*1 fаvoring Taking policy into account the Lynn HENDERSON, Cathy contract, hold that
freedom of I would Applicant. purpose would Chapter punitive when 41’s and a defen- significantly impaired, be No. WR-49984-02. meaningfully dant’s net worth could not be Appeals of Criminal of Texas. assessment, incorporated Chap- in the as requires, against punitive ter 41 insurance June policy damages public would violate Texas outweighed are unless these considerations factors, expressions such as
by other will,
lеgislative regulatory approval or coverage, or the attenuation of the liability from the misconduct.
burden view, situations, my
In these there is no ques- public policy
formulaic answer to the punishment for Chapter provides
tion. full well that his person who knows an extreme risk of harm to poses
conduct That, care. yet
others and does not
essence, gross negligence. public The why
policy analysis punitive must answer egregious behavior
damages such by insurance.
should be avoided JOHNSON, concurring part.
Justice I, parts join opinion the Court’s However, III part
II I consider and IV. necessary in go further than pre-
responding question to the certified even in of Texas Constitution
sented V, Accordingly, 3-c. do
article section join part express III and neither its
agreement disagreement nor with sub-
stance. *2 develop in beginning to
research that was
and convict-
applicant was tried
1995when
ed)
inju-
type
of head
now shows
Baugh
could
that Brandon
suffered
ries
short
by an accidental
have been caused
details
Although the
fall onto concrete.
Houston,
Maselli,
Appellant.
for
Jani
varied,
position through-
applicant’s
have
Atty.,
McElroy,
Laura
Assistant District
her
that Brandon fell out of
out has been
Austin,
Paul,
for
Atty.,
Matthew
State’s
him and hit his
carrying
arms
was
as she
State.
floor.
playroom
on the concrete
head
Bayar-
trial Dr. Roberto
At the time of
ORDER
do,
highly experienced medical examin-
PER CURIAM.
it
County,
for Travis
testified that was
er
brain
“impоssible” for Brandon’s extensive
subsequent application
This
for writ
is
way
that
injuries to have occurred
corpus
pursuant
filed
to article
habeas
11.071, 5,§
He testified that her
of the Texas Code of Criminal
stated.
Applicant raises three claims
In his
story
Procedure.
was false and “incredible.”
(and
newly
in which she asserts that she has
Veasay of
Sparks
that of Dr.
(1)
available evidence that shows that:
she
injuries had
County), Brandon’s
Lubbock
(2)
murder;
capital
for
is innocent
but
intentionally
to have rеsulted from blow
constitutional errors she would not
concluded, “I
by
He
applicant.
struck
(3)
guilty;
longer
been found
and
she is no
caught up with the
say
baby
was
eligible.
death
body and
by
along
hands
the arms
very hard
swung and slammed
then
Applicant
convicted of
mur-
capital
was
opin-
In his 1995
against a flat surface.”
May
der in
1995. This Court affirmed her
ion,
baby
whom
Brandon was
abused
conviction and
appeal.
on direct
sentence
intentionally murdered.
applicant had
State,
(Tex.
v.
court should available view the evi- PRICE, J., concurring. dence in the of the evidenсe context devel- oped during of the trial and the course ask In to the proceed order to merits of her any juror whether would still rational have subsequent post-conviction in claims this the applicant given convicted whatever ad- of habeas corpus, for writ the perspective newly ditional the available ev- applicant satisfy the must criteria of Arti- juror may assuming idence the 11.071, provide, cle argues Section 5.1 She that she newly had also available evi- proceed should be allowed to with her first heard that claim of actual innocence Article dence.3 under 5(a)(1), provides which view, my applicant’s newly In avail- the consideration of the merits of a subsequent able evidence to establish is sufficient a application upon a of “sufficient prima case under this standard. At establishing that” her claim trial, Bayardo applicant’s Dr. testified of actual innocence could not have been exсulpatory of how Brandon version sus- presented previous in a habeas application possibly tained his could not be ... because “the factual basis for claim Bayardo’s true. Dr. affidavit demon- my
was view, unavailable” before. that, light strates in of the new scientific applicant presented newly has sufficient testify developments, longer he could no Bayardo’s facts in the form of Dr. available at he did trial. This new evidence has the Bayardo that, affidavit. Dr. now avеrs nullifying Bayardo’s effect of totally given developments the new in the science it to the eviden- testimony. Adding trial biomechanics, testify, he could not now jury mix tiary means that the would no trial, during as he did longer any affirmative evidence to injury that Brandon’s head could not have prefer theory cause it to that Brandon been an accidental caused fall such as opposed theory was murdered as in applicant described killed accidentally that he was or with trial testimony. He now asserts that he than some lesser mental state is culpable with a de- “cannot determine reasonable gree certainty necessary capital medical whether Brandon a murder eon- sustain Chavez, E.g., Id. 3. 11.071, § 1. Tex.Code.Crim. Proc. art. 1996). (Tex.Crim.App. circumstances, testimony the opinion it whose pert,
viction.4 Under these arguable culpable that the evidence is not mental state at least essential element legally sufficient to sustain convic- even his earlier ex- hinges, has now withdrawn tion; is, jury could not a rational of new scientific devel- pert capital murder.5 convict new, opments replaced and has with event, appli- any it is evident informed, expert opin- presumably better plausible claim that presented cant has the Elizon- Accordingly, applying ion.6 juror have found her no reasonable standard, hypothetically we do not envi- do least not guilty capital of a homicide—at with two jury presented sion а that is now beyond of confidence a reason- to a level In- of the brute facts. conflicting versions Thus, doubt. able stead, jury that hypothetical we envision a least facts sufficient to allow her pled renounced expert has heard an who has with her claim of actual innocence. proceed scientifically in- opinion as his own earlier This from the situation which differs a rational valid. I do not believe his or her lay later claims that witness rely upon expеrt’s would choose to or untrue— testimony trial was mistaken hypotheti- our abandoned view. This leaves *5 In that event the ordinary an recantation. upon jury precious cal with little evidence jury hypothesize that we our Elizondo applicant that the killed which to conclude dif- analysis presented has been with two necessary rea to Brandon with the mens conflicting and versions of the facts ferent of an offense for justify convicting her and must decide from the same witness ultimatе penalty she could suffer the which to If the recanta- which version believe. of death. compelling under particularly tion is not by the fact that the swayed Nor am I circumstances, to the we have no basis applicant that the trial evidence shows convincing that clear and conclude there is course, that we acknowledge fled. I Of jurors would evidence that none of the that evidence of many have said times anyway. Re- convicted the defendant have guilty some evidence of a flight amounts to But here we lief would not be warranted. I not on the ex- conscience. But do believe in which the State’s have situation State, affidavit, S.W.2d 138-9 Bayardo 5. See Nelson v. 4.In his Dr. indicated J., (Clinton, dissenting); (Tex.Crim.App.1992) the affidavit of Dr. John he had reviewed Plunkett, State, opinion.” agree I with his Dr. 579-80 "and v. Mason J., May (Clinton, and dissenting). affidavit is dated Crim.App.1995) Plunkett’s following: it includes the say “presumably” I better informed else, ..., anyone prove can Neither I nor presently suggest beсause the record does injury death was an acci- Brandon’s and say the to that on otherwise.' This is not However, the new scienti- dent. because of challenge appli- remand the State cannot analysis and now available fic information respect validity with to cant’s claims and/or injury scientifically evaluate Brandon’s to sci- weight of the advances in biomechanical death, may anyone prove that neither Bay- applicant, upon and Dr. encе intentionally caused it. It is Ms. Henderson affidavit, rely. We are not called ardo in his any qualified or impossible for scientist applicant’s address the merits of the conclude, physician whether to a reason- juncture, only whether she but claims at this beyond degree certainty, or of medical able showing for consider- has met the threshold doubt, any intentional a reasonable ordinary course of ation of the merits in the deliberate act Ms. death, See proceedings under Article 11.071. Baugh’s or that caused Brandon Blue, (Tex.Crim. to rule Brandon’s are such as [sic] App.2007). accidental cause. out an evidence), convincing but than clear and applicant’s flight facts of this case rational that no requires jury any basis to also provides greater with convicted, rather than juror “could” killed Bran- the conclusion she prefer have, as juror rational “would” that no requisite capital intent for don with governing standard under the Elizondo culpable men- murder versus some lesser To me these claims of innocence. short, bare all. tal state or no mens rea at re- applicable in the standards differences undoubtedly flight applicant’s while the affi- Bayardo’s in a wash. Given sult conscience, it lit- guilty provides evinces a davit, also hold that the guilty to conclude she felt tle rational basis evi- by a of the preponderance shown murder, knowing or intentional juror “could” have dence that no rational negligent or homi- opposed to reckless confidence guilty to a level of found her cide or an excusable accident. Nei- even and that beyond a reasonable doubt ther her statement to her friend that does claims should merits of her constitutional somebody or murdered some- she “killed addressed. therefore be body” compelling provide particularly culpabili- her basis to differentiate level observations, join With these ty. may legally That the evidence still be stаying in its order sufficient to convict the even granting execution and impending Bayardo’s the face of Dr. affidavit does not the first two claims proceed leave to with prima mean we cannot conclude that a under subsequent writ of her case has been made that no reason- 5.7 Article appli- able would have convicted the KEASLER, J., dissenting. my permitted
cant.
view she should be
*6
proceed
upon
to
with the claim
based
analysis,
four mem-
Without one word
newly
may
available evidence
thаt we
so
breathtaking
of the
reach the
bers
determine, in the normal
of habeas
course
Lynn Henderson’s
Cathy
conclusion that
proceedings,
ultimately
whether she can
require-
meets the
subsequent application
by
convincing
convince us
clear and
evi-
5(a).1
11.071,
of Article
Section
Cal-
ments
dence.
said,
say
you
“If
don’t
Coolidge
vin
once
re-
be called
to
anything, you won’t
In her second claim the
as-
Today
per
it.”
curiam
peat
proceed
serts that she should be allowed to
say “If
tacitly
adage
Cal’s
amends Silent
Arti-
with other constitutional issues under
you
be called
you
say anything,
don’t
won’t
5(a)(2),
requires
cle
Section
justify
only explanation
it.” The
upon to
showing
specific
of “sufficient
facts estab-
their
any analysis
is that
for the absence
by preponderance
that
...
of the
lishing
They dare not
is indefensible.
conclusion
evidence,
for a
of the
but
violation
United
they might
set out their reasons because
Constitution,
juror could
States
no rаtional
Instead,
simply,
them.
it is
have to defend
beyond a
applicant guilty
have found the
say so.”
“Because we
This standard re-
doubt[.]”
reasonable
H.
fifty years ago, Justice Robert
quires a lower threshold of confidence
Over
that,
danger
is a
rather
warned: “There
(preponderance of the evidence
Jackson
thirty-day reprieve. See
understanding
grant
applicant a
my
that the District At-
It is
art.
County
public
Const,
11(b).
torney
has made
that
of Travis
§4,
Tex.
he
sent a letter to the Board of Pardons
5(a)
in which he has recommended
TexCode Crim. Proc. Ann. art.
and Paroles
11.071
(Vernon 2005).
the Governor
that the Board recommend that
innocence un-
Henderson’s
temper
establish[es]”
its doctri-
if the Court does not
wisdom,
majority
As the
der Ex
Elizondo.6
logic
practical
naire
with a little
observes,
Drs.
reports
Bill
affidavits and
constitutional
will convert
Plunkett,
Stephens,
Peter J.
Jan-
pact.”2
today,
But
John J.
Rights into a suicide
con-
Kenneth Monson
logic
Ophoven,
nor
ice J.
and
majority еmploys
neither
in “biomechanics
cerning recent advances
common sense.
suggest
possible
that it is
physics
5(a)
us from consider-
prevents
have been
head
could
Brandon’s
granting]
relief
ing “the merits of or
short-fall dis-
by
caused
an accidental
subsequent application
on the
unless
based
“possible,”
“suggest,”
tance.” The words
specific
sufficient
contains
And here
uncertainty.
and “could” denote
demonstrating
facts”
that:
to wheth-
uncertainty pertains
the obvious
(1)
and issues have
the current claims
death was the result of
er Brandon’s
pre-
not
and could not have been
been
cry
setting
far
from
accident. This is a
timely
ap-
in a
initial
previously
sented
establishing ac-
out sufficient
previously
or in a
considered
plication
Additionally,
Bayar-
innocence.
tual
this article or
application filed under
majority
opinion, which the
do’s revised
legal
factual or
Article 11.07 because the
fact,”
exculpatory
identifies as a “material
claim was unavailable on
basis for the
affirmatively
rule out
does
previous
the date the
filed the
short,
intentionally.
acted
Henderson
application;
by
Henderson
the evidence submitted
(2)
evidence,
of the
preponderance
ad-
the defense she
support
serves to
a violation of the United States
but for
trial-that Bran-
during
vanced
her 1995
juror could have
Constitution no rational
accident,
the result of an
don’s death was
beyond a
applicant guilty
found the
reа-
act.
an intentional
opposed
doubt;....3
sonable
make
has therefore failed to
“by clear
threshold
requisite
I.
reasonable
convincing evidence that no
biomechanical
assuming
Even
[her]
would have convicted
causes of infant head
regarding
evidence
*7
the new evidence.”7
unavailable,4
previously
trauma was
present
cogniza-
failed to
a
Henderson has
II.
innocence based on
ble claim of actual
to set forth
Henderson has also failed
“newly-
The
newly-discovered evidence.5
establishing actual
evidence does not
sufficient
available” biomechanical
The ma
Schlup v. Delo.8
“unquestionably
innocence under
constitute evidence that
1996).
1, 37,
202,
(Tex.Crim.App.
S.W.2d
209
Chicago,
U.S.
69
6. 947
2. Terminiello v.
337
J.,
894,
(Jackson,
(1949)
S.Ct.
The author of Proverbs tells
“The
States v. Arvi-
pursueth,
Supreme
flee when no man
but the
United
wicked
68, 83-87,
14. Tex.Code Crim. Proc.
470 U.S.
105 S.Ct.
Ann.
art.
11.071
*8
(1985).
5(a)(2).
L.Ed.2d 53
State,
544,
10. Henderson v.
962 S.W.2d
551—
(K V).
J
15. Proverbs 28:1
(Tex.Crim.App.1997).
57
State,
834, 839 n. 7
v.
915 S.W.2d
Colella
1569, 48
11. 425 U.S.
96 S.Ct.
State,
(Tex.Crim.App.1995)
(citing
v.
Foster
(1976).
L.Ed.2d 39
845,
(Tex.Crim.App.1989));
779 S.W.2d
859
State,
also
v.
939 S.W.2d
see
Hernandez
Acosta,
672 S.W.2d
472
12. Ex
State,
(Tex.Crim.App.1997);
v.
Valdez
Crim.App.1984).
Holloway
(Tex.Crim.App.1981);
S.W.2d 317
State,
v.
525 S.W.2d
(cit-
parte Campbell,
at 421
13. Ex
400;
Brooks,
Ex
ing
as a whole.19
v. III. Texas, Appellee. The STATE of aside Finally, the Court brushes No. 13-05-00668-CR. third claim—that she is no Henderson’s Texas, Appeals of Court of danger. But that is incon longer a future State,20 Christi-Edinburg. Corpus Berry v. sistent with our ago, than two weeks handed down less 16, 2007. Aug. five-judge majority held which the same Feb. Rehearing Overruled that a defendant who murdered one child in a ditch on an and left another naked society danger a future
anthill was not her sentence from death to
and reformed According to ma imprisonment.
life
jority’s reasoning, Henderson would be majority culpable Berry. than The
less cogni not explain why this claim is
should nothing
zable. This claim amounts to challenge sufficiency
more than a evidence, which, fact, cognizab
le.21 again today, I detect a Berry, and
tendency majority in the of this Court of criminals who culpability
minimize the human
victimize the most vulnerable of
beings children. —our
IV. application should be dis-
Henderson’s Because as an abuse of the writ.
missed so, I
the Court refuses to do dissent. *9 719, (Tex. Easter, 266, 272-77, 744, 721 parte 122 S.Ct. 151 534 U.S. 21. (2002). Williams, L.Ed.2d 740 703 Crim.App.1981); Ex (Tex.Crim.App.1986); Ex S.W.2d Schlup, S.Ct. 513 U.S. at See also McLain, S.W.2d Crim.App.1994).
20.