Robbins, Neal Hampton

Opinion

WR-73,484-02

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 5/22/2015 3:02:56 PM Accepted 5/26/2015 9:50:26 AM ABEL ACOSTA

May 26, 2015 CLERK

May 22, 2015

Abel Acosta, Clerk of the Court Court of Criminal Appeals P.O. Box 12308 Capitol Station Austin, Texas 78711

RE: Ex parte Neal Hampton Robbins, No. WR-73484-02 Dear Abel:

Please file the attached transcript of oral argument as an appendix to this pre-submission list of authority in the above-styled and numbered cause which will be argued on June 3, 2015.

Keller WR-36,232-02 & WR-36,864-02 (May 20 2015)(not Ex parte Keller, designated for publication)(granting habeas relief where State’s expert had reevaluated his trial testimony that complainant had suffered sexual abuse, and admitted at writ hearing that this testimony was misleading and where he now believes that no such signs of sexual trauma existed).

Allen 2015 WL 2265128 at *6, *8 (May 13, 2015)(Yeary, J., In re Allen, concurring)(urging legislature to “provide clear definition of mental retardation” so that courts, in assessing viability of Atkins claims, can separate “the sheep from the goats.”)(citation omitted).

Inc. 438 S.W.3d 556, 581 (Tex. 2014)(Hecht, Jaster v. Comet II Const., Inc., C.J., dissenting)(“The legislative process does not usually allow for the same care [as in the drafting of judicial opinions] to be taken in the choice of language. There are many authors, the text is subject to amendments of all sorts, friendly and unfriendly, and in the end, the product is often one of compromise, which is essential to the legislative process.”).

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United United States v. Rosenberg, Rosenberg 346 U.S. 273, 310 (1953)(Frankfurter, J., dissenting)(“American criminal procedure has its defects, though its essentials have behind them the vindication of long history. But all systems of law, however, wise, are administered through men and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, bu the capacity to counteract inevitable, though rare, frailties is the mark of a civilized legal mechanism.”).

Lee v. Tennis, Tennis 2014 WL 4187590, Civ. Action No. 4:08-CV-1972 at 1-2; 44 (M.D. Pa. June 13, 2014)(“‘Slow and painful has been man’s progress from magic to law.’ This proverb, inscribed at the University of Pennsylvania Law School on the statue of Hseih-Chai, a mythological Chinese beast who was endowed with the faculty of discerning the guilty, is a fitting metaphor for both the progress of the law and the history of this case. The law is the means by which fragile, frail, imperfect persons and institutions seek greater perfection and justice through the search for the truth. But the search for the truth is not always easy, and the path to the truth is not always clear. Sometimes we find that truth eludes us. Sometimes, with the benefit of insight gained over time, we learn that what was once regarded as truth is myth, and what was once accepted as science is superstition. So it is in this case. ... To achieve justice, the law must serve as the vehicle through which imperfect institutions strive for greater justice through a more perfect understanding of the truth. Therefore, as our understanding of scientific truth grows and changes, the law must follow the truth in order to secure justice.”1).

Kristensen 340 U.S. 162, 178 (1950)(Jackson, J., concurring)

McGrath v. Kristensen, (explaining why he changed his mind after having written an opinion in opposition to his current position, “The matter does not appear to me now as it appears to have appeared to be then.”).

1 In Lee, the magistrate judge recommended a new trial for the habeas petitioner, who was convicted of the arson murder of his mentally ill daughter 25 years ago, because the “arson science” upon which his conviction was largely based was no longer scientifically valid. The magistrate judge’s report and recommendation was later adopted by the district judge and Lee was released from prison on August 22, 2014.

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Pursuant to TEX.R.APP. 9.5(d), copies of these documents have been served upon opposing counsel via e-filing.

Sincerely yours,

/s/ Brian W. Wice

BRIAN W. WICE

BWW:dje

cc: Bill Delmore Lisa McMinn

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1 WR-73,484-02 2 IN THE 3 COURT OF CRIMINAL APPEALS

4 ------------------------------------------------------------

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6 EX PARTE NEAL HAMPTON ROBBINS, APPLICANT

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8 Successive Application for a Writ of Habeas Corpus 9 in Cause No. 98-06-0075-CR from the 410th Judicial District Court of Montgomery County 10 -----------------------------------------------------------

11 TRANSCRIPT OF ORAL ARGUMENT 12 -----------------------------------------------------------

13 APPEARANCES:

14 FOR THE APPLICANT: BRIAN W. WICE 15 The Lyric Centre 440 Louisiana, Suite 900

16 Houston, TX 77002-1635

17 FOR THE STATE OF TEXAS: WILLIAM DELMORE, III Montgomery County District 18 Attorney's Office 301 North Thompson

19 Conroe, TX 77301

20 TRANSCRIPTION SERVICE BY:

21 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 22 935 ELDRIDGE ROAD, #144 SUGAR LAND, TEXAS 77478

23 Tel: 281-277-5325 / Fax: 281-277-0946 www.judicialtranscribers.com 24 Proceedings recorded by electronic sound recording;

25 transcript produced by transcription service.

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1 WEDNESDAY, MARCH 19, 2014 2 PRESIDING JUDGE KELLER: Call now Cause Number 3 WR-73,484-02, Ex Parte Neal Robbins. 4 MR. WICE: I'm Brian Wice from Houston. It is my 5 privilege to represent Neal Robbins. 6 This is a case about bad science and broken 7 promises. The bad science: The expert trial testimony of 8 Dr. Patricia Moore, as to the manner and cause of death that 9 she later reevaluated and ultimately denounced it was 10 essential to this Defendant's conviction and life sentence. 11 The broken promises: The right to a fair trial 12 with a reliable result, that the system did not because it 13 could not, keep. The only way a majority of this Court can 14 once again reject the veteran habeas judge's recommendation 15 of a new trial is to adopt the State's myopic interpretation 16 of Article 11.073 that ignores the canons of statutory 17 construction, the dictionary definitions of the terms 18 employed, the unmistakable legislative history and intent 19 behind it and reduces one of the most important changes in 20 habeas jurisprudence to an umbrella which is withdrawn as 21 soon as it begins to rain. 22 Perhaps the easiest of the four -- of the six 23 questions that this Court has asked us to brief is the 24 Section 4 question. Obviously our burden to show that we 25 come within that exception. Well, I think it's clear

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1 because the State acknowledges on page 13 of its Brief that 2 we do; that the Section 4 exception is disjunctive, not 3 conjunctive. We need to show a legal basis or new factual 4 basis. Clearly we have shown the former, legal basis 5 upon -- 6 JUDGE MEYERS: Showing a legal basis is a change 7 in the law. 8 MR. WICE: No, sir. 9 JUDGE MEYERS: Well, that's what Section 4 says. 10 MR. WICE: That's not what Section 4 says. 11 Second -- 12 JUDGE MEYERS: Well it had to be a change -- a 13 change in the substantive law. 14 MR. WICE: That's not what Section 4 says, Judge 15 Meyers. 16 JUDGE MEYERS: But the Section -- but the change 17 in the law has to be a substantive law, not the enabling 18 law. 19 PRESIDING JUDGE KELLER: But there is a change in 20 this. I mean, it's your position that there is a change in 21 the substantive law, namely that before 11.073 a claim could 22 be actual innocence or a claim could be false evidence, and 23 now there is a new substantive claim, which is evidence -- 24 JUDGE COCHRAN: Change in scientific evidence. 25 PRESIDING JUDGE KELLER: -- contradict scientific

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1 evidence or was not available -- yeah, contradicts 2 scientific evidence relied on by the State or was not 3 available to be offered a convicted person at trial. 4 Is that your position? 5 MR. WICE: It is, Your Honor, and it is fact -- 6 JUDGE MEYERS: That's enabling law. 7 MR. WICE: To quote from page 13 of the State's 8 Brief: 9 "Article 11.073 provides a new legal basis for habeas 10 corpus relief in cases in which new scientific evidence 11 would not support an actual innocence or false 12 testimony claim." 13 At the end of the day, if five judges of this 14 Honorable Court didn't believe that we have met the 15 Section 4 exception, I suspect I wouldn't be here this 16 morning. This case would have been dismissed in November. 17 In turning to the merits, this Court's point of 18 embarkation in interpreting Article 11.073 are the canons of 19 statutory construction, which are conspicuously absent from 20 the State's Brief. What do they say? That this Court must 21 take the statute as it finds it. That even if it disagrees 22 with it, even if it hates it, even if it thinks that the 23 Legislature didn't know "sic 'em from come here" about 24 habeas jurisprudence, they have got to interpret this 25 statute in a way that gives effect to the legislative intent

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1 in history and it's clear -- 2 PRESIDING JUDGE KELLER: And stop in there for a 3 minute. 4 Most of the testimony appears to have been about: 5 This bill is to address junk science or discredited science. 6 Is that correct? 7 MR. WICE: Some of it was, Your Honor. 8 PRESIDING JUDGE KELLER: This isn't junk science 9 we're talking about, is it? It's a person's testimony and 10 she has changed her mind after more experience and re- 11 reviewing the evidence; is that correct? 12 MR. WICE: While I would disagree with the Court's 13 characterization of her merely changing her mind, this is 14 not a situation of Dr. Patricia Moore being a CSI forensic 15 dilettante, who changes her mind the way she changes 16 hairstyles. It's worthy to note that in all of her time, in 17 all of her tenure as an Assistant ME, this was the only case 18 where she had ever reevaluated her expert opinion on her 19 own. Her superiors in other case have ultimately amended or 20 supplemented her conclusions. This is the only case. 21 PRESIDING JUDGE KELLER: Okay. I don't want to 22 get too far off track, but when she reevaluated her 23 testimony, there is at least an allegation that she 24 reevaluated because she has more experience, because she 25 looked at more -- she looked at the police, the offense

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1 report. She looked at more of the testimony at trial, and 2 one of the things that came up is that she reevaluated it 3 because she didn't understand that there had been so-called 4 aggressive CPR on the 17-month-old child that could have 5 caused the bruises on her back, but she was cross-examined 6 about that at trial, wasn't she? 7 MR. WICE: And you're right, Judge. And while we 8 point that out in, I think, in Footnote 19 of our Reply 9 Brief, I went back and I looked at both the original 10 majority opinion and Judge Mayes' findings, but I only think 11 that is one element because this is something more than an 12 expert changing her mind. And I -- 13 PRESIDING JUDGE KELLER: What is it that's more 14 than an expert changing her mind? I mean, not that that 15 might not be sufficient on its own, but what is it that's 16 more than an expert changing her mind? 17 MR. WICE: Well, I think as the Innocence Project 18 points out almost better than I do in its Amicus Brief, the 19 scientific method requires any expert who wants to reexamine 20 an initial determination to consult other experts, to look 21 at relevant material, and viewed through the prism of their 22 own increased training, experience, expertise and knowledge 23 to then make a scientific determination that their initial 24 conclusion was somehow wanting and this is not a case, 25 again, where an expert from the State changed sides or had

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1 buyer's remorse or any other sound bites you're going to 2 hear about in 15 minutes because the legislative intent and 3 history behind Article 11.073. 4 And make no mistake, I was there, Mr. Udashen, 5 Mr. Henson, recognized that this statute, which was a 6 byproduct of the Timothy Cole Advisory Panel on Wrongful 7 Convictions, two of whose members are in the audience and 8 one of whom is on the bench today, recognize, this was the 9 ultimate failsafe mechanism in cases where the underlying 10 science had not changed as in Henderson. 11 JUDGE COCHRAN: Well I think that's a good point, 12 Mr. Wice, and so I'm looking at the statute and I've read 13 the legislative history, but what exactly are you relying on 14 for the change or the conversion of Dr. Moore's testimony? 15 What words within the statute are you relying on? 16 MR. WICE: When the statute, Your Honor, uses the 17 words "scientific knowledge," that means more than merely a 18 change in the underlying science. We believe that a common 19 sense interpretation of that provision means that an expert, 20 after further reevaluation through the prism of the 21 scientific method, exactly as Mr. Moore did in this case, in 22 conjunction with increased training, experience and 23 expertise, could then conclude via the scientific method 24 that the initial determination was not correct. That's all 25 that the statute requires.

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1 JUDGE MEYERS: But you have all this in your '01 2 [writ]. 3 MR. WICE: We have a -- 4 JUDGE MEYERS: Everything that you talked about 5 was -- because the facts have not changed since your '01. 6 Everything that you have -- that you just talked about was 7 in your '01. 8 MR. WICE: That's correct. 9 JUDGE MEYERS: So what has -- so what has changed? 10 MR. WICE: What has changed, Your Honor, is 11.073 11 because it changed -- 12 JUDGE MEYERS: All that did was codify -- all that 13 did was codify your facts in '01. 14 MR. WICE: Well, I would disagree because we 15 believe that unlike Article 11.07, Article 11.071 and 16 Article 11.072, 11.073 is a free standing claim upon which 17 relief in a proper case can be granted. 18 JUDGE KEASLER: Excuse me, Mr. -- 19 JUDGE MEYERS: There is a -- 20 MR. WICE: Yes, Your Honor. 21 JUDGE KEASLER: Excuse me, Mr. Wice. I think to 22 boil it down, what you're saying is the term "scientific 23 knowledge" ought to be read more broadly than general 24 scientific knowledge. You're talking about specific 25 scientific knowledge relating to the individual expert. Is

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1 that what you're saying? 2 MR. WICE: Absolutely, Your Honor. 3 JUDGE KEASLER: Okay. 4 JUDGE WOMACK: And the trial court and the 5 convicted court found that the scientific knowledge has 6 changed. 7 MR. WICE: Judge Mayes made a determination in 8 that regard. Whether or not that is, in fact, amply or 9 fairly supported by the Record, I suppose is another issue, 10 but what Article 11.073 does is that I think that it answers 11 two equally compelling concerns posed by two dissenting 12 opinions. Judge Cochran's in the '01 writ and Judge 13 Hervey's an Ex Parte Henderson, where Judge Cochran poses 14 the question: What can we do to essentially assure that 15 science and the law aren't at loggerheads? 16 And of course, Judge Hervey's dissent in Henderson 17 where after concluding that the Court essentially granted 18 relief on the basis it doesn't exist, asks: Is something 19 missing here? 20 What was missing in both cases, Your Honors, was 21 Article 11.073 and I don't think you get to where the State 22 wants this Court to go unless you ignore the dictionary 23 definitions, which of course as Judge Keller pointed out in 24 Holcombe, is one of the first places we ultimately turn to. 25 JUDGE MEYERS: Well 11.073 is not a statute that

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1 grants relief. 2 MR. WICE: It's a statute through which relief can 3 be granted. 4 JUDGE MEYERS: Listen, it enabled -- it's like 5 11.07, 11.071, they enable you to come to this Court and 6 file a Writ claiming that you have a Constitutional 7 violation and that's what you had in your '01. You came to 8 this Court and said she changed her mind as to the cause of 9 death and that -- 10 MR. WICE: That she reevaluated. 11 JUDGE MEYERS: -- Okay, whatever. Whatever it was 12 and it's the same thing you have here, it's the same thing 13 you had in your '01. And so whatever she did, then we took 14 those particular facts and measured it against a 15 Constitutional provision of due process and we said that did 16 not violate due process in order -- if he did not get 17 another trial for her to present that particular evidence, 18 that did not violate due process and that is exactly the law 19 that is involved in relation to what grants relief, just 20 like it was in Crawford, like it was in Simmons, like it was 21 in Atkins. Those are the changes -- 22 JUDGE COCHRAN: This isn't like the -- is it like 23 the codification of an Atkins claim? That is, this is a new 24 claim that you may bring on a writ of habeas corpus. We 25 have codified Atkins, so we're just still stumbling around

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1 with cases, but is 11.073 like a codified Atkins claim, but 2 dealing with science? 3 MR. WICE: It is, Your Honor. 4 JUDGE COCHRAN: Okay. Let me pose a hypo to you: 5 Let us suppose we have a new DNA scientist and she's just as 6 sweet as all get out, but unfortunately she forgot to come 7 to class one day and forgot a very important part of the DNA 8 testing procedure. So she does a whole bunch of DNA tests 9 and she thinks she's doing it just right and everybody else 10 thinks she's doing it just right. She has all these results 11 and she testifies in all these trials about the DNA. 12 Turns out five years down the road she wakes up 13 and realizes, "I forgot this important step. None of my 14 tests are any good." 15 Would this statute cover her change in position? 16 She was never -- she didn't falsify evidence, she didn't 17 testify falsely, she just didn't have it altogether in her 18 knowledge. Would this statute cover her newfound 19 understanding of what DNA really is all about? 20 MR. WICE: It absolutely would, Your Honor, 21 because the language in 11.073, again, as Judge Keasler 22 pointed out, uses that expression which you cannot look at 23 myopically of scientific knowledge. 11.073 is different 24 from 11.07 and 11.071. You can look at 11.07 and 11.071 and 25 you won't find any reference to ineffective assistance or

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1 Brady, or suppression of evidence that alone presents a 2 freestanding claim. 3 But the drafters of this legislation -- and make 4 no mistake, these folks had every opportunity, as every 5 prosecutor in this Great State did, to come to the 6 Legislature a year ago last week, and tell Senator 7 Whitmire's Committee before the law passed what they're 8 telling this Court after it passed, "Wait a second." 9 PRESIDING JUDGE KELLER: Maybe they didn't think 10 it applied to anything except junk science. 11 MR. WICE: No, ma'am. 12 PRESIDING JUDGE KELLER: That's what it looks like 13 it applies to. 14 MR. WICE: No, ma'am. I think what this Bill 15 applies to is exactly what the legislative history and 16 intent spoke to. Make no mistake, it's the elephant in the 17 room and let's just come out and say it: As much as the 18 Michael Morton Act recodified discovery on some level to 19 some people, this is the Neal Robbins' Bill. It was in 20 response to this Court's '01 writ decision. 21 PRESIDING JUDGE KELLER: Well then, why is there 22 so much discussion about junk science and discredited 23 science? They find kind of broad discredited science that 24 has come up in other cases. 25 MR. WICE: Because, Your Honor, those were the two

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1 previous sessions, the sessions I believe in '09 and '11, 2 which the State points out couldn't have impacted what the 3 Legislature ultimately did because it talked about bullets 4 and dog sniff cases and alligators in the sewers and God 5 knows what else. It was only after this Court's '01 6 decision in June of 2011 that the game changer became 7 Article 11.073 and it's a different prism through which this 8 Court has to look at the facts. 9 PRESIDING JUDGE KELLER: And the difference -- go 10 ahead. 11 JUDGE ALCALA: I have a question about the 12 statutory language. You keep paraphrasing what you think 13 the statute says. When I read the statute under 14 11.073(b)(1)(A): 15 "Relevant scientific evidence is currently available." 16 That's fine, if you need that. And: 17 "Was not available at the time of the convicted 18 person's trial because the evidence was not 19 ascertainable through the exercise of reasonable 20 diligence by the convicted person before the date of 21 the convicted person's trial." 22 Now can't we read that to say that the evidence -- 23 you could have ascertained evidence contrary to Dr. Moore at 24 the time of the trial because there were certainly other 25 medical examiners that could have been called.

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1 MR. WICE: And -- 2 JUDGE ALCALA: So it's not junk -- this would be 3 different -- your situation is different from junk science 4 or new science because you couldn't present the evidence at 5 the time of the trial. 6 MR. WICE: I disagree, Your Honor. 7 JUDGE ALCALA: And didn't you? 8 MR. WICE: I disagree because what the State 9 claims is that the evidence was available in the form of 10 Dr. Bux's expert testimony. We could not have known eight 11 years after the fact that Dr. Moore would have reevaluated 12 her testimony, so when they stand up in a second and tell 13 you that Dr. Bux's testimony was available, the statute by 14 its own terms says: 15 "Evidence relied upon by the State." 16 That was Dr. Moore's testimony and not Dr. Bux's 17 testimony. 18 PRESIDING JUDGE KELLER: Was that part added after 19 your testimony that contradicted -- wasn't that an amendment 20 to the Bill? That contradict scientific evidence relied on 21 by the State at trial, had it been discredited before? 22 MR. WICE: I believe it did, Your Honor, and I 23 think that was a last minute change before we ultimately 24 testified -- 25 PRESIDING JUDGE KELLER: Okay.

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1 MR. WICE: -- with the advice and consent of the 2 Harris County District Attorney's Office. 3 JUDGE MEYERS: But maybe I missed -- the Judge 4 kind of hit the nail on the head. He said that what 11.073 5 was codify kind of what your situation is. It would be 6 similar to codifying situations concerning retardation in an 7 Atkins situation. But you don't have an Atkins case. You 8 have to put -- you have to put case law with facts, if you 9 don't have an Atkins case. 10 MR. WICE: Your Honor, if you believe that I don't 11 prevail on the section -- 12 JUDGE MEYERS: No -- 13 MR. WICE: -- for exception because I point to a 14 new case, whether it's Atkins or Crawford -- 15 JUDGE MEYERS: That's how we -- 16 MR. WICE: -- or Dread Scott versus Sanford. 17 JUDGE MEYERS: That's how we've always done 18 subsequent writs. 19 MR. WICE: And I obviously don't have your vote. 20 JUDGE MEYERS: Well we have to -- that's how we've 21 always done subsequent writs. When the law is changed like 22 in Crawford or in Atkins or in Simmons, or some of those 23 cases, there has been a new case law, how you interpret the 24 application of the facts to the Constitutional violation. 25 We don't have that here. All we have is the codification of

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1 facts that are cognizable, but we don't have a new ruling by 2 either us or the Supreme Court in relation to how this is a 3 due process violation. 4 MR. WICE: With all due respect, I respectfully 5 disagree. 6 Hippocrates said, "That to know is science; merely 7 to believe one knows is ignorance." 8 When she testified in 1999, Dr. Patricia Moore 9 believed she knew. Eight years later, she merely thought 10 she believed. To convict this Applicant on what is nothing 11 more than ignorance, is anathema to due process, and there's 12 been some talk about what the public demands and what the 13 public expects in the last case. What they expect is a -- 14 PRESIDING JUDGE KELLER: Well, let me ask you a 15 question because you just led into it and I was going to 16 save it for rebuttal, but you say that the evidence of the 17 prior injuries that the child received while he was in the 18 Applicant's care is not relevant to whether he should get 19 relief or not. Doesn't that go into the preponderance of 20 the evidence test? 21 MR. WICE: What I think we need to recognize, 22 Judge Keller, is that evidence was admissible for a limited 23 purpose. 24 PRESIDING JUDGE KELLER: But it's a broad limited 25 purpose. It was for the -- to show the relationship of the

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1 parties. 2 MR. WICE: The relationship of the parties. 3 PRESIDING JUDGE KELLER: And it wasn't a limited, 4 limited purpose, right? 5 MR. WICE: Well it was a limited purpose. And I 6 think that -- 7 PRESIDING JUDGE KELLER: To show the relationship 8 of the parties is one of the purposes of this amendment. 9 MR. WICE: That's correct, but I think even if on 10 some level it becomes admissible beyond that limited 11 purpose, what the State has continued to ignore is its 12 wholesale reliance on Dr. Moore's testimony in final 13 argument to not only urge the jurors to convict, but to 14 denigrate Dr. Bux's testimony for the reasons in our Brief 15 and in the Amicus Briefs of the Innocence Project, the 16 National Association of Criminal Defense Lawyers, Texas 17 Criminal Defense Lawyers Association, and for the reasons in 18 our Motion for Reconsideration on the Court's own motion, 19 which is still pending, we ask this Court to grant relief. 20 PRESIDING JUDGE KELLER: Thank you, Counsel. 21 MR. DELMORE: If it please the Court, my name is 22 Bill Delmore and I represent the State of Texas in this 23 habeas proceeding. 24 Judge Meyers, you've got me worried now because I 25 did make a concession that this statute creates a new legal

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1 basis for an Article 11.07 claim. 2 JUDGE MEYERS: We have to have a new -- 3 MR. DELMORE: If I can briefly explain -- 4 JUDGE MEYERS: We have to have a new judicial case 5 law basis. 6 MR. DELMORE: At the risk of arguing the 7 Applicant's case, which I certainly don't want to do, it 8 seems to me that the Legislature has now created a right to 9 relief in the absence of a Constitutional violation. So 10 they didn't codify your previous decisions regarding the due 11 process clause. They said -- they actually reduced the 12 burden of proof that you have set for a due process 13 violation. 14 So in the past that you had new scientific 15 evidence that you claim established your innocence, it was a 16 very difficult test. You had to prove it to the point that 17 no rational juror could convict, when you weigh the new 18 evidence against the evidence adduced at trial, and they've 19 lessened that burden. 20 PRESIDING JUDGE KELLER: But the decree added 21 statutory means getting relief, not that it doesn't have 22 anything to do with due process. 23 MR. DELMORE: Exactly. They've created a 24 statutory right to relief based on the use of scientific 25 evidence that is later discredited.

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1 JUDGE MEYERS: And you can't do that under habeas. 2 MR. DELMORE: I toyed with the argument that the 3 Legislature lacked the Constitutional authority to create a 4 new right to habeas relief and that that was strictly a 5 judicial function under separation of powers, but I couldn't 6 find anything that supports that and I suspect the 7 Legislature probably can create a new right to relief in the 8 absence of a Constitutional violation. 9 I mean, they could pass a law that says that -- 10 you know, Bill Delmore was -- 11 JUDGE MEYERS: So that -- 12 MR. DELMORE: -- the prosecutor -- 13 JUDGE MEYERS: So that would be the only way that 14 he can get relief now is absent a showing of Constitutional 15 violation. 16 MR. DELMORE: That's correct. 17 JUDGE MEYERS: Okay. 18 MR. DELMORE: Absolutely. 19 JUDGE MEYERS: And that would be a first on this 20 -- in this particular court, or -- 21 MR. DELMORE: Are there other statutory rights to 22 relief that the Court has not recognized strictly to the 23 exercise of the common law? I can't think of one. There 24 might well be one. 25 JUDGE KEASLER: When you tell us about a

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1 Constitutional violation, we'll have to say that the actions 2 of the Legislature were unconstitutional in order to deny 3 relief, it would seem. 4 MR. DELMORE: Well, I think there's plenty of 5 other reasons to deny relief. 6 JUDGE KEASLER: Yes. I mean, that's -- 7 MR. DELMORE: But to say that the statute doesn’t 8 create a legal right -- a new legal basis for a claim -- 9 JUDGE KEASLER: Correct. 10 MR. DELMORE: -- I think would require a finding 11 that the Legislature exceeded its -- 12 JUDGE KEASLER: Separation of powers and duties. 13 MR. DELMORE: Yes, sir. Yes, Your Honor. 14 JUDGE MEYERS: But that's a separate argument, as 15 opposed to whether there is a right of relief under the 16 Constitution, which has always been traditionally and 17 forever the way that you get relief under habeas. That you 18 take the facts -- 19 MR. DELMORE: Judge, that is correct. 20 JUDGE COCHRAN: Well not necessarily, no. 21 Mr. Delmore, we have Article 17.151, which says if you 22 haven't been -- if the State isn't ready for trial in 23 90 days, the Defendant gets a right to get out on personal 24 recognizance or bail, when the People bring a pretrial writ 25 to enforce that statute, it's not a Constitutional issue,

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1 but you have a right to bring a writ to enforce the statute. 2 Are you done? 3 MR. DELMORE: Yes, Your Honor. 4 JUDGE COCHRAN: Okay. So this is sort of the same 5 kind of concept, different kind of claim, but there's a 6 statutory claim and you could bring a writ to enforce that 7 claim. 8 MR. DELMORE: Yes, Your Honor. I wish that I had 9 found some authority for the proposition that the 10 Legislature cannot create a new right to habeas relief, but 11 I couldn't find it. If you surprised me by announcing that 12 the Legislature has exceeded its authority, then that makes 13 this case very easy and we're done. 14 If you can't get there or if you don't get there, 15 then I think we have to go -- 16 JUDGE MEYERS: Easiest way to say it is they just 17 haven't created a wide -- they created an enabling statute, 18 just like 11.07, 11.071, 11.072 enables you to go to file a 19 writ, to present your facts, to say, hey, I've had a 20 Constitutional violation. 21 And that's exactly what the Applicant in this case 22 had in his '01 writ and it was very cognizable because she 23 had changed her mind as to why or how -- what conclusion she 24 would have come to as to the cause of death. 25 And then we looked at that and measured it against

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1 the Constitutional provision of due process and said, "It 2 does not violate due process not to give the Applicant a new 3 trial to present this particular situation." 4 So all 11.073 did was come back and codify those 5 exact same facts and say, "That's -- that is -- that enables 6 you to bring that particular cause." But it's already been 7 brought. 8 MR. DELMORE: And they went one further step. 9 They also said that a Court "may grant habeas corpus relief 10 if the following showing is made." 11 JUDGE MEYERS: But you still have to measure it 12 against the Constitution. 13 MR. DELMORE: Apparently you don't under the 14 statute. It does not require a Constitutional violation. 15 It just requires their -- 16 JUDGE COCHRAN: Would you address the merits, too? 17 MR. DELMORE: Yes, Your Honor. 18 JUDGE COCHRAN: Discuss the merits? 19 MR. DELMORE: The -- I believe that the focus of 20 the statute was to provide a remedy when there's been a 21 scientific advancement or breakthrough that calls into 22 question the accuracy of forensic testimony or evidence that 23 contributed to an inmate's conviction. 24 PRESIDING JUDGE KELLER: I'm going to stop you for 25 a moment. On the merits, so this Bill had been brought up

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1 in two previous sessions and it appears to be talking about 2 junk science or debunk science. But there is a difference. 3 And in the Bill that was passed, there is the phrase that 4 "contradicts scientific evidence relied on by the State at 5 trial." 6 I was under the impression -- and maybe I'm wrong 7 -- that that was -- that revision was made after Mr. Wice's 8 testimony. I think he just said that it was made right 9 before his testimony. 10 What do you think that applies to? 11 MR. DELMORE: Well, okay. The concern that the 12 prosecutors brought to the authors of this Bill was the 13 vagueness of the term "discredits" because you could 14 discredit testimony by doing something other than showing 15 that new scientific developments has contradicted it. 16 PRESIDING JUDGE KELLER: Sure. 17 MR. DELMORE: I'm not -- you know, you could 18 discredit it by saying the scientist who was responsible for 19 the initial science that was testified to at trial was a bad 20 scientist. 21 PRESIDING JUDGE KELLER: Sure. 22 MR. DELMORE: "He had cheated on his wife and he 23 didn't pay his income taxes," that would discredit, you 24 know, -- 25 PRESIDING JUDGE KELLER: You can discredit with

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1 another witness. 2 MR. DELMORE: -- it's a very vague word. 3 PRESIDING JUDGE KELLER: Okay. 4 MR. DELMORE: And so the prosecutors didn't like 5 that and they -- it was a prosecutorial suggestion that we 6 replace it with the word "contradicts," and I believe that 7 statement was -- that that change was made simultaneously 8 with that 2013 Committee hearing, because there's a 9 discussion during that hearing of "Well, we have made this 10 change and we're now substituting this Committee language." 11 PRESIDING JUDGE KELLER: Okay. At that point -- 12 MR. DELMORE: So -- I'm sorry. 13 PRESIDING JUDGE KELLER: -- were you considering 14 the phrase "scientific evidence" in that part of the statute 15 was broad enough to include testimony within the evidence? 16 MR. DELMORE: No. I mean -- 17 PRESIDING JUDGE KELLER: But that's what evidence 18 is, isn't it? I mean, it can be testimony or reports or 19 anything? 20 MR. DELMORE: I was hoping I could convince you 21 that the statute was unambiguous because relevant scientific 22 evidence applies to the substance of the science. 23 JUDGE COCHRAN: What about -- what about my DNA 24 analyst? She has done 50 cases and she left out a really 25 important step of it and all of her results are wrong, does

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1 Section -- let's see: 2 "Section A(2) contracts scientific evidence relied on 3 by the State at trial." 4 Would Section 2 apply to her testimony in those 5 50 cases? 6 MR. DELMORE: Do you mean maybe two or three of 7 the elements that this new statute creates, but not before 8 it? 9 JUDGE COCHRAN: So you're saying all those 10 people -- 11 MR. DELMORE: The one you don't meet then is that 12 it has to be evidence that was unavailable at the time of 13 trial. 14 JUDGE JOHNSON: But they didn't know about it at 15 time of trial. And she didn't either. 16 MR. DELMORE: But was it was held -- 17 JUDGE JOHNSON: She thought she was doing it 18 right. 19 MR. DELMORE: -- some other pathologist could have 20 said, "This is not the way you're supposed to do it, this is 21 not" -- 22 JUDGE JOHNSON: Well -- 23 MR. DELMORE: -- this is not consistent with 24 existing science. 25 JUDGE JOHNSON: They did, didn't they? And how

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1 are they to know that until she says, "Oops, I did it 2 wrong." 3 PRESIDING JUDGE KELLER: There was testimony. 4 JUDGE JOHNSON: But that doesn't -- 5 MR. DELMORE: Expert testimony can be had on both 6 sides. 7 PRESIDING JUDGE KELLER: Yes. 8 MR. DELMORE: We now have under Ake a right to 9 obtain scientific assistance to the defense. 10 JUDGE JOHNSON: I understand it, but I think Judge 11 Keller has just posed a question that Dr. Moore testified as 12 to what she thought -- wasn't that the defense also had -- 13 who said what Dr. Moore is now saying. 14 Isn't that correct? 15 MR. DELMORE: Absolutely. And that is our primary 16 argument as to why this statute doesn't apply to this 17 situation in that to obtain relief under the statute, the 18 new scientific evidence has to have been unavailable and I 19 believe "new scientific evidence" refers to the substance of 20 the science, the scientific principles and methods that are 21 applied to the case and those -- 22 JUDGE JOHNSON: Well where is it stating new -- 23 MR. DELMORE: -- I'm sorry. 24 JUDGE JOHNSON: Where in that statute does it say 25 "new?"

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1 MR. DELMORE: I'm sorry? 2 JUDGE JOHNSON: Where does it say "new" in the 3 statute? 4 MR. DELMORE: Because it was not available at the 5 time of trial. 6 JUDGE JOHNSON: Well that doesn't mean it's not -- 7 it's new. It means only that they couldn't find out about 8 it with reasonable diligence. They couldn't -- all 9 technology, it is, you know, difficult that the DNA test was 10 being done wrong. 11 MR. DELMORE: And I started by saying I was hoping 12 to convince you that the statute is unambiguous my way, but 13 maybe you're pointing out that there are some words in the 14 statute that are ambiguous. The word -- the phrase 15 "relevant scientific evidence" could be ambiguous as to 16 whether you're talking about the science or you're talking 17 about the testimony of an individual witness. 18 The word "available" could be ambiguous as to 19 whether it means the science hadn't been discovered yet, 20 hadn't been developed yet, or it could mean that the witness 21 is on vacation. 22 JUDGE JOHNSON: Well -- 23 MR. DELMORE: So then we would go to the extra 24 textual considerations in determining the legislative 25 intent, such as the legislative history and the consequences

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1 of a particular construction. 2 JUDGE JOHNSON: It seems to me that science does 3 not become either relevant or evidence until somebody gets 4 up on the witness stand and talks about it and if they -- 5 their testimony about the science is both relevant and 6 scientific, then if that is mistaken at the time -- such as 7 this DNA person -- then that, it seems to me, is what we're 8 looking at, not the science itself, but the science as 9 presented by a witness and that witness testified for 10 whatever reason such that it misled whoever listened to it, 11 and I think juries really do -- can rule as to weight, to 12 State's witnesses -- scientific areas where most jurors 13 won't really know whether they're talking correctly or not. 14 So I'm still looking for the word "new" because it 15 doesn't say that in the statute. It says it's evidence that 16 has to be science that's relevant to the case and now it 17 apparently contradicts the evidence that was presented at 18 trial and because she did not reevaluate it until she had 19 learned more, that it was not available at the time. 20 MR. DELMORE: And Your Honor, respectfully, you 21 omitted one element of the new test, which is "not available 22 at the time of trial." 23 JUDGE JOHNSON: And her testimony was -- 24 MR. DELMORE: That -- 25 JUDGE JOHNSON: -- not available at the time.

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1 JUDGE HERVEY: But there was contradictory -- 2 MR. DELMORE: But it was available from -- 3 JUDGE HERVEY: -- testimony presented by the 4 defense to contradict what she said at trial. 5 MR. DELMORE: Yeah, it -- 6 JUDGE HERVEY: So that was available at trial. 7 MR. DELMORE: I think that if it's available 8 through the testimony of another witness that this Court 9 should find that it was available. 10 PRESIDING JUDGE KELLER: Well also, I mean, even 11 if scientific evidence covers her testimony -- includes her 12 testimony under (d), the Court -- (d) says: 13 "The Court shall consider whether scientific knowledge 14 or method in which the relevant scientific evidence in 15 the case has change." 16 Now opposing counsel tends to put in her own -- 17 when he's talking about that part of the statute -- her own 18 scientific knowledge or method has changed. 19 So we're supposed to consider whether -- even if 20 scientific evidence includes her testimony, whether 21 scientific knowledge or method has changed, and that's kind 22 of the crux of the issue here, isn't it? 23 MR. DELMORE: Yes and no, Your Honor. I mean, (c) 24 and (d) -- where you're looking at that language -- seemed 25 to me to set out the standard for when there is a new

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1 factual basis for a subsequent under 11.073. 2 PRESIDING JUDGE KELLER: Well that could be, 3 but -- 4 MR. DELMORE: And it's saying that there has to 5 have been a change in the science since you last filed a 6 writ. 7 PRESIDING JUDGE KELLER: That could be, but the 8 language is the same -- some of the language in (d) is the 9 same as the language in (a) -- no, in (b)(1)(A), where it 10 says -- 11 MR. DELMORE: And it's also the same as the 12 language in Section 4 of 11.07 and Section 5 of 11.071, when 13 you're talking about "reasonably ascertainable." 14 JUDGE COCHRAN: Right, but reasonably 15 ascertainable, for example, goes to Brady material and 16 certainly existed at the time of the trial, but poor 17 Defendant just didn't know about it. Do you suppose they 18 use that same language here to cover exactly the same 19 situation? That is, it's there, but it's just that the 20 Defendant didn't know about this particular evidence?" 21 Because otherwise, they could have said, "Because 22 of scientific -- because the scientific evidence is new" and 23 you wouldn't have to mess with it, it was not ascertainable 24 through the exercise of reasonable diligence by the 25 convicted person before the jury during the convicted

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1 person's trial. I mean, it's two words instead of fifteen. 2 MR. DELMORE: My argument, Your Honor, is that the 3 two words were synonymous with the fifteen, that the point 4 of the statute was to provide a vehicle, a mechanism for a 5 habeas applicant when there has been a change in science. 6 JUDGE COCHRAN: Do you think that Senator Whitmire 7 would agree with that? I mean, it's my understanding that 8 the legislative history is just replete with the Neal 9 Robbins act. 10 MR. DELMORE: And I totally disagree with that, 11 Your Honor. 12 JUDGE COCHRAN: Okay. 13 MR. DELMORE: Because this legislation was created 14 in 2009 and the Committee Report that came out of the 15 Committee in 2009, which is set out in its entirety in one 16 of the footnotes in my brief, is virtually identical with 17 this statute. 18 And so in 2009 this Bill was about junk science 19 and correcting the junk science when there's been 20 advancements in science and a clarification of the science 21 and it was all about primarily the arson cases in which it 22 was clear from the new scientific studies that the old 23 science was bad. 24 JUDGE JOHNSON: Mr. Delmore? And then? 25 MR. DELMORE: And --

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1 JUDGE JOHNSON: What would your argument be if we 2 substitute for Patricia Moore, Dr. Fred Zain -- 3 MR. DELMORE: I'm sorry. Say that again? 4 JUDGE JOHNSON: If you substitute for the name 5 "Dr. Patricia Moore," the name "Dr. Fred Zain," then what is 6 your argument about why a person in that position should not 7 be given another trial? 8 MR. DELMORE: Okay. I'm guessing that's from the 9 Henderson case? 10 JUDGE JOHNSON: No. Dr. Fred Zain was rather 11 infamous for dry-labbing. 12 MR. DELMORE: Okay. I'm not familiar with that, 13 but -- 14 JUDGE JOHNSON: In two states -- 15 MR. DELMORE: -- I don't think the statute was 16 intended to correct the errors in the specific testimony of 17 the individual experts. 18 PRESIDING JUDGE KELLER: Well, false testimony, 19 they already -- 20 MR. DELMORE: Because that -- 21 PRESIDING JUDGE KELLER: -- they already have 22 jurisprudence on false testimony. 23 MR. DELMORE: Exactly. You could already do that 24 under the Court's existing jurisprudence if there was a 25 false statement made by an expert that was material to the

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1 outcome, it was a due process violation before. 2 JUDGE KEASLER: When we break it all down, all we 3 need to do is look at the legislative history to decide -- 4 you know, if -- 5 JUDGE COCHRAN: Well, first we have to decide 6 on -- 7 MR. DELMORE: In 2009 and 2011 -- 8 JUDGE COCHRAN: Again, I can save that question 9 later. 10 MR. DELMORE: -- it was all about arson. It was 11 about the FBI's discredited bullet, lead analysis. In 2011 12 there was discussion of the canine scent lineups. 13 PRESIDING JUDGE KELLER: So what did -- where did 14 Neal Robbins get mentioned in this legislative history? 15 MR. DELMORE: It came -- it was finally mentioned 16 when Neal Robbins' supporters appeared at the last moment in 17 2013, and it's our position that that is too little and too 18 late. 19 JUDGE MEYERS: Well let me ask you this: This 20 case boils down to whether 11.073 is a statutory situation 21 concerning -- it allows relief independently of the 22 competition. Isn't that basically what it boils down to? 23 MR. DELMORE: I think I could finish your sentence 24 about five different ways, Judge. This case could boil down 25 to whether the statutory language is ambiguous.

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1 JUDGE MEYERS: Well -- 2 MR. DELMORE: It could boil down to whether the 3 evidence -- 4 JUDGE MEYERS: -- that would be interpreting all 5 the statutes, you know, as to whether or not the facts fit 6 within the statute. 7 MR. DELMORE: Yes. 8 JUDGE MEYERS: But I'm saying that's the only 9 vehicle that the -- that's the only way that the Applicant 10 here could win is if the statute provide separate -- relief 11 separate of a Constitutional violation. 12 MR. DELMORE: Yes. And I believe that your 13 testimony -- I'm sorry, your opinion will eventually boil 14 down to holding that the relevant scientific evidence upon 15 which they are now relying was available at the time of 16 trial because it was fully known science at the time and it 17 was offered -- 18 JUDGE MEYERS: But that would mean -- 19 MR. DELMORE: -- during the trial -- 20 JUDGE MEYERS: That only goes with the Section 4 21 situation if we are going to measure it on a Constitutional 22 basis, but apparently it seems like the Legislature has 23 created some kind of -- it has overstepped its bounds, it 24 seems like, and creates some kind of statutory relief 25 statute.

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1 MR. DELMORE: And I would love to be wrong in that 2 regard. 3 JUDGE COCHRAN: May I have one last question? 4 PRESIDING JUDGE KELLER: Well please, come in. 5 Sure. 6 JUDGE COCHRAN: What we're talking -- and you rely 7 quite heavily on Dr. Bux's testimony as it was available 8 testimony concerning how this was an undeterminable cause of 9 death, was it favorable to the Defendant through Dr. Bux's 10 testimony, and I guess I'm thinking: But isn't there a big 11 difference and didn't the State make a big difference 12 between this is the "Johnny-on-the-spot" medical examiner 13 who actually did this work and heaven forbid has a total 14 neutral scientist versus Dr. Bux's, the hired gun from, you 15 know, San Antonio, who didn't touch this stuff. He was just 16 looking at the record. 17 Do we think there is sort of a qualitative 18 difference that was emphasized by the State during closing 19 argument, between those two? 20 MR. DELMORE: Well first, I don't believe the 21 statute is about preexisting science. And Dr. Bux was 22 relying on preexisting science, so I don't think you even 23 meet the standard. 24 But if I'm wrong about whether we're -- the 25 statute refers to the substance of the testimony or the

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1 specific expert opinion testimony of a particular witness, 2 if you get all the way there, then I think that the next 3 question is: How do you weigh the new evidence, whatever 4 that is from whatever source against the evidence that was 5 actually offered at trial? 6 JUDGE COCHRAN: Is -- 7 MR. DELMORE: Which is the standard. It's right 8 there in the statute. 9 JUDGE JOHNSON: Mr. Delmore, you said that Dr. Bux 10 was relying on established scientific -- 11 MR. DELMORE: Yes, Your Honor. 12 JUDGE JOHNSON: What was Dr. Moore relying on? 13 MR. DELMORE: She was trying to rely on pre- 14 existing science, yes. 15 JUDGE JOHNSON: And so they're doing the same 16 thing? 17 MR. DELMORE: Yes, Your Honor. 18 JUDGE JOHNSON: Okay. 19 MR. DELMORE: This -- there was no -- there is no 20 new science in -- by my count, six members of this Court 21 have already said that the Ex Parte Robbins case is not 22 about any new scientific development or breakthrough. 23 JUDGE JOHNSON: When did we say that? 24 MR. DELMORE: Hum? 25 JUDGE JOHNSON: Where did it say that?

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1 MR. DELMORE: In the Ex Parte Robbins decision, 2 three of the Opinions very specifically state that, Your 3 Honor, that it's not -- there was no scientific 4 breakthrough. We're -- 5 JUDGE JOHNSON: Well see, that's where the statute 6 gets ambiguous because it doesn't say anywhere "new 7 science." It just says "not available," which is entirely 8 different than "new." 9 MR. DELMORE: And I respectfully disagree and I 10 think that's one of the big decisions that the Court is 11 going to have to make in construing the statutory -- 12 JUDGE MEYERS: The statute says what it says and 13 the facts are what they are, whether there is new science in 14 Robbins or not, and the statute whether it says "new 15 science" or not, so those are what they are. 16 Now whether they commingle or not, that's a 17 different thing. 18 MR. DELMORE: I'm not sure if that was a question, 19 Judge. 20 PRESIDING JUDGE KELLER: Mr. Delmore, your time is 21 up. 22 JUDGE MEYERS: The question was: Is that a great 23 statement? 24 MR. DELMORE: Yes, Your Honor. 25 JUDGE MEYERS: Thank you.

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1 MR. DELMORE: Thank you very much. 2 JUDGE MEYERS: Thank you for the statement. 3 MR. WICE: May it please the Court? Senator 4 Whitmire's Committee's focus in '09 was on arson and '11 on 5 dog sniffs, but make no mistakes, Your Honors, in 2013 a 6 year ago last week it was all about Neal Robbins. 7 Judge Keasler, you make two great points. If this 8 is a case about legislative overstepping, then I lose, but 9 strangely the State has never urged that in its response 10 before this Court. Moreover, Judge Keasler, this does come 11 down -- this is all about legislative history and intent and 12 they've ignored it because I can assure you that if John 13 Whitmire sat at that table, he'd be raising holy heck about 14 the way they interpret the statute. 15 PRESIDING JUDGE KELLER: Well we don't get to look 16 at that. Legislators can't come back after a statute is 17 enacted and tell us what they meant by it. We held that. 18 MR. WICE: Absolutely. 19 PRESIDING JUDGE KELLER: Okay. 20 MR. WICE: But what I'm suggesting is having been 21 there, I can assure you that the Committee's focus was not 22 on scientific breakthrough and again, if a majority of this 23 court believes that this case turns on a scientific 24 breakthrough, then I'll lose. 25 PRESIDING JUDGE KELLER: Well let me say --

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1 MR. WICE: And that's not -- but that's not what 2 the legislative intent history spoke to, Judge Keller. 3 PRESIDING JUDGE KELLER: Okay. Let me ask you -- 4 I have about three questions. 5 You make a point several times of saying in your 6 Brief that we're supposed to interpret the statute the way 7 it's written, regardless of whether it's a good idea, bad 8 idea, or what we think about it. Is that a reference to -- 9 let me ask: What would prevent -- I mean, if Dr. Moore 10 changed her -- came up with a different opinion in this 11 case, changed, whatever, but would this statute be available 12 for relief if the defense just brought in a different 13 witness, not Dr. Moore, but someone else who contradicted 14 scientific evidence relied on by the State? 15 MR. WICE: No. Because I would suspect in that 16 scenario, the evidence was otherwise available. I think as 17 Judge Johnson points out: How could we have known eight 18 years after she walked out of the courtroom that ultimately 19 she would reevaluate her trial testimony? It existed, much 20 like the Brady evidence the State hides. We just didn't 21 know that she would ultimately reevaluate her testimony and 22 again, the statute speaks to evidence relied upon the State. 23 That's not Dr. Bux. That's ultimately Dr. Moore. 24 JUDGE COCHRAN: Yes. 25 JUDGE ALCALA: Mr. Wice, under (b) it says that if

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1 the Court finds that had the scientific evidence been 2 presented at trial, under the preponderance of the evidence, 3 the person would not have been convicted. 4 The "had the scientific evidence been presented at 5 trial," is that specifically in your opinion Dr. Moore's 6 testimony? Had Dr. Moore's revised testimony been presented 7 at trial, the person would not have been convicted? 8 It's in followup to Judge Keller's question: Does 9 the statute come into play just because of the revised 10 testimony of Dr. Moore, or because some new expert has come 11 along and now discredited this whole science? 12 MR. WICE: No. No, Your Honor. 13 JUDGE ALCALA: And some others? 14 MR. WICE: No, Your Honor, I think our take on it 15 is simple, that if a jury had heard Dr. Moore's 16 reevaluation, they would not have convicted by a 17 preponderance of the evidence. 18 PRESIDING JUDGE KELLER: Okay. That gets me to my 19 next question, which has not been fully addressed yet: The 20 standard for prejudice hasn't changed, has it? I mean, have 21 new way to get relief, but the standard of prejudice hasn't 22 changed to preponderance of the evidence, which it was when 23 you filed your initial Brief? 24 MR. WICE: That's correct. 25 PRESIDING JUDGE KELLER: It has changed. Has

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1 anything changed since then? Because we didn't address 2 prejudice. Judge Price did in his concurring Opinion. 3 MR. WICE: Well I think the dissenters did, as 4 well. I think we've got four members of this Court that 5 found that even under the original '01 writ that the 6 Applicant had proved by a preponderance of the evidence that 7 he was entitled to relief based upon -- 8 PRESIDING JUDGE KELLER: Isn't that something this 9 Court has to address, even if we go with you on every other 10 argument you've made? 11 MR. WICE: Absolutely, Judge. I mean, it's 12 certainly part and parcel of our burden, but Judge Johnson 13 makes a great point. In the 21st Century, with the CSI 14 effect, and jurors blinded by science, forensic experts are 15 the new High Priests of the courtroom. 16 This is not a situation where we can compare it to 17 any other witness who walks into Court and ultimately takes 18 the oath. This is about legislative history and if this 19 Court wants to look past it and find that we are required to 20 show a scientific breakthrough when the legislative intent 21 history says, "Uh-huh. No, not -- that dog don't hunt." 22 JUDGE MEYERS: Breakthrough -- breakthrough is 23 whether there has been a statutory relief granted in this 24 stage. That's the breakthrough. That would be the -- 25 that's what this case boils down to is whether 11.073 grants

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1 relief based upon the statute. 2 MR. WICE: I agree. 3 JUDGE MEYERS: Okay. 4 MR. WICE: I absolutely agree with that. 5 JUDGE MEYERS: That might be the first time we've 6 ever done it. 7 MR. WICE: No question about that, Your Honor, and 8 in the last 15 seconds that I have, I want to quote one of 9 my heroes, Robert Jackson. He said that: 10 "If there is any fixed star in our Constitutional 11 constellation, it is that the public" -- 12 We've heard a lot of talk what the public wants -- 13 but what the public demands is the notion that verdicts in 14 criminal cases are supported by -- and based solely on 15 reliable scientific evidence, that withstands the test of 16 time. 17 The evidence in this case cannot, it did not, 18 ultimately survive that test and for that reason, for the 19 reasons in our brief and for the legislative intent and 20 history, which we submit could not be clearer, the 21 Legislature may not have thought that this Court got it 22 wrong back in '11, but I think they thought you were a 23 little weak on being right. 24 I ask this Court with all of the vigor at my 25 disposal to grant relief.

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1 PRESIDING JUDGE KELLER: Thank you, Counsel. 2 THE CLERK: All rise. 3 Oyez, oyez, oyez! The Honorable Court of Criminal 4 Appeals now stands recessed, subject to the call of the 5 Presiding Judge. 6 * * * * * 7 I certify that the foregoing is a correct 8 transcript to the best of my ability from the electronic 9 sound recording of the proceedings in the above-entitled 10 matter.

11 /S/ MARY D. HENRY 12 CERTIFIED BY THE AMERICAN ASSOCIATION OF

13 ELECTRONIC REPORTERS AND TRANSCRIBERS, CET**D-337 14 JUDICIAL TRANSCRIBERS OF TEXAS, LLC 15 JTT INVOICE #52294 16 DATE: APRIL 20, 2014 17 18 19 20 21 22 23 24 25

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