County-at the time of the murders.

The defense argued that Hilton was not credible because he admitted to lying to people and that Hilton had reason to implicate Chaney because he owed John and Chaney money at the time of the murders, and it pointed out that Hilton had been convicted of many felonies-so many that he could not remember them all-and that the State had given him immunity for his testimony against Chaney. It also claimed that the evidence showed that the pattern on the sole of the shoe in the bloody shoeprints did not appear to be the same as the pattern on the sole of Chaney's tennis shoes and that the pattern was one of the world's most common shoe-sole patterns. The defense argued that the presumptive blood test was not probative because Van Winkle did not even know if the spots were actually blood, much less if they were of human or animal origin. To impeach the State's fingerprint evidence, the defense explained that, even though a partial left thumbprint from Chaney was found, he went over to the apartment often, so finding a print was not unexpected. It also cited Vineyard's testimony that the fingerprint could have been left well before the murders and asserted that, even though the State's evidence showed that the assailant would have been covered in blood, the partial thumbprint was not bloody or near blood. The defense forcefully argued that Gonzalez was a "prime suspect" that authorities did not meaningfully investigate.

The rest of the defense's closing argument focused on discrediting the State's bitemark evidence. The defense argued that the bitemark should have been better preserved and that better equipment should have been used to examine the mark. It also asserted that bitemark comparisons are merely "interpretative," pointing to the conflicting testimony about whether the injury was even a bitemark.

3. The State-Second Closing

The State spent almost all its second summation discussing the bitemark evidence. The prosecutor emphasized Hales's testimony that "only one in a million could have possibly made that bite mark" before asking the jury "[w]hat more do you need?" He then cited Campbell's testimony that he was sure, to a "reasonable degree of dental certainty," that Chaney bit John.

The State also tried to discredit Norton, one of the defense experts, as a charlatan somewhere between "Quincy and Matt Dillon" and painted McDowell's testimony, the other defense expert, as helpful to the State even though he testified that his comparisons were inconclusive. The prosecutor concluded by arguing that the bitemark evidence was "better than eyewitness testimony. [Eyewitnesses] can make mistakes, as [defense counsel] said" and that,

But, most of all, we have the bite mark. I wouldn't ask you to convict just based on the testimony of the tennis shoes, of the statements Chaney made to Westphalen, or the statements he made to Curtis Hilton. But, by golly, I'm going to ask you to convict on that dental testimony.

IV. COURT OF APPEALS

Chaney appealed his murder conviction to the Dallas Court of Appeals. Chaney , 775 S.W.2d at 722. He argued that the evidence was legally insufficient and that the trial court erroneously admitted hearsay, Chaney's oral statements to Westphalen and Hilton, and testimony about extraneous offenses. Id. at 723. The court of appeals overruled his points of error and affirmed his conviction. Id. This Court later refused Chaney's petition for discretionary review.

V. PROCEDURAL HISTORY OF WRIT PROCEEDINGS

After Chaney was convicted, he filed an application for post-conviction habeas corpus relief, claiming that he is entitled to relief on four grounds: (1) new scientific evidence contradicts bitemark-comparison evidence relied on by the State at trial, (2) his conviction was secured by the use of false evidence, (3) the State violated Brady , and (4) he is actually innocent.

The parties recommended that this Court grant relief on Chaney's false-evidence and new-science claims, and the trial court adopted that agreement. Instead of following that recommendation, however, we remanded the cause to determine whether Chaney intended to abandon his Brady and actual innocence claims. On remand, Chaney filed an amended memorandum of law, and the parties agreed that Chaney was entitled to relief on those claims as well. The habeas court adopted the parties' agreement in its agreed supplemental findings of facts and conclusions of law.

VI. ARTICLE 11.073

According to Chaney, "while much of th[e] [trial] testimony appeared to be in accord with the state of scientific knowledge in 1987 about what could and could not be concluded from a bite mark, in the intervening decades since [his] conviction, the ground on which Drs. Hales and Campbell based their assertions [about bitemark comparisons] has given way entirely." He contends that the "[s]cientific understanding about whether it is possible to 'match' a particular person to a bite mark in skin and whether random match probabilities can be given for a bite mark has now reversed course." He also argues that he is entitled to relief because Hales has changed his trial opinion that the bitemark was inflicted at the time of John's death, which was an opinion upon which the State heavily relied. Hales now believes that the wound was two to three days old when John and Sally were killed.

a. The Law

In 2013, the legislature enacted Article 11.073 of the Texas Code of Criminal Procedure, which allows a defendant to obtain post-conviction relief based on a change in science relied on by the State at trial. TEX. CODE CRIM. PROC. art. 11.073. That statute provides that an applicant is entitled to post-conviction writ relief if he can prove that:

(1) 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;

(2) The scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and

(3) The court must make findings of the foregoing and also find that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.

Id. art. 11.073(b)(1) & (2). When assessing 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). TEX. CODE CRIM. PROC. art. 11.073(d) ; Robbins , 478 S.W.3d at 691.

b. Relevant Findings of Fact and Conclusions of Law

In its agreed findings of facts and conclusions of law, the habeas court found that:

• [T]he science behind forensic odontology as it relates to bite mark comparisons has considerably evolved since the time of trial in 1987. The Court further finds that these new scientific advancements contradict the scientific evidence relied on by the State at trial.

* * *

• The Court finds that no scientific evidence has been produced to support the basis of individualization of a bite mark to the exclusion of all other potential sources in an open population. The Court also takes judicial notice of the reference manual published by the American Board of Forensic Odontology (ABFO), which sets out the guidelines to be followed by ABFO Diplomate forensic odontologists.[ ]

• The Court finds that the [March 2015] Manual prohibits ABFO Diplomates from testifying to individualization of bite marks in an open population, i.e., where the universe of potential suspects, or "biters," is unknown. The Court also finds that the ABFO's guidelines at the time of [Chaney]'s trial did not prohibit this testimony.

* * *

• The Court finds that the terms ["]match["] and ["]biter["] as it related to suspected sources of bite marks was permissible terminology under the ABFO guidelines and scientific field of forensic odontology at the time of trial.

* * *

• The Court, therefore, finds that Dr. Hales's use of the terms ["]match["] and ["]biter["] as it related to [Chaney] was appropriate under the ABFO guidelines and scientific field of forensic odontology at the time of trial.

• The Court also finds Dr. Hales's and Dr. Homer Campbell's testimony that it was their opinion, to a reasonable degree of dental certainty, that [Chaney] made the bite mark on John Sweek's arm was appropriate under the ABFO guidelines and scientific field of forensic odontology at that time.

• However, the Court finds that such testimony would not be justified, admissible, or accurate under today's guidelines because the scientific community and the ABFO guidelines have invalidated individualization of bite marks in an open population, as we have in this case.

* * *

• The Court finds that the changes in science and the evolution of the field of forensic odontology as it relates to bite mark comparisons constitutes relevant scientific evidence that was not available to be offered by [Chaney] at the time of trial in 1987.

• As such, the Court finds that the current relevant scientific evidence related to bite marks was not available at the time of [Chaney]'s trial because the evidence was not ascertainable through the exercise of reasonable diligence by [Chaney] before the date of or during trial.

* * *

• The Court finds that the current scientific evidence related to bite marks would be admissible under the Texas Rules of Evidence at a trial held on the date of the pending habeas application. See Coronado , 384 S.W.3d at 926-28.

• The Court finds that had the bite mark evidence been presented at trial under current scientific standards, on the preponderance of the evidence [Chaney] would not have been convicted. In so finding, the Court notes that bite mark evidence was central to the State's case -- so much so that -- the State even argued to the jury at trial that it should convict mostly on the bite mark evidence. (RR8: 801-02). The State further emphasized the bite mark evidence by reminding the jury that Dr. Hales testified that only one in a million people could have possibly made the bite mark, asking rhetorically, "What more do you need?" The impact of this evidence on the jury is further evidenced by a juror's testimony in [Chaney]'s Motion for New Trial hearing that she [voted to convict] based on the bite mark. (RR9: 6).

• The Court finds that [Chaney] has satisfied his burden of proof by preponderance of the evidence, meriting relief under Ground One.

In its supplemental agreed findings of fact and conclusions of law, the habeas court additionally found that:

• The Court finds that the [ABFO] Manual was updated again in [March 2016]. The current Manual prohibits individualization testimony entirely, regardless of whether the population at issue is open or closed. Under the current Manual, the only permissible conclusions for ABFO Diplomates are: "Excluded as Having Made the Bitemark"; "Not Excluded as Having Made the Bitemark"; or "Inconclusive."

• The Court finds that this change further supports [Chaney]'s claim under Article 11.073, as neither Dr. Hales's nor Dr. Campbell's testimony could be proffered under these even more restrictive Guidelines.

The record reasonably supports the findings of the habeas court, so we adopt those findings. For the reasons that follow, we conclude that Chaney is entitled to relief under Article 11.073 on the grounds that, not only has the body of scientific knowledge underlying the field of bitemark comparisons evolved in a way that discredits almost all the probabilistic bitemark evidence at trial, but also because Hales's new opinion that the bitemark was inflicted days before the murders based on his new scientific knowledge that was not available at Chaney's trial. Robbins , 478 S.W.3d at 692.

c. Change in the Field of Scientific Knowledge

To support his "change in the body of the science" arguments, Chaney cites (1) excerpts from the 2009 National Academy of Science: "Strengthening Forensic Science in the United States: A Path Forward" (NAS Report), (2) an affidavit from Drs. Mary Bush, DDS, and Peter Bush; (3) an affidavit from Hales, who testified at trial; (4) a supplemental affidavit from Hales; (5) an odontology report written by Dr. Alastair Pretty; (6) a supplemental odontology report written by Pretty; (7) an affidavit from Pretty, (8) an affidavit from Drs. Cynthia Brzozowski, James Wood, and Anthony Cardoza (Brzozowski et al.); (9) a supplemental affidavit from Brzozowski, et al.; (10) an affidavit of Dr. Michael Baden, M.D.; and (11) an amicus curiae brief filed in the California Supreme Court, which was authored by 38 "scientists, statisticians, and law-and-science scholars and practitioners."

In response to Chaney's writ application, the State "acknowledges and concedes that the science behind forensic odontology, as it relates to bite mark comparison, has considerably evolved since the time of trial in 1987" and that "[u]nder today's scientific standards, Dr. Hales relayed that he 'would not, and could not' testify as he did at trial, nor could he testify that there was a 'one to a million' chance that anyone other than [Chaney] was the source of the bite mark." The State succinctly summarizes its position, when it states that "the bitemark evidence, which once appeared proof positive of ... Chaney's guilt, no longer proves anything."

The dual principles underlying Hales's and Campbell's opinions were that a human dentition, like a fingerprint, is unique and that human skin is a medium capable of recording a person's biting surface with sufficient fidelity that a particular individual can be identified as the source of a particular bitemark. If either of those premises are invalid, then the comparisons by Hales and Campbell claiming that Chaney was a "match" have no probative value because they are based on principles now known to be unsupported by science. According to Chaney (and his experts), although those two assumptions were accepted by the scientific community at the time of Chaney's trial, that community now rejects them. He argues that experts in the field have developed a new body of science, mainly in response to the NAS Report. That report also asserted that those principles were unproven and unreliable. That report concluded that:

(1) The uniqueness of the human dentition has not been scientifically established.

(2) The ability of the dentition, if unique, to transfer a unique pattern to human skin and the ability of the skin to maintain that uniqueness has not been scientifically established.

i. The ability to analyze and interpret the scope of extent of distortion of bite mark patterns on human skin has not been demonstrated.

ii. The effect of distortion of different comparison techniques is not fully understood and therefore had not been quantified.

(3) A standard for the type, quality, and number of individual characteristics required to indicate that a bite mark has reached a threshold evidentiary value has not been established.

NAS Report at 175-76. It also stated that "bite marks on the skin will change over time and can be distorted by the elasticity of the skin, the unevenness of the surface bite, and swelling and healing. These features may severely limit the validity of forensic odontology." Id. at 174.

Peer-reviewed studies conducted after the publication of the 2009 NAS Report, Chaney asserts, now show that the uniqueness of human dentition can never be established within measurement error, and even if a person's dentition was unique, the skin cannot faithfully preserve that uniqueness such that a particular dentition can be associated with a particular putative bitemark. See Bush Affidavit at 4; Pretty Supp. Report at 2. Chaney also relies on the amicus brief's conclusion to the same effect, Amicus Brief at 34-40, and he directs us to Hales's affidavits.

The Bushes undertook a number of peer-reviewed studies to test the assumptions underlying Hales's and Campbell's testimony. The first group of studies tried to replicate the Rawson Study's conclusion-the literature relied on by Hales and Campbell at trial-that each human dentition is unique. See Brzozowski et al. Affidavit at 9 (citing peer-reviewed studies from the Bushes). The Rawson Study "examined tooth positions within dentitions and concluded that the very large number of possible positions meant that the human dentition is unique 'beyond any reasonable doubt.' " Bush Affidavit at 5. However, that study was based on two unproven assumptions, according to the Bushes. The first was that there was "no correlation of tooth position (i.e., that the position of one tooth did not affect the position of any other)," and second was that "there was a uniform or equal distribution over all possible tooth positions (i.e., that tooth locations did not gather into common patterns)." Id. Using Rawson's methods, the Bushes plotted "landmark points on two sets of dentitions, resulting in x, y, and angle coordinates for each tooth." Id. at 6. They then looked for matches one, two, three, four, five, and six teeth at a time. Id. They ran two thousand simulated tests to verify their results and to determine whether the Rawson Study's results would remain accurate "if its assumptions about the lack of correlation and non-uniformity of dental arrangement were ignored." Id. Their results were contrary to those of the Rawson Study-the Bushes observed "significant correlations and non-uniform distributions of tooth positions in [their] data sets." Id. at 6. In other words, they found that the human dentition is not unique.

In a second series of peer-reviewed studies, the Bushes devised another way to test the unique-dentition theory. They studied "dental shape in large populations using geometric morphometric analysis and mathematical modeling methods common in other scientific disciplines." Id. at 7. They found that dental shape matches occurred in the populations that they studied, which was consistent with the results of their earlier studies and indicated that the human dentition is not unique. Id. at 8.

The Bushes also tried to replicate the Rawson Study's conclusion that human skin can record the characteristics of a bitemark with sufficient resolution to trace the source of the bitemark to the "biter." The Bushes "began with a series of studies that used the same dentition impressed into cadavers to explore how skin might distort any marks." Id. at 7-8. For example, they "examined how anisotropy might create distortion by examining bitemarks made both parallel and perpendicular to skin's tension lines (also known as Langer lines)." Id. at 6. They also looked at the effect of tissue movement and found that "the same dentition did not produce identical marks across these conditions." Id. They found that some marks made by the same dentition were "dramatically distorted from others," and that "bitemarks created by the same dentition on the same individual appeared substantially different depending on the angle and movement of the body and whether the mark was made parallel or perpendicular to tension or Langer lines." Id. at 8. A number of experts (and the NAS Report) agree that the human dentition is not unique and that, even if it was, skin is an inadequate medium to "match" a bitemark to a "biter." NAS Report at 175-76; Amicus Brief at 27-28, 35-38; Pretty Report at 6; Pretty Supp. Report at 2; Brzozowski et al. at 9

In addition to those studies, Chaney also directs us to Hales's affidavits about his own testimony and the evolving standards of the ABFO. In his first affidavit, Hales explains that his testimony about "biters" and "matches" was acceptable at the time of trial under ABFO guidelines; however, the scientific body of knowledge about bitemark comparisons has changed since trial and that, under current guidelines, he would not, and could not, give the same opinions that he did at Chaney's 1987 trial. The habeas court reached the same conclusion, noting that the 2016 ABFO Manual has completely invalidated any population statistics, regardless of whether the population is open or closed, and that the Manual no longer allows examiners to give opinions to a "reasonable degree of dental certainty." See also Pretty Affidavit (noting that the ABFO revised its standards to address concerns in the NAS Report); Brzozowski et al. Affidavit at 5 (citing the NAS Report and exonerations based at least in part on the basis of bitemark evidence).

Based on the foregoing, we agree with Chaney. The body of scientific knowledge underlying the field of bitemark comparisons has evolved since his trial in a way that contradicts the scientific evidence relied on by the State at trial. New peer-reviewed studies discredit nearly all the testimony given by Hales and Campbell about the mark on John's left forearm and Chaney being a "match." The revised ABFO standards and affidavits attached to Chaney's writ application support that conclusion.

The next question is whether the new evidence Chaney has presented us with would have been admissible when he filed the instant writ application in 2015. We agree with the parties and the habeas court that it would have been admissible. No one has suggested that bitemark comparisons have no basis in science or that the authors of the affidavits are not qualified experts in that area. See TEX. R. EVID. 702. Rather, the ABFO and other experts have decided that the testimony of the sort given at Chaney's trial is now known to be scientifically unsupportable because it "went too far." As of March 2016, the ABFO has stated that the science supports only three conclusions: (1) excluded as having made the bitemark, (2) not excluded as having made the bitemark, and (3) inconclusive. AMERICAN BD. OF FORENSIC ODONTOLOGY, INC., DIPLOMATES REFERENCE MANUAL: SECTION III: STANDARDS & GUIDELINES at 102 (March 2016). It has completely disavowed individualization (i.e., that Chaney was a "match"), which the State heavily relied upon at Chaney's trial.

d. Change in Hales's Scientific Knowledge Since Trial

Chaney also claims that he is entitled to relief on the bases that Hales now says that he could not testify to any probability statistics that Chaney was the source of the mark considering new ABFO scientific standards and that Hales's scientific knowledge about the age of the wound has changed. We need not further discuss Hales's population testimony because we have already concluded that testimony is no longer supported by the body of science. Because we conclude that Chaney is entitled to relief based on Hales's false wound-aging testimony, as we explain later, we do not address his Article 11.073 claim that he is entitled to relief because Hales's knowledge about wound aging has changed since trial.

e. Has Chaney Shown by a Preponderance of the Evidence That He Would Not Have Been Convicted?

The last question is whether Chaney has shown by a preponderance of the evidence that, had the new scientific knowledge been presented at his trial, he would not have been convicted. We conclude that he has. The linchpin of the State's case was the bitemark evidence. It relied on the testimony of Weiner and Hales to show that the putative bitemark was inflicted at the time of the murders, and the testimony of Campbell and Hales to prove that Chaney was the one that bit John. Together that evidence was damning. Hales testified that Chaney was a "perfect match" and that there was only a "one to a million" chance that someone other than Chaney was the source of the mark. Campbell testified that he was certain to a "reasonable degree of dental certainty" that Chaney was the "biter." In its final summation, the State emphasized Campbell and Hales's testimony, particularly relying on Hales's "one to a million" testimony, leaving the jury to consider,

But, most of all, we have the bite mark. I wouldn't ask you to convict just based on the testimony of the tennis shoes, of the statements Chaney made to Westphalen, or the statements he made to Curtis Hilton. But, by golly, I'm going to ask you to convict on that dental testimony.

The State's case would have been incredibly weakened had Chaney's newly available scientific evidence been presented at his trial. Instead of supporting the conclusions that Chaney bit John at the time of the murders, the evidence would now show, at most, only that John might have been bitten two to three days before the murders and that if John was bitten by someone, that person could be Chaney (or anyone else on the planet whose dentition has not been excluded). The State's remaining evidence was circumstantial and weak. All that remained was a partial left thumbprint in an apartment Chaney frequented, statements Chaney made to Westphalen about not being involved in the murders, the changing statements of Hilton that resulted in a mistrial, and a tennis shoe that might or might not have had some type of blood on it and that could have possibly left one set of the bloody shoeprints. The State even said during its closing that it would not have sought an indictment against Chaney without the bitemark evidence. The impact of the State's bitemark evidence is also evident by a juror's testimony at the new-trial hearing that "what did it for her" was the bitemark evidence. We conclude that Chaney is entitled to relief because he has shown by a preponderance of the evidence that he would not have been found guilty if the newly available and relevant scientific evidence he now relies upon had been presented at his 1987 trial.

VII. FALSE EVIDENCE

In his next complaint, Chaney argues that Hales's testimony that there was only a "one to a million" chance that someone other than Chaney was the source of the injury was false according to the literature at the time. He also argues that Weiner's and Hales's testimony that the bitemark was inflicted at the time of the murders was false and misleading and that the described testimony was material to his conviction. The habeas court agreed with Chaney, and we adopt the findings of fact and conclusions of law of the habeas court because they are supported by the record.

Due process of law is violated when a conviction is obtained using false evidence, irrespective of whether the false evidence was knowingly or unknowingly used against the defendant. Ex parte Weinstein , 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). A defendant is entitled to relief on a false-evidence claim if he proves that (1) the complained-of evidence was false and that (2) the false evidence was material to his conviction. Id. Whether evidence is false turns on whether the jury was left with a misleading or false impression after considering the evidence in its entirety. Id. at 665-66. The good or bad faith of the parties is irrelevant. Id. at 666. Falsity is a factual inquiry, and we review the court's findings under a deferential standard. Id. at 664. False evidence is material when "there is a 'reasonable likelihood' that [the false evidence] affected the judgment of the jury." Id. at 665. Materiality is a legal question that we review de novo. Id. at 664.

Even though the scientific principles at the time of Chaney's trial supported some level of individualization (although those principles are no longer credible), Hales confesses that he knew at the time of trial that the body of science did not support his "one to a million" testimony. Other record evidence supports Hales's assertions, including newly discovered notes from Hales's trial file, where he initially wrote that the odds were "thousands to one," with a nearby notation of "100,000 to 1," the Bushes's peer-reviewed studies disproving the tenets and conclusions of the Rawson Study dealing with population statistics, and the 2016 ABFO Manual forbidding the use of all population statistics.

With respect to the aging of the wound, Weiner's autopsy report, which was also signed by three other pathologists, described the wound on John's left forearm as "crusted and contused," and concluded that the injury was inflicted two to three days before the murders. Hales reached the same conclusion. He told Weiner that the wound was likely inflicted two to three days before death "because of crusting" and that, as a result, the person who bit John might not be the same person who killed him. But later, after he met with the prosecutor, Hales told Weiner that "the bite mark occurred at or about the time of death." He attributed the change in his opinion to the fact that he had confused crusting-i.e., evidence of healing-with serum drying. The same day that Hales told Weiner about his new opinion, Weiner alone signed a supplemental autopsy report showing that "the bite mark on [John]'s left forearm occurred at or about the time of death," and he sent the supplemental autopsy report to the prosecutor. While the original opinion that the wound was two to three days old hurt the State's case, the new opinion exactly conformed with the State's theory that Chaney was the murderer because he bit John and that he did so at the time that John was murdered.

At trial, Weiner testified that the wound was inflicted at, or near, the time of death, and Hales did not dispute that testimony. Chaney and the State agree that Weiner's and Hales's testimony was false insofar as it misled the jury because Weiner and Hales did not disclose the purported scientific basis for the change in their opinion and because that basis was also not disclosed during their testimony. The habeas court agrees that the "failures deprived [Chaney] of the opportunity to appropriately challenge the testimony offered as to the injury's timing." "Accordingly, the Court finds that [ ]Weiner's testimony was false, both because it falsely suggested to the jury that the injury was inflicted at the time of death, and because the nondisclosure of the 'serum theory' was misleading to the jury." The record supports the habeas court's findings; therefore, we adopt them.

The remaining question is whether the false testimony was material to Chaney's conviction. We agree with the habeas court that it was. As we have stated previously, the most important evidence was the State's bitemark evidence. Without it, the State's case would have been exceedingly feeble because the State could no longer place Chaney at the scene of the crime at the time of the murders. Consequently, we conclude that there is a reasonable likelihood that the false testimony affected the verdict of the jury. Chaney is entitled to relief.

VIII. Brady Allegations

Chaney also argues that newly discovered evidence shows that the State suppressed evidence favorable to him that was material to his conviction: (1) the State's failure to disclose that an earlier examination of Chaney's shoes by a different analyst uncovered no blood, or blood-like substance, in contrast to Van Winkle's testimony that her presumptive blood test was positive and that the substance was probably blood; (2) the fact that police searched Chaney's home and vehicle to support its theory that Chaney was the killer and that the killer would have been covered in blood, but found nothing; and (3) the fact that Hilton gave numerous inconsistent statements to investigators and the court, which could have been used to significantly undermine his trial testimony. As with Chaney's other claims, the State agrees that Chaney is entitled to relief.

Under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the suppression of evidence favorable to an accused violates due process if the evidence is material to the accused's guilt or punishment. Id. at 87, 83 S.Ct. 1194. It is irrelevant whether the evidence was suppressed inadvertently or in bad faith, and the defense need not request disclosure because the State's duty to disclose is an affirmative one. United States v. Agurs , 427 U.S. 97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (request to disclose no longer required). For purposes of a Brady claim, "the State" includes the prosecution, other lawyers and employees in the prosecutor's office, and members of law enforcement connected to the investigation and prosecution of the case. Ex parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (citing Kyles v. Whitley , 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ). Favorable evidence includes exculpatory evidence and impeachment evidence. United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Exculpatory evidence justifies, excuses, or clears a defendant from fault. Impeachment evidence disputes, disparages, denies, or contradicts other evidence. Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006). The State may not suppress evidence incompatible with its own theory of the case or that supports the defense's case. Suppressed evidence is material if there is a reasonable probability that the result of the trial would have been different if the suppressed evidence had been disclosed to the defense. Miles , 359 S.W.3d at 665. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Ex parte Kimes , 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (citing Iness v. State , 606 S.W.2d 306, 310 (Tex. Crim. App. 1980) ). When assessing materiality, the suppressed evidence is considered collectively, not item-by-item. Kyles , 514 U.S. at 436, 115 S.Ct. 1555

On October 9, 2015, the State sent Chaney's counsel a Brady notice, which we quote in its entirety,

During the post-conviction investigation of this cause, the District Attorney's Office agreed to make the complete DA file available to defense counsel for Chaney pursuant to an open file policy established in 2007. Prior to 2007, the DA's Office had a strictly "closed file" policy, in which defendants and their counsel were not allowed to view the contents of the Prosecutor's files. On occasion, individual documents were provided to counsel if and when a prosecutor concluded disclosure was either required by the State's constitutional Brady obligations OR some other mandatory disclosure law.

After post-conviction discovery of the DA's file took place, the DA's Office obtained a copy of the Dallas Police Department's (DPD) investigative file regarding the homicides of John and Sally Sweek. During the discovery process, the DA's Office also obtained the file from the crime lab and the medical examiner's office. Interviews of the parties and witnesses have also been conducted.

Our investigation and review of the file as a whole, has revealed exculpatory and impeachment evidence, all of which should have been, but does not appear to have been, disclosed by [the trial prosecutor] ... to Chaney's defense counsel prior to or during the 1987 trials. As a result, this letter is meant to constitute a Brady Notice regarding the following evidence/information:

1. Undisclosed Evidence Pertaining to Alleged Bloody Tennis Shoes.

When Chaney was arrested a month after the crime, the lead detective on the case confiscated his tennis shoes. According to the investigative notes of the lead detective, the shoes were confiscated for two reasons. First, the soles of the tennis shoe[s] appeared to have the same pattern as the bloody shoe prints found at the crime scene. Second, the tennis shoes also had a substance on the bottom that looked like blood.

Chaney's case was presented to a Dallas County Grand Jury on August 10, 1987. During the presentment of the case, Detective Westphalen testified under oath that blood was found "on the bottom of the tennis shoes and a little bit on the tongue of the tennis shoes." The Grand Jury returned a true bill for the offense of Capital Murder.

During trial, the State presented testimony from Carolyn Van Winkle, an expert serologist at the crime lab (SWIFS). Van Winkle testified she conducted a presumptive test on the shoes and that the results of the test were positive for traces of blood but there was not enough blood to allow her to "even confirm the presence of blood." Despite being unable to confirm whether there was human blood on the tennis shoes, Van Winkle testified that the results of the presumptive test came up very rapidly and that based on her experience as a serologist, the test reacted the way traces of blood would react.

Although she stated during cross-examination and redirect that she could not say for sure the substance was human blood instead of some other substance that could cause a presumptive positive result, she discounted that opinion repeatedly by stating that in her experience, human blood reacts rapidly as it did in this case while other substances that test positive react much more slowly.

The DPD's investigative file contained significant undisclosed information regarding the absence of blood on the tennis shoes. Specifically, in investigative notes dated July 22, 1985 (1985 reference is clearly a mistake due to detailed repeated references