Case Information
*0 RECEIVED COURT OF CRIMINAL APPEALS 4/20/2015 ABEL ACOSTA, CLERK *1 WR-59,201-03 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 4/20/2015 11:18:20 AM Accepted 4/20/2015 11:28:23 AM IN THE 148 TH DISTRICT COURT ABEL ACOSTA CLERK OF NUECES COUNTY, TEXAS AND
IN THE COURT OF CRIMINAL APPEALS OF TEXAS IN AUSTIN, TEXAS
)
RICHARD VASQUEZ, JR. )
) WRIT NO. 59,201-03 )
APPLICANT. ) TRIAL COURT NO. 98-CR-0730-E
)
) CAPITAL CASE )
) Scheduled Execution Date: ) April 23, 2015 )
) APPLICANT RICHARD VASQUEZ JR.’S RESPONSE TO THE STATE’S MOTION TO DISMISS
[1]
Last Wednesday, April 15, Applicant Richard Vasquez Jr. timely filed a subsequent application for a writ of habeas corpus and a motion for stay of
execution in this Court and in the trial court. The State responded on Saturday,
April 18, moving the Court to dismiss Mr. Vasquez’s application and to deny his
motion for a stay. [2] But in arguing that dismissal is warranted, the State assumes as
*2 true what it sets out to prove: “It was multiple blows to the head, as admitted by
Vasquez himself, causing severe and extensive injury to the brain” that caused
Miranda’s death. State’s M. to Dismiss at 12. But rather than identifying a valid
basis for dismissal, the State’s motion illustrates precisely why an evidentiary
hearing is necessary—Mr. Vasquez’s petition identifies new scientific evidence
that forcefully contradicts the State’s evidence on the cause of Miranda’s death,
and that evidence cannot be dismissed without careful consideration of the
underlying science and the effect it would have had if it were introduced at Mr.
Vasquez’s trial. Accordingly, for the reasons set out below, the State’s motion to
dismiss should be denied.
I. The State’s Concessions
In its motion to dismiss, the State has implicitly acknowledged several important areas of agreement with Mr. Vasquez. Through its silence, the State has
effectively conceded that (1) Mr. Vasquez’s claims are not barred by Section 5 of
Article 11.071 of the Texas Code of Criminal Procedure; (2) the scientific evidence
discussed in Mr. Vasquez’s application is admissible under the Texas Rules of
Evidence; (3) material scientific evidence discussed in Mr. Vasquez’s application
motion for stay, it is not subject to this Court’s Miscellaneous Rule 11-003. However, in case
the Court decides that Miscellaneous Rule 11-003 does apply, counsel has attached an affidavit
explaining why it was factually impossible to file this response more than seven days before Mr.
Vasquez’s execution date.
was not available to be offered at his trial; [3] (4) the scientific evidence regarding
biomechanics discussed in the application meets the standard for relief under
Article 11.073; and (5) Mr. Vasquez’s application alleges valid claims for habeas
relief based on Ex parte Chabot , 300 S.W.3d 768 (Tex. Crim. App. 2009), see
Application at 37–43, and actual innocence, see Application at 43–44. Thus, in
ruling on Mr. Vasquez’s motion to stay and the State’s motion to dismiss, the
Court can consider those issues undisputed and focus its attention on the areas of
disagreement identified below.
II. Mr. Vasquez has pleaded a claim for relief under Article 11.073.
In its motion to dismiss, the State basically concedes that Article 11.073 would provide relief in “a case where the defendant claimed at trial that the victim
fell from a sufficient height to have caused a fatal injury, where that theory was
discredited by expert testimony considered valid at the time, and where new
scientific evidence would suggest that the theory in question was a valid
explanation for the fatal injury based on data comparing substantially similar fatal
and non-fatal falls.” State’s M. to Dismiss at 12. That is precisely the case that is
before the Court. As set out in Mr. Vasquez’s application, Miranda did fall from a
sufficient height to cause a fatal injury—Mr. Vasquez explained that Miranda fell
*4 from a stool immediately before she lapsed into a coma, and in light of modern
scientific knowledge it is now clear that a fall from that height (10.5 inches for the
stool plus Miranda’s height of 41 inches equals a fall of over four feet) can be fatal.
See Application at 27–29 (discussing new scientific evidence showing that short
falls can be fatal). And that theory was discredited by expert testimony considered
valid at the time—Dr. White casually dismissed the possibility that falling from the
stool could have caused Miranda’s death and Dr. Burke totally excluded that
possibility by testifying that Miranda’s wounds could only have been caused by
intentional child abuse. See Application at 13–16 (discussing the trial testimony of
Drs. White and Burke). And as the attachments to the State’s motion show, there
is new scientific evidence based on case studies involving substantially similar
falls that show falling from a stool is a valid explanation for Miranda’s death. See
Application at 27–29. Thus, by the State’s own description of a valid claim under
Article 11.073 (not to mention this Court’s description of a prima facie claim
under Article 11.073, see Application at 22–24 (discussing Ex parte Robbins , 2014
WL 6751684 (Tex. Crim. App. Nov. 26, 2014))), the facts alleged in Mr.
Vasquez’s application state a valid claim under Article 11.073.
But the State denies this conclusion, flatly asserting that “it was multiple blows to the head, as admitted by Vasquez himself, causing severe and extensive
injury to the brain” that caused Miranda’s death. State’s M. to Dismiss at 12. The
State does not, however, immediately attempt to justify that statement, choosing
instead to cloud the issues by pointing to Mr. Vasquez’s admission that he struck
Miranda and other evidence that supposedly proves that Miranda had suffered
other, unrelated abuse. That evidence is beside the point because Mr. Vasquez was
not tried for having struck Miranda, and in any event his admitted conduct does not
amount to a capital crime. The conviction Mr. Vasquez is challenging is for
capital murder, and his application is based on new scientific evidence showing
that he was not guilty of that crime. Thus, in order to show that dismissal is
proper, the State cannot simply reiterate evidence that was introduced at trial and
must instead attempt to identify some deficiency in the claims for relief set out in
Mr. Vasquez’s application.
The State’s discussion on that point is halfhearted at best. In an attempt to discredit Dr. Young’s declaration, the State notes that the studies he cites in his
report dealt with falls from heights as low as two feet. Because Miranda fell from
a stool that was 10.5 inches high, the State reasons that the articles Dr. Young cites
are inapplicable. But to reach that conclusion, the State has to ignore the fact that
Miranda, who was 41 inches tall at the time, was standing on the stool when she
fell. That means her head was over four feet off the ground, putting her fall
squarely within the ambit of the studies discussed in Dr. Young’s report. The
State’s other attempts to cast doubt on Dr. Young’s declaration [4] illustrate again
why factual questions render dismissal inappropriate: Dr. Young is a trained
pathologist, and the State’s attempts to challenge that conclusion amount to, at
best, the educated guesses of a layperson. If the Court is to have a credible basis
for evaluating Dr. Young’s conclusions and the new science they are based upon,
an evidentiary hearing in the trial court is necessary.
The State’s gripes with Dr. Squier’s declaration are even less compelling.
First, the State attempts to show that Dr. Squier’s opinions regarding Shaken Infant
Syndrome are not based on new science by pointing to a 1987 article cited in her
declaration. But context matters, and one look at Dr. Squier’s declaration shows
that she only cited that article to show that Dr. Burke’s testimony misrepresented a
study that he mentioned at trial. See Application Ex. B. at 3 (“[Dr. Burke’s]
testimony does not accurately reflect Duhaime’s study.”) In the preceding
paragraph, however, Dr. Squier expresses her own opinion on the current state of
scientific knowledge on Shaken Infant Syndromes, and there she cites to a 2012
study that was clearly unavailable at the time of Mr. Vasquez’s 1999 trial. See
Application Ex. B. at 3. The State’s other criticism— i.e. , that Dr. Squier’s
opinions are based on “an unverified assumption that Vasquez . . . was telling the
*7 truth about the sequence of events at the time of the injury,” State’s M. to Dismiss
at 15—is highly misleading. As Dr. Squier’s declaration shows, her opinions were
not based solely on Mr. Vasquez’s testimony but upon her review of copious
evidence including “trial transcripts from the capital murder trial of Richard
Vasquez and various exhibits from that trial, including the autopsy report of
Miranda Lopez, a police report, Richard Vasquez’s statement to the police,
voluminous medical records and photographs of Miranda Lopez.” Application Ex.
B at 2. After she reviewed that evidence, and in light of her professional
experience and the new science discussed in her report, she reached a conclusion
that supports Mr. Vasquez’s innocence. The State cannot object to that conclusion
based solely on the fact that it corroborates Mr. Vasquez’s story—otherwise, a
claim for relief under Article 11.073 would be functionally impossible. Instead,
the State’s criticisms of Dr. Squier’s report serve again to show why dismissal is
inappropriate; cross-examination at an evidentiary hearing is the proper way to
identify and challenge the bases of Dr. Squier’s expert opinions, not bare assertions
of counsel in a motion to dismiss.
The State does concede that Dr. Squier’s opinions regarding Second Impact Syndrome are based on new science. On that point, the State denies only that the
new science on Second Impact Syndrome establishes that Mr. Vasquez’s strikes
“were clearly insufficient to cause [Miranda’s] death.” State’s M. to Dismiss at 17.
Setting aside the fact that the State’s evaluation of scientific knowledge regarding
Second Impact Syndrome should be presented to the trial court at an evidentiary
hearing rather than to this Court on a motion to dismiss, the more fundamental
problem with the State’s argument is that it relies on the wrong standard of proof.
According to the State, Mr. Vasquez cannot maintain a claim for relief under
Article 11.073 unless he presents evidence that clearly shows that the fall from the
stool was the only possible explanation for Miranda’s death. See State’s M. to
Dismiss at 16 (citing Tex. Pen. Code. Ann § 6.04(a), which deals with concurrent
causation). But that is not the standard: at this stage Mr. Vasquez need only allege
that “there is arguably relevant scientific evidence that contradicts scientific
evidence relied on by the state at trial, and that evidence was not available at trial
. . . ,” Ex parte Robbins , 2014 WL 6751684, at *8 (discussing the elements of a
prima facie claim under Article 11.073), and to ultimately prevail on the merits of
his claim under Article 11.073, Mr. Vasquez need only prove by a preponderance
that he would not have been convicted of capital murder if the new evidence had
been admitted at his trial, Tex Code. Crim. Pro. art 11.073(b)(2). (The prejudice
standard for Mr. Vasquez’s unchallenged claim under Ex parte Chabot is even
lower, requiring only a “reasonable likelihood that the false testimony affected
[his] conviction or sentence,” Ex parte Chavez , 371 S.W.3d 200, 207 (Tex. Crim.
App. 2012).) Thus, the State’s assertion that its evidence against Mr. Vasquez
might not have been insufficient as a matter of law to prove causation is simply
irrelevant; the question here is whether the new scientific evidence might have led
the jury to a different conclusion on the question of capital murder. On that point,
Mr. Vasquez’s application has pointed to compelling scientific evidence that shows
he would not have been convicted of capital murder [5] and rebuts the State’s
evidence on both causation and mens rea (the latter of which the State does not
even attempt to address in its motion to dismiss). In light of that evidence, Mr.
Vasquez is entitled to ultimately succeed on the merits of claim for habeas relief
under Article 11.073. But at this stage, a decision on the merits would be
premature, so the Court should deny the State’s motion to dismiss and remand Mr.
Vasquez’s application to the trial court with instructions to hold an evidentiary
hearing.
III. Mr. Vasquez’s Motion to Stay
Other than the substantive arguments addressed above, the State identifies no grounds for opposing Mr. Vasquez’s motion for a stay of execution pending a
decision on the merits of his application. As discussed above, the State’s
substantive arguments for dismissal all fail, so Mr. Vasquez’s motion to stay
should be granted for the reasons set out in his motion and application.
IV. Conclusion
Accordingly, for the reasons set out above, the State’s motion to dismiss should be denied, and Mr. Vasquez’s motion for a stay of execution should be
granted.
Respectfully submitted, E DISON , M C D OWELL & H ETHERINGTON LLP
By: /s/ Andrew M. Edison Andrew M. Edison Texas Bar No. 00790629 James M. Chambers Texas Bar No. 24092240 Phoenix Tower 3200 Southwest Freeway, Suite 2100 Houston, Texas 77027 Telephone: (713) 337-5580 Facsimile: (713) 337-8850 andrew.edison@emhllp.com james.chambers@emhllp.com A TTORNEYS FOR R ICHARD V ASQUEZ , JR . *11 CERTIFICATE OF SERVICE I hereby certify that a copy of this motion has been served on April 20, 2015, by email to the following:
Douglas K. Norman
Nueces County District Attorney’s Office
901 Leopard Street, Room 206
Corpus Christi, TX 78401
douglas.norman@nuecesco.com
douglas.norman@co.nueces.tx.us Matthew Ottoway
Office of the Attorney General
PO Box 12548
Austin, TX 78711
matthew.ottoway@texasattorneygeneral.gov
/s/ Andrew M. Edison Andrew M. Edison
[1] Although the State’s filing also, somewhat confusingly, addresses Mr. Vasquez’s motion for a stay with a “motion to . . . deny the motion to stay execution,” State’s M. to Dismiss at 2, it is fair to construe that part of the State’s filing as a response in opposition rather than a separate motion. Thus, in the interest of brevity, this response will refer to the State’s filing as its motion to dismiss.
[2] Because this response only opposes the State’s motion to dismiss and does not seek any affirmative relief beyond what was requested in Mr. Vasquez’s timely filed application and
[3] The exception is Dr. Squier’s discussion of Shaken Infant Syndrome, which, for reasons discussed below, the State erroneously characterizes as being based on a study published in 1987.
[4] For example, by noting that “the dynamics and motions involved in falling from a swing or other movable playground equipment are different from those involv[ed] in falling from a stationary stool, as well as the nature of the surface or structure onto which the child fell.” State’s M. to Dismiss at 14.
[5] Despite the State’s generic references to murder, the question under Article 11.073 is whether Mr. Vasquez would have been convicted of capital murder rather than one of the lesser included offenses of murder or manslaughter.