Sixta, Daniel James

• Court: Court of Appeals of Texas
• Decided: February 23, 2015
• Docket: WR-60,547-11
• Status: Published

Opinion

I 1

WRIT NUMBER: WR-60-547-13

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN,TEXAS COURT OF CRIMINAL APPEAL* FEB 23 2015

EX PARTE Alb8lAoos£a8CI@irk

DANIEL JAMES SIXTA

APPLICANT.

APPLICANT'S SUGGESTION FOR RECONSIDERATION ON THE COURT'S OWN INITATIVEo TRAP 79.2(D).

Trial Court Cause Number:923949, from the 351st District Court of Harris County, Texas

Daniel James Sista Applicant- pro se TDCJ #:1143232 H.H. Coffield Unit 2661 F.M. 2054 Tennessee Colony,TX 75884

ORAL ARGUMENT REQUESTED. WRIT NUMBER: WR-60-547-13

COURT OF" CRIMINAL APPEALS"

AUSTIN,TEXAS

EX PARTE

APPLICANT'S SUGGESTION FOR RECONSIDERATION ON -THE COURT' S OWN INITATIVE. TRAP 79.2(D).

Trial Court Cause Number:923949, from the 351st District Court of Harris County, Texas

Daniel James Sixta Applicant- pro se TDCJ #:1143232 H.H. Coffield Unit 2661 F.M. 2054 Tennessee Colony,TX 75884

ORAL ARGUMENT REQUESTED, WRIT NUMBER: WR-60-547-13

APPLICANT

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

Applicant suggests tbf- the'-Court it should on its own motion

or its own initative, pursuant to ". Texas Rules of Appellate

Procedure 79.2(d), reconsider the denial of his application for a writ of habeas corpus.

A. INTRODUCTION

The Applicant is Daniel James Sixta; the respondent is

the State of Texas by and through the Harris County District

Attorney.

Applicant suggests , on its own initative, the Court.recon

sider the denial of Applicant's application for a writ of habeas corpus.

B.w FACTS

On December 12, 2002, Applicant was convicted of the offense

EX PARTE SIXTA-MOTION 79.2(d) PAGE.1 of Intoxication Manslaughter and sentenced to 20 years confine

ment in the Texas Department of Criminal Justice, with a 5,000

dollar fine.

Applicant entered a Plea; of NOT-Gulity. His trial was

before a jury for the guilt-innocence and the punishment. App

licant testified only at the punishment phase of the trial.

Applicant's conviction was affirmed by the First Court of Appeals on December 18, 2003./ The Appellate cause number

is: 01-02-01316-CR. Applicant filed a Petition for Discretionary Review (NO. 032804) which was denied in 2004.

Applicant's first application for a writ of habeas corpus under art. 11.07 was denied on July 26, 2006. His second applic

ation seeking relief from the final judgment was dismissed for

non-compliance, on May 23,v2012.

Importantly, before the filing of his third application for writ of habeas corpus, the legislative enactment of Article

11.073, went into effect. Applicant alleged in his third writ

application that this new law, and new scientific evidence,

unavailable prior to October 1, 2013, entitled him to pass•thro

ugh the gate-keeping provision of Section 4 of art. 11.07.

This court denied his third application on:

C. ARGUMENT & AUTHORITIES

a. Texas Rules of Appellate procedure,,79.2(d)

Texas Rules of Appellate procedure,Rule 79.2 provides "A

motion for rehearing on order that denies habeas corpus relief

EX PARTE SIXTA-MOTION 79.2(d) PAGE,2 under Code of Criminal Procedure, articles 11.07..., may not

be filed. The Court may on its own initative reconsider the

Case." Tex.R.App. P'roc. Ann. 79.2(d) (Vernon's 2013). See, Ex

parte Moussazadeh,(Tex.Crim.App. 2012, 2012 WL 468518)(Moussaza- deh's suggestion that the Court reconsider the denial of his

previous application for writ of habeas corpus, on its own mot

ion .)

b. Texas Code of Criminal Procedure, art. 11.073.

This past legislative session, Senate Bill 344 was passed

and was codified as Article 11.073 of the Code of Criminal Proc

edure to create an avenue for relief for people who were wrong-

fuly convicted as a result of unavailable or erroneous scientific

evidence. This statute, which took effect on September 1, 2013,

allows for a writ of successive writ of habeas corpus to be

brought concerning relevant scientific evidence that: "(1) was

not available to be offered in evidence by a convicted person

at the convicted person's trial; or (2) contradicts scientific

evidence relied on by the State at trial." Act of June 14,

2013, 83rd Leg., R.S., Ch. 412 2013, Tex.Sess.Law Serv. 1197

(West 2013) (codified at Tex.Code Crim. Proc. Ann, art. 11.073).

Additionally, in order to consider new advances in science,

the statute directs the trial court to make a finding to [c]on- whether the scientific knowledge or method on which the relevant

scientific evidence is based has changed since "the trial date

or the date that the original" or previously-considered applic-

EX PARTE SIXTA-MOTION 79.2(d) ~~ PAGE.3 ion for writ of habeas corpus was filed." Id.

Prior to the passage of this bill, under the strict limit

ations of the Code of Criminal Procedure, the convicted were

only allowed to advance one writ of habeas corpus, absent strict

procedural hurdles.(See Tex.Code.Crim.Proc. Art. 11.07 §4.) The

result was that when scientific principles were undermined by

advancing science, those convictions could not be challenged.

The rationale in the passage of this statute was most likely

the procedurally-complex case of Neal Hampton Robbins.

In Ex parte Robbins, 360 S.W. 3d 446, 448 (Tex.Crim.App.

2011), Mr. Robbins sought relief from his 1999 Montgomery County capital murder conviction, which had been based largely upon

testimony of the medical examiner. The medical examiner testif-

ifed that the death of the complainant child was the result

of asphyxia from compression. Id. at 460- Years after her test

imony, the medical examiner stated that she could no longer

stand by her prior testimony that the death was a homicide.

Id. at 499. The Examiner claimed she "[c]ould no longer testify within a reasonable of medical certainty that the complainant's

death in this case was the result of compression asphyxia" or

"[t]hat the [manner] of death in this case was homicide." Id.-at

460. After hearing from numerous experts and witnesses, the

Trial court recommended that Mr. Robbins be granted a new trial

"[bjcause his due process and :due course of law rights were violated, as was his right to an impartial jury." Id. at 457.

EX PARTE SIXTA-MOTION 79.2(d) PAGE,4 Despite the typical deference given to Trial court's" findings,

the Court of Criminal Appeals denied relief, determining that

at the time the medical examiner gave her testimony it was not

"false." Id at 463. The rationale was based largely on the fact that Robbins had not unquestionably established his innocence.

In dissent, Judge Cochran expressed the difficulties with the

case as follows:

When scientific experts honestly and sincerely thought "X" was true at the time they testified, but the sci ence has changed or the experts' understanding of of the science has changed and their opinions have changed, what cognizance of the change should the the criminal justice system take long after a person has been convicted? Id. 469 (Cochran, J., dissenting).

To put Robbins in context, a review of Ex parte Henderson

384 S.W. 833 (Tex.Crim.App. 2012) is helpful. In Henderson,

a child's death was again the offense, but the crucial issue

was whether the short-distance fall that resulted in the death

'could' have been an accident. The single contested issue in the 1995 capital-murder trial was whether applicant intended

to kill [the complainant] or whether she recklessly, negligently, or accidentally caused his death." Id. at 838. At the original

trial, the medical examiner "[t]estified that it was 'impossible'

for the [complainant's] extensive brain injuries to have occurred in the way that applicant stated. He testified that her story

was false and incredible.'" Ex parte Henderson,246 S.W. 3d 690, 691 (Tex.Crim.App. 2007). The medical examiner opined it was

an "intentional murder," and further declared, "[I] would

EX PARTE SIXTA-MOTION 79.2(d) PAGE,5 say the baby was caught up with the. hands by the arms along

the body and then swung and slammed very hard against a flat

surface." Id at 691.

However, the science of biomechanics had advanced rapidly

between Henderson's trial and 2007, when she sought a stay of

execution. At that time, and after considering the new scient

ific reports, the medical examiner stated:

Since 1995, when I testified..., the medical profession has gained a greater understanding of pediatric head trauma and the extent of injuries that can occur in ...relatively short distance falls, based in part on the applicantion of .principles of phyiscs and bio mechanics.... If this new scientific information had been available to me in 1995, I would have taken it into account before attemption to formulate an opinion about the circumstances leading to the injury. Henderson, 383 S.W.3d at 839

While the Henderson Court in a per curiam, one-page opinion,

did "[n]ot accept the trial court's conclusions concerning actual innocence," but accepted "[t]he court's recommendation to

grant relief and remand for a new trial." id at 834. And while opinion did not distinguish Robbins, Judge Cochran concurred

in the granting of the new trial, but noted that "[t]his case raises the same novel and difficult issue for the criminal-

justice system that this court faced, and , I maintain, fumbled

in Ex parte Robbins." Id. at 837 (Cochran, J. Concurring) In trying to explain the distinction between the two cases, Judge Alcala wrote in a concurring opinion that "[t]his trial court

finds that new scientific evidence is the basis for ordering a new trial." Id. at 851(Alcala, J. concurring). EX PARTE SIXTA-MOTION 79.2(d) PAGE,6 A""distinction; without a difference could best describe

the disparate results between the two cases. Robbins has now

filed an original application for habeas corpus relief under Article 11.073,° and it has been filed and set for consideration.

This case will probably be the seminal decision addressing the statute, and may well be applicable to this applicant's convic- tdon.

c. Applicant's claims were cognizable under 11.073. Applicant's claim is cognizable pursuant to Article 11.073, (a)(1) and (2). There is little doubt that some convictions result from testimony or other evidence that is based upon dub ious scientific principles. Article 11.073 gives those convicted

under scientific principles that are no longer valid a proper

vehicle to obtain post conviction relief, and the Legislature has passed this new law to authorize judicial review of convict

ions based on faulty scientific principles.

On November 27, 2013,. this: Court, entered,;*the following order: The parties shall brief the the following issues: (1) whether Article 11.073 is a new legal or factual basis under Article 11.07, :4(a); (2) whether an "original application or a previously considered application," as set out in Article 11.073(c),(d)(2), means an application filed on or after September 1, 2013, (3) whether " the scientific knowledge or method on which the relevant scientific evid ence is based," as set out in article 11.073(d), applies to an individual expert's knowledge and method; (4) whether relevant scientific evidence is "currently available and was not avail able and was not available at the time of the convicted person's trial because the evidence was not ascertainable through the exercise of due diligence," as,set out in Article 11.073(b)(1)- (A), if an experts witness for the State no longer stands by his opinion testimony at trial andand the jury heard testimony (from the defense that is consistent with the State's expert's new, post-trial opinion; (5) whether "changed," as set out in Article 11.073(d), applies to cases in which an expert witness changes his opinion after trial; and (6) whether Applicant is entitled to relief under Article 11.073 (b). The parties shall brief these issues. The parties may also brief any other issue they deem relevant to the construction of Article 11.03. Esc parte Robbins, No. WR-7384-02, 2013 WL 6212218 ,at *1 (Tex.Crim.App. Nov 27, 2013, order) (not designated for publication). EX PARTE SIXTA-MOTION 79.2(d) PAGE,? In Applicant's C-Writ, on page four (4) of the application

where he is required to provide "the reason that the current

claims were not presented and could not have been presented

on [his] previous application." He makes clear the C-Writ is being brought under the provisions of the new law: Art.11.073.

[Texas Code of Criminal Procedure]. That Applicant explained in his First Ground offered for

for review that he was actually innocent, and that based on

on the newly dicovered evidence which should have been considered

under Art. 11.073 that:

There was a collision between applicant's vehicle and another vehicle, the passenger in the other vehicle [was] killed. it was vital to the State's case to prove the collision was applicant's fault. It was also vital for 'indigent' applicant, charged with intoxication manslaughter, to prove the driver of the other vehicle (Alford) was at fault. He was assured by counsel he'd have an expert to combat the State's version of the of the collision. The court and counsel agreed that applicant needed to opinion of an expert to reconstruct the collision. The court allowed court-appointed counsel $750 for that purpose, yet failed to obtain the defense witness, a witmess crucial to Applicant's defense. The money was not used for that purpose, and counsel made no attempt to get additional funds. Applicant was left without his defense. After Applicant filed his first pro se application his counsel was ordered to submit his affidavit explain ing his actions. He stated in his affidavit that the money allowed was not enough to hire an expert, and EX PARTE SIXTA-MOTION 79.2(d) ~ PAGE,8 "that a defense witness would not have testified differ

ently as to the evidence presented by the state." (exhi bit four [in the C-Writ]) Later/ after Applicant had filed his first pro se application the defense evidence was "newly discovered" by Applicant himself/ he being unable to secure it sooner. He was denied his defense

at trial and left to discover it for himself after trial,

he didn't have funds/ counsel or training to "discover" the vital evidence any sooner. Finally/ a family member provided funds in 2007 (exhibit seven [in the C-Writ]) after Applicant had done all he could to secure the evidence. (exhibit eight[in the C-Writ] the newly dis covered evidence (the Cope Report) which could have/ and should have/ been presented for applicant at trial would have included the following "findings and opin ions" of the expert: the driver of the other vehicle "failed to yield right of way" and "failed to keep a proper lookout." The State's investigator "failed to address the evasive action" taken by Applicant and failed to include the fact that he [Applicant] "braked" prior to impact. The weather and road conditions should have been considered. The report also states, "it is also my opinion that a jury trial without an accident recon struction professional is highly unfair and would be almost impossible for an accused driver to receive a fair trial/" and that the "State would have provided funds for accident reconstruction professional." He also stated: "this expert has worked for the plaintiff/ defense and procutors [sic]invarious cases, and has the opinion that a reconstruction is important as well as confident legal representation in any case involving accidents." Exhibit ninefin the C-Writ]).

This claim and evidence presented (the Cope Report) was

EX PARTE SIXTA-MOTION 79.2(d) PAGE 9 sufficient to bring Applicant's C-Writ within the pale of the

newly enacted provision of Art. 11.073, Tex.Code Crim. Proc.

d. The trial court failed in its duty to applicant

On 2 May, 2014, .the State filed its proposed findings of

fact, conclusions of law and order. The Trial court adopted

these findings of fact, and conclusions of law on 1 July 2014.

Stating: The Court has considered the application for writ of habeas corpus, the State's answer, and official court records in the above-captioned cause. The court finds that the applicant has failed to include suffic ient specific facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavail able; or that by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex.Code Crim.Proc.Ann. art. 11.07 §4(a)(West 2013).

Importantly, the court failed to determine if the. C-Writ

contained specific facts indicating that:

(A) relevant scientific evidence is currently available and was not available at the time of the convicted

person's trial because the evidence was not ascertain able through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person's trial; and (B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the

date of the application;....

EX PARTE SIXTA-MOTION 79.2(d) PAGE,10 Applicant's newly discovered "scientific evidence," con sisted of the true details, analysis and reconstruction of the

motor vehicle collision between the vehicle Applicant was driving

and another vehicle, the collision resulting in the death

of the passenger in the other vehicle. The record supports

that the scientific evidence was unavailable to the Applicant

before the date Applicant filed his first Application.

The new scientific evidence was derived using "Engineering

Dynamics Corporation (EDC) software, with the aid of an on-staff

engineer, which included, HVE, EDCRASH, EDSMAC and SIMON. The

new 3-D, 5.0 version was developed as a sophisticated, 3- dimen

sional user environment for setting up and executing simulations

involving humans and vehicles interacting with their environment.

This scientific evidence determined, among other things, that

the Applicant was traveling between 45-53 mph before braking,

that he braked before the collision, that the police investig

ation was incomplete, that the driver of the other vehicle failed

to yield right of way, and failed to keep a proper lookout.

(See 6.0- findings and opinions included in the C-Writ appendix

"Cope Report".)

C CONCLUSION

The Applicant filed his G-writ, including new scientific

evidence which calls into question the evidence used by the

State in convicting him of the offense of Intoxication manslau

ghter. That the new scientific evidence was not ascertainable

EX PARTE SIXTA-MOTION 79.2(d) PAGE, 11 through the exercise of reasonable diligence on or before

he filed his first writ application. And that the new scient

ific evidence and method on which it was ascertained changed since the date of Applicant's trial. D. PRAYER

For all of these reasons, Applicant prays that the court

on its own initative reconsider his C-Writ application.

Respectfully submitted,

Daniel Jame& Sixta' Applicant-pro se TDCJ # 1143232 2661 F.M. 2054 Tennessee Colony, Tx 75884

EX PARTE SIXTA-MOTION 79.2(d) PAGE,12 APPENDIX-APPENDIX-APPENDIX-APPENDIX

]

EX PARTE SIXTA-MOTION 79.2(b) APPENDIX

] -7?-'

Case No. (The Clerk ofthe convicting court will fill this line 'inJ

P IN THE COURT OF CRIMINAL APPEALS OF TEXAS

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROMFTNAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

NAME: DANIEL JAMES SIXTA

DATE OF BIRTH: SEPT. 9,1960

PLACE OF CONFINEMENT: COFFEELD UNIT, TENNESSEE COLONY, TX TDCJ-CID NUMBER: 1143232 SID NUMBER: (1) This application concerns (check all that apply): S aconviction \J parole U a sentence D mandatory supervision LI time credit [] out-of-time appeal or petition for discretionary review

(2) What district court entered the judgment of the conviction you want relieffrom' (Include the court number and county.)

,ST 351ai DISTRICT COURT OF HARRIS COUNTY. TX (3) What was the case numberin the trial court?

923949

(4) What was the name ofthe trial judge?

MARK KENT ELLIS

Effective: January 1, 2014 (5) Were you represented by counsel? If yes, provide the attorney's name:

_______ YES, MICHAEL BARROW

(6) What was the date that the judgment was entered?

DEC. 12, 2002

(7) For what offense were you convicted and what was the sentence?

INTOXICATION MANSLAUGHTER: 20 YRS. TDCJ-BD & 5000 FINE

(8) If you were sentenced on more,than one count of an indictment in the same court at the same time, what counts were you convicted of and what was the sentence in each count?

(9) What was the plea you entered? (Check one.)

guilty-open plea guilty-plea bargain not guilty nolo contenderelno contest

If you entered different pleas to counts in a multi-count indictment, please explain:

(10) What kind of trial did you have?

D no jury Xj jury for guilt and punishment jury for guilt, judge for punishment (11) Did you testify at trial? If yes, at what phase of the trial did you testify?

YES: PUNISHMENT

(12) Did you appeal from the judgment of conviction?

__ yes [] no

If you did appeal, answer the following questions:

(A) What court of appeals did you appeal to? FIRST DIST. OF TX., HOUSTON

(B) What was the case number? 01-02-01316-CR (C) Were you represented by counsel on appeal? If yes, provide the attorney's name:

YES, LEPRA KAHN

(D) What was the decision and the date of the decision? AFFIRMED: 12-18-03

(13) Did you file a petition for discretionary review in the Court of Criminal Appeals? '__ yes [] no

If you did file a petition for discretionary review, answer the following questions:

(A) What was the case number? 0328-04

(B) What was the decision and the date of the decision? DENIED: 2004

(14) Have you previously filed an application for a writ of habeas corpus underArticle 11.07 of the Texas Code of Criminal Procedure challenging this conviction?

8 yes D no

If you answered yes, answer the following questions:

(A) What was the Court of Criminal Appeals' writ number? WR-60-547-03 WR-60-547-09 (B) What was the decision and the date of the decision? DENIED: JULY 26.2006 DISMISSED: MAY 23.2012

(C) Please identify the reason that the current claims were not presented and could not have been presented on your previous application.

(1) Actual Innocence - Newly Discovered Evidence: Defense evidence re. true cause of collision denied to innocent Applicant although discoverable by counsel. Was not until after he was in TDCJ-ID and filed his 1st pro se application that he was able to get his own expert's report, evidence newly discovered by him but not heard by his jury. (2) Actual Innocence-Constitutional Error: Deprived of defense—due process. Also, no help with writ-law. (3) New Law: Art 11.073. re. scientific evidence, unavailable until 9-1-13 appears to elevate status of new evidence claim. Also, Padilla v. Kentucky. S. Ct. (3-31-2010) shows collateral consequences of conviction are inside scope of counsel's representation, not available when 1st application filed. (Habeas action should be included as "collateral consequence of conviction".)

(15) Do you currently have any petition or appeal pending in any other state or federal court?

Dyes __ no If you answered yes, please provide the name of the court and the case number:

(16) If you are presenting a claim for time credit, have you exhausted youradministrative remedies by presenting your claim to the time credit resolution system of the Texas Department of Criminal Justice? (This requirement applies to any final felony conviction, including state jail felonies)

yes no

(A) What date did you present the claim?

(B) Did you receive a decision and, if yes, what was the date of the decision?

If you answered no, please explain why you have not submitted your claim: (17) Beginning on page 6, state concisely every legal ground for your claim that you are being unlawfully restrained, and then briefly summarize the facts supporting each ground. You must present each ground on the form application and a briefsummary of the facts. Ifyourgrounds andbriefsummary ofthefacts have notbeenpresented on theform application, the Court will notconsider your grounds. If you have more than four grounds, use pages 14 and 15 of the form, which you may copy as many times as needed to give you a separate page for each ground, with each ground numbered in sequence. The recitation of the facts supporting each ground must be no longer than the two pages provided for the ground in the form.

You may include with the form a memorandum of law if youwant to present legal authorities, but the Court will not consider grounds for relief set out in a memorandum of lawthat were not raised on the form. The citations and argument must be in a memorandum that complies with Texas Rule of Appellate Procedure 73 and does not exceed 15,000 words if computer-generated or 50 pages if not. If you are challenging the validity of your conviction, please include a summary of the facts pertaining to your offense and trial in your memorandum. GROUND ONE:

ACTUAL INNOCENCE

(NEWLY DISCOVERED EVIDENCE)

FACTS SUPPORTING GROUND ONE:

THERE WAS A COLLISION BETWEEN APPLICANT'S VEHICLE AND

ANOTHER VEHICLE. TITF PASSENGER IN THE OTHER VEHICLE KTI LFTV TT

WAS VITAL TO THE STATE'S CASE TO PROVE THE COLLISION WAS

APPLICANT'S FAULT. IT WAS ALSO VITAL FOR "INDIGENT" APPLICANT.

CHARGED WITH INTOXICATION MANSLAUGHTER. TO PROVE THE DRIVER OF

THE OTHER VEHICLE (ALFORD) WAS AT FAULT. HE WAS ASSURED BY

COUNSEL HE'D HAVE AN EXPERT TO COMBAT THE STATE'S VERSION OF THE

COLLISION. THE COURT AND COUNSEL AGREED THAT APPLICANT NEEDED

THE OPINION OF AN EXPERT TO RECONSTRUCT THE COLLISION. THE

COURT ALLOWED COURT-APPOINTED COUNSEL $750 FOR THAT PURPOSE.

YET COUNSEL FAILED TO OBTAIN THE DEFENSE WITNESS. A WITNESS

CRUCIAL TO APPLICANT'S DEFENSE. THE MONEY WAS NOT USED FOR

THAT PURPOSE. AND COUNSEL MADE NO ATTEMPT TO GET ADDITIONAL

FUNDS. APPLICANT WAS LEFTWITHOUT HISDEFENSE. AFTER APPLICANT FILED HIS FIRST PRO SE APPLICATION HIS COUNSEL

WAS ORDERED TO SUBMIT HIS AFFIDAVIT EXPLAINING HIS ACTIONS. HE

STATED IN HIS AFFIDAVIT THAT THE MONEY ALLOWED WAS NOT ENOUGH

TO ITTRF AN EXPERT. AND "THAT A DEFENSE WITNESS WOULD NOT HAVE

TESTIFIED DIFFERENTLY AS TO THE EVIDENCE PRESENTED BY THE STATE.''

(EXHIBIT FOUR) LATER. AFTER APPLICANT HAD FILED HIS FIRST PRO SE

6 APPLICATION THE DEFENSE EVIDENCE WAS "NEWLY DISCOVERED" BY

APPLICANT HIMSELF. HE BEING UNABLE TO SECURE IT SOONER. HE WAS

DENIED HIS DEFENSE AT TRIAL AND LEFT TO DISCOVER IT FOR HIMSELF

AFTER TRIAL. HE DIDN'T HAVE FUNDS. COUNSEL OR TRAINING TO

"DISCOVER" THE VITAL EVIDENCE ANY SOONER. FINALLY, A FAlun V MEMBER PROVIDED FUNDS IN 2007 (EXHIBIT SEVEN) AFTER APPLICANT HAD

DONE ALL HE COULD TO SECURE THE EVIDENCE. (EXHIBIT EIGHT) THE

NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) WHICH COULD HAVE.

AND SHOULD HAVE. BEEN PRESENTED FOR APPLICANT AT TRIAL WOULD

HAVE INCLUDED THE FOLLOWING "FINDINGS AND OPINIONS" OF THE

EXPERT: THE DRIVER OF THE OTHER VEHICLE "FAILED TO YIELD RIGHT OF

WAY" AND "FAILED TO KEEP A PROPER LOOKOUT." THE STATE'S

INVESTIGATOR "FAILED TO ADDRESS THE EVASIVE ACTION" TAKEN BY

APPLICANT. AND FAILED TO INCLUDE THE FACT THAT HE "BRAKED" PRIOR

TO IMPACT. THE WEATHER AND ROAD CONDITIONS SHOULD HAVE BEEN

CONSIDERED. THE REPORT ALSO STATES. "IT IS ALSO MY OPINION THAT A

JURY TRIAL WITHOUT AN ACCIDENT RECONSTRUCTION PROFESSIONAL IS

HIGHLY UNFAIR AND WOULD BE ALMOST IMPOSSD3LE FOR AN ACCUSED

DRIVER TO RECEIVE A FAIR TRIAL." AND THAT THE "STATE SHOULD HAVE

PROVIDED FUNDS FOR ACCIDENT RECONSTRUCTION PROFESSIONAL."

HE ALSO STATED: "THIS EXPERT HAS WORKED FOR THE PLAINTIFF.

DEFENSE AND PROCUTORS IN VARIOUS CASES. AND HAS THE OPINION THAT A

RECONSTRUCTION IS IMPORTANT AS WELL AS CONFIDENT LEGAL

REPRESENTATION IN ANY CASE INVOLVING ACCIDENTS." (EXHIBIT NINE) GROUND TWO:

ACTUAL TNNOCENSE

("INTERTWINED" WITH CONSTITUTIONAL ERROR)

FACTS SUPPORTING GROUND TWO:

THE RECORD. ESPECIALLY THE COURT-ORDERED AFFIDAVIT OF HIS

TRIAL ATTORNEY. CONFIRMS THE FACT THAT APPLICANT WAS DENIED DUE

PROCESS OF LAW. DENIED THE OPINION OF HIS OWN EXPERT. EVEN THE

STATE'S RESPONSE IN ITS "RESPONDENT'S ORIGINAL ANSWER" TO

APPLICANT'S FIRST "11.07" LENDS CREDIBILITY TO APPLICANT'S CLAIM

THAT HIS TRIAL COUNSEL DP) NOT ADEQUATELY INVESTIGATE THE CAUSE

OF THE COLLISION. WHEN THE STATE ASSERTS THAT IN ORDER TO OBTAIN

HABEAS RELIEF THE APPLICANT "MUST SHOW WHAT A MORE IN-DEPTH

INVESTIGATION WOULD HAVE REVEALED." (EXHIBIT SIX) APPLICANT'S

NEWLY DISCOVERED EVIDENCE (THE COPE REPORT) SHOWS WHAT "A MORE

IN-DEPTH INVESTIGATION" WOULD HAVE REVEALED AT TRIAL.

THE OUTCOME OF THE CASE DEPENDED UPON THE ANSWER TO THIS

QUESTION: WHICH DRIVER CAUSED THE COLLISION WHICH RESULTED IN

THE DEATH? IN ORDER TO GET A CONVICTION THE STATE HAD TO PROVE

THAT APPLICANT WAS AT FAULT. TO BE ACQUITTED APPLICANT HAD TO

SHOW OTHERWISE.

THE STATE'S KEY WITNESS. ALFORD. WAS THE DRIVER OF THE

VEHICLE TN WHICH HER SISTER WAS RTDING AS A PASSENGER. HER SISTER

DIED AS A RESULT OF INJURIES RECEIVED TN THE COLLISION. THE RECORD

SHOWS THE FOLLOWING: (1) THE SISTERS WERE IN A RENTED CAR AND IT

8 WAS ALFQRD WHO UNDERTOOK TO DRTVE THE CAR. FOR THE FIRST TIME: (PAGE 15 OF EXHTBTT TFN): (2) ALFQRD WAS FAMTJJAR WITH THE AREA WHERE THE COLLISION OCCURRED: (PAGE 16 OF EXHTRTT TEN): (3) TT WAS ABUSY INTERSECTION ON THAT NIGHT: fPAGE 19 OF EXHTBTT TEN), p) IT WAS ALFORD'S SISTER WHO WAS WATCHING OUT: "MY SISTER SCREAMED OUT. "WATCH OUT." AND I LOOKED AT HER ATNTO SAD) "WHAT?" (PAGE 21, LINE 7OF EXHIBIT TEN): (5) ALFQRD HAD NOT EVEN LOOKED IN THE DIRECTION OF APPLICANT'S VEHICLE TJNTTL AFTER HER VFHTCLE WAS STRUCK. (PAGE 21. LTNE 21 OF EXHTBTT TEN) CLEARLY. ALFQRD FAH ED TO KEEP APROPER LOOKOUT.

HAD APPLICANT BEEN PROVIDED WITH HTS OWN ACCTDFNT RECONSTRUCTION EXPERT. ESPECIALLY WHEN COUPLED WTTTT THE ABOVE EVIDENCE, THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DTFFFRFNT NO REASONABLE OR RATIONAL JUROR WOULD HAVE FOUND APPLICANT GUILTY BEYOND A REASONABLE DOUBT GROUND THREE:

- — INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE TO ADEQUATELY INVESTIGATE FACTS OF THE CASE)

FACTS SUPPORTING GROUND THREE:

A VERY CLEAR FACT IS THAT THE CAUSE OF THE COLLISION WHICH

RESULTED IN THE DEATH OF THE PASSENGER TN THE OTHER VEHICLE WAS A

VITAL PART OF THE STATE'S CASE. LIKEWISE. THIS ISSUE WAS IMPORTANT

TO APPLICANT'S DEFENSE. YET. APPLICANT'S COUNSEL FAILED TO

ADEQUATELY INVESTIGATE THIS CRUCIAL ASPECT OF THE CASE: HE FAn,FD

TO BE READY TO COMBAT THE STATE'S VERSION OF THE CAUSE OF THE COLLISION.

THE TRIAL COURT. OBVIOUSLY CONCERNED AFTER APPLICANT HAD

FILED HIS FIRST PRO SE APPLICATION. ORDERED COUNSEL TO Fn.F AN

AFFIDAVIT STATING. AMONG OTHER THINGS. WHETHER HE HAD

"INVESTIGATED POTENTIAL WITNESSES WHO COULD HAVE REBUTTED THE STATE'S PHYSICAL EVIDENCE." COUNSEL'S AFFIDAVIT REVEALS HOW

LAME HIS EFFORTS WERE. CONSISTING ONLY OF TALKING TO OTHER

ATTORNEYS AND REVIEWING THE "FACTS. FIGURES. AND COMPUTATIONS"

OF HIS OWN WITNESS. AND THEN CONCLUDING. "THAT A DEFENSE WITNESS

COULD NOT HAVE TESTIFIED DIFFERENTLY AS TO THE EVIDENCE PRESENTED BY THE STATE" (EXHTBTT FOTTtt) COUNSEL FAILED TO USE THE MONEY (ONLY $750) TO SECURE A

DEFENSE TO THE STATE'S VERSION OF THE CAUSE OF THE COLLISION. AND FAILED TO ASK THE COURT FOR MORE FUNDS. HE DID NOT SEEK OUT AND

10 INTERVIEW POTENTIAL WITNESSES. FAniNG TO MAKE AN INDEPENDENT

INVESTIGATION OF THE FACTS OF THE CASE. IT WAS A MATTER OF

NEGLIGENCE AND MONEY. NOT AMATTER OF STRATEGY. • A PROPER INVESTIGATION OF THE FACTS BY COUNSEL WOULD HAVE

RESULTED TN A DEFENSE AT LEAST AKIN TO THE DEFENSE APPLICANT WAS

LEFT TO DISCOVER FOR HIMSELF. (COPE REPORT-EXHTBIT NINE) APPLICANT WAS HARMED BY COUNSEL'S FAILURE TO ADEQUATELY

INVESTIGATE THE FACTS OF THE CASE. AS SHOWN BY THE GUILTY VERDTCT

AND MAXIMUM TIME ASSESSED BY THE .HJRY: BUT FOR THTS FAILURE OF

DUTY. THE OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT. AS NO

REASONABLE OR RATIONAL JUROR WOULD HAVE CONVICTED APPLICANT.

FURTHER. APPLICANT'S ATTORNEY FAILED TO ASK FOR ANY KIND OF

HEARING TO EVALUATE THE TESTIMONY OF THE SHEREFF'S DEPARTMENT

EMPLOYEE WHO WAS TO GIVE HIS OPINIONS REGARDING THE COLLISION.

THE TRIAL JUDGE DID NOT REVIEW THE OPINIONS OF THE

WITNESS BEFORE THEY WERE ADMITTED INTO EVIDENCE. THERE WAS

NO TEST OF THE SOUNDNESS. BASIS. OR VALIDITY OF THE SO-TALL"

"SCIENTIFIC" OR "EXPERT" TESTIMONY TO BE PROFFERED BY THE STATE.

11 GROUND FOUR:

. INEFFECTIVE ASSISTANCE OF CONSEL

(FAILURE TO ASSERT AN AVAn.ABT E DEFENSE)

FACTS SUPPORTING GROUND FOUR:

APPLICANT'S COUNSEL FAILED TO ASSERT AN AVAILABLE DEFENSE A DEFENSE WAS OUT THERE. WATTTNG. DISCOVERABLE BY COUNSEL HAD HE DECIDED TO OBTAIN TT FOR APPLICANT'S DEFENSE. COUNSEL WAS ILL-PREPARED FOR CROSS EXAMINATION OR FOR ADVANCING A DEFENSE THE RECORD SHOWS TT WAS A MATTER OF NEGLIGENCE AND MONEY. NOT A MATTER OF STRATEGY. APPLICANT'S COUNSEL HAD BEEN ALLOWED FUNDS TO SECURF. AN EXPERT TO ANALYZE AND RECONSTRUCT THE MOTOR VEHICLE COT TTSTON IN ORDER TO COMBAT THE STATE'S VERSION OF THE COLLISION FIRST. HE WHOLLY FAILED TO USE THE FUNDS FOR THAT PURPOSE. SECONDLY. HE WHOLLY FAILED TO TRY TO OBTATN MORE FUNDS FOR THAT PURPOSE. THE NET RESULT OF THESE FAILINGS WAS THAT APPLICANT WAS DENIED HTS DEFENSE, A DEFENSE WHICH WOULD HAVE SHOWN THAT THE DRIVER OF THE OTHER VEHICLE WAS AT FAULT. THEREBY CAUSING THE DEATH OF HER PASSENGER. SUCH EVIDENCE ESSENTIALLY NEGATING THE STATE'S VERSION OF THE CAUSE OF THE COLLISION. APPLICANT HAS SHOWN THAT A DEFENSE TO THE STATE'S VERSION OF THE COLLISION WAS AVAH ART jr., DISCOVERABLE BY COUNSEL. YET HE FAn.FD, WITHOUT SUFFICIENT CAUSE- TO PRESENT IT FOR APPLICANT. NO REASONABLE OR RATIONAL HTROR WOULD HAVE CONVICTED APPLICANT HAD THE DEFENSE BEEN PRF.SF.NT~

12 13 GROUND FIVE:

INEFFECTIVE ASSISTANCE OF COUNSEL

(FAILURE TN PERFORMANCE)

FACTS SUPPORTING GROUND FIVE:

COUNSEL PRESSED APPLICANT TO TESTIFY AT PUNISHMENT PHASE OF

TRIAL. DISREGARDING HIS PHYSICAL AND MENTAL CONDITION. SHORTLY

BEFORE THE PUNISHMENT PHASE OF HIS TRIAL APPLICANT HAD TRUED TO

KILL HIMSELF. FAILING ONLY BECAUSE OF A BED CHECK THAT NIGHT.

OVER 100 STITCHES TAKEN IN HIS ARM. A FEW HOURS LATER HE WAS

TAKEN BACK TO THE COURTROOM FOR THE PUNISHMENT PHASE OF HIS

TRIAL. HE DIDN'T WANT TO GO THROUGH THE PAINFUL PROCESS OF

CHANGING BACK INTO HIS SUIT. BUT THE JUDGE SENT A DEPUTY TO

FORCIBLY MAKE HIM CHANGE FROM THE JAIL SUIT INTOHTS SUIT. YET.

THE BLOOD ON HIS SLEEVES COULD BE SEEN. AS THE BANDAGES WENT FROM

HIS KNUCKLES to TTTS ELBOWS. (HE HAD CUT THE VEINS ON HIS HANDS

BECAUSE HEWANTED TO "BLEED OUT" AS FAST AS POSSIBLE.) APPLICANT'S PHYSICAL AND MENTAL CAPACITIES WERE CLEARLY

DIMINISHED. YET NEITHER HIS COUNSEL NOR THE COURT MADE ANY

ALLOWANCE FOR HIS CONDITION. HE WAS COMPEIT ED TO CONTINUE.

THE JUDGE ADMONISHED HIM NOT TO MENTION THE SUICIDE

ATTEMPT. HE WAS DENIED A RIGHT TO EXPLAIN HIS CONDITION OR THE

OUALITY OF HIS TESTIMONY TO THE JURY. THE JUDGE APPARENTLY FELT

APPLICANT WAS LUCKY TO BE ALIVE: HE SAID. "MR. SKTA. T'M

14 NOT—WHATEVER HAPPENED LAST NIGHT. OBVIOUSLY. I'M GLAD YOU'RE

ALIVE AND ALL THAT STUFF. BUT THAT'S NOT RELEVANT TO THIS HEARING

SO, YOU'RE NOT TO TALK ABOUT IT." (EXHIBIT ELEVEN) TT WAS NOT UNTIL A FEW DAYS LATER THAT APPLICANT. BY READING A NEWSPAPER

ACCOUNT. REALIZED WHAT ALL HAD HAPPENED . THE NET RESULTS OF APPLICANT'S CONDITION. AND THE RESPONSE OF

COUNSEL AND THE COURT TO IT. WAS THAT APPLICANT RECIEVED THE MAXIMUM TIME OF TWENTY YEARS. _^^^ IN COUNSEL'S AFFIDAVIT HE WAS TOLD TO "STATE WHETHER

COUNSEL BELIEVED THAT APPLICANT HAD SUFFICIENT PRESENT ABILITY TO CONSULT WITH COUNSEL WITH A REASONABLE DEGREE OF RATIONAL

UNDERSTANDING AND HAD A RATIONAL AND FACTUAL UNDERSTANDING OF

THE PROCEEDINGS AGAINST HIM ON THE DATE OF THE TRIAL." COUNSEL GAVE APPLICANT A GLOWING REPORT. FACING TO MENTION APPLICANT'S CONDITION. (PAGES " 82" &"83". EXHTBTT FOUR) FORCING APPLICANT TO TESTIFY IN HIS CONDITION DEPRIVED HTM OF

THAT FAIR TRIAL AND THAT DUE PROCESS OF LAW TO WHICH HE WAS

ENTITLED. NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED

THE MAXIMUM TIME OF 20 YEARS HAD APPLICANT NOT BEEN PHYICAT LY

AND MENTALLY IMPAIRED AT THE PUNISHMENT PHASE OF HIS TRIAL. YET

MADE TO TESTIFY WITHOUT EVEN THE BENEFIT OF MITIGATING EVIDENCE.

15 GROUND SIX:

(FAILURE IN PERFORMANCE)

FACTS SUPPORTING GROUND SIX:

COUNSEL FAILED TO PRESENT MITIGATING EVIDENCE AT THE

PUNISHMENT PHASE OF THE TRIAL.

HE. COULD HAVE SHOWN APPLICANT'S POSITIVE ACCOMPLISHMENTS.

STTCH AS HIS MILITARY EXPERIENCE. HIS EDUCATION. HIS POSITIVE CAREER

ACCOMPLISHMENTS. AND POSITIVE ASPECTS OF APPLICANT'S NATURE AND

CHARACTER. AND ALL OTHER MITIGATING EVIDENCE ALLOWED BY LAW.

THE DENIAL OF THE MITIGATING EVIDENCE RESULTED TN APPLICANT'S

RECEIVING THE MAXIMUM TWENTY YEAR SENTENCE. SOME EXAMPLES OF

THE MITIGATING EVIDENCE WHICH COULD HAVE BEEN SHOWN ARE:

EDUCATION: HIGH SCHOOL: CITY OF HOUSTON ELECTRICAL

APPRENTICE PROGRAM; UNIVERSITY OF HOUSTON STATIONARY

ENGINEERING PROGRAM; ADAMS SCHOOL OF ENGINEERING: STATIONARY

ENGINEERING PROGRAM; MILITARY SERVICE: RANK E4 CORPORAL:

HONORABLE DISCHARGE; MPS Mn.TTARY POLICE; THREE MERITORIOUS

PROMOTIONS; TWO MERITORIOUS MASS; DECORATIONS: MERITORIOUS

UNIT COMMENDATION; OVERSEAS COMMENDATION; GOOD CONDUCT

COMMENDATION: RIFLE MARKSMAN: PISTOL MARKSMAN. MILITARY

PERSONAL HIGHLIGHTS: CHOSEN TN 1980 TO COMPETE IN COMPETITION

CALLED "SUPER SQUAD" CONSIDERED TO BE ONLY FOR THE BEST OF THE

BEST OF THE ENTIRE MARINE CORP. EVENTUALLY FINISHED 4th PLACE.

16 RECEIVING A MERITORIOUS PROMOTION. E4 IN UNDER TWO YEARS. CAREER

PROGRESSION: 1981 -1983: OB GILBERT ELECTRIC - ELECTRICIAN. A

HIGHLY OIIAT TFTFD DEDICATED TECHNICALLY SKILLED ELECTRICIAN. 1983

- 1986: IJJNE INTEREST - LICENSED STATIONARY ENGINEER. SERVICING

WATER CHILLERS, BOILERS. GENERATORS. COOLING TOWERS. WATER

TREATMENT. ENERGY MANAGEMENT SYSTEMS. 1986 - 1990: STXTA GATE

(DBA) OWNER - INSTALLING AND SERVICING ALL TYPES OF ACCESS

CONTROL EQUIPMENT. PROVIDED COMPLETE SCOPE OF INFORMATION

FROM SCHEMATICS. BLUE PRINTS. ON-SITE TRAINING FOR PERSONNEL.

1990 -2002: G.F.A.C.. INC. CEO - FOUNDED RESEARCH AND DEVELOPED A

COMPANY TO CREATE THE STATE OF THE ART ACCESS CONTROL COMPANY

SPECIALIZING IN THE SERVICE AND INSTALLATION OF ALL TYPES OF ACCESS

CONTROL EQUIPMENT. VIDEO CAMERAS. TELEPHONE SYSTEMS. INTERCOMS.

UPS. GATE OPERATORS & SECURITY SYSTEM. KEY PADS. RETTNA SCANNERS.

PRINT SCANNERS. WAS LICENSED DISTRIBUTOR FOR NINE

MANUFACTURING COMPANIES. TEXAS STATE LICENSES: 3rd GRADE

STATIONARY ENGINEERING: BOILER OPERATOR: ELECTRICIAN:

VOLUNTEER HISTORY: 6 YEARS BRIGHT HORIZON DAY CARE PARENT

ADVISORY BOARD: 3 YEARS LITTLE LEAGUE COACH: 3 YEARS LITTLE

LEAGUE TEAM SUPPORTER: 5 YEARS PTO HAIR GROVE ELEMENTARY: 4

YEARS HABITAT FOR HUMANITY: 9 YEARS SAN JACINTO CORVETTE CLUB:

CHURCH: 11 YEARS MEMBER OF THE BREAD OF LTFF CHTTRCTT NO REASONABLE OR RATIONAL JUROR WOULD HAVE ASSESSED SUCH A

SEVERE PUNISHMENT HAD THEY HEARD MITIGATING EVIDENCE.

17 GROUND SEVEN:

FACTS SUPPORTING GROUND SEVEN:

COUNSEL FAILED TO PRESERVE ERROR RE. EXHLBITNO. 54 (A TAPE). THE

DRIVER (ALFORD) OF THE OTHER VEHICLE TESTIFIED AS TO HER ACCOUNT

OF THE COLLISION WHICH RESULTED TN THE DEATH OF HER SISTER. ALSO.

AT THE PUNISHMENT PHASE. THE STATE INTRODUCED A TAPE RECORDING

(EXHIBIT NO. 54) OF HER ACCOUNT OF THE COLLISION. APPLICANT ASSERTS

THAT THE TAPE REVEALS THAT THIS WITNESS WAS LYING. HIS CONCERN

AND OBJECTION TO THIS TESTIMONY WAS MADE CLEAR BY HTM TO HTS

TRIAL COUNSEL. APPLICANT WAS CONVINCED THAT THE WITNESS SHOULD

BE CROSS-EXAMINED ON THIS ISSUE—I.E.. THAT ALFORD WAS CHANGING

HER ACCOUNT OF THE COLLISION. HIS COUNSEL WAVED HTM OFF. MAKING

NO EFFORT TO ATTACK THE CREDIBILITY OF THIS WITNESS. THIS WITNESS'S

TESTIMONY. WITH WHAT APPLICANT BELIEVES TO BE ITS CONTRADICTIONS.

WAS LEFT UNSCATHED. AND APPLICANT BELIEVES THE TAPE WOULD HELP

PROVE HISACTUAL INNOCENCE.

APPLICANT'S PERSONAL EFFORTS TO GAIN ACCESS TO THE TAPE WERE

EXERCISES IN FUTILITY. HOWEVER. THE HARRIS COUNTY OFFICIALS HAVE

TREATED APPLICANT'S UNDERSIGNED ATTORNEY WITH COURTESY. BUT

APPARENTLY WOULD NEED A COURT ORDER DIRECTED TO THE HARRIS

COUNTY DISTRICT CLERK TO PRODUCE THE TAPE. BY THIS APPLICATION.

18 APPLICANT NOW HAS AN ACTION BEFORE THE TRIAL COURT.

ACCORDINGLY. HE NOW ASKS THE TRIAL COURT AND THE TEXAS COURT OF

CRIMINAL APPEALS TO ORDER THE PRODUCTION OF THE EXHIBIT (EXHIBIT

NO. 54. A TAPE IN CAUSE NO. 923949) AS A PART OF APPLICANT'S HABEAS

ACTION.

19 GROUND EIGHT:

DENIAL OF DUE PROCESS OF LAW

(FAn.URE OF COUNSEL & COURT TO GIVE NOTICE RE. HABEAS RIGHTS)

FACTS SUPPORTING GROUND EIGHT:

APPLICANT RECEIVED NO NOTICE OR ADVICE OF ANY KIND FROM HIS

COUNSEL OR THE TRIAL COURT REGARDING HIS HABEAS CORPUS RIGHTS.

ALTHOUGH HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES

MARINE CORPS HE'S HAD NO LEGAL TRAINING TN THE LAW. AFTER HIS

CONVICTION AND FIRST ITER EFFORTS TO OVERTURN HIS CONVTCTTON, HE.

WAS n.T^EQUIPPED TO DEAL WITH HABEAS LAW. HAVING RECEIVED NO

ASSISTANCE OF ANY KIND FROM HIS COUNSEL OR THE JUDGE. HE WAS LEFT

TO FEND FOR HTMSELF IN TRYING TO PREPARE HIS PREVIOUS APPLICATIONS.

HE HAD TO COPE WITH VERY LIMITED ACCESS TO HIS UNIT'S LD3RARY. HAD

TO DEAL WITH OUTDATED MATERIALS. AND HAD NO ACCESS TO MODERN

TECHNOLOGY. AFTF.R TTF. HAD WORKED TEN HOURS A DAY. FIVE DAYS A

WEEK. THERE WAS LITTLE TIME OR ENERGY LEFT TO DEAL WITH

WRIT-LAW. HE. WAS SURROUNDED BY "PRETEND LAWYERS". OTHERS WHO

WERE INCARCERATED, OFFERING TO HELP FOR SOME KIND OF "FEE."

APPLICANT'S ATTEMPTS TO DEAL WITH PREPARATION OF HIS

APPLICATIONS HAVE BEEN INSUFFICIENT. ESPECIALLY WITH REGARD TO

HIS SECOND ATTEMPT WHICH WAS DISMISSED FOR NON-COMPLIANCE. THE

MERITS OF HIS CASE NOT HAVING BEEN CONSIDERED.

APPLICANT'S SECOND APPLICATION SPEAKS FOR ITSELF ON THIS

ISSUE. AS FT CLEARLY DEMONSTRATES THAT HE WAS UNABLE EVEN TO

20 NEGOTIATE THE REQUIREMENTS OF THE WRIT FORM. UNABLE TO FULLY

COMPREHEND THE INSTRUCTIONS. YET DOING THE BEST HE COULD WITH

HIS MEMORANDUM OF LAW.

FACT IS. THE ONLY WRIT "TOOLS" AVAILABLE TO HTM AT HIS TTNTT

WERE OUTDATED AND INCOMPLETE. BUT EVEN IF PERFECT. WOULD NOT BE

ADEQUATELY UNDERSTOOD AND IMPLEMENTED BYAPPLICANT.

HAD APPLICANT BEEN GIVEN SOME KIND OF NOTICE OR "HEADS UP" BY

HIS COUNSEL OR TRIAL COURT REGARDING THE NATURE, OR EVEN THE

AVAn.ARnjTY OF THE HABEAS LAW. HE COULD HAVE STARTED MUCH

EARLIER TRYING TO PREPARE FOR THAT JOURNEY. INCLUDING TRYING TO

SECURE FINANCES, AND THE PROBABILITY IS THAT HE WOULD HAVE BEEN

SUCCESSFUL AND WOULD NOT PRESENTLY BE INCARCERATED. IT IS A FACT.

OF WHICH THIS COURT HAS JUDICIAL KNOWLEDGE. THAT AN APPLICANT

HAS A BETTER CHANCE OF SUCCESS. ESPECIALLY WITH HIS FTRST

APPLICATION. WHEN HE'S HAD THE BENEFIT OF ADVICE, OR ASSISTANCE OF

SOME KIND. FROMA TRUE LEGAL COUNSEL.

APPLICANT WAS ILL-EQUIPPED TO NEGOTIATE THIS PROCESS

WITHOUT SOME KIND OF GUIDANCE OR ADVICE FROM HIS COUNSEL OR THE

COURT. (THE COURT'S STATISTICS - EXHTBTT 13-SUPPORT THIS)

21 GROUND NINE:

OUR WRIT OF HABEAS CORPUS LAW IS UNCONSTITUTIONAL

(SECTION 4(aWc). ARTICLE 11.07. TEX. CODE CRIM. PROC ) FACTS SUPPORTING GROUND NINE:

THE TEXAS LAW REGARDING SUBSEQUENT WRTT APPLICATIONS WAS TOO STRINGENT. DIFFICULT. AND COMPLEX FOR APPLICANT TO

SUCCESSFULLY NEGOTIATE WITHOUT TRUE LEGAL COUNSEL. APPLICANT PERSONALLY WANTED THE BENEFITS OF THTS LAW. AND HE STILL DOES HE HAS BEENDENIED HIS RIGHT TO SEEK REDRESS VTA "THE GREAT WRTT OF LIBERTY." (BLACKSTONFl. SECTION 4 (a)-(c). THOUGH WELL-TNTENDET^ TS PROHIBITIVE. APPLICANT KNOWS THAT MOST APPLICANTS "FLUNK" THIS LAW TTF

KNOWS THAT ARTICLE 11.07 HAS MANY PARTS. ALL SPEAKING LAWYER'S LANGUAGE. HE PERSONALLY KHVQWS THAT THE INSTITUTIONAL DTVTSTON OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE IS ILL-EQUIPPED WTTH THE "TOOLS" NEEDED BY "INMATES" TO FULLY COMPREHEND. AND THEN IMPLEMENT THIS TAW. THE "SUBSEQUENT-APPLICATION" RULE (THE "ABUSE OF WRIT DOCTRINE") IS THE ESPECIALLY EGREGIOUS PART OF TEXAS WRIT LAW. FURTHER. APPLICANT PERSONATLY KHVQWS THAT TT TS MORE UNLIKELY THAN LIKELY THAT AN INCARCERATED PERSON WILL BE SUCCESSFUL IN OBTAINING HIS LIBERTY BY WAY OF THIS LAW. APPLICANT PERSONALLY FEELS. BECAUSE THE LAW ITSELF IMPELS HIM TO FEEL. THAT HE IS IN FACT ENTITI.ED TO THE BENEFITS OF THTS LAW. AND THAT THIS IS NOT MERELY WISHFUL THINKING. THE LAW. ITSELF. HAS CREATED THTS

22 EXPECTATION OF APPLICANT'S ENTITLEMENT TO THIS LAW.

APPLICANT IS ABLE TO SEE THAT THIS LAW REQUIRES ENUMERATED

PEOPLE TO DO ENUMERATED THINGS IN A CERTAIN WAY. NOT JUST LEAVING

THE PLAYERS TO USE THEIR PERSONAL JUDGMENTS. TN Fn.TNG HIS PRO SE

APPLICATIONS HE NEVER REALLY TTNUFRSTOOD WHAT ALL HE WAS

SUPPOSED TO DO. HE DIDN'T EVEN GET HIS FACTS IN THE

CORRECT PLACE IN HIS SECOND PRO SE APPLICATION: IT WAS DISMISSED

FOR "NON-COMPLIANCE." THIS PART OF OUR HABEAS LAW IS BEYOND

REACH OF THE AVERAGE "INMATE" WHO HAS NO TRUE LEGAL COUNSEL.

AND IS ALMOST BEYOND THE REACH OF TRUE LEGAL COUNSEL.

WHEN APPLICANT FINALLY FOUND OUT ABOUT THE LEGAL AVENUE HE

WOULD ATTEMPT TO USE (THE WRIT OF HABEAS CORPUS) IT PROVED TO BE

BEYOND HIS PERSONAL CAPACITY TO PROPERLY UTILIZE. HE IS INNOCENT

OF THE OFFENSE CHARGED. AND HAS MAINTAINED HIS INNOCENCE FROM

THE BEGINNING OF HIS CASE. HIS FREEDOM IS AT STAKE. HE HAS BEEN

HARMED BECAUSE THE PROCESS PROVIDED TO HTM IS SO COMPLEX.^ SO

DIFFICULT. FOR THE AVERAGE "INMATE" TO UNDERSTAND AND IMPLEMENT.

IT PROVED TO BE BEYOND HIS PERSONAL CAPABn TTTJES. PUTTING HIM IN

THE VAST MAJORITY OF PRO SE WRIT-APPLICANTS. (THE COURT'S

STATISTICS - EXHTBTT 13-SUPPORT THTS.) ACCORDINGLY. HIS PREVIOUS APPLICATIONS SHOULD NOT BLOCK HIS

WAY INTO CONSIDERATION OF HIS PRESENT APPLICATION. HE SHOULD BE

ALLOWED TO "SIDE-STEP" THE "ABUSE OF WRIT DOCTRINE."

23 WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

VERIFICATION

This application must be verified or it will be dismissed for non-compliance. For verification purposes, an applicant is a person filing the appUcation on his or her own behalf. A petitioner is a person filing the application on behalfof an applicant, for example, an applicant's attorney. An inmate is a person who is in custody.

The inmate applicant must sign either the Oath Before a Notary Public before a notary public or the Inmate'sDeclaration without a notary public. If the inmate is represented by a licensed attorney, the attorney may sign the Oath Before a Notary Public as petitionerand then complete Petitioner's Information. A non-inmate applicant must sign the Oath Before a Notary Public before a notary public unless he is represented by a licensed attorney, in which case the attorney may sign the verification as petitioner.

A non-inmate non-attorney petitioner must sign the Oath Before a Notary Public before a notary public and must also complete Petitioner's Information. An inmate petitioner must sign either the Oath Before a Notary Public before a notary public or the Alnmate's Declaration without a notary public and must also complete the appropriate Petitioner's Information.

OATH BEFORE A NOTARY PUBLIC

STATE OF TEXAS

COUNTY OF ANDERSON

DANIEL JAMES SIXTA, being duly sworn, under oath says: I am the^plicaj])/ petitioner (circle one) in this action and know the contents of the above appUcation tor a wnt of habeas corpus and, according to my belief, the fact£__tated in the application are true.

SUBSCRIBED AND SWORN TO BEFORE ME THIS oil DAY OF MfofPJO, 2014.

« '•« « e o... e « «, 9 . . . t lature ofNotary Public Shauna L.Vesta! • 0

Notary Public. State of Texas ' My Commission Expires * a «. » „—' 02 012017 * ••••••••• -........ o.....; —- Notary Without Bortd

24 PETITIONER'S INFORMATION

Petitioner's printed name: ARDON MOORE

State bar number, if appUcable: 14390000

Address: P.O. Box 133183

Tyler. TX 75713-1383

Telephone: 903-593-1116

Fax: 903-590-1752

INMATE'S DECLARATION

_, am the applicant / petitioner (circle one) and

being presently incarcerated in , declare under penalty of

perjurythat, according to my belief, the facts statedin the above appUcation are true and correct.

Signed on 2014.

Signature of Applicant / Petitioner (circle one)

25 PETITIONER'S INFORMATION

Petitioner's printed name:

Address:

Telephone:

Fax:

Signed on , 2014.

Signature of Petitioner

26 IN THE

OF TEXAS

WRIT NO: WR-60-547-03 (1st application)

WRIT NO: WR-60-547-09 (2nd application) NEW WRTT NO:

EX PARTE CAUSE NO. 923949-B DANIEL JAMES SIXTA HARRIS COUNTY, TEXAS TDCJ-H) 1143232

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS

Ardon Moore Attorney and Counselor at Law P.O. Box 133183 Tyler, TX 75713 903-593-1116

Attorney for Applicant CERTIFICATE OF COMPLIANCE

In compliance with TRAP 73.1(f) this is to certify that according to the word count of the computer program used to prepare this document the number of words in this document is 5528, not including appendices, exhibits, cover page, table of contents, table of authorities, and certificate of compliance.

Ardon Moffre Petitioner-Attorney4or Applicant, Daniel James Sixta IN THE

WRIT NO: WR-60-547-09 (2nd application) NEW WRIT NO:

EX PARTE CAUSE NO. 923949-B DANIEL JAMES SIXTA HARRIS COUNTY, TEXAS TDCJ-H) 1143232

INDEX

List of Authorities Page i-iv

Exhibits Page v-vi

Memo of Law:

Subjects Page l

Custody Page 1

Summary OfFactsPertaining To Offense AndTrial Page 1

Why Applicant ShouldBeAllowed "Another Bite Out OfThe Apple" Page 2

GROUND ONE: ACTUAL INNOCENCE-NEWLY DISCOVERED EVIDENCE Page 3 (The NDE: The True Cause of the Motor Vehicle CoUision) INDEX (CON'T)

GROUND TWO: ACTUAL INNOCENCE Page 6 ("Intertwined" With Constitutional Error)

GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 7 (Failure To Adequately Investigate Facts Of The Case)

GROUND FOUR: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9 (Failure To Assert An Available Defense)

GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL Page 9 (Failure In Performance)

GROUND SIX: INEFFECTIVE ASSISTANCE OF COUNSEL (Failure in Performance) Page 10

GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL (Failure in Performance) Page 11

GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW Page 13 (Denied Due Process By Failure Of Counsel And Court To Give Him Any Notice Or Advice Regarding His Habeas Rights)

GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS UNCONSTITUTIONAL Page 16 (Sec. 4(a)-(c), Art. 11.07 Tex. Code Crim. Proc.)

ENCAPSULATION OFAPPLICANT'S CASE Page 19

CERTIFICATE OF COMPLIANCE Page 21

I D I 1 1 IN THE

EX PARTE CAUSE NO. 923949-B DANffiL JAMES STXTA HARRIS COUNTY, TEXAS TDCJ-H) 1143232

LIST OF AUTHORITIES

Cases

Bounds v. Smith, 430 U.S. 817,821 (1977) Pg. 15

Burdine v. Johnson, 266 F. 3rd (5* Cir. 2001) Pg. 15 Butler v. State, 716 S.W. 2d 48, 54(Tex. Crim. App. 1986) Pg. 8 Coble v. State, 330 S. W. 3d 253, (Tex. Crim. App. 2010) Pg. 9

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,113 S. Crt. 2786 Pg. 8, 9

Exparte Biggins, 635 S.W. 2d 743 (Tex. Crim. App. 1982) Pg. 15 ExparteBrown, 158 S.W. 3d 449 (Tex. Crim. App. 2005) Pg. 16

ExparteDuffy, 607 S.W. 2d 507,514-15 (Tex. Crim. App. 1980) Pg. 7,13 ExparteElizondo, 947 S.W. 2d 202,205 (Tex. Crim. App. 1996) Pg. 3, 6 Ex parte Franklin, 72 S.W. 3rd 678 (Tex. Crim. App. 2002) Pg. 5

i Cases (Con'f)

Exparte Graves, 70 S.W. 3d 103 (Tex. Crim. App. 2002) Pg. 15

Exparte Hernandez, 988 S.W. 2d 770(Tex. Crim. App. 1999) Pg. 13

ExparteHenderson, 384 S.W. 3d 833, (Tex. Crim. App. 2012) Pg. 5

Exparte Kerr, 64 S.W.3d 414,418 (Tex. Crim. App. 2002) Pg. 17

ExparteLemke, 13 S.W. 3rd 791 (Tex. Crim. App. 2000) Pg. 3 Exparte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993) Pg. 12

ExparteMiles, (Tex. Crim. App. 2012) Pg. 4

ExparteMiner, 394 S.W.3d 502, 505-06(Tex. Crim. App. 2013) Pgs. 2, 7

ExparteMontgomery , 894 S.W. 324, (Tx. Crim. App. 1995) Pg. 17

ExparteNailor, 149 S.W. 3d 125 (Tex. Crim. App. 2004) Pg. 12

ExparteParra, No.AP-76-871 (Tex. Crim. App. Sept 18,2013) Pg. 7

Exparte Sanders, 588S.W. 2d 383 (Tex. Crim. App. 1979.... Pg. 15

ExparteScott, 190 S.W. 3d 672 (Tex. Crim. App. 2006) Pg. 13

Exparte Sledge, 391 S.W. 3d 104 (Tex. Crim. App. 2013) Pg. 6 Exparte Torres, 943 S.W. 2d 469 (Tex. Crim. App. 1997) Pg. 12

Exparte Wilborn, 785S.W. 2d 391,393 (Tex. Crim. App. 1999) Pg. 8 Hernandez v. State, 726 S.W. 2d 53,57 (Tex. Crim. App. 1986) Pgs. 7,12 Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993) Pgs. 2, 3, 6 Jackson v. StateS77 S.W. 2d 768, 77-771 (Tex. Crim. App. 1994) Pg. 12

Kelly v. State, 824 S.W. 2d 568 (Tex. Crim. App.) Pg. 9

Kentucky Department OfCorrections v. Dumschat, 452 U.S. 458,101 S. Ct 2460 Pg. 17

Kentucky Department OfCorrections v. Thompson, 490 U.S. at 462 Pg. 17

Mempa v. Rhay, 389U.S. 128 (1967) Pg. 13

ii Cases (Con'tt

Miles v. State, 359 S.W. 3d 647 (Tex. Crim.App. 2012) Pg. 7

Miller v. Dreke 420 F. 3d356 (5th Cir. 2005) Pg. n Murray v. Carrier, 477 U.S. 478, 496 (1986) Pg. 12

Padilla v. Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) Pgs. 3,14 Schlup v. Delo, 513 U.S. 298,115 S. Ct. 851 (1995) Pgs. 2, 6 Sparkman v. State, 580 S.W. 2d 358,360 (Tex. Crim. App. 1979) Pg. 11 Strickland v. Washington, 466 U.S. 668, (1984) Pgs. 7,12,13,14 Thaddeus-Xv. Blatter, 15 F.3"1378,391 (6th Cir. 1999) Pg. 15 United States v. Cronic, 466 U.S. 648 (1984) Pg. 7

Statutes

Article 11.07, Tex. Code Crim. Proc pgs. 12,13,17,19

Article 11.07, Sec. I Tex. Code Crim. Proc Pg. 17 Article 11.07, Sec. 4... Tex. Code Crim. Proc Pgs. 2, 6 Article 11.07, Sec. 4(a) Tex. Code Crim. Proc Pg. 17

Article 11.07, Sec. 4(a>(c) Tex. Code Crim. Proc Pg. 16 19

Article 11.07, Sec. 4(a)(1) Tex. Code Crim. Proc Pgs. 2,3,6,7 Article11.07, Sec. 4(a)(2) Tex. Code Crim. Proc Pgs. 2, 7 Article 11.073, Tex. Code Crim. Proc Pgs. 3, 5 Art. 37.02, Sec. 3, Tex. Code Crim. Proc Pg. H

Rule 702, 26 TEX. R. Evid Pgs. 8, 9

28 U.S.C. Sec. 2254 pg. 13

Tex. CONST., Article I, Sec. 10 pgs. 5, 7,17 Tex. CONST., ArticleI, Sec 19 pg. 7

111 Statutes fCon't)

Tex. Rules App. Proc. 25.2 Pg. 14

Tex. Rules App. Proc. 48.4 Pg-14

U.S. CONST., amends. V VI, XIV Pgs. 13,15

U.S. CONST., amends. V, XIV Pg. 17

U.S. CONST., amend VI Pg. 7,12

U.S. CONST., amends. VI, XIV Pg. 5

U.S. CONST., amends XTV Pg. 7

IV IN THE

WRIT NO: WR-60-547-09 (2nd application)

NEW WRIT NO:

EXPARTE CAUSE NO. 923949-B DANIEL JAMES SIXTA HARRIS COUNTY, TEXAS TDCJ-ID 1143232

EXHIBITS ATTACHED

The Indictment EXHIBIT ONE

Clerk's Index (Judgment/Sentence 12-13-02) EXHIBIT TWO Notice ofDenial ofFirst Application EXHIBIT THREE Notice ofDismissal ofSecond Application EXHIBIT THREE Counsel's Court Ordered Affidavit EXHIBIT FOUR State's Opening Statement EXHIBIT FIVE State's Answer toFirst Application EXHIBIT SIX Affidavit ofApplicant's Sister EXHIBIT SEVEN Affidavit ofApplicant, Daniel Sixta EXHIBIT EIGHT The Cope Report EXHIBIT NINE Testimony ofAlford Regarding the Collision EXHIBIT TEN Judge's Comments re. Applicant's Suicide Attempt EXHIBIT ELEVEN Record Showing Failure toPresent Mitigating Evidence EXHIBIT TWELVE The Court's Habeas Statistics EXHTBTT THIRTEEN

v IN THE

WRTT NO: WR-60-547-03 (1st application)

EX PARTE CAUSE NO. 923949-B DANIEL JAMES SLXTA HARRIS COUNTY, TEXAS TDCJ-H) 1143232

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR WRTT OF HABEAS CORPUS

Custody

Applicant is illegally restrained of his liberty in the Texas Department Of Criminal Justice, Institutional Division, presently incarcerated at Coffield Unit, Tennessee Colony, Texas, by virtue of a judgment of the351st Judicial District Court of Harris County, Texas.

Summary OfFacts Pertaining To Offense And Trial On an indictment returned in 2002 (Intoxication Manslaughter in Cause No.

923949,351st Judicial District Court of Harris County, Texas) Applicant was jury tried and

found guilty. Sentence: 20 yrs., $5000 fine. His appeal in 2003 and his PDR in 2004 failed as did his federal activity. His first Application (pro se), was denied in 2006 withoutwritten order. His second application, filed in 2011, again pro se, was dismissed without written

order in 2012 for non-compliance. (Facts not put on prescribed form.) Why Applicant Should BeAllowed "Another Bite Out OfThe Apple" (1)

This, Applicant's subsequent application (his first having been denied without written order and his second dismissed for noncompliance) contains sufficient specific

facts establishing that the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed his previous application. (Article 11.07,

Section 4(a)(1) Tex. Code Crim. Proc.) Further, by preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found

Applicant guilty beyond a reasonable doubt. (Art. 11.07, Sec. 4(a)(2) Tex. Code Crim. Proc.) The remedies provided by Sec. 4 are not mutually exclusive. In Ex parte Milner, 394 S.W. 3rd 502 (Tex. Crim. App. 2013) this court held:

"This Court has recognized that even if an application does not

meet the requirements of Section 4(a)(1), a subsequent application

for writ of habeas corpus may overcome the procedural bar of art.

11.07, Sec 4, if an applicant can show a constitutional violation that

fulfills the requirements of Sec. 4 (a)(2)."

Applicant's actual innocence is based on his claim of newly discovered evidence. Herrera v. Collins, 506 U.S. 390 (1993). His actual innocence is also a procedural claim tied to a showing of constitutional error at trial. Schlup v. Delo, 513 U.S. 298, 314 (1995). He was denied due process of law. (2)

Further, Applicant shows some new law which was unavailable to him when he filed

his first Application. Article 11.073, Tex. Code Crim. Proc, pertaining to "relevant scientific evidence" was not effective until September 1, 2013. This law appears to elevate the status of scientific evidence in the habeas law, as it was enacted to specify that evidence used to contradict evidence presented at trial is a claim or issue that can affect court

consideration of an application for a writ of habeas corpus.

Also, Tex. Code Crim. Proc. Art. 11.07, Sec. 4 (a) (1) is satisfied in that Padilla v.

Kentucky, 130 S. Ct 1473; 176 L. Ed. 2d 284 (2010) was unavailable to Applicant on the date he filed his previous application. Padilla shows that the collateral consequences of a conviction are inside the scope of the representation by trial counsel, and Applicant submits that the substance of that case involves more than a trial counsel's failure to give the accused a heads-up regarding deportation, and, that Applicant is entitled to the benefits of

Padilla without regard to whether the case is retroactive (This will be more fully developed in this memorandum of law.)

GROUND ONE: ACTUAL INNOCENCE—NEWLY DISCOVERED EVIDENCE (The NDE: The True Cause Of The MotorVehicle Collision) Applicant is actually innocent of the crime of which he was convicted. A claim of

actual innocence is cognizable in a post-conviction habeas corpus proceeding. Ex parte Elizondo 947 S.W. 2d 202 (Tex. Crim. App. 1996); Exparte Lemke, 13 S. W. 3rd 791 (Tex. Crim. App. 2000).

Applicant's claim of actual innocence is based upon newly discovered evidence that

was neither introduced at trial nor available to Applicant to introduce at trial. Herrera v. Collins, 506 U.S. 390, 113 S. Ct 853 (1993). The newly discovered evidence (evidence discovered by Applicant) consisted of the true details, analysis, and reconstruction of the motor vehicle collision between the vehicle Applicant was driving and another vehicle, the collision resulting in the death of the passenger in the other vehicle.

The record supports that the factual basis for this claim was unavailable to

Applicant and not ascertainable by him through the exercise of reasonable diligence on or before the date Applicant filed his first Application. Ex parte Miles, (Tex. Crim. App. 2012).

Applicant urges the courts to review the credentials of Applicant's expert, as well as the report itself, each attached as exhibits, with particular attention to the fifth, sixth and

seventh pages of the report: They show, among other things, that Applicant was traveling between 45 - 53 mph before braking, that he definitely braked before the coUision, that the

police investigation was incomplete, that the driver of the other vehicle failed to yield right ofway, and failed to keep a proper lookout. The report makes clear that, in theopinion of the expert, the jury trial in this case "without an Accident Reconstruction professional is highly unfair and would be almost impossible for any accused driver to receive a fair trial."

No reasonable juror would have found Applicant guilty as charged if his counsel had secured a proper collision expert for his defense, had Applicant been able to present to the jury the testimony of the expert his family member was finally able to obtain for him. This begs the question: Does our law defeat the accused who is indigent, who is financially unable to secure a proper defense, while it rewards the defendant who is financially better off? Applicant submits that the evidence here presented is clear and convincing that no

reasonable juror would have convicted him of Intoxication Manslaughter in light of this

newly discovered evidence. Ex parte Henderson, 384 S.W. 3d 833, (Tex. Crim. App. 2012)

Applicant's right to a fair trial, as guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution,

was violated because his conviction was based only on the State's version of the collision,

Applicant having been deprived of his own expert evidence. His conviction was thereby

assured.

Senate Bill 344 out of the 83rd Texas Legislature (now Art. 11.073, Tex. Code Crim. Proc.) speaks to the right of courts to grant relief via writ-applications if the relevant

scientific evidence is currently available but was not available at the time of the conviction

because the evidence was not ascertainable through reasonable diligence at the time of

trial.

In Applicant's case scientific evidence needed to combat the State's version of the

cause of the collision was out there, discoverable by Applicant's counsel had he made the

effort to obtain it.

Applicant was denied his vital defensive evidence, thus denied his constitutional

right to a fair trial and to due process of law. No reasonable juror would have convicted

Applicant had they heard his newly discovered evidence.

Applicant has shown, through clear and convincing evidence, that the newly

discovered and newly available evidence, especially when superimposed over the failure of

his counsel to provide him with the defense needed, creates a doubt in the efficacy of the

jury's verdict and would probably change the verdict on retrial See Ex parte Franklin, 72

S.W. 3rd 678 (Tex. Crim. App. 2002) In Exparte Elizondo, 947 S.W. 2d 202 (Tex. Crim. App. 1996) the Court said its job

was "to decide whether the newly discovered evidence would have convinced the jury of

applicant's innocence" Applicant submits that his newly discovered evidence would have

accomplished this.

In ExparteSledge, 391 S.W. 3d 104 (Tex. Crim. App. 2013) a good review was given of the/ways to try to escape the "abuse of writ doctrine." However, Art. 11.07, Sec. 4 and

case law should be expanded to hold as follows: "New Law; New Facts; Innocence; Having Been Denied Your Defense; Having Been Denied Your Mitigating Evidence; And Not Being Provided With Any True Legal Assistance Regarding Your Personal Efforts To File An

Acceptable First Application."

To admonish an attorney at law that if he or she doesn't get it right the first time, he

or she is essentially finished, is one thing—but to tell that to the typical untrained "inmate"

is a travesty, besmirching the opinion of the great Sir William Blackstone who referred to

the habeas process as "•The Great Writ OfLiberty.n

GROUND TWO: ACTUAL INNOCENSE ("Intertwined" With Constitutional Error)

A claim of actual innocence is cognizable in a post-conviction habeas corpus proceeding. Exparte Elizondo, 947 S.W. 2d 202, 205 (Tex. Crim. App. 1996). Applicant is

not confined to only one vehiclewhich can be connected to his cognizable ground of actual

innocence, as addressed by Applicant, supra. The two types of actual innocence claims that

may be raised in a collateral attack on a conviction are shown in: Schlup v. Delo, 513 U.S.

298,115 S. Ct. 851 (1995) and Herrera v. Collins, 506 U.S. 390,113 S. Ct. 853 (1993).

As stated in the first ground, the Court has recognized that even if an application

does not meet the requirements of Sec. 4 (a) (1), a subsequent application may overcome the procedural bar of Art. 11.07, Sec. 4 if the applicant can show a constitutional violation

that fulfills the requirements of Sec. 4 (a) (2). The constitutional violation claim must be

accompanied by a prima facie claim of actual innocence Ex parte Milner, 394 S.W.3d 502,

505-06 (Tex. Crim. App. 2013) These two species of actual innocence claims, as addressed

in Miles v. State, 359 S.W. 3d 647 (Tex. Crim. App. 2012) are not held to be mutually exclusive, and are not required to be urged one at a time in separate applications.

Applicant was denied his vital defense, thus denied his constitutional right to due process of law.

GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL (Failure To Adequately Investigate Facts Of The Case) An essential element of a fair trial is effective assistance of counsel. United States

v. Cronic, 466 U.S. 648 (1984). The right of an accused to the effective assistance of counsel

comes from four sources: The Sixth Amendment, the Due Process Clause of the

Fourteenth Amendment, the "right to be heard" provision of Art. I, Sec. 10 of the Texas

Constitution, and the Due Course of Law provision of Art. I, Sec. 19 of the Texas

Constitution. Exparte Duffy, 607 S.W. 2d 507,514-15 (Tex. Crim. App. 1980).

Always there is the Supreme Court's 2-part test for determining whether counsel is

ineffective: (1) Counsel committed an error or omission not justifiable as reasonable trial

strategy; and (2) the error prejudiced the defendant. Strickland v. Washington, 466 U.S.

668, (1984); Hernandez v. State, 726 S.W. 2d 53, 57 (Tex. Crim. App. 1986) As required by Strickland Applicant has shown by a preponderance ofthe evidence thattheharm resulting from counsel's deficiency undermines the confidence in the trial's outcome ExparteParra, No. AP-76,871 (Tex. Crim. App. Sept 18,2013)

The charge of Intoxication Manslaughter involved a motor vehicle collision between

7 the vehicle Applicant was driving and a vehicle in which the passenger was killed. The

manner, the method, the details of the collision were at the very core of the State's case.

This cannot be disputed by the State, as the record clearly shows that both the court and

counsel deemed it essential to have the testimony of an expert for Applicant's defense.

The affidavit required of the trial counsel reveals the truth of Applicant's claims.

The attorney did nothing of any significance to investigate the facts regarding the true

nature of the collision. He did hot seek out and interview witnesses. The fact of the

absence of defense witnesses at Applicant's trial should help provethis cognizable ground.

It is the responsibility of defense counsel to promptly investigate the circumstances

of the case He should make an independent investigation of the facts of the case, not

relying simple on his client's version of the facts. Butler v. State, 716 S.W. 2d 48, 54 (Tex.

Crim. App. 1986). The duty includes the responsibility to seekout and interview potential witnesses. Exparte Wilborn, 785 S.W. 2d 391,393 (Tex. Crim. App. 1999)

The purpose of this constitutional mandate to investigate the facts of the case is to

determine whether a defense is available to the accused. Butler v. State, 716 S.W. 2d 48, 54, (Tex. Crim. App. 1986)

Further, Applicant's attorney failed to use Rule 702,26 TEX. R. Evid.: He made no

request for Daubert/Kelly hearing. Rule 702 reads:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."

See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Crt. 2786 and

Kelly v. State, 824 S.W. 2d 568 (Tex. Crim. App.). As shown by Coble v. State, 330 S. W. 3d 253, (Tex. Crim. App. 2010) the trial judges must act as a true "gatekeeper" when

addressing the reliability and relevance of expert testimony, and this "gatekeeping" role

under Daubert applies the same reliability standard to all "scientific," "technical," or "other specialized" matters within the scope of Rule 702.

The testimony of the Sheriffs Department employee is lame when compared to the

credentials and the report of the true expert finally retained for Applicant, thanks to his

family member.

GROUND FOUR INEFFECTIVE ASSISTANCE OF COUNSEL (Failure To Assert An Available Defense) Applicant's counsel failed to assert an available defense. Counsel failed to be ready to combat the State's case against Applicant. He failed to use the funds provided by the

court for a defense expert's reconstruction of the collision, and to have the witness to testify on behalf of Applicant. He failed to move for additional funds.

To couch the problem another way: A defense was out there, waiting, available

Applicant's counsel simply failed to assert it for Applicant. Consequently, Applicant was

convicted and sentenced to twenty years with a $5,000 fine. No reasonable or rational juror would have convicted him had the defense been presented.

GROUND FIVE INEFFECTIVE ASSISTANCE OF COUNSEL (Failure In Performance)

Counsel pressed Applicant to testify at the punishment phase of the trial, disregarding his physical and mental condition. Applicant's attempt to kill himself the night before his punishment hearing is clearly established by the record. Not only was it unconstitutional,

it was unconscionable to press him to trial at that time The trial judge expressed some understanding, but hardly any sympathy, for Applicant's traumatic situation, stating, "Mr. Sixta, I'm not—what ever happened last night, obviously, I'm glad you're alive and all that

stuff..." The judge then admonished Applicant to keep his mouth shut about the incident.

(See EXHIBIT ELEVEN)

Applicant's counsel did nothing, save going along with whatever the judge wanted.

The record is clear that no one in the courtroom sought to protect Applicant's constitutional rights regarding the matter.

Injured and traumatized, Applicant was pressed on to testify, the net result being

his severe sentence, his being denied the right to a fair trial. He did not receive that

constitutionally protected quality of punishment hearing to which he was entitled, and this

habeas process, albeit already previously attempted by Applicant, is the remedy by which

he must now seek his justice.

GROUND SIX INEFFECTIVE ASSISTANCE OF COUNSEL (Failure In Performance)

Counselfailed to present mitigating evidence at thepunishmentphase ofthe trial The

State hammered Applicant at the punishment phase of his trial. Oddly, and unconstitutionally, Applicant's counsel asked only nine questions which might, possibly,

relate to mitigating evidence. Either counsel didn't know of this duty, or he knew about it

and ignored it, or he felt that Applicant was in no condition, in view of his attempted

suicide, to undergo a proper showing of mitigating evidence. In either case, the net result

was the same—the denial of Applicant's right to due process of law—his right to a fair punishment hearing.

There was no anecdotal evidence regarding Applicant's good qualities, no showing

of anything in his life which might have caused his behavior, no attempt to humanize him,

no showing of his accomplishments or his good qualities. His long list of accomplishments 10 and good deeds were ignored by his counsel. (See EXHIBIT TWELVE)

Art. 37.02, Sec 3, Tex. Code Crim. Proc, is not that difficult to understand. That

counsels failure in this regard constituted ineffective assistance of counsel is shown by Miller v. Dreke 420 F. 3d356 (5th Cir. 2005)

During the punishment phase the jury is concerned "with evaluating a defendant's

background and character independent of the commission of the crime on trial."

Sparkman v. State, 580 S.W. 2d 358, 360 (Tex. Crim. App. 1979). The Court has observed

that, in assessing what is relevant to sentencing, the important question is "what is helpful

to the jury in determining the appropriate sentence for a particular defendant in a

particular case."

This fact should be considered beyond dispute: HAD APPLICANT'S COUNSEL

PRESENTED AVAILABLE MITIGATING EVIDENCE TO THE JURY APPLICANT'S

SENTENCE WOULD NOT HAVE BEEN AS SEVERE.

GROUND SEVEN INEFFECTIVE ASSISTANCE OF COUSEL (Failure in Performance)

Counsel failed to preserve error re. Exhibit No. 54 (a tape). While it is true the State

introduced Exhibit No. 54 (a tape) into evidence, Applicant submits it shows this State's

witness (Afford) was lying. Applicant called this to the attention of his trial counsel, who

shrugged the matter off, telling Applicant the matter would be addressed in another way, such as an appeal. It never happened.

Consequently, Applicant was left alone to challenge this issue, failing in his pro se attempt to gain possession of the tape from the authorities in the county of his conviction.

All Applicants' efforts to gain possession of the tape from the Harris County officials failed. He was engaged in an arduous task, one which should have been handled 11 by his counsel at the trial and appellate levels.

By this writ-application, Applicant now has the matter pending before the district

court of his conviction, and, before the Texas Court Of Criminal Appeals. The Harris

County District Clerk, or others who have possession of this exhibit, should be ordered to

produce it for the use and benefit of Applicant and inspection by the courts.

Further authorities to support claim of Ineffective Assistance OfCounsel

The effectiveness of counsel's assistance is graded by the entire body of his

performance. Ex parte Menchaca, 864 S.W. 2d 128,132 (Tex. Crim. App. 1993)

The representation of his counsel fell below any objective standard of

reasonableness Strickland v. Washington, 466 U.S. 668 (1984); Jackson v. State 877 S.W. 2d

768, 77-771 (Tex. Crim. App. 1994)

It is not necessary to show a bundle of errors in order to show ineffectiveness of

counsel, as it can be shown "even by an isolated error of counsel if that error is sufficiently

egregious and prejudicial." Murray v. Carrier, 411 U.S. 478, 496 (1986)

We know that this area of law {Ineffective Assistance of Counsel) constitutes the

largest number of claims raised on art. 11.07 habeas. These claims will always be

considered by the Court, with the narrow exception set out in Ex parte Nailor, 149 S.W. 3d

125 (Tex. Crim. App. 2004) and Exparte Torres, 943 S.W. 2d 469 (Tex. Crim. App. 1997).

The courts will of course use the standard set out in Strickland v. Washington, 466

U.S. 668 (1984). The Court adopted the Strickland standard in Hernandez v State, 726 S.W.

2d 53, (Tex. Crim. App.1986). Strickland held, in part:

"First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious

12 that counsel was not functioning as "counsel" guaranteed by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel's errors were so serious as to deprive the defendant of a fair

trial, a trial whose result was reliable"

A defendant in a criminal case in Texas is entitled to reasonably effective assistance

of counsel. Exparte Duffy, 607 S.W. 2d 507 (Tex. Crim. App. 1980). To get habeas relief for ineffective assistance of counsel under Strickland an applicant must show that his

counsel's performance was deficient and that there is a "reasonable probability," one sufficient to undermine confidence in the result, that the outcome would have been

different but for counsel's deficient performance. Ex parte Scott, 190 S.W. 3d 672 (Tex. Crim. App. 2006).

The right to counsel is required at each stage of a criminal proceeding where the

substantial rights of the accused are affected. Mempa v. Rhay, 389 U.S. 128 (1967). And, this right to counsel (as in Applicant's case) applies to the punishment phase as well as to

the guilt-innocence phase of the trial. Ex parte Hernandez, 988 S.W. 2d 770 (Tex. Crim. App. 1999).

GROUND EIGHT: DENIAL OF DUE PROCESS OF LAW (Denied Due Process By Failure Of Counsel And Court To Give Him Any Notice Or Advice Regarding His Habeas Rights) Applicant urges that the availability of habeas corpus, state and federal (Tex. Code

Crim. Proc. 11.07 and 28 U.S.C. Sec. 2254) was a collateral consequence of his conviction, protected by the Fifth, Sixth and Fourteenth Amendments, and that it was within the scope

of the duties of his trial and appellate attorneys, and the judge, to give to Applicant at least minimal notice of the availability of these valuable post-conviction rights, and that this 13 failing by counsel and court deprived Applicant of his right to effective assistance ofcounsel

and to due process and equal protection ofthe law.

Applicant submits that Padilla, while dealing with deportation, gives the Court

guidance in Applicant's case, as it shows:

(1) The Court does not make a distinction between direct and collateral

consequences: "We, however, have never, applied a distinction between direct

and collateral consequences to define the scope of constitutionally, 'reasonable

professional assistance' required under Strickland.n {Strickland v. Washington,

466 U.S. 668 (1984)

(2) Padilla is the first case in which the Supreme Court applied the rule in Strickland

to the failure of counsel to advise the defendant regarding a collateral

consequence of his conviction.

(3) The Court held counsel to be ineffective in failing to warn the defendant of a

collateral consequence of his conviction. (His deportation)

(4) The Court did not limit the applicability of its decision to misadvise regarding

the collateral consequences of a conviction.

(5) The case says, Applicant submits, that it's holding is retroactive. However, later

case law has held otherwise. Retroactive or not, Applicant urges that the

substance of the case applies to his case.

Applicant should have been given some heads-up, some notice, regarding his habeas

rights, akin to that notice given to defendants regarding their right to appeal (Tex. Rules

App. Proc. 25.2) and their right to file a pro se petition for discretionary review. (Tex.

Rules App. Proc. 48.4) The following is offered in further support of Applicant's position:

14 (A)We know that the issues presented via the habeas process are not those

presented at the first level of direct review where the appeal entails adjudication

on the merits. We do not ordinarily deal with "first-level" rights. To the

contrary, issues which were raised or should have been raised on direct appeal

look to be barred at the habeas level.

(B) Yet, we know that denial of counsel at any critical state of the proceeding entitles

the writ-applicantto relief. Exparte Sanders, 588 S.W. 2d 383 (Tex. Crim. App.

1979) (A motion to revoke probation)

(C)We know that denial of counsel may be constructive, as with sleeping lawyers in

Burdine v. Johnson, 266 F. 3rd (5th Cir. 2001)

(D)We know that states have "affirmative obligations to assure all prisoners

meaningful access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977) See

also Thaddeus -Xv. Blatter, 15 F.3"1 378, 391 (6th Cir. 1999) (E)We know that the right to a real lawyer attaches even to the process of pleading

guilty. Ex parte Biggins, 635 S.W. 2d 743 (Tex. Crim. App. 1982)

Applicant was denied any notice or advice from his lawyers or the judge regarding

his post-conviction habeas corpus rights. While he believes that Ex parte Graves, 70 S.W.

3d 103 (Tex. Crim. App. 2002) would seriously challenge a claim of denial of counsel, he

nevertheless urges that the authorities submitted, when considered in their totality, support

his claim that he has been denied effective assistance of counsel and due process and equal protection ofthe law. (U.S. CONST, amends. V, VI, XTV)

Applicant has chosen to present the broader, and perhaps more profound, ground ofDenial OfDue Process OfLaw rather than merely attacking counsel.

15 The attached copy of the statistics (EXHIBIT THIRTEEN) compiled by this Court,

showing the numbers of writ applications filed, together with other interesting facts, is

revealing. The volume of junk applications filed each year without the assistance of real

counsel undoubtedly presents an unnecessary drain on the resources of the trial courts, the

Clerk of this Court, the Texas State Law Library, and this Honorable Court.

Any doubt regarding what notice or advice his counsel or the court did, or did not

give to Applicant regarding his habeas rights can be resolved by Exparte Brown, 158 S.W.

3d 449 (Tex. Crim. App. 2005) which demonstrates an exception in which a habeas

applicant may raise his claims for the first time by writ of habeas corpus, with the case

remanded to the trial court in order to expand the record (In Applicant's case it cannot be /

presumedthat he was given some kind of notice regarding his habeas rights - i.e., as to the

trial records themselves there should be nopresumption of regularity in this case.)

Requiring that the convicted person be given notice, or assisted in some way, with

regard to the challenging habeas world would serve not only to help secure the right to due

process of law, but would strengthen and streamline this post-conviction process to the

benefit of all involved.

The filing of an Application for a writ of habeas corpus after a conviction is an

occurrence which is as likely as unlikely to happen: It is in reality a "collateral

consequence" of a conviction.

GROUND NINE: OUR WRIT OF HABEAS CORPUS LAW IS UNCONSTITUTIONAL (Section 4 (a)-(c), Art. 11.07 Tex. Code Crim. Proc)

Section 4 (a)-(c), Art. 11.07, Tex. Code Crim. Proc. is unconstitutional Having

many moving parts, speaking lawyer's language, it is too complicated for the average "inmate" to negotiate.

16 By way of review, prior to the adoption of the Habeas Corpus Reform Act of 1995

there was no statute restricting the filing of subsequent applications. The purpose of the

Act was to fulfill the Texas Constitutional mandate requiring a speedy and effective habeas

corpus remedy by limiting the availability of subsequent applications and encouraging all-

inclusive initial applications. ExparteKerr, 64 S.W. 3d 414, 418 (Tex. Crim. App. 2002).

A floodgate was opened, through which all manner of documents would pass, the

applicants encouraged to throw in "everything but the kitchen sink", yet risking penalties

if too many "kitchen sinks" were thrown in.

The present habeas law, as constructed and construed, violates Applicant's right to

due process of law, to equal protection of the laws, and to due course of law. U.S. CONST.,

amends. V, XIV, Tex. CONST. Art. I, Sec. 10. Applicant's interest at issue is more than an

unrealistic wish. As required in Kentucky Department Of Corrections v. Dumschat, 452 U.S.

458,101 S. Ct. 2460 the interest amounts to more than a "unilateral" hope

Article 11.07 has created "an expectation or entitlement" as referred to in Exparte

Montgomery, 894 S.W. 324, (Tx. Crim. App. 1995). This is so because the statute places

"substantive limitations on official discretion" to deny the particularinterest created by the

statute. Kentucky Department Of Corrections v. Thompson, 490U.S. at 462, as shown by Ex

parte Montgomery, with the case also making this distinction: Unfettered discretion shown

by an absence of standards or mandatory prerequisites does not give rise to an entitlement.

Right off, from the start, Article 11.07 announces: "Sec I. This article establishes the procedure for an Application For writ of habeas corpus in which the Applicant seeks relief from a felony judgment imposing a penalty other than death".

The statute hardly gives anyone unfettered discretion. It proceeds to exact duties

from the Applicant, the clerk of the court, the attorney representing the state, the

17 convicting court, the court appointed attorney or magistrate, the reporter, the state itself.

All this before we have even reached Sec. 4(a), the enemy of subsequent writ applications.

Applicants are providedwith a writ form which at first glance might look easy. And

that is the beginning of an applicant's road to failure. This statute, together with the writ

form provided to Applicant, created Applicant's expectation of entitlement. He was

entitled to the benefits of the habeas law. He has maintained his innocence. His freedom

was at stake He relied on the only legal avenueleft open for him. Yet, he was ill equipped

to deal with the habeas law and was destined for certain failure. Even if he successfully

placed his "facts" where they were supposed to be on the form, even if he had done a little

better job on his Application in its entirety, he was destined not to succeed. He had no

lawyer for his first two Applications. THE COURT'S OWN STATISTICS MAKE CLEAR

THAT THE ODDS WERE AGAINST HTM.

Scores of Applicant's attempt to take the habeas trip without counsel. The belief

that they have a fair chance at success is based upon a legal fiction. The writ of habeas

corpus should be "The Great Writ Of Liberty" as envisioned by Blackstone. In his biennial

address to the 83rd Texas Legislature, Texas Supreme Court Chief Justice Wallace B. Jefferson asked lawmakers to establish a special commission to investigate wrongful convictions. His message was clear: That public faith in our legal system is being under-

minded by wrongful convictions.

18 Encapsulation OfApplicant's Case

At trial Applicant, who was actually innocent, and indigent, received two fatal shots

to his right to a fair trial, to due process of law, to due course of law, to equal protection of

the law: He was denied a defense which would have resulted in his acquittal, and, having been convicted, he was denied mitigating evidence which would have lessened his

punishment. In short, he was denied effective assistance ofcounsel by the several failings of counsel.

After trial, his first tier efforts to secure his rights to a fair trial failed, and he then

found himself alone to face the post-conviction writ-world. He was untrained in the law,

and had been given no warning, advice, or "heads-up" by his counsel or by the trial court.

Further, he asserts that the "abuse of writ doctrine," Section 4 (a)-(c), Art. 11.07,

Tex. Code Crim. Proc. is unconstitutional.

However, it all falls on deaf ears unless Applicant shows himself entitled to get

another "bite out of the apple" In his effort to accomplish this tough, prohibitive,

"herculean", task he has urged (1) his actual innocence with his newly discovered evidence,

and, (2) his actual innocence "intertwined with Constitutional errors.'''' (3) Also, he shows

new laws.

Article 11.073, Tex. Code Crim. Proc, effective September 1, 2013, dealing with

"relevant scientific evidence" is already being referred to by some as the "junk science law."

Applicant asserts that this new law, at the very least, elevates, lends credibility, to his claim

of newly discovered evidence.

Padilla assists Applicant, as it emphasizes the continuing duties of trial counsel to

give the convicted person some warning regarding the collateral consequences of the conviction.

19 introduced to the "Writ-World" and it is likely that he or she will have a serious confrontation with it

Respectfully Submitted, This Concludes Applicant's Memorandum OfLaw WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT

ALL THAT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING.

S£4%rvt- ARDON MO Attorney For Applicant

SBOT Number: 14390000 Address: P. O. Box 133183 Tyler, Texas 75713-3183 Telephone: (903) 593-1116 Fax: (903)590-1752

DANIEL<©2foES SIXTA, Applican

20 CERTIFICATE OF COMPLIANCE

In compliance with TRAP 73.1(f) this is to certify that according to the word count of the computer program used to prepare this document the number of words in this document is 5528, not including appendices, exhibits, cover page, table of contents, table of authorities, and certificate of compliance.

sz^tjiyy^' /s-**-/? „, Ardon Moore Petitioner-Attorney for Applicant, Daniel James Sixta

21 EXHJBTONE

\ ™^v^ THE STATE OF TEXAS D.A.LOGNUMBERr»

NCIC CODE: 0901 33 RELATED CASES.

FELONY CHARGE: B: INTOXI INTOHCATipNJ ItfTON MANSLAUGHTER CAUSE NO:"9«9691?— BAIL: $NQJb6ND J2-£~£^ HARRIS COUNTY DISTRICT COURT NO: 351ST PRIOR CAUSE NO: FJRST SETTING DATE:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Hairis County, Twas, DANIEL JAMES SIXTA, hereafterstyled the Defendant, heretofore on or about FEBRUARY 21, 2002, did then and there unlawfully, oy accidentand mistake when operating A MOTOR VEHICLE IN A PUBLIC PLACE while intoxicated, namely not having the normaluse o" his mental and-physical faculties by reason of the introductionof ALCOHOL into his body, and by reason of that intoxication, cause the death of IJNi?A COBLE, hereafter called the Complainant, by DRIVINGHIS MOTORVEHICLE INTO A MOTOR VEHICLE OCCUPIED BY T* iE COMirTJUNANT.

It is Anther presented that in Harris County, Texas Daniel James Sixta, hereafter styled the Defendant heretofore on or about February 21, 2'3J2 by accident and mistake when operating A MOTOR VEHICLE IN A PUBLIC PLACE while intoxicated, namely having an alcohol concenlrui^n of at least 6.08 in his BLOOD, and by reason of that intoxication^ cause thedeath of LINDACOBLE, hereafter called theComplainar:, by DRIVING HIS MOTOR VEHICLE INTO A MOTOR VEHICLE OCCUPIED BY THE COMPLAINANT.

It is further presented thatat the time the Defendantcommittedthe offense ofoperatinga motor vehicle while intoxicated ashereinabove al1; j^d committed on or about February 21, 2002, he bad an open container of an alcoholic beverage in his immediate possession in the passenger compartment of said motor vehicle.

It is further presented that at the time the Defendant committed the felony offense of INTOXICATION MANSLAUGHTER on or nlout FEBRUARY 21,2002, as hereinabove alleged, he used and exhibited a deadly weapon, namely, a AUTOMOBILE during the commission of „nd during the immediate flight therefrom.

It is further presented that before the commission of the offense hereinabove alleged committed on at about February21,2002 the Defendant on October 6, 1994 in County Criminal Court at Law No. 13 of Hairis County, Texas, in Cause Nol 9208849, was convicted of the offense of Operating a Motor Vehicle "WhileIntoxicated.

It is further presented that before the commissionof the offense hereinabovealleged committed on or aboutFebruary 21,2Q02, the Defe^ant on May 11,1989, in the County Criminal Court at Law No. 5 of Harris County, Texas, in Cause No. 8907002 was convicted of the offeiise of Operating a Motor Vehicle While Intoxicated.

AGAINSTTHE PEACE AND DIGNITY OF THE STATE.

FOREMAN OF THE GRAND JURY :

INDICTMENT

000002 EXHIBIT TWO

DATE FILED PAGE

CAPTION 1

INDICTMENT FROM CAUSENO. 923494 9-12-02 2

.-..DdCUIvjENTS FROM^ PREVIOUS GAuMnO, 907697; COMPLAINT FROM PREVIOUS CAUSENO. 907697 4-4-02 3

PROBABLE CAUSE FOR FXTRTHER DF^ENTION & STATUTORY 4-54)2 4 WARNINGS BY MAGISTRATE

LETTER TO THE COURT 4-25-02 6

IMDICTMENT FROM PREVIOUS CAUSE NO: .907697 5-16-02 9

REQUEST FOR NOTICE OF INTENT TO INTRODUCE RULE 404, 7-9-02 10 RULE 609, AND ART. 37.07 EVIDENCE

MOTION TO REDUCE BOND 7-9-02 13 ;

DEFENDANT'S MOTION IN LIMINE 7-9-02 "16

DISCOVERY ORDER 21

DEFENDANT'S MOTION TO APPOINT INVESTIGATOR AND 7-9-02 .24. . ORDER OF THE COURT

AGREED SETTING 7-9-02 .26

AGREED SETTING 8-7-02 27 .

NOTICE OF INTENT TO SEEK AFFIRMATIVE FINDING OF 9-9-02 .28 DEADLY WEAPON

MOTION TO DISCLOSE EXPERTS 9-9-02 . 29

MOTION TO STACK 9-9-02 33..

DISMISSAL 9-19-02 36

STATE'S NOTICE OF INTENT TO USE AS EVIDENCE BUSINESS 9-20-02 V..37 RECORDS ACCOMPANIED BY AFFIDAVIT

DOCKET SHEET FROM PREVIOUS CAUSE!NO. NO. 907697 44:

DOCUMENTS FROM PRIMARY CAUSE NO. 923949

MOTION TO TRANSFER MOTIONS AND NOTICES 9-13-02 . 46/

DEFENDANT'S MOTION TO SUPPRESS ORAL STATEMENTS 10-21-02 48

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE 10-21-02 53.

DEFENDANT'S MOTION TN UMENE 10-21-02 ' •:56

S^onnsLib\Qifh\PostTrial\Appeal -.1- \ REV. 01-08-03 EXHIBIT THREE

OFFICIAL NOTICE FROM COURT OF CRIMINAL APPEALS OF TEXAS P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

WUKWIW>'JNt 'awawnyawa

WTNCV BOWES RE: Writ Mo- ffiR-60,547-03 STYLE: SIXTA, DAWIEL JAMES 02 1A $ 00-24° TRIAL CT WO: 923949-A 0004615122 DEC 13 2006 MAILED FROM ZIP CODE 78701 12/13/2006 This is to advise that the Court has denied without written order the application for writ of habeas corpus on the findings of the triar court without a hearing.

Louise Pearson, Clerk

DANIEL JAMES SIXTA Neal Unit - TDC #1143232 9055 Spur 591 Amarillo, TX 79107

Itliiilllllli!! i 1! 11111111 i •! i 111 i i I liiiiliililuliiiimisi

OFFICIAL NOTICE FROM COURT OFCRIMINAL APPEALS OFTEXAS P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

OFFICIAL BUSINESS *. RF writ Nc$mT&OF4EXAS":' O ^1*V wvwan,^ wTwrvbowls E: s^-^EI^ILt^FM^^ . 02 1M $00.32° j 0004288372 MAY24 2012 •"•'•-•'•'--"-•'•• y •••-.•< MAILED FROM ZIP CODE 78 701 The Court has dinnuss'ed-.your application for s'^rit'of h.^*---. .=?,-: corpus without written ordp,: fei; nor^-compj i ance with Texas Rule of Appelate Procedure 73.1. Srpc i fi cal lyj applicant's facts supporti.rig grounds one «nd four .sne not on the prescribed for-iii. See £x parte Bi.acHoctt, 191 5,K3d 718 (Texu Crim, App. 2f506). ;-1" K

J'-''-.'11 Up -1~ - '"' 9 0^') Pr:|i.' .K.'V!

/iw^^M^iJiijaffii,,,/),,,,],,/,,,,},,!,, EXHIBIT FOUR Scanned Jun 27, 2006

r\ No. 923949-A

EXPARTE IN THE 351st DISTRICT COURT

OF

DANIEL JAMES SIX [A HA RRIS COU NT Y, I E X AS

AFFIDAVIT

Belbrc me, the undersigned notary public, appearred Michael E. Barrow, who upon oath stated the following:

"My name is Michael E. Barrow. I am a licensed attorney practicing in Houston, Harris

County. Texas. My Texas Bar card number is 01831900. On May 20, 2002, I was appointed by

Judge Mark Ellis of the 351"' District Court to represent Danief Sixta in cause number 870084, a

motion to adjudicate alleging that Mr. Sixta had violated a condition of his deferred adjudication

probation lor injury to a child. On June 6, 2002, I was appointed by Judge Ellis to represent Mr.

Sixta in cause number 907697 (later reindicted under cause number 923949) against the charge of intoxication manslaughter alleged to have occurred on February 21, 2002. Mr. Sixta s trial

commenced on December 9/ 2002, and on December 12, 2002, he was found guilty by a jury of

intoxication manslaughter. On December 13, 2002, Mr. Sixta was assessed a term oftwenty years in the penitentiary by the jury.

I. State whether trial counsel investigated potential witnesses who could have rebutted the

Slates physical evidence. a HI Counsel spoke to the two prior attorneys who had .represented Mc. Sixta before $5 ^cxcQ £ RECORDER'S MEMORANDUM This instrument is of poor quafijy at the time ofimaging COUO/ Scanned Jun 27, 2006

coimsol's appointment. Counsel also spoke with numerous attorneys who all indicated that they knew o\:~ no expert who would testify for the nominal fee approved by the Court. Counsel did a scene investigation but due to Ihe time elapsed since the date of the offense to the appointment of counsel no-physical evidence could-be obtained. Counsel was left with the facts recorded by the State s investigator Harris County Sheriffs deputy David Pearson and his accident reconstruction Counsel reviewed those facts, figures and computations and again after consulting with other attorneys came to the conclusion that adefense witness could not have testified differently as to the evidence presented by the State.

2. State the extent to which counsel advised Applicant regarding Applicant's right to accept the plea bargain or proceed to trial.

Counsel met with the Applicant on at least six occasions in Court. Counsel also met with Applicant four times at the county jail. From counsel's first visit with Applicant through all other visits Applicant indicated to counsel that he would not accept aplea bargain but wanted atrial. Counsel informed Applicant ofevery plea bargain offer made by the State and Applicant refused to accept any offer. Further on the day trial was to commence, Applicant was admonished by the Court of the State's final plea offer arid Applicant refused to plead guilty.

3. State the extent to which counsel advised the Applicant regarding the potential range of purushment for the primary offense, including if counsel advised Applicant to refuse the plea bargain.

Counsel never advised the Applicant to rcfase any plea bargain offer made by the Stale. Counsel never advised Applicant to refuse aplea bargain "because ofthe way the law read".

GOUOoO Scanned Jun 27, 2006

Counsel advised Applicant Ihat Ihc range ofpunishment for the primary offense of intoxication niansiaugiiicr was from two to twenty years in the penitentiary and a possible fine ofup to ten thousand dollars. Counsel also advised Applicant that the range ofpunishment for the lesser included nHcnse of felony driving while intoxicated was from two to ten years in the penitentiary and a possible tine of ten thousand dollars. Additionally, counsel advised Applicant that if the Court adjudicated him guilty for injury to achild, that he faced a punishment of six months to two years ma stale jail. Counsel also advised Applicant that ifhe were found guilty ofthe primary offense and was adjudicated guilty on his deferred probation the Court in its discretion could have the sentences run consecutively as opposed to concurrently.

T Slate the extent to which counsel advised the Applicant regarding his right to trial by jury and state whether Applicant manifested a desire to have ajury trial. Counsel advised Applicant that he had an absolute right to a jury trial. Further, counsel advised Applicant that it was Applicant's decision whether or not to have a trial. From counsel's first meeting with Applicant until the Court admonished Applicant, on the day of trial, it was always Applicant's desire to have a trial.

5. State whether counsel investigated, discussed, and considered Applicant's mental histoiy, including his alleged attempted suicide and blood loss.

In the approximately six months from date of appointment until trial, counsel never received any indication that Applicant had any mental problems. Counsel was always able to communicate with Applicant and Applicant appeared to have no problems in discussing the tacts of his case or trial strategics. Counsel was not aware of any attempted suicide by Applicant until the

COUOci; Scanned Jun 27, 2006

day lite punishment portion ofthe trial was set to begin (December 13, 2002). Counsel was informed 'by the baliff that Applicant had cut his wrist the night before in jail. Applicant was brought into the courtroom where counsel consulted with Applicant. Applicant had some bandages on his arms and was told by the Court that he would have to unroll his sleeves to cover the bandages in front ofihe jury. Counsel spoke with Applicant who other than being depressed about being found guilty appealed to be line. Counsel consulted with Applicant about his testimony during punishment and Applicant had no problem in responding. Counsel could not perceive any reason not to continue tfic trial. As to blood loss by Applicant, there was no indication to counsel that Applicant was not able to continue trial

o. State whether counsel observed anything in Applicant's speech, behavior and demeanor winch caused counsel any concern about Applicant's competence to stand trial.

Counsel did not observe anything in Applicant's speech, behavior and demeareor which caused counsel any concern about Applicant's competence to stand trial.

7. State whether counsel believed that Applicant had sufficient present ability to consult with counsel with a reasonable degree of rational understanding and had a rational and tactual understanding of the proceedings against him on the date of his trial.

Counsel believes that Applicant had sufficient present ability to consult with counsel with a rational understanding and Applicant had a rational and factual understanding of the proceedings against him. Applicant was very involved in his trial. He took notes throughout the trial and proposed questions for counsel to ask.. Counsel and Applicant had numerous discussions oftrial strategy and Applicant was a vocal participant. The day after Applicant's alleged suicide attempt,

CG0082 Scanned Jun 27, 2006

counsel spoke with Applicant about his testimony during the punishment stage and again Applicant

was a vocal participant. Counsel never saw any indication that-Applicant was unable to discuss his

case or that he did not understand the proceedings. Applicant never indicated to counsel that there

was any kind of problem and, counsel in speaking with and observing Applicant never saw a problem"

lichael E. Barrow

Simied thiF^"' _ day of 2005

*-$T% CYNTHIA MONTANA riW?! MY COMMISSION EXPIRES mfe" October 29,2009 cotary Public

COUO&o l/C/£~C//'/«= -/ EXHIBIT FIVb >w ^ 6y tfoCf'j 6~' <^£L '*J

APPEARANCES

MS. MARKAY STROUD

5 Assistant District Attorney

6 SBOT NO. 24000229

7 MS. ELIZABETH SHIPLEY

8 Assistant District Attorney

9 SBOT NO. 24008031 -

10 1201 Franklin

11 Houston, Texas 77002

12 PHONE 713.755.5800

13 ATTORNEYS FOR THE STATE OF TEXAS

16 MR. MICHAEL BARROW

17 SBOT NO. 01831900

18 1314 Texas Avenue, Suite 13 0 0

19 Houston, Texas 77002

20 PHONE: 713.224.8383

21 ATTORNEY FOR THE DEFENDANT

25 1 convicted of the offense of operating a motor vehicle

2 while intoxicated.

3 THE COURT: To that allegation of a prior

4 conviction, how do you plead, true or not true?

5 THE DEFENDANT: True.

6 MS. SHIPLEY: It is further present that

7 before the commission of the offense hereinabove alleged

8 committed on February 21, 2002, the defendant on May 11,

9 1989, in the County Criminal Court at Law No. 5 of Harris

10 County, Texas, in Cause No. 8907002 was convicted of the

11 offense of operating a motor vehicle while intoxicated.

12 Against the peace and dignity of the State.

13 Signed, foreman of the grand jury;

14 THE COURT: To that allegation of prior

15 conviction, how do you plead, true or not true?

16 THE DEFENDANT: True.

17 THE COURT: All right. You may be seated.

18 Does the State wish to make an opening

19 statement?

20 MS. SHIPLEY: We do,'Your Honor.

21 THE COURT: You may proceed.

22 v/sTATE'S OPENING STATEMENT 23 MS. SHIPLEY: On February 21st, Martha Alford

24 was getting ready to have dinner with her sister. She

25 was on FM 1960 about 11 o'clock. She was getting ready 1 You will also be hearing from -- after-

2 Martha, you will be hearing from Deputy Pearson. You

I 3 will hear that he is an- accident reconstruction expert.

4 And he will tell you that the investigation that hie did,

5 when he got to the scene, based on his interview of the

6 witnesses, based on his looking at the skid marks, based

7 -s on his estimation of the speed, Martha Alford's left-hand

X 8 turn did not kill her sister. It was the defendant's

9 intoxication.

1.0 He will tell you that based on all of his

11 experience and his analysis of the scene, the defendant

12 had time to stop. He had time to slow down. He iaad time

to swerve, but because of his intoxication he didn't do t X 13

14 those things. It could have been just a fender-bender.

15 That is what the deputy is going to tell you. It could

16 have been that he swerved and missed her completely. But

17 because he was almost three times the legal limit„ he

18 didn't do those things. Instead, he smashed right in the

19 center, crushing Linda Coble with his 4-Runner. That is

20 what the deputy will tell you.

21 You will also hear from Carolyn Messera, who,

22 I submit to you, is some of the most important testimony

23 you are going to hear. Because Carolyn Messen was also

24 involved in that accident and she was sitting in the

2 5 passenger seat of the defendant's truck. She is going to < EXHIBIT SIX 9- 2^ -T)

N0.923949-A

EXPARTE § MTHE 351ST DISTRICT COURT § OF DANIEL JAMES SIXTA, Applicant § HARRIS COUNTY, TEXAS RESPONDENTS ORIGINAL ANSWER

Respondent the State ofTexas, through its Assistant District Attorney for Harris County, files this, itsoriginal answer inthe above-captioned cause, having beenserved with an application forwritofhabeas corpus pursuant to Tex. Crm. Proc Code Ann. art 11.07 § 3 (Vernon Supp. 2004), and would show the following:

I.

Applicantis confined pursuant to the judgment ana sentence olthe 351^ District Court of Harris County, Texas, in cause number 923949 (the primary case), where Applicant was convicted by a jury for the felony offense of intoxication manslaughter. The jury assessed punishment enhanced by two (2) prior convictions, at twenty (20) years confinement in the Texas Department of Criminal Justice - tostitutional Division. The First Court ofAppeals delivered an opinionaffirming Applicants conviction in the primary case on December 18, 2003. Sixtav. State, No. 01-02-01316-CR The Court of Criminal Appeals refused Applicant's petition for discretionary review on May 26, 2004.

n.

Respondent denies thefactual aflegations made in the instant application, except those supported by official court records, and offeis the following additional repfy: Reply to AfpijcantTs First Ground por rctxkk

hi his first ground for relief, Applicant alleges he was denied the effective assistance trial counsel. Applicants writ at 7. Spedficalfy, Applicant alleges Michael Barrow, trial counsel:

1. Failed to Investigate;

2. Failed to Object

3. Failedto AssistApplicant in pleabargaining; and 4. Failed to request a competency evaluation.

The United States Supreme Court held in Strickland v. Washington, 466 U.S. 668, 686 (1984), that the benchmark forjudging anyclaim ofineffective assistance ofcounsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result The Court in Strickland, set forth a two-part standard, which has been adopted by Texas. See Hernandez v. State. 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). First the defendant must prove by a preponderance of the evidence that counsel's representation fell below an objective standard of reasonableness. Mitchell v. State, 68 S.W.3d 640, 642 fTex. Crim. App. 2002); Narvaiz v. Stats, 840 S.W^d 415, 434 (Tex. Crim. App. 1992) (citing Strickland, 466 U.S. at 688). Reasonably effective assistance ofcounsel does not require error-free counsel, or counsel whose competency is judged by hindsight Mercado v. State, 615 S.W.2d 225, 228 fTex Crim. App. 1981). Second, there must bea reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different Id. A"reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id.

Article I, Section 10 of the Texas Constitution also requires that a aiminal defendant receive effective assistance of counsel. However, the Texas constitutional 2 provision does not create a standard that is more protective of a defendant's rights than that established in Strickland. Black v. State, 816 S.W.2d 350, 357 fTex. Crim. App. 1991) (citing Hernandez v. State, 726 S.W.2d 53 fTex. Crim App. 1986)). Therefore, an analysis of the effectiveness of Applicant's trial counsel in the primary case pursuant to the Strickland standard satisfies both the federal and state constitutional requirements.

Failure to Investigate

Applicant alleges that his trial counsel failed to investigate the blood sample and the accident report Applicants writ at 7; Applicants memorandum at 7. Applicant alleges thatdefense counsel did not have a complete copy of the accident report until the beginning of trial which allegedly states that the other driver, Ms. Martha Afford, was inattentive and failed to yield. Applicants memorandum at 7.

A^ To obtain habeas relief in a failure to investigate claim, Applicant must show what-a more in depth investigation would have revealed. JMooney v. State, 817 S.W.2d 693 fTex. Crim. App. 1991). In habeas proceedings, the Applicant must allege sufficient facts which, if true, would entitle him to relief Ex parte MaJdonado, 688 S.W.2d 114, .116 (Tex. Crim App. 1985).

Applicant fails to show what a more in depth investigation of the blood sample would have revealed and fails to show how Ms. Afford's inattentiveness and failure to yield establish a reasonable probability that but for counsel's failure to investigate the accident report, the result of the proceeding would have been different Therefore, Applicant fails to allege sufficient facts, which, if true, would entitle him to relief. Maldonado, 688S.W.2d at 116.

Accordingly, the instant allegation is without merit and should be denied. Failure to Investigate Witnesses

Applicant alleges that his trial counsel failed to hire an expert witness and failed to interview all of the witnesses until the day of triaL Applicants writ at 7; Applicants memorandum at 11. Specifically, Applicant alleges the court granted a motion designating money to be used to hire an expert in accident site reconstruction. Applicants memorandum at 6. However, Applicant alleges counsel was ineffective because no expert was presented. Id. Applicant further alleges that counsel failed to seek out an expert witness who would have impeached the state's physical evidence. Id. Applicant identifies William Russell Haight of the Collision Safety Institute as a possible expert witness, and alleges that with Mr. Haigbts tes&mmy, counsel could have developed a better defense. Id at 6-7.

To obtain relief for counsel's failure to present or investigate witnesses, an Applicant must show that potential witnesses were available, and that their testimony would have benefited the defense. King v. State, 649 S.W.2d 42, 44 fTex. Crim. App. 1983); WUkerson v. State, 726 S.W.2d 542. 551 (Tex. Crim. App. 1986). Applicant fails to carry his habeas burden because he fails to show the potential witness was available and that his testimony would have benefited the defense. Applicant's conclusory allegation that Mr. Haight's testimony would have "developed a better defense" is not enough to warrant habeas relief. Exparte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Even if sworn to, the allegation is insufficient to overcome the State's denial. Exparte Empey, 757 S.W.2d 771, 775 fTex. Crim App. 1988).

Furthermore, assuming, arguendo, that defense counsel limited his investigation, an attorney's decision to limit his investigation may be reasonable under the circumstances. Harris v. Dugger, 874 F.2d 756, 763 (11th Cir.); Butler v. State, 716 4 I I be resolved in the instant proceeding. Respondent further requests that the Court order | Applicant's counsel in the primary case, MICHAEL E, BARROW, to file an affidavit summarizing the actions taken to represent the Applicant and responding to the I allegations contained in the application.

IV.

Applicant raises questions of law and fact which can be resolved by the Court of Criminal Appeals upon review of official court records and without need for an evidentiary hearing.

V.

Service has been accomplished by sending a copy of this instrument to the following address:

DANIEL JAMES SIXTA #1143232 - Neal Unit 9055 Spur 591 Amarillo, TX 79107-9696

SIGNED this 29th day ofSeptember, 2005.

it District £&ssmey larris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 Texas Bar I.D. #24027780

Prepared by Mary E,. ISasonao Legal Intern, Harris County

12 EXHIBIT SfcVfcJN

THE STATE OF NEBRASKA

COUNTY OF f>>sJaS

BEFORE ME, the undersigned notary, on this day personally appeared Janet Koski, a person whose identity is known to me. After I administered an oath to her, upon her oath she stated:

.p^ My name is Janet Koski. Iam over twenty-one (21) years of age. Iam aresident of I /f)Lyrt \U .S County, Nebraska. I am fully competent to make this Affidavit. All statements within this Affidavit are within my personal knowledge and are true and correct

Daniel James Sixta, who is presently incarcerated at the Coffield Unit, Tennessee Colony, Texas, TDCJ No. 1143232 is my brother. He was convicted of intoxication manslaughter in 2002 in the 351st District Court of Harris County, Texas in cause no. 923949. He is filing his application for writ of habeas corpus. A critical question in his trial was who actually caused the collision between the vehicle he was driving and another vehicle, the passenger in the other vehicle having died as a result of the collision?

My brother was financially unable to make bail orto retain an attorney, and hewas compelled to go to trial without his own expertwitness to combat the State's version of the collision. It was not until funds were provided by me that we were able to retain an accident reconstruction expert, and the "Cope" report was clearly in my brother's favor, showing he did not cause the coUision. This defense was denied to him at his trial, through no lack of diligence on his part.

This "evidence" was "newly discovered" as far as he was concerned, and he used "due diligence" to obtain it I believe the report will be a part ofhis writ application.

^So^ct-, & JANET KOSKI

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on this y^ day of OQJrhe^ .2013. .

My commission expires: /' H'\5 GENERAL NOTARY - State of Nebraska County, State of Nebraska KRISTYNWIEHL MvComm. Exp. July 14,2015 EXHIBIT EIGHT

PETITIONER AFFIDAVIT

On December 12, 2012, I DANIEL JAMES SIXTA TDCJ #1143232, was convicted

of Intoxication Manslaughter, Case No. 923949.

The NEWLY DISCOVERED EVIDENCE, was only found, because I never surrendered

my rights to exercise DUE DILLIGENCE to obtain an expert in auto accident

recollision. The report was thus obtained solely as the result of an

unexpected and previously unforeseen "Beneficence" of a third party that had no prior duty or obligation to provide any funding.

I was unable to secure funds before'this date because I was "INDIGENT"

I didnot have the means to hire any auto collision expert because of

this fact.

At the time of my arrest, I could not make bail, because I was under

DUAL indictments for the same charge, and because of this fact I had

fell behind on my mortgage payments, and I was unable to sale my home

of which I had live in for over 16 years and had $65,000.00 in equity. I have never recieved any type of settlement from my mortagage company

or my auto insurance company. / This NDE was unavailable until July 2007, when a Ms. Janet Koski agreed

to provide funding to hire and expect. I was unable to obtain such

evidence free of charge. I have never had more than afew hundred

dollars on my commissary account since my arrest.

Although there was some delay between my obtaining this experts report.

I was ultimately able to secure the funding to hire an expert and have

the facts analysis, and prove that the State's finding were incorrect and were a product of erroneous analysis of available data.

P.l INMATE'S DECLARATION

I, DANIEL JAMES SIXTA, BEING PRESENTLY INCARCERATED IN TDCJ at the Coffield

Unit, Declare under penalty of perjury that, according to my belief, the

facts stated in this PETITIONER AFFIDAVIT are true and correct.

Signed on June 22, 2013.

)ANIEL JAMES' SIXTA TDCJ #1143232 Coffield Unit 2661 FM 2054 Tennessee Colony, TX 75884

P.2 EXHIBIT NINE

REGARDING APPLICANT'S ACCIDENT RECONSTRUCTION REPORT

AFFIDAVIT OF EXPERT

HIS RESUME'AND CREDENTIALS

THE ACGIDDENT RECONSTRUCTION REPORT

COPE'S EXPERT TESTIMONY IN OTHER COURT CASES EXHIBIT NINE

TRIAL COURT CAUSE NO. 923949

DANIEL J. SIXTA § IN THE DISTRICT COURT Appellant § § § HARRIS COUNTY, TEXAS vs. § § THE STATE OF TEXAS § Appellee § 351 st JUDICIAL DISTRICT

AFFIDAVIT OF CAM COPE

THE STATE OF TEXAS

COUNTY OF MONTGOMERY

BEFORE ME, the undersigned notary, on this day, personally appeared Cam Cope, a person whose

identity is known to me. After I administered an oath to him, upon his oath, he stated:

"My name is Cam Cope. Iam over twenty-one (21) years of age. I am a resident of

Montgomery County, Texas. I have never been convicted of a crime, and I am fully competent to make this Affidavit. All statements within this Affidavit are within mypersonal knowledge and are true and correct.

In 1971, I obtained a Bachelor of Science degree in Biology and Chemistry from New Mexico Highlands University.

After graduation from New Mexico Highlands University, I served in the United

States Army from 1971 through 1974. As part of my duties in the United States Army, I was involved in surgical research at both Walter Reed Army Medical Center and William

Beaumont Army Medical Center.

Upon discharge from the United States Army, I took sixty (60) hours of

undergraduate and graduate courses at Texas A&M University. These courses included,

but were not limited to, chemistry and physics. Also, within the Texas A&M University System, Icompleted an eighty (80) hour course in Advanced Accident Reconstruction. Accident Reconstruction courses are not apart ofany engineering degree program, so the engineering and reconstruction technology is basically obtained through the Society of Engineers and their peer reviewed articles and teaching. In fact, Ihave continued with my education overthe years, attending classes taught by the Society of Automotive Engineers and accident reconstruction organizations regarding vehicular accidents and occupant restraint systems. Courses Ihave completed include Crash Data Retrieval Systems, Air Bag Litigation, Vehicle Restraint Systems and Airbags, Occupant Restraint and Protection, Airbag Field Performance, GM Technical on Airbags, Technology and Performance of Airbags, and Airbag Design and Performance. For adetailed list of the courses that Ihave taken in my effort to continue my education, please see my most recent curriculum vitae attached to this Affidavit and incorporated herein by reference as iffully set forth.

Iam amember ofthe National Association of Professional Accident Reconstruction Specialists and the Texas Association ofAccident Reconstruction Specialists. Also, Iam a member of the Society of Automotive Engineers. Additionally, Iam a member of the American College of Forensic Examiners. For adetailed list of my professional affiliations, please see my most recent curriculum vitae attached to this Affidavit and incorporated herein by reference as if fully, set forth.

During the course of my career, Ihave continued to be active with the Society of Automotive Engineers as a sectional leader and have also been Chairman of the Engineering and Technology for the American College of Forensic Examiners, and Ihave published several papers. For adetailed list of my published papers, please see my most recent curriculum vitae attached to this Affidavit and incorporated herein by reference as if fully set forth.

Since 1985,1 have worked in the area ofaccident reconstruction, primarily involving motor vehicles, with an emphasis on occupant restraint systems, including airbags. In this connection, Ihave testified as an expert witness on many occasions. In September 1996,1 founded Cam Cope Consulting. This firm provides consulting services with an emphasis on accident reconstruction and identification of occupant restraint system usage, including airbags and seatbelts. Auto Fire &Safety Consultants, Inc. d/b/a Cam Cope Consulting has been an ongoing venture from September 1996 to the present.

I am also a Licensed Private Investigator, with the State of Texas, this is in compliance with Section 1702.104, Texas Department of Public Safety, Licensing and Duties of Investigation Companies and Security Service Contractors. Unless the person holds alicense as an investigation company, aperson may not: Engage in business activity for which a license is required under this chapter. Aperson acts as an investigation company for the purposes of this chapter if the person: (1) engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information related to: (a) crime or wrongs done or threatened against a state or the United States; (b)the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of aperson; (c) the location, disposition, or recovery of lost orstolen property; or (d) the cause or responsibility for afire, libel, loss, accident, damage, or injury to aperson or to property. (2) engages in the business of securing, or accepts employment to secure, evidence for use before a court, board, officer, or investigating committee; (3) engages in the business ofsecuring, or accepts employment to secure, the electronic tracking ofthe location ofan individual or motor vehicle other than for criminal justice purposes by or on behalf of agovernmental entity; or (4) engages in the business of protecting, or accepts employment to protect, an individual from bodily harm through the use of apersonal protection officer. Copy of the related sections attached.

Ourfirm has been contacted by Janet Koski on behalfofdefendant, Daniel J. Sixta, to evaluate and reconstruct avehicular,accident involving a1994 Toyota 4-Runner driven by Daniel J. Sixta and a2001 Ford Focus SE driven by Martha Alford that occurred on February 21, 2002, at 11000 FM 1960 W., Houston, Harris County, Texas. Our investigation is based on .the collision analysis, injury analysis, accident avoidance analysis, injury avoidance analysis, accident causation analysis, accident prevention and injury reduction analysis, speed ofvehicles during pre-trip, trip and post-trip phases ofthe rollover event, motion ofvehicles during pre-trip, trip and post-trip phases of the rollover event, accident severity, vehicle deformation, accident scene geometry, potential avoidance scenarios, vehicle deceleration rates, driver actions including reaction time, perception, visibility and contributing factors and cause of the rollover event. 1. Although Iwas not present at the accident and have no personal knowledge of the accident this is not the criteria required in duPgntde Nemours &Co. v. Robinson, 923 S.W. 2d 549 (Tex. 1995); EmvjJnjted Stetes, (1923), Daubert v. Merrell Dow Pharmaceutical 509 U.S. 579 (1993).

2. The investigation of accidents in the State ofTexas requires that you are licensed with the State ofTexas as a Licensed Private Investigator, my license number is Texas P.I. # A09524. The investigation of this accident

was needed to establish the opinions listed in my report.

3. Itis not required that measurements be taken at the scene. For the scene

evaluation I used aerial photographs which are also widely used by the Accident Reconstruction Profession and information listed on the police report to illustrate for the jury the positioning of the vehicles prior to and

during the collision. Since no measurements orevidence wasretained by the police department on the day ofthe accident, the methodology Ihave used to document the scene is well accepted by the reconstruction

profession. Please refer toAccident Reconstruction Analysis by Rudolph Limpert, Fifth Edition, Chapters 3 & 5. (See attached).

k Measurements of same or similar vehicles involved in the accident were

obtained from All Data and manufacturer specifications that accurately document similar vehicles. Copies of the All Data Spec Sheets are

. provided with this Affidavit. Exemplar photographs of the exemplar vehicles have also been taken to document the structure of the vehicles.

The inspection of similar vehicles was conducted in this investigation since the vehicles and scene were not available. The photographs provided by the various entities represent and show the damage to the vehicles. The photographs accurately show the crush and evidence

marks that we were able to use in the reconstruction of this accident.

The crash tests, studies and calculations used in the reconstruction of this accident are available through the Society ofAutomotive Engineers, Accident Reconstruction Journals, various other peer reviewed literature, testing and calculations to show the sequence ofevents in this accident. 6. I relied on the police report to the extent recommended by the accident reconstruction profession and the various sources of literature related to the use of police and witness statements. See Chapters 3 & 5 of Accident Reconstruction Analysis by Rudolph Limpert, Fifth Edition.

7. The factual observation of the accident scene by the Harris County Sheriffs Department was documented by the investigating officer using the skills required by the officer's profession.

8. The Harris County Sheriffs Department report is a factual report that represents the investigation as it was conducted on the day of the accident. As an officer, D.T. Pearson has the duty to document the I

evidence and factors associated with the accident. I have reviewed

Officer Pearson's report and trial testimony.

9. . I have used Engineering Dynamics Corporation (EDC) software, with the aid of an on-staff engineer, which includes, HVE, EDCRASH, EDSMAC

and SIMON. The HVE simulation environment was introduced in 1996

for the 3-D user, with the 2-D simulations dating back to the 1980's and

early 1990's. The 3-D, 5,0 version was developed as a sophisticated, 3-

dimensional user environment for setting up and executing simulations

involving humans and vehicles interacting with their environment. In

2001, SIMON along with DyMESH was introduced to provide simulation involving rollover and override, as well as other 3-dimensional collision issues. The HVE programs have been widely accepted by the Accident Reconstruction profession, widely published and peer reviewed. This program was used to formulate other plausible scenarios based on the evidence made available.

10. | have used the photographs provided and the simulation to determine the speeds at impact, as well as post-impact speeds to determine the factors associated with the rollover event. 11. My opinions are based on vehicle evidence shown in the photographs, an understanding of the scene, and an understanding of the vehicle dynamics and the motions of the vehicle. These opinions regarding this accident can be expressed to the jury using the scientific knowledge and scientific methodology used by the accident reconstruction profession. The photographs reviewed of the vehicles involved in this accident show ' the factual evidence needed to provide the opinions Ihave listed in my report." Further t sayeth not.

tan>Cbpe, P( Auto Fire & Safety Consultants, Inc. d/b/a Cam Cope Consulting

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned Notary Public on this the2^1 day of October 2007. y

Notarypu 9- My Commission: /tf/^r/L<^O/0 Jotary public for Montgomery County State Of Texas The cases .isted below are the guide.ines and criteria used in reconstructing an accident scene. In Fryev, United States (1923), the Rye Rule states: Novel scientific evidence must be shown to be generally accented in thp relent c.;„ *t admissible. Thelatesthas come to be known^^^T^ ^^m^t0 be lnreality,fordecadesfewchallengesweremadetotheadmissibilitvofexnprtPViw0nraonthaC * * for most fire investigators. CdU',IISSID,,^OTexPe'tevidence,sothe^e.testwasnotanissue In Daubertv. MerreltDow Pharmacolitirai 5no 11 c C70 fig™ thr ^,,n,ri, , ~ . . ,., scientific expert testimony on the basis of'four criteria ( >' P^ C°m made tnalJUdges the Satekeeperof 1. Whether the theory used by the expert can be and has been tested- 2. Whether the theory or technique has been subjected to peer review 3. The known or potential rate of error of the method used- ' 4. The degree ofthe methods orconclusion's acceptanceWhin the relevant scientific community.

know,edge, ski,, experience, training, or education, may ^Te^ totSe^^ Otherreference materials include:

1. Low Speed Automobile Accidents, Accident Reconstruction anH rw^w w ~ ' Biomechanics, Second Edition byAlan J. WaS ,PhT^S^^J^?^^^ and " 2. Thomson, Low SpeedF.P.D. Rearand Impacts Navin,andM.J.theMacnabb- Elastic Propels oftLob^ifmw^Mo^'MA; mA"^oUes, SAE 896142, by DP. Rom.lly, R.W.

4. Analysis ofHuman Test Subject Kinematic Responses to Low Velocity Rear End Impacts SAF QinfiRa „ Whitman E. McConnefl, Richard P. Howard Herbert MGuzman inhn r 7Zt ,lmPa^s^E 930889, by Benedict, Harry L. Smith and Charies P. Hatse? ' °B> B°mar'JameS H' Raddin-James V- 5. Human OccupantKinematic Response to Low Speed Rear-End Impacts SAF Q4nw h„xh„ .o L ££na We,cte, RofcrtD. A„^„. MichI M. Rio, ££%%.SiSSS

7- aD*j™s^^^^ Auto Fire & Safety Consultants

Cam Cope Curriculum Vitae

www.fJresafetyconsulfant.cnm ccope@firesafetyconsultant.com

AREAS OF SPECIALIZED EXPERTISF

Accident Reconstruction Fire Origin and Cause Occupant Restraint Systems/Airbags Fuel Systems Integrity, FMVSS 301 Nikon Total Station Scene Surveys Interior Flammability, FMVSS 302 Crash Data Retrieval GM - Ford vehicles Trucking Accidents Case Evaluation Vehicle Products Liability /Vehicle Assessment /Defects Vehicle Fire Testing

Mr. Cope received aBachelor of Science degree in Biology and Chemistry in 1971 and has been investigating and reconstructing accidents for the past twenty (20) years. During that period, he continued his education and training through the Society of Automotive Engineers (SAE). This organization provides the most peer reviewed literature and training with regards to vehicles and accident reconstruction. Engineering and reconstruction of accidents is primarily taught through SAE and various Accident Reconstruction seminars conducted throughout the United States. The Texas Accident Reconstruction Association as well as the National Accident Reconstruction Association also provides training and literature for the Accident Reconstructionist. The National Fire Protection Association, International Association ofArson Investigators, National Association of Fire Investigators and various Chapters of Accident Reconstruction and Fire Investigation also provide training and technology in the field of vehicle accident reconstruction. In addition to these training organizations, he has also received training through the Texas A&M Extension Service related to Accident Reconstruction, including Advanced Accident Reconstruction. Since none ofthe University Engineering Degreed programs offer education or training in Accident Reconstruction or Fire Science Technology, this education mustbe obtained through the various organizations listed in his Curriculum Vitae. Mr. Cope currently teaches vehicle fire investigation at Eastern Kentucky University, which is one ofthe few universities offering adegree in Fire ScienceTechnology. Cam Cope currently works on the SAE Accident Reconstruction Committee and the Vehicle Fire Task Force Committee, which is apart of the revisions committee for the vehicle section of NFPA 921. Please refer to the attached Curriculum Vitae for Cam Cope for his complete educational background and list of seminars attended. Cam Cope, Cuniculum Vitae

ACADEMIC EDUCATION!

B.S., Biology/Chemistry, New Mexico Highlands University, 1971 Undergraduate and Graduate Courses (60 Hours), Texas A&M University, 1973 Advanced Accident Reconstruction, Texas A&M(80 Hour Course), 1993 CFEI, Certified Fire Explosion Investigator CFII, Certified Fire Investigator Instructor CVFI, Certified Vehicle Fire Investigator MILITARY

U.S. Army 1971-1974 Surgical Research, Walter Reed Army Medical Center Medical and Veterinary Team, Fort Benning, GA Veterinary Team, K-9 unit, Viet Nam Surgical Research, William Beaumont Army Medical Center LAW ENFORCEMENT

College Station Police Department Reserve Officer, 1985 to 1990 Police Academy Training-Accident Investigation, Routine Patrol PROFESSIONAL EXPERIENCE

September 1996 to Present Auto fire &Safety Consultants, Inc. FormerlyCamCope Consulting

Vehicle and structural fire investigation (origin and cause) • Vehicle Fire Testing • Accident Reconstruction: computer modeling (EDCRASH-EDSMAC-HVE 3D, SIMON, DyMESH) • Case evaluation and rapid response in the documentation ofvehicular accidents • Scene drawings &diagrams, inspection ofvehicles, and research • Nikon NPL-820 Total Station,AIMS Software • Products' liability and identification of defective products, testing, and research • Identification of occupant restraint system usage, including airbags and seatbelts . Crash Data Retrieval (CDR) in GM Vehicles (1996-2003): Retrieval ofdata five seconds pre-impact and five seconds post- impact, and near-deployment data (black box data) • Rollovers, trucking accidents, industrial andconstruction accidents

January 1991 to 1998 Engineering Reconstruction Associates • Accident reconstruction • Model building • Partner with M. Lewis Coody, Registered Professional Engineer, State of Texas #48387 • Assistant Professor Department ofConstruction Science

January 1992 to September 1996 Crowley, Marks, and Douglas • Accident reconstruction, evaluation, and research • Vehicular fires (cause and origin) determination and documentation • Evaluation and investigation ofvehicle products liability

January 1985 to January 1992 Crowley and Waltman • Investigation of motor vehicle accidents including the related injuries, fires, occupant restraint systems involving serious injury or death . • Fire cause andorigin

7/12/2007 Auto Fire& Safety Consultants, Inc. 2 18500Trails EndRd.,Conroe, TX 77385 Off: 281.362.0930* Fax: 281.362.1329 Cam Cope, Cuniculum Vitae

PROFESSIONAL AFFILIATIONS

NAFI, National Association of Fire Investigators (Board Member) CFEI, Certified Fire and Explosion Investigator CFI|, Certified Fire Investigation Instructor CVFI, Certified Vehicle Fire Investigator NSTI, National Safety and Transportation Institute (Board Member) NAPARS, National Association of Professional Accident Reconstruction Specialists TAARS, Texas Association ofAccident Reconstruction Specialists SAE, Society ofAutomotive Engineers Committee Accident Investigation Practices Standards Vehicle Fires Committee , Auto/Pedestrian Standards Sectional Leader, Gulf Coast Chapter NSC, National Safety Council IAAI, International Association ofFire and Arson Investigators NFPA, National Fire Protection Association ACFE, American College ofForensic Examiners Engineering andTechnology Board Diplomat, Chairman ofEngineering andTechnology 2000 Continuing Education Committee and Editorial Review Board Texas Board of Private Investigators and Private Security Agencies Licensed Private Investigator, License A09524 TALI, Texas Association ofLicensed Investigators, Inc. FIAA, Fire Investigation Association ofAlberta (Chapter 38 IAAI) CTFIA Central Texas Fire Investigators Association

PUBLICATIONSAND PRESENTATIONS

♦ Cam Cope, The Investigation of Electrical Fires in Vehicles," April 20- 21, 2007, Irmo, South Carolina; Fire Explosions, and Electricity: Intensive Instruction in Irmo (Instructor)

♦ Cope, Cam, "2006ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29, 2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures; Faro Scene 3D Laser Scanner. (Instructor) ♦ Cope, Cam, Inner Circle of Investigators 2005 Annual Conference, "Heavy Truck Fires," Williamsburg, Virginia, October 14-15,2005. (Instructor).

♦ Cope, Cam, 2005 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept. 26-29, 2005. (Instructor). ♦ Cope, Cam. "Crash Data Retrieval", 2004 Vehicle Fire, Arson &Explosion Investigation Science and TechnologySeminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept. 27-30,2004. (Instructor). ♦ Cope, Cam. "Sources of Information", 2004 Vehicle Fire, Arson &Explosion Investigation Science and Technology Seminar, NAFI and Eastern Kentucky University, Richmond, Kentucky, Sept 27-30,2004. (Instructor). ♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Bums. 2004 Vehicle Fire, Arson, & Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; September27-30,2004. Live bums- Vehicle Fire Testing.

♦ Cope, Cam. "Vehicle Fire Investigation", International Symposium on Fire Investigation, NFPA, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 27-30,2004. (Instructor).

7/12/2007 Auto Fire& Safety Consultants, Inc. 18500Trails EndRd.,Cenroe, TX 77385 Off: 281.362.0930 • Fax: 281.362.1329 Cam Cope, Cumculum Vitae

♦ Cope, Cam. "Vehicle Systems Design, Form, &Function," "Crash Data Retrieval;" Test Burns. 2003 Vehicle Fire, Arson, & Explosion Investigation Training Program, NAFI, Eastern Kentucky University, Richmond, KY; October 1-4, 2003. Live bums- Vehicle Testing.

.♦ Cope.Cam. "Vehicle Investigation Issues." 2003 National Fire, Arson &Explosion Investigation Training Program, NAFI, . Sarasota, Florida; August 13,2003. Vehicle testing andlive bums. ♦ "2002 Vehicle Fire, Arson &Explosion Investigation &Technology Seminar," National Association ofFire Investigators and Fire and Safety Engineering Technology; Eastern Kentucky University, Richmond, KY; September 30-October 2,2002. (Instructor).

♦ Cope, Cam and Bill Camp. "Use of Digital Photography in Investigation." American Trial Lawyers Association Presentation: Chicago, Illinois; July31, 2000.

♦ Cope, Cam. "Airbag Investigation." The Legal Investigator - All CLI Issue. National Association of Legal Investigators; May 2001.

♦ Cope, Cam. "Motor Vehicle Fires and NFPA 921." Test Burning ofVehicles 2001: National Advanced Fire, Arson, and Explosion Investigation Science and Technology: Eastern Kentucky University, Richmond, Kentucky; March 13-17,2001. ♦ Cope, Cam and Bob Swint. "Airbag Safety &Investigation." The Forensic Examiner. May/June 2000. . ♦ Cope, Cam and Dennis Andrews. "Low-Speed Rear-End Impact Analysis / Seat Belts / Airbags." ACFE Workshop Presentation: New York City, New York; October 29- November 1,1999.

♦ Cope, Cam. "History of Occupant Restraint Systems!" ACFE 6th National ScientificAcademy Naples, Florida; October12- 14,1998.

♦ Cope, Cam and Bob Swint. The Documentation ofVehicles Involved in Accidents." Engineering and Technology, The Forensic Examiner. Vol. 7: Sept/Oct1998.

♦ Cope, Cam. "Investigation ofVehicle Rollover." Advanced Forensic Civil Investigations. Lawyers &Judges Publishing Co., 1997.

♦ Cope, Cam. "Restraint System Documentation and Investigation." Presentation at 5ft National Scientific Academy & Retreat ofthe American College ofForensic Examiners: San Diego, CA; December 11-13,1997.

♦ Cope, Cam. "Investigation ofan Automobile Accident." Presentation atthe National Association of Legal Investigator Mid- Winter Conference: Chicago, Illinois; March 1995.

♦ Cope, Cam. "Investigation ofa Products Liability Case." Presentation atthe National Association ofLegal Investigator Silver Anniversary Conference: St. Louis, Missouri; 1992.

♦ Cope, Cam. "Vehicle Documentation." Presentation at N.A.L.I. National Convention: Houston, Texas; 199.1.

♦ Cope, Cam. "Accident Investigation Forms," Aseries ofdata forms to beused by Accident Investigators. CONTINUING EDUCATION

♦ Technical Committee on Hazard and Risk ofContents &Furnishings; National Fire Protection Association (NFPA); May 1-2,2007.

♦ The Warren Group, Forensic Engineers &Consultants, Fires Explosions and Electricity: Intensive Instruction in Irmo; April 20-21,2007.

♦ 2007 SAE World Congress, Detroit Michigan, SAE ABA Fire Safety Committee, SAE Motor Vehicle Fire Investigation Task Force, andAIRP Committee Meeting; April 16-19,2007.

7/12/2007 Auto Fire &Safety Consultants, Inc. 4 18500Trails EndRd„Conroe, TX 77385 Off: 281.362.0930•Fax: 281.362.1329 Cam Cope, Curriculum Vitae

♦ "Fire and Materials 2007", Interscience Communications Limited, Fire School, San Francisco, California, January 29- 31,2007.

♦ Cope, Cam, "Central Texas Fire Investigators Associations Annual Meeting &Conference; December 12-13,2006, Austin, Texas; Electrical Fires 102Training Program

♦ Cope, Cam, "2006 ISFI2006 - International Symposium on Fire Investigation Science and Technology; June 26 - 29, 2006, Cincinnati, Ohio; Fire Technology Involving Vehicles &Structures.

♦ Cope, Cam. "2006 ARC-CSI Crash Conference", June 5-8,2006, Las Vegas, Nevada. Crash Testing - Rollover, Motorcycle and Bus.

♦ 2006 SAE World Congress, Detroit, Michigan, SAE AIRP Committee Meeting, SAE ABA Fire Safety Committee, Hydrogen Vehicle Safety (Parts 1&2), Fire Statistics and Analysis (Parts 1&2), Material Flammability and Fire Experiments (Parts 1 &2); April 3-7,2006.

♦ Live Bum Testing of Five (5) Ford Vehicles Related to Cruise Control Deactivation Switches conducted by Nationwide Insurance, Houston, Texas; December 5, 2005.

♦ Inner Circle ofInvestigators, 2005 Annual Conference, Investigative Professional Development Conference, Williamsburg, Virginia, October 14-15,2005. (10 hrs)

♦ Vehicle Fire, Arson &Explosion Investigation", (Total Bums - Testing) Science &Technology Seminar, NAFI, Fire and Safety Engineering Technology, Eastern Kentucky University, September 26-29,2005. ♦ NFPA 921 - Task Force Committee Meetings Relative Changes to NFPA 921, Minneapolis, Minnesota, September 14-16 2005.

♦ 2005 NAFI - National Seminar on Fire Analysis Litigation, Sarasota, Florida, August 11-12, 2005. ♦ 2005 NAFI -National Fire, Arson &Explosion Investigation Training Program, Sarasota, Florida, Computer Fire Modeling, August8-10, 2005.

♦ 2005 SAE World Congress, Detroit, Michigan, "Fire Safety" "Accident Reconstruction", "Side Impact &Rollovers", "Restraints Systems". (AIRP Standards Committee &VFI Advisory Group); April 12-15, 2005. ♦ "Fire and Materials 2005", Interscience Communications Limited, Fire School, San Francisco, California, January 31- February 1,2005.

♦ "Fire Hazard To Occupants of Road Vehicles", Interscience Communications Limited, Fire School, San Francisco, California; January 31-February 1,20.05.

♦ "Cone Calorimeter Predictions ofFMVSS 302 Performance", Interscience Communications Limited, Fire School, San Francisco, California; January 31 -February 1, 2005. ♦ "Vehicle Fire, Arson &Explosion Investigation", (Vehicle Burns - Testing) Science &Technology Seminar, NAFI, Fire and Safety Engineering Technology, Eastern Kentucky University, September 27-30,2004. ♦ "Electrical Faults as Fire Causes" (The Investigator's Perspective), NFPA International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 29,2004. ♦ "Forensic Pathology", NFPA, International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 29,2004.

♦ "Scene Management", NFPA, International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 29,2004.

7/12/2007 Auto Fire &Safety Consultants, Inc. 5 18500Trails EndRd., Conroe, TX77385 Off: 281.362.0930 • Fax: 281.362.1329 Cam Cope, Cum'culum Vitae

♦ "Scene Examination (Case Study Based)", NFPA, International Symposium on Fire Investigation, Fire Service College, Moreton-in-Marsh, Gloucestershire, UK, June 28,2004.

♦ TireDynamics and Fire Science", NFPA, International Symposium onFire Investigation, Fire Service College, Moreton-in Marsh, Gloucestershire UK, June 28,2004.

♦ "Highway Vehicle Event Data Record Symposium: State-of-the-Art ofPassenger Vehicle Accident Recorder Technology; EDR Device Research and Validation; and EDR End-User and Accident Reconstruction," National Transportation Safety Board; George Washington University, Virginia Campus, June3-4,2004.

♦ "2004 SAE World Congress", Detroit, Michigan; March 8-11,2004; "Force Response during Tire Tread Detachment Event" ♦ "2003 NFPA Fall Education Conference," Reno,Nevada; November 16-19,2003; Pre-Conference Seminars, November 14- 15,2003.

♦ "2003 Vehicle Fire, Arson &Explosion Investigation Training Program," (Live Burns - Testing) National Association ofFire Investigators; Eastern Kentucky University, Richmond, KY; October 1-4, 2003.

♦ "2003 National Fire, Arson & Explosion Investigation Training Program," National Association of Fire Investigators; Sarasota, Florida; August 11-15,2003.

♦ "Vehicle Dynamics &Simulation," Society ofAutomotive Engineers 2003 World Congress; Detroit Ml; March 5, 2003.

♦ "Vehicle Agressivity &Compatibility in Automotive Crashes," Society ofAutomotive Engineers 2003 World Congress; Detroit, Ml; March 5,2003. .' - •

♦ "Engineering Safety Specifications: Designing for Safety," Society ofAutomotive Engineers 2003 World Congress, Detroit, Ml, March 3-4,2003. (16 hours)

♦ "Accident Reconstruction," Society ofAutomotive Engineers 2003 World Congress; Detroit, Ml; March 4-5, 2003.

♦ "Side impact, Rear Impact &Rollover," Society ofAutomotive Engineers 2003 World Congress; Detroit, Ml; Mar. 3,2003. ♦ "2002 Vehicle Fire, Arson &Explosion Investigation &Technology Seminar," National Association ofFire Investigators and Fire andSafety Engineering Technology; Eastern Kentucky University, Lexington, KY; September 30- October 2, 2002.

♦ "2002 National Seminar onFire Analysis Litigation," National Association ofFire Investigators and National Fire Protection Agency; Sarasota, FL; August 15-16, 2002. (16 hrs)

♦ "2002 National Fire, Arson &Explosion Investigation Training Program," National Association ofFire Investigators and National Fire Protection Agency; Sarasota, FL; August 12-14, 2002. (32 hrs) ♦ "A Fire Scene Analysis," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky; March 2002. (16 hrs)

♦ '"Engineering Dynamics Corporation-HVE-2D-EDCRASH Reconstruction Course," Terry Day-PDOF andDamage Profile of Vehicle, Collision Deformation Classification, EDCRASH Input Data; CA State University Northridge; Burbank, CA; January 21-25,2002. (40 hrs)

♦ "Investigation ofMotor Vehicle Fires," Lee S.Cole. Peter Klaput Investigation ofmotor vehicle fires; Where and how did it start; Hands-on investigation ofburned vehicles; Elements Necessary for a Fire; Loyola University, New Orleans, Louisiana; December5-7,2001.

♦ "Hot Wheels 2001," Investigating Vehicle Fires; 15vehicles burned, investigation, methodology, ignition sources, fuel loads, electrical failures, presentations for vehicles burned; Fire Investigation Association ofAlberta; Calgary, Alberta, Canada; September 20-22,2001.

7/12/2007 Auto Fire& Safety Consultants, Inc. 6 18500 TrailsEnd Rd., Conroe, TX77385 Off: 281.362.0930 • Fax: 281.362.1329 Cam Cope, Curriculum Vitae

"NFPA 921 Structural and Vehicles," Live Vehicle Bum lAAI-Louisville Fire Department.

♦ "Post Impact Fuel Fed Fires," Tom DeSantis and Lou Molnar (Design Analysis Engineers atFord Motor Company); "Origin and Cause on Vehicles Fires Utilizing NFPA 921,° Ralph Newell (Newell Investigation); "Electrical Fires in Components- Vehicles," Chuck Adams (Design Analysis Engineer at Ford Motor Company); "Mechanical Fires - Fuel-Fed Fires - Vehicles," John Washington and Sunil Sharma (Design Analysis Engineers atFord Motor Company); "Electrical System," Mark Hoffman (Ford Motor Company); "NFPA 921," David Smith; Live Vehicle Burn, Electrical Short in dash, Rammability ofVehicle Fuels tested, Testing ofInterior Temperatures, Roof, Engine, Occupant and Truck in Vehicle Fires; Louisville, Kentucky; August 22-24,2001.

♦ "Fire and Pattern Analysis," Patrick Kennedy; "Processing the Fire Scene - Diagramming Evidence and Note Taking," Dennis Smith; "Determining Origin-Heat and Flame Vector Analysis" and "Fire Scene Photography," Michael Schulz; "Philosophy ofFire Analysis," Patrick Kennedy; "Electrical," Daniel Churchward; 2001 National Fire, Arson and Explosion Investigation Training Program; Sarasota, Florida; July 22-27, 2001.

♦ "Texas Association ofLegal Investigators, 2001 Convention and Seminar," San Antonio, Texas; June 15-17,2001. (10 hrs Continuing Education Credit).

♦ "Introduction to Explosives Theory and Explosion Devices," Tom Thurman, 2001 National Advanced Fire, Arson, and Explosion Investigation Science and Technology Program; Eastern Kentucky University, Richmond, Kentucky; March 13-17, 2001. (8 hrs on-site explosion and fire investigation ofburning vehicles). ♦ "Fire Scene Analysis," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky; March 16,2001. (8 hrs)

♦ "Analysis ofElectrical Fires Causes," 2001 National Advanced Fire; Eastern Kentucky University, Richmond, Kentucky; March 15,2001. (8 hrs)

♦ "PC-Crash Program, 3D Accident Simulation and Reconstruction," William Cliff and Hermann Steffan, Detroit, Michigan; March 8-9, 2001. (16 hrs)

♦ "Society ofAutomotive Engineers (SAE) Accident Reconstruction Conference," Detroit, Michigan; March 5-8,2001. ♦ "Certified Fire Investigator Instructor Program," Ron Hopkins, Fire and Safety Engineering Technology; Eastern Kentucky University; March 2001. (8 hrs and examination)

♦ "Crash Data Retrieval Systems," Don Gilman, Vetronix Corporation, WREX2000; College Station, Texas; September 24-29, 2000.

♦ "Lamp Examination for ON orOFF in Traffic Accidents," Gary Stephens, WREX 2000I; College Station, Texas; September 24-29,2000.

♦ "Full Force / Weight Tests ofAir-Braked Trucks, Truck Tractor &Semi Trailer Compared to Automobiles," Dave Stopper, WREX 2000; College Station, Texas; September 24-29,2000.

♦ "Trailer Undem'de; Conspicuity, Human Factors and Rear Bumpers," Joseph E. Badger, WREX 2000; College Station, Texas; September 24-29,2000.

♦ "WREX 2000 World Reconstruction Exposition," Accident Reconstruction and Crash Testing; College Station, Texas; September 24-29,2000. (36 credit hrs) ♦ "Demonstration ofCrush Deformation Measurement System and Current Validation ofthe EDCRASH Computer Program," Tom Curtis, WREX 2000; College Station, Texas; September 24-29,2000. ♦ "Airbags and Restraint Systems," ATLA Convention, Product Liability A.I.E.G.; Chicago, Illinois; July 31,2000.

7/12/2007 Auto Fire &Safety Consultants, Inc. 18500Trails End Rd.,Conroe, TX77385 Off: 281.362.0930* Fax: 281.362.1329 Cam Cope, Cum'culum Vitae

"The Dynamics of Fire Investigation" and "Fire Pattern Development and Fire Analysis," Patrick Kennedy /National Fire Arson, and Explosion Investigation Training Program; Chicago, Illinois; July 24-28,2000. "Chemistry of Fire-Properties ofMaterials" and "Fire Dynamics for Fire Investigation," Ron Hopkins /National Fire, Arson and Explosion Investigation and Training Program; Chicago, Illinois; July 24-28, 2000. "Basic Electricity and the Investigation of Electrical Fires" and "Cause Determination NFPA," Daniel Churchward and Dennis Smith /National Fire, Arson, and Explosion investigation and Training Program; Chicago, Illinois; July 24-28,2000. "Fire Cause and Origin," National Association of Fire Investigators; Chicago, Illinois; July 24-28, 2000. Society ofAutomotive Engineers 21st Annual Section Officers Leadership Seminar, Pittsburgh, PA, May 20-23, 2000. "Accident Reconstruction - State-of-the-Art," SAE-TOPTEC; "Frontal Collision Performance," Dagmar Jewkes, Ph.D •"Side- Collision Performance," Greg D. Stephens; "Rear-Collision Performance &Rollover Reconstruction," Stein EHusher Costa Mesa, CA; December 9-10,1999.

"AC.F.E. National Convention," Engineering and TechnologyAccident Reconstruction; New York City, New York; October 28-31,1999.

"Low Speed Accident Reconstruction and Litigation," Lawyers &Judges Convention; Scottsdale, AZ; October21-23,1999. "Issues in Automotive Crashworthiness Litigation, Trial Evidentiary," A.I.E.G.; Scottsdale, AZ; September 23-25 1999 "Liability Issues," National NAL.I. Convention, New Orleans, Louisiana; June 3-5,1999. ♦ "TTLA's On-Line, Hands-on Investigation Research Workshop," Houston, Texas; April 29,1999. ♦ "GM Fuel System Integrity," A.I.E.G.; Atlanta, GA; April 15-17,1999. ♦ "Airbag Field Performance: An Engineer's Perspective," Jerome M. Kossar, A.I.E.G., Atlanta, GA; April 15-17,1999. -♦ "Analysis and Investigation of Post-Accident Air Bag Systems," Bfll Rosenbluth ASA, A.I.E.G.; Atlanta, GA, April 15-17, 1999.

"Evolution ofthe Lock-for-the-Latch," Kendall Few; "Forensic Analysis ofSkip Lock," Alan Canton "Biomechanics and Injury Cnteria ofChild and Adult Dummies," Dr. Tony Sances; "Motor Vehicle Glass," Patrick M. Ardis, A. I.E.G.; Atlanta GA April 15-17,1999. ' ' ^

"Vehicle Fires and Restraint Systems;" Atlanta, GA, April 15-17,1999. "Auto FocusAIEG Airbags, Rollovers, Auto Fires, Inertia Release (Seat Belt Buckles)," San Francisco, CA October24-26, 199o.

"ACRE. National Convention," Engineering and Technology Accident Reconstruction, Naples, Florida; October 12-14,

"Facts &Mechanics for InjuryAnalysis-Pathologists," Patrick E. Besant-Matthews, M.D., TAARS Annual Meetinq- Laqo Vista, Texas; June 25-27,1998. a ♦ "Mechanics ofVehicle Rollover," Richard J. Schleuter, P.E., TAARSAnnual Meeting;iago Vista, Texas; June 25-27,1998. ♦ "Texas Association ofAccident Reconstruction Specialists-Accident Reconstruction," Austin, Texas; June 25-27,1998 (additional seminars not listed since 93). ♦ "Occupant Protection," Society of Automotive Engineers - TOPTEC; Tempe, AZ; May 20-21,1998. 4 "Side Impact," Society ofAutomotive Engineers - TOPTEC; Tempe, AZ; May 18-19,1998.

7/12/2007 Auto Fire &Safety Consultants, Inc. 18500 Trails End Rd, Conroe, TX 77385 Off: 281.362.0930 • Fax: 281.362.1329 Cam Cope, Cum'culum Vitae

"Inertially Unlatching Seat Belt Buckles-Proving the Defect," Ben Hogan, Kendall Few and Dr. Tony Sances, AI.E.G.; San Antonio, Texas; May 14-16,1998.

"Car Crashes and Occupant Injuries - Frontal Impact- Side Impact - Rollovers," Greg Stephens, Stein Husher and Ed Moffatt, Association for the Advancement for Automotive Medicine; Tempe, AZ; April 16-17,1998. ♦ "Car Crash and Occupant Injuries: ATeam Approach to Crash Investigation," AAAM, Tempe, AZ; April 16-17,1998. ♦ "GM Technical on Airbags," SDM System Operation-Component Locations, Glenn C. Libby, Milford Training Center; Houston, Texas; March 5,1998.

"AC.F.E. National Convention," American Board of Forensic Engineering and Technology; San Diego, CA; December 11- 13,1997.

"Technology and Performance of Airbags," David Biss, A.I.E.G.; Scottsdale, AZ; September 25-27,1997. "Airbag Litigation," Larry Coben and Don Slavik, A.I.E.G.; Scottsdale, AZ; September 25-27,1997. "Airbag Design and Performance," Society of Automotive Engineers - TOPTEC; Costa Mesa, CA; August 14-15,1997. ♦ "Evaluating and Preparing Vehicle Rollovers," Michael Kerensky, Texas Trial Lawyers Association; Houston, TX, February i"tj i yyo

"Vehicle Restraint Systems and Airbags," Brent Carpenter, Texas Trial Lawyers Association; Houston, TX; Feb. 1-2,1996. ♦ "Vehicle Fuel Tank Integrity," Mick McBee, Texas Trial Lawyers Association; Houston, TX, February 1-2,1996. "Litigates and Seatbacks," Todd Tracy, Texas Trial Lawyers Association; Houston, TX; February 1-2,1996. "Motor Vehicle Crashworthiness Frontal Collisions: Safety Issues" and "Rollover Crashworthiness," Engineering Demonstrations / Arndt and Associates / A.I.E.G.; Phoenix, AZ; October 29-30,1993. National Association of Fire Investigation Schools (NAFI), Certification Program; Chicago, Illinois; 1990,1991,1992. "Advanced Theories in Automotive Restraint Crashworthiness Cases," Donald H. Slavik, A.I.E.G.; Sonoma County, CA- September26-27,1992.

"Fire and Explosion Investigation," John A. Kennedy, National Fire, Arson, and Explosion Investigation; Chicago, Illinois- August 18-21,1992. ,

"Forensic Fire-Science and Technology Laboratory Training," NAFI, Kennedy and Associates; Chicago, IL; August 17,

♦ "Rear Seat Lap-Only Belt Litigation," Jeffery Burke, Ralph Hoar, Ben Kelly, A.I.E.G.; Dallas, Texas; April 25-26,1992. ♦ "Hands-on Reconstruction Techniques," Fred E. Arndt and Mark Arndt A.I.E.G.; Phoenix, AZ; October 11-12,1991. ♦ ."Computerized Reconstruction," Fred E. Arndt, A.I.E.G.; Phoenix, AZ; October 11-12,1991. ♦ "A Brief Review of Motor Vehicle Accident Reconstruction," RobertJ. Caldwell, P.E., A. I.E.G.; Phoenix, AZ; October 11-12 1991.

♦ "Occupant Restraint and Protection," Don Slavik, A.I.E.G.; Denver, Colorado; April 19-20,1991. ♦ "Advance Fire Pattern Analysis," Ron Hopkins, NAFI; Chicago, Illinois; August 8-10,1990. "Human Factors and Safety Evaluation," Edward W. Karnes, Ph.D., ATVAdult Toys, A.I.E.G.; Phoenix, AZ; April 6-7,1990.

7/12/2007 Auto Fire &Safety Consultants, Inc. 18500Trails EndRd., Conroe, TX 77385 Off: 281.362.0930.Fax: 281.362.1329 Cam Cope, Cum'culum Vitae

♦ "Chemistry and Incendiary Devices," Rolfe Scofield PhD.; "Searching Diagramming and Evidence Collection at the Fire Scene," Sgt. Gene Deck; "Fire Pattern Analysis," Patrick Kennedy, Ph.D., NAFI Seminar Chicago, Illinois; September9-11,

♦ "Photography In Fire, Arson and Explosion Investigation," Patrick Kennedy, PhD., NAFI Fire School; Chicaqo Illinois- September 11,1987. '

♦ "Fire and Safety Engineering Technology," Ron Hopkins, Eastern Kentucky University; Richmond, Kentucky; September 1987.

♦ Sm AfS°n and Explosion Trainin9>" A.J. Scardino, Ph.D., and John Odom, P.E., NAFI; Chicago, Illinois; September17-19, 1986.

7/12/2007 Auto Fire& Safety Consultants, Inc. 10 18500 Trails End Rd., Conroe, TX 77385 Off: 281.362.0930*Fax: 281.362.1329 Auto Fire & Safety Consul;

Report Relative to the Matter of

Daniel Sixta

AFSC # 07152

Prepared for: Janet Koski 8708 Harney Omaha, NE 68114

c/o Daniel Sixta 1143232 Neal Unit 9055 Spur 591 Amarillo, Texas 79107-9696'

Date of Accident: 02/21/02

Time of Accident: 10:59 PM

Location of Accident: 11000FM1960 West Houston, Harris County, Texas

Auto Fire and Safety Consultants 18500 Trails End Rd. Conroe, Texas 77385 281-362-0930 1.0 RECONSTRUCTION

The main objective of this accident reconstruction was to properly conduct a(n): 1. Collision Analysis, 2. Injury Analysis, 3. Accident Avoidance Analysis, 4. Injury Avoidance Analysis, and 5. Accident Causation Analysis.

With respect to my investigation relating to the vehicle dynamics utilizing accident reconstruction principals of the accident in this case, my methodology consisted ofthefollowing: Ireviewed thefacts ofthecase which included scene photographs, witness statements, accident report, documents, reconstruction thoughts and calculation. I then applied my knowledge in accident investigation, which I have obtained in my many years of evaluating and reconstructing accidents to detennine how the accident occurred and to evaluate the above listed objectives of accident reconstruction.

The purpose of this investigation and analysis is to evaluate and determine if the above referenced accident was scientifically and professionally conducted in fairness to all drivers and occupants of the vehicles involved. The accident reconstruction should be able to discuss-how the accident occurred, determine the pre-impact, impact and post impact speeds ofthe vehicles. The reconstruction should also discuss the changes in velocity (delta-V) which assist in the evaluation ofthe injuries and the performance ofthe vehicles. The investigation should also evaluate and discuss the possibilities ofevasive.action, driver's perception/reaction, timing and defensive driving.

The main objective ofaccident reconstruction especially in accidents that may involve civil orcriminal litigation is to determine what happened immediately before, during and after the accident Established principles and scientific methodology should be followed by the accident reconstruction professionals. This analysis and accident reconstruction should have included thefollowing specific objectives ofaccident reconstruction:

1. Speed ofvehicles during pre-trip, trip, and post-trip phases totheaccident; 2. Motion ofthe ofthe vehicles during pre-trip, trip and post-trip phases oftheaccident; 3. Accident severity; 4. Vehicle deformation; 5. Accident scene geometry; 6. Potential avoidance scenarios; 7. Vehicle deceleration rates; 8. Driver actions including reaction time, perception and visibility; and 9. Contributing factors andcauses ofthe accident.

For this accident we were determining the traveling speed ofDaniel Sixta, the driver ofUnit 1/Toyota 4-Runner, and the events that resulted in the death of Maratha Alford.

2.0 Materials Reviewed

The materials relied upon in reviewing this casearelisted in this section. In addition, my education, training, and experience in accident reconstruction, the following sources ofinformation and activities were utilized to form my observations and findings. Additional materials forming the basis of the undersigned opinions include many documents reviewed and general literature, knowledge ofaccident reconstruction and products associated with vehicles.

1. Accident Report prepared byOfficer D.T. Pearson, Harris CountySheriff Office; 2. Police Photographs ofUnit 1/1994 Toyota 4-Runner 3. Photographs of Unit 2/ 2001 Ford Focus SE 4. Photographs ofaccident scene provided by Harris County Sheriffs Office; 5. Trial testimony of: a. Officer D.T. Pearson;

Applicable Standards, and Reference Materials

7. Forensic Aspects ofDriver Perception and Response, byPaul L. Olson; 8. Motor Vehicle Accident Reconstruction and Cause Analysis, 5ft Edition, by Rudolf Limped; 9. .LawEnforcement Guidelines; 10. Engineering Dynamics Corporation (EDC) related articles, publications, and research associated with the Software; 11. All Data - service bulletins, etc.; 12. Society ofAutomotive Engineers publications; 13. ANSIstandards; 14. National Highway Transportation Safety Association (NHTSA) Technical Service Bulletins; and, 15. Any. and all prior case documents, photographs, reports, evaluations, studies, exemplar vehicles and designs.

During my career and as a part ofmy Training and Experience, 1have reviewed an extensive number of publications, journals, manufacturer documents, depositions, test results, SAE publications and various other documents and literature related tothe Reconstruction ofthe Accident. The list below is a small sample ofthe materials that have been apart of mycareer in the area of motorvehicle accidents.

16. Vehicle Structure/Exterior and Chassis Theme Group; 17 Fundamentals of Vehicle Dynamics, Thomas D. Gillespie, SAE R-114; 18. Vehicular Accident Investigation and Reconstruction, Donald J. Van Kirk, CRC Press; 19. Vehicle Accident Analysis and Reconstruction Methods, Raymond M. Brach and R. Matthew Brach,SAER-311; 20. SAE Accident Reconstruction Technology Collection on CD-ROM ARCD2004; 21. Automotive Vehicle Safety, byGeorge A. Peters and Barbara J. Peters; 22. Automotive Safety Handbook, byUlrich Seifferi and Lothar Wech, SAE R-325; . 23. Highway Vehicles Safety Database onthe Worid Wide Web andCD-ROM; 24. Recent Developments in Automotive Safety Technology, by Daniel J. Holt, PT-119; 25. Texas Department ofPublic Safety Driver's Handbook; 26. Texas Law forLaw Enforcement Officers; 27. Texas Driving Procedures; 28. Physical Forces Affecting and Automobile in Motion; 29. Human Factors in Traffic Safety, byRobert E.Dewar andPaul L. Olson; 30. Forensic Aspects ofVision and Highway Safety by Merrill J. Allen, O.D., Ph.D., Bernard S. Abrams, O.D., Arthur P. Ginsburg, Ph.D., and Leslie Weintraub, O.D.; 31. Accident Investigation Quarterly, Issue 40, Fall 2004; FMVSS 207, Seating Systems; 32. Vehicle Crash Mechanics, by Matthew Huang, CRC Press, SAE; 33. NHTSA Defect Investigation Report, Sept. 14, 2000; 34. FMVSS Standard 208, Occupant Crash Protection; and, 35. Collision Performance, LM Safety Car, by Derwyn M. Seven/, SAE 670458; 36. "Rollover, Side and. Rear Impact," SP18800, SAE International, March 2004; 37. Tires, Suspension and Handling, SAE R-168 2nd Edition, Dixon. 1—I

Additional materials forming the basis of the undersigned opinions include materials on Fundamentals of Vehicle Dynamics, knowledge and references in the field of accident reconstruction, and research associated with acts of Other Similar Incidents (OSI's). These various materials have been incorporated into my research and experience regarding this accident.

3.0 Scene

Aerial Photograph ofthesceneofaccident is an important partofthe reconstruction

4.0 Introduction and Review of Accident Report of Officer D.T. Pearson

This report represents an accident that occurred on 02/21/02, at approximately 10:59 PM at 11000 FM 1960 W. Houston, Ham's County, Texas.

This accident occurred at night on aconcrete roadway. Weather conditions were cloudy. The posted speed limit was 45 mph.

Vehicle/Unit 1was a Green 1994 Toyota 4-Runner/ith VIN JT3VN29V9R0023232 and TX license plate number 02TXHN4428. This vehicle was driven by Daniel J. Sixta of 5903 Cape Hatteras Dr., Houston, Texas 77041. Daniel J. Sixta's date of birth is listed as 09/09/60, and his/her TX driver's license number is 12056603. The owner of this vehicle islisted as Daniel J. Sixta of5903 Cape Hatteras Dr., Houston, Texas 77041. This vehicle is herein referred to as "Unit 1/1994Toyota 4-Runner".

Occupant's Position Name Injury

Driver Daniel J. Sixta Non-incapacitating Right Front Carolyn Haydel Possible Injury Vehicle/Unit 2 was a 2001 Blue Ford Focus SE with VIN 1FAFP34P01WZ41205 and TX license plate number 02txl16pfp. This vehicle was driven by MartfiS Afford of 10730 Glennora #113, Houston, Texas 77065. Martha Alford's date of birth is listed as 07/01/57, and his/her TX driver's license number is 09444841. The owner of this vehicle is listed as Enterprise Rent a Car. This vehicle isherein referred to as "Unit 2/2001 Ford Focus SE".

Driver artha Afford Incapacitating injury Right Front liiinda Coble Fatality

The accident report gives the narrative opinion of Investigating Officer D.T. Pearson asfollows: "Unit 1 was traveling W/B on FM 1960 W in the middle lane and crossed the intersection ofJones ona green light. Unit 2 was E/B in the left turn lane and made a left turn in the path ofUnit 1. Unit 1braked prior to striking Unit 2 with FR and RP. Unit 2states that she did not see Unit 1approaching"

4.0 Vehicle inspections

Unit 1/1994 Toyota 4-Runner side view i I u

Unit 1/1994Toyota 4-Runner showing right front fender anddamage showingoffset collision to passenger side not a direct frontal impact, mostlikely indicating thatthe driver of this vehicle was steering to the left as a possible evasiveaction. This vehicle shows little damageto the drivers side ofthe vehicle.

•&

Unit 2/ 2001 Ford Focus SE passengerside impact,which is important asto the crush damage and injury mechanism for the passenger

5.0 Vehicle data information

The auto stats areattached tothis report for Unit 1/194Toyota 4-Runner and Unit 2/2001 Ford Focus SE.

6.0 Findings and Opinions

The following findings and opinions offered with regards tothis case arefrom the information available tome at the w time this report is written. These opinions and finding also address some of the reconstruction methodology that^hay * have been over looked or not discussed at trial and may have changed the result and opinions. \ 1. Daniel Sixta, driver of Unit 1/1994 Toyota 4-Runner, was traveling at approximately 45-53 mph before braking. 2. Police investigation indicates that the driver of Uifit 1/1994 Toyota 4-Runner braked. Prior to impact 3. Police investigation failetf to address the evasive action by Unit 1/1994 Toyota 4-Runner, this is based on theactual damage toboth units. 4. Police investigation failed to address the speed ofUnit 2. (stopped and turned ordidn't stop and increased speedtocrossin front of Unit Iratherthan wait) 5. Mr. Sixta experienced a Delta-V ofapproximately 22mph upon impact based on crush measurements and computer simulations using EDCRASH and EDSMAC. 6. The police investigation only provided momentum calculations, which don't appear to account for crush or damage to the vehicle. 7. Discussions related to non injuries in Unit 1 vs.deathin Unit 2. 8. Texas State defensive driving courses teach don't drink and drive but equally teach look before turning and defensive driving. 9. Ismaximum punishment related tomaximum fault.? 10. Martha Alford, the driver ofUnit 2/ 2001 Ford Focus SE, experienced a Delta-V of approximately 30mph upon impact. '11. Martha Alford, the driver of Unit 2/ 2001 Ford Focus SE failed to yield right of way to east bound traffic. (Investigating officer indicated the driver ofUnit 212001 Ford Focus SEwas in the middle lane making a left turn, this should have been addressed) 12. The driver of Unit 212001 Ford Focus SE stated to investigating officers that she never saw Unit 1/1994 Toyota 4-Runnerthe oncoming east boundtraffic. 13. No evidence was presented ordiscussed related tofailure to yield right away, of Unit 212001 Ford Focus SE. 14. No evidence was presented or discussed related to noevasive action by Unit 2/2001 Ford Focus SE. (no braking orsteering was determined) 15. No discussion were provided or reviewed that showed evidence that any vehicle traveling with the flow of traffic in the east bound lanes would have beencapable of avoiding this accident. 16. Facts remain in our profession that certain levels ofalcohol in thehuman system areillegal when operating a motor vehicle. Theeffects ofalcohol on the drivers andpassengers ofmotor vehicles should be evaluated to determine theresponsibility ofall parties and products. What input did the passenger have in the accident or avoidance of the accident.? * 17. Driver ofUnit 2/2001 Ford Focus SE failed to keep a proper look out. ( never saw Unit 1/1994 Toyota 4- Runner, yetno visibility factors were discussed) 18. A reasonable and prudent driver with a reaction time of approximately 1.5 seconds would most likely not have been able to avoid the impact to Martha Alford's vehicle. 19. It is my opinion that not only momentum calculations were conducted by investigating officers and should have been used in conjunction with crush measurements and accurately and fairly determining the speeds and Delta-Vs (changeof velocity) for the accident. 20. It is my opinion that the weather and road conditions at the approximate time of the accident should have beenconsidered when calculating the co-efficient offriction. 21. The type ofvehicle, road surface (wet for example) andlocation should beconsidered. 22. It is also my opinion that the integrity and structure of Unit 21 2001 Ford Focus SE should have been evaluated and made a part ofthe reconstruction to better evaluation ofthe injury mechanisms and assist in properly determining responsibility for injuries associated with the accident. 23. Unit 2/2001 Ford Focus SEwas not equipped with adequate side impact protection orside airbags that are available onsimilar sizedand yearvehicles. • 24. It is also my opinion that a jury trial without an Accident Reconstruction professional is highly unfair and would be almost impossible for anyaccused driver to receive a fair trial. 25. Should have hired an attorney and an accident reconstruction professional in serious accidents. 26. State should have provided funds for accident reconstruction professional. 27. Accident Reconstruction professionals should be able to address and discuss other similar instances in the evaluation ofsuch accidents. (Example: DPS Trooper impacts theside ofa vehicle that was crossing two lanes oftravel, as in Mr. Sixta's case, and itwas determined that the DPS Trooper did nothing wrong. Fault was placed on the other vehicle that failed to yield the right of way, failed to keep a proper look out, and failed to make a proper stop. The Reconstructionist was able toscientifically determine that the DPS vehicle was traveling 20 mph over thespeed limit, andfailed to display his lights, which resulted in the death ofone of the individuals in the vehicle that had the side impact.) This expert has worked for the plaintiff, defense and prosecutor in various cases, and has the opinion that a Reconstruction isimportant aswell as competent legal representation in any case involving accidents. Please note that these are my opinions atthe writing of this report and are based on the current sources of information and that Ianticipate and reserve the right to respond to those who might request further clarification of my opinions regarding the event or parties involved in the event. I also reserve the right to reexamine and alter these opinions . should new or additional information be provided or discovered during the course of the case through discovery, deposition, or any other form of information retrieval. Lastly, I reserve the right to correct any typographical errors, grammatical errors ormistakes detemiined during the evaluation, deposition or review ofthis report by the expert or other involved parties.

With respect to my investigation relating to the vehicle dynamics utilizing accident reconstruction principals of the accident in this case, my methodology consisted ofthe following: Ireviewed the facts ofthe case which included scene photographs, witness statements, accident report, documents, reconstruction thoughts and calculation. I then applied my knowledge in accjdent investigation, which I have obtained in my many years ofevaluating and reconstructing accidents to determine how the accident occurred and to evaluate the above listed objectives of accident reconstruction. I have also used Engineering Dynamics Corporation (EDC) software, with the aid of an on staff engineer, which includes, HVE, EDCRASH, EDSMAC and SIMON. The HVE simulation environment was introduced in 1996, for the 3-D user, with the 2-D simulations dating back to the 1980's and early 1990's. The 3-D, 5.0 version was developed as a sophisticated, 3-dimensional user environment for setting up and executing simulations involving humans and vehicles interacting with their environment. In 2001, SIMON along with DyMESH was introduced to provide simulation involving rollover and override, as well as other 3-dimensional collision issues. The HVE programs have been widely accepted by the Accident Reconstruction profession and has been widely published and peer reviewed. This program was used toformulate other plausible scenarios based on the evidence madeavailable. This report is based on my investigation as detailed in the above-referenced case. This report may be modified or amended as new information is gathered, learned, orproduced, regarding theabove-referenced case. Sincerely yours,

Cam Cope, CFEI, CFII, CVFI Aaron Zeamer, CVFI, CFEI President Fire Investigator Auto Fire &Safety Consultants, Inc. Auto Fire &Safety Consultants, Inc Dba Cam Cope Consulting Dba Cam Cope Consulting

CC/sr

Attachment CV . ,"'; EXPERT AUTOSTATS ." •; '''—'" Vex. 4:4.1w W Copyright 2004 - All Rights Reserved

AUTO FIRE & SAFETY CONSULTANTS 12066 CLARK LANE CONROE TX 77385

07-11-2007

1994 TOYOTA 4RUNNER (L4) 2DR 4X4 UTILITY

CURB WEIGHT: 3785 lbs 1717 kg, Curb Weight Distribution - Front: 54 % Rear: 46 %

Gross Vehicle Weight Rating: 5350 lbs. 2427 kg. Number of Tires on Vehicle: Drive Wheels: 4 Wheel Drive

HORIZONTAL DIMENSIONS Inches Feet Meters Total Length 176 14.67 4.47 Wheelbase: 103 8.58 2.62

Front Bumper to Front Axle 30 2.50 0.76 Front Bumper to Front of Front Well 9 0.75 0.23 Front Bumper to Front of Hood 3 0.25 0.08 Front Bumper to Base of Windshield 46 3.83 1.17 Front Bumper to Top of Windshield 68 5.67 1.73

Rear Bumper to Rear Axle 43 3.58 1.09 Rear Bumper to Rear of Rear Well 27 2.25 0.69 Rear Bumper to Rear of Trunk 5 0.42 0.13 Rear Bumper to Base of Rear Window 6 0.50 0.15

WIDTH DIMENSIONS

Maximum Width 67 5.58 1.70 Front Track " 5.9 4.9.2 1.50 Rear Track 59 4.92 1.50

VERTICAL DIMENSIONS nches Feet Meters Height 67 5.58 1.70 Ground to: Front Bumper (Top) 30 2.50 0.76 Headlight - center 35 2 .92 0.89 Hood - top front 40 3'. 33 1.02 Base of windshield 49 4.08 1.24

Rear Bumper - top 24 2.00 0.61 Trunk - top rear Base of rear window 47 ~3\92 T\19 .

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101 f~) EXPERT AUTOSTATS Pg.2 1994 TOYOTA 4RUNNER (L4) 2DR 4X4 UTILITY INTERIOR DIMENSIONS Inches Feet Meters Front Seat Shoulder Width 54 4.50 1.37 Front Seat to Headliner 39 3.25 0.99 Front Leg - seatback to floor (max) 42 3.50 1.07

Rear Seat Shoulder Width 54 4.50 1.37 Rear Seat to Headliner • 38 3.17 0.97 Rear Leg - seatback to floor (min) 32 2.67 0.81

Seatbelts: 3pt - front and rear' Airbags: NO AIRBAGS

STEERING DATA

Turning Circle (Diameter) 444 37.00 11.28 Steering Ratio: 17.50:1 Wheel Radius: 13 1.08 0.33 Tire Size (OEM) 225-75R15

ACCELERATION & BRAKING INFORMATION

Brake Type: FRONT DISC - REAR DRUM ABS System: ABS UNKNOWN

Braking, 60 mph -> 0 (Hard pedal, no skid, dry pavement) d = 138 ft t = 3.1 sec a =-28.0 ft/sec/sec G-force = -0.87 ACCELERATION:

0->30 mph t = 3.2 sec. a = 13.7 ft/sec/sec G-force = 0.43 0->60 mph t = 9.6 sec. a = 9.2 ft/sec/sec G-force = 0.28' 45->65 mph t = 4.8 sec. a = ,6.1 ft/sec/sec G-force = 0.19

Transmission Type: 5spd MANUAL NOTES:

Federal Bumper Standard Requirements = NO REQUIREMENT This vehicles Rated Bumper Strength: 5 mph

N.S.D.C. = 1990 - 1995

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101 EXPERT AUTOSTATS Pg.3

OTHER INFORMATION

TIP-OVER STABILITY RATIO = 1.10 REASONABLY STABLE NHTSA Star Rating (calculated)

CENTER OF GRAVITY (No Load): Inches behind front axle = 47.38 Inches in front of rear axle = 55.62 Inches from side of vehicle = 33.50 Inches from ground ' = 26.73 Inches from front corner = 84.32 Inches from rear corner = 104.15 Inches from front bumper = 77.38 Inches from rear bumper =98.62

MOMENTS OF INERTIA APPROXIMATIONS (No Load): YAW MOMENT OF INERTIA >555.55 lb-ft-sec~2 PITCH MOMENT OF INERTIA '582.20 lb-ft-secA2 ROLL MOMENT OF INERTIA 597.70 lb-ft-sec~2

FRONT PROFILE INFORMATION ANGLE FRONT BUMPER TO HOOD FRONT = 73.3 deg ANGLE FRONT OF HOOD TO WINDSHIELD BASE = 11.8 deg ANGLE FRONT OF HOOD TO WINDSHIELD TOP = 21.0 deg ANGLE OF WINDSHIELD = 36.0 deg ANGLE OF STEERING TIRES AT MAX TURN = 26.6 deg

FIRST APPROXIMATION CRUSH FACTORS:

Speed Equivalent (mph) of Kinetic Energy (KE) used in causing crush or indentation may be evaluated using the following formula, the appropriate Crush Factor (CF), and Maximum Indentation Depth (MID)., in feet:

V(mph) = Sqr root of (30 * CF * MID)

KE Equivalent Speed (Front/Rear/Side) = 21 CF

Bullet vehicle IMPACT SPEED estimation based on TARGET VEHICLE damage ONLY 27 CF (Tested for Rear/Side Impact only)

These CF.values are based upon analysis of NHTSA Barrier Crash data, and from over 1000 vehicle accidents where independant evaluation of speed was possible. (These are NOT 'A' •B\ . 'C*, or *G' values)

The Rear Impact data with more than 2-3 inches of crush damage should be looked at carefully,, since some vehicles have very weak trunk & fender strength. Therefore, on some cars, esp. GM, your estimate from the rear crush data may be high by as much as 4-5 mph (on a crush of 18 inches).

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101 <^J EXPERT AUTOSTATS ."*•. K~T' Ve'r. 4:4.1w >—i Copyright 2004 - All Rights Reserved

AUTO FIRE & SAFETY CONSULTANTS 12066 CLARK LANE CONROE TX 77385

2001 FORD FOCUS 4DR SEDAN

CURB WEIGHT: 2564 lbs 1163 kg. Curb Weight Distribution - Front: 6C % Rear: 40 %

Gross Vehicle Weight Rating: 3550 lbs 1610 kg. Number of Tires on Vehicle: 4 Drive Wheels: FRONT

HORIZONTAL DIMENSIONS Inches Feet Meters Total Length 175 14.58 4.44 Wheelbase: 103 8.58 2.62

Front Bumper to Front Axle 35 2.92 0.89 Front Bumper to Front of Front Well 20 1.67 0.51 Front Bumper to Front of Hood 5. 0.42 0.13 Front Bumper to Base of Windshield 43 3.58 1.09 Front Bumper to Top of Windshield 74 6.17 1.88

Rear Bumper to Rear Axle 37 3.08 0.94 Rear Bumper to Rear of Rear Well 23 1.92 0.58 Rear Bumper to Rear of Trunk 5 0.42 0.13 Rear Bumper to Base of Rear Window 20 1.67 0.51

Maximum Width 67 5.58 1.70 Front Track ' 59 4.92 1.50 Rear Track 59 4.92 1. 50

VERTICAL DIMENSIONS Inches Feet Meters Height 56 .4.67 1.42 Ground to: Front Bumper (Top) 22 1.83 0.56 Headlight - center 27 •• 2.25 0.69 Hood - top front 2 6 2.17 0.66 Base of windshield 38 3.17 0.97

Rear Bumper - top 28 2.33 0.71 Trunk - top rear 44 3.67 1.12 Base of rear window 45 3.75 1.14

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101 •,'"\ EXPERT AUTOSTATS .-''", Pg.2 I ' 2001 FORD FOCUS 4DR SEDAN

• INTERIOR DIMENSIONS Inches Feet Meters Front Seat Shoulder Width 54 4.50 1.37 Front Seat to Headliner 39 3.25 0.99 Front Leg - seatback to floor (max) 43 3.58 1.09

Rear Seat Shoulder Width 54 4.50 1.37 Rear Seat to Headliner 39 3.25 0.99 Rear Leg - seatback to floor (min) 38 3.17 . 0.97

Seatbelts: 3pt - front and rear Airbags: FRONT SEAT AIRBAGS ,

Turning Circle (Diameter) 432 36.00 10 97 Steering Ratio: 16.00:1 Wheel Radius: H 0 92 n 9« Tire Size (OEM): P195/60R15 ' ACCELERATION & BRAKING INFORMATION

Brake Type: FRONT DISC - REAR DRUM ABS System: ALL WHEEL ABS - OPTIONAL

Braking 60 mph -> 0 (Hard pedal, no skid, dry pavement): •d - 130 ft t = 3.0 sec. a =-29.7 ft/sec/sec G-force = -0.92 ACCELERATION:

n'lln mP? 5 = H SeC/ a = 15'7 ^/sec/sec .G-force = 0.49 0->60 mph t = 9.3 sec. a = 9.5 ft/sec/sec G-force = 0.29' 45->65 mph t= 5.2 sec. a «. 5.6 ft/sec/sec G-force = o!18 Transmission Type: 5spd MANUAL NOTES:

Federal Bumper Standard Requirements = 2.5 MPH This vehicles Rated Bumper Strength: 2.5 mph

N.S.D.C. = 2000 - 2004

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:.04R-010716AQ04101 i /' EXPERT AUTOSTATS Pg.3

' OTHER INFORMATION

TIP-OVER STABILITY RATIO = 1 34 STABL NHTSA Star Rating (calculated) •fr •*" ~k -k

CENTER OF GRAVITY (No Load): Inches behind front axle 41 .20 Inches in front of rear axle = 61 .80 Inches from side of vehicle = 33 .50 Inches from ground = 21 98 Inches from front corner = 83 24 / Inches from rear corner = 104. 32 Inches from front bumper = 76. 20 Inches from rear bumper = 98. 80

MOMENTS OF INERTIA APPROXIMATIONS (No Load) YAW MOMENT OF INERTIA 1434.92 lb-ft-sec/N2 PITCH MOMENT OF INERTIA 1389.36 lb-ft-secA2 ROLL MOMENT'OF INERTIA 311.52. lb-ft-secA2

FRONT PROFILE INFORMATION . ANGLE FRONT BUMPER TO HOOD FRONT 38.7 deg ANGLE FRONT OF HOOD TO WINDSHIELD BASE 17.5 deg ANGLE FRONT OF HOOD TO WINDSHIELD TOP 22.1 deg ANGLE OF WINDSHIELD 27.3 deg ANGLE OF STEERING TIRES AT MAX TURN 27.3 deg

Speed Equivalent (mph) of Kinetic Energy (KE) used in causing crush or indentation may be evaluated using the following formula, the appropriate Crush Factor (CF), and Maximum Indentation Depth (MID), in feet:

Bullet vehicle IMPACT SPEED estimation based on TARGET VEHICLE damage ONLY 27 CF (Tested for Rear/Side Impact only) These CF values are based upon analysis of NHTSA Barrier Crash data, and from over 1000 vehicle accidents where independant evaluation of speed was possible (These are NOT 'A', 'B' or 'G' values)

The Rear Impact data with more than 2-3 inches of crush damage should be looked at carefully, since some vehicles have very weak trunk & fender strength. Therefore, on some cars, esp. GM, your estimate from the rear crush data may be high by as much as 4-5 mph (on a crush of 18 inches).

Reg. To: AUTO FIRE & SAFETY CONSULTANTS S/N:04R-010716AQ04101 Auto Fire & Safety Consultants

Cam Cope Expert Testimony

♦ 03-22236; Artemio Ceballos Salinas, et al v.Ace Transportation, et al; 12th Judicial District Court of Walker County, Texas; October15,2007; Trial

♦ 75988D; Drusilla M. Boudreaux, et al v. Gonzales Tire Co., Inc.; In the 23rd Judicial District Court of Ascension Parish, LA; October 3,2007; Trial

♦" Debbie Hunter, et al v. Ford Motor Co., Inc.; In the 170th Judicial District Court of McLennan County, Texas, August 28, 2007, Deposition

♦ Cause No. 06-C-285; Floyd Screws v. Hughes Springs ISD; In the 5th Judicial District Court of Cass County, Texas, August 16,2007, Deposition

♦ Cause No..6275 &6276; The State of Texas v. Rusty Horton, In the Judicial District Court of Sabine County, Texas, June 25-29,2007, Trial

♦ Cause No. 32,910; Donnisia Brown and Benjamin Brown v. Wal-Mart Stores, Inc and Paul Johnson; In the 149th Judicial District Court of Brazoria County, Texas, May 8-9, 2007, Trial

♦ Civil Action No. 50200938; Jack Dotterer, etal v. Whirlpool Corporation, etai; In the Circuit Court for Montgomery County, Tennessee at Clarkesville, Tennessee, February 12-13, 2007, Deposition ♦ 2006-04168; Connie Mosier, Individually, Gary Mosier, Individually, and as the sole heirs of Christopher Mosier, and on behalf of the Estate of Christopher Mosier v. John Michael Reed, Individually and J.M. Reed Plumbing Co., Inc.; In the 234th Judicial District Court, Harris County! Texas, February 16,2007, Deposition Ca—)Cope Expert Testimony Q ♦ 5020049; Kiefer, et al v. Whirlpool Corporation, et al; Montgomery County, Tennessee February 12 and 13,2007, Deposition

♦ 35539; Ronald Ocmand and Cynthia Ocmand vs. General Motors Corp., et al; Division A- 18th JDC, for the Parish of West Baton Rouge, Louisiana, December 6, 2006, Deposition ♦ 01 -CV-288; Donald Oelke v. Rosemurgy Motors, et al; Marathon County, Wisconsin, November 16 2006, Trial

4 N. 862449; Liem Xuan Pham v. Evelyn Hall and AldJne Independent School District, In the County Civil Court atLaw No. 1, Harris County, Texas, November 13, 2006, Trial

♦ Debbie Hunter, et al v. Ford Motor Co., Inc.; In the 170th Judicial District Court of McLennan County, Texas, October 10,2006, Deposition

♦ No. 10,887; Cheryl Pearson, Individually and as the Representative of the Estate of Christopher Pearson, Deceased and Carol Fleenor, Individually and as Guardian on Behalf of Jonathan Pearson and Joseph Pearson, Minors v. Mack Trucks, Inc., McNeilus Truck Manufacturing September 27,2006, Deposition

♦ Cause No. 75998D; Drusilia M. Boudreaux, Individually and on Behalf of her Minor Child, Donavan Lance Mapes and Matthew Adams Mapes v. Gonzales Tire Company, Inc., Michelin North America, Inc., DBA Michelin Americas Small Tires; Mitsubishi Motors North American, Inc., and Dale Thomas; In the 23^ Judicial District Court for the Parish of Ascension, State of Louisiana Division D; July 6, 2006, Deposition

♦ Cause No. DV05-02945-A; Marcella Pesina-Narvaez, et al v. Uniroyal Goodrich Tire Company, et al; In the A-U*1 Judicial District of Court of Dallas County, Texas; June 22, 2006, Deposition

♦ State of Texas v. Robert D. Clough; Judge Michael. May, 410th Judicial District Court of Montgomery County, Texas; May 22,2006, Trial

♦ Cause No, 5-05CV0105-C; Diaz, Mendy, Individually and as Next Friend of Emilio Vasquez, Cody Vasquez and Destiny Diaz, Minor Children v. Continental Tire North America, Inc.; In the United States District Court for the Northern District ofTexas, Lubbock Division; May 9, 2006, Deposition ♦ Cause No. 2005-17546; Raleigh L Woodard and Beatrice Collins v. Ford Motor Company and Texas.Instruments, Inc; In the'55th Judicial District Court; Harris County, Texas; February 23, 2006, Deposition

♦ Cause No. D-173,795; Margaret Piatt Thorne, Individually and as Independent Executrix of the Estate of Martha Merrill Piatt, Deceased and Clyde Piatt, Individually v. Parigi &Messina, Ltd.; In the 136th Judicial District Court of Jefferson County, Texas; February 21,2006, Deposition ' ♦ Cause No. 1:03CV592M; Shelter Insurance Company, et al. v. Mercedes Bern, USA; United States District Court, Northern District of Mississippi; February 7-8,2006, Trial 10/22/2007 Auto Fire &Safety Consultants, Inc. • 2 Cafrrtope Expert Testimony —

♦ Cause No. 345,460; In Re: Estate of William Thomas Gorden, Deceased; In the Probate Court Number Three, Harris County, Texas; January 31, 2006, Deposition ♦ CV No. 04-1715; Thomas Fielder, et al v, Graco Children's Products, Inc; Judge Melancon- Magistrate Judge Hill; United States District Court Western District of Louisiana, Lafayette- Opelousas Division; January 16,2006, Deposition

♦ Cause No. 03-60929-4; Shirley Watson, et al v. Leon Zimmerman; Law Number Four Nueces County, Texas; December 13-14, 2005, Trial '

♦ Cause No. 2003-38188; Richard Fielder, et al v. Cernex, Houston Shell, et al., 281** Judicial District Court of Ham's County, Texas; December 9,2005, Deposition

♦ Cause No. 04-07-05973-CR; State of Texas v. Charles Crawford; 284th Judicial District Court of Montgomery County, Texas; December 1, 2005, Trial

♦ Estate ofAlvaro Zamorano; November 8, 2005, Deposition

♦ Cause No. 03CV0006; Molly Fitzgerald, as Representative of Minors Cassidy Ann Sandoval Austin Sandoval, Patrick Sandoval, Heirs of Marcus Sandoval, et al. v. Sun Builders, et al; In the 405th Judicial District Court, Galveston County, Texas; October 19,2005, Deposition ♦ Cause No. CV67500; Anthony Blake, Individually and As Heir to Andrea Blake, Deceased v. Daimler-Chrysler, 333rd District Court of Harris County, Texas; July 25, 2005, Deposition ♦ Civil Action No. CV04-1144; Shawn Douglas and Paige Brown v. General Motors Corporation- Julv 22,2005, Deposition ' y

♦ Cause No. 2004-202; David Lea Reid, Plaintiff v. Daphne Allen, as Personal Representative of the Estate ofJaicey Lynn Roberson Deceased, Defendant in the District Court of Rusk County Texas 4th Judicial District; July 20,2005, Trial

♦ Cause No. 198,121-C; Rachelle Chronister, Individually and on behalf of the Estate of Kathy Johnson, Deceased, Plaintiffs, v. Ford Motor Company and Cleo Bay, Ltd. D/B/A Cleo Bay Used Cars, Defendants; July 18,2005, Deposition.

♦ Cause No. 1:03CV592M; Shelter Insurance Company, et al. v. Mercedes Benz, USA; United States District Court, Northern District of Mississippi; May 26, 2005, Deposition

♦ Cause No. 153-199296-03; Judith McFarland, Individually and on behalf of the Estate of Katy McFarland, Deceased, v. Volvo Cars of North America, Inc., AB Volvo, Volvo Car Corporation and Juan Pantoja, Jr.; April 26, 2005, Deposition

10/22/2007 Auto Fire &Safety Consultants, Inc. Car^Cope Expert Testimony u^ ♦ Cause No. 03-L-2027; Dora Mae Jablonski and John LJablonski, Jr., as Special Administrator and Personal Representative of the Estate of John LJablonski, Sr., Plaintiffs, v. Ford Motor Company and Natalie S. Ingram, Defendants; April 11,2005, Trial by Jury, Jury Verdict in favor of Plaintiff ♦ Cause No. 2002-225.2; Elizabeth Lopez, Individual/y and On Behalf of Claudia Itzel Garcia, Ximena Lizbeth Garcia, And Yusemi Garcia, Minors, And on Behalf of the ESTATE of Gustavo Garcia Deceased, Plaintiffs vs. Stoneridge, Inc. Thomas G. Loeffler, Nancy Ann Loeffler, in the 327th Judicial District Court of El Paso County, Texas; April, 8, 2005, Deposition ♦ Cause No. 03-L-2027; Dora Mae Jablonski and John L Jablonski, Jr., as Special Administrator and Personal Representative of the Estate of John L Jablonski, Sr., Plaintiffs, v. Ford Motor Company and Natalie S. Ingram, Defendants; March 24,2005, Second Deposition

♦ Cause No. C2003388; Maria Salas, et al., as heir to Obdulio Hernandez, Deceased v. General Motors Corporation, and Durant Chevrolet, Inc.; February 3, 2005, Deposition ♦ Cause No. 03-05-16687-CV; Ruth Jeannette Moody, et al v. Hankook Tire America Corp., Hearne I.S.D., et al; January 7,2005, Deposition

♦ Cause No. 03-1294-JTM; David LDoonan,et al v. General Motors Corporation; District of Kansas- December 14,2004, Deposition

♦ Cause No. A-115,158; Rosario Fatima Salgado and Leticia Salgado Rojo, individually and as next friend of Socorro Ashley Salgado, a minor v. Ford Motor Company, et al.; 70th Judicial District of Ector County, Texas; October 20,2004, Deposition

.♦ Cause No. 2002-46146; Etna Lopez Garcia in the Estate ofMariano Juarez Garcia, etal v. Charles Anderson; September 7,2004, Deposition

♦ Cause No. 16082JG0. Dawn Winters v. Barbara Tribble, in the 239th Judicial District Court Brazoria County, Texas; August 17-18,2004, Trial

♦ Cause No. 03-L-2027; Dora Mae Jablonski and John L Jablonski, Jr., as Special Administrator and Personal Representative of the Estate of John L Jablonski, Sr., Plaintiffs, v. Ford Motor Company and Natalie S. Ingram, Defendants; August 10, 2004, Deposition

♦ Cause No. 20311-RM02; Jean Meyerson v. Key Energy Services, Inc.; District Court, Brazoria County, Texas, 149th Judicial District; August 5,2004, Trial

♦ Cause No. 20311-RM02; Jean Meyerson v. Key Energy Services, Inc.; District Court, Brazoria County, Texas, 149th Judicial District; June 22, 2004, Deposition

♦ Cause No. 2001-02048; Lorenzo Vargas Ramirez v. Mega Interest, Inc., doing business as Jet Wrecker Service and William Mark Sheppard, in the 55th Judicial District, Harris County Texas- April 24, 2004, Trial '

10/22/2007 Auto Fire &Safety Consultants, inc. Ca^Cope Expert Testimony ^ ♦ Cause No. C-2371-03D; Daniel Villareal &Georgina Villareal v. Eliodoro Tellez and Chico Trucking Co, Inc., District Court of Hidalgo County, Texas, 206th Judicial District; April 21,2004, Deposition ♦ Cause No. A-02-CA-720-SS; Juan Arguello, et al v. General Motors Corporation, in the Western District of Texas, Austin Division; March 4, 2004, Deposition ♦ Cause No. 2003; Xuan T. Vu and MTNV, Inc. v. Quan Van Pham d/b/a C.E. King Super Market, in the 280th Judicial District Court of Harris County, Texas; February 9,2004, Deposition ♦ Cause No. 2002-4829. Darreil Pettefer v. Progressive Security. Parish of Calcasieu, 14th Judicial District, Louisiana; January 14,2004, Trial

♦ Cause No. 16082JG0. Dawn Winters v. Barbara Tribble, In the 239th Judicial District Court Brazoria County, Texas; December 15,2003, Deposition

♦ Cause. No 03-00626-B; Andrea Aguilar and Rueben Barcena as Representatives of the Estate of Marcelo Barcena Aguilar, deceased v. Michael V. Higdon and Dr. Pepper Bottling Company, 1992 Pontiac Dallas County, Texas, 44th Judicial District; November 26, 2003, Deposition ♦ Cause No.: 01-CV-828. Donald v. Oelke v.-Ford Motor Company, et al. Circuit Court Branch III Marathon County, Wisconsin; November 21, 2003, Deposition

♦ Cause No. 2002-4829. Darreil Pettefer v. Progressive Security. Parish of Calcasieu, 14th Judicial District, Louisiana; October 27,2003, Deposition

♦ Cause No. 2001 -371 -CV; Manuel &Bema Sena Individually and as Guardians/Conservators of the person and Estate ofRomain Sena v. Arnold L Jacquez, et al. Santa Fe, New Mexico; October 22,2003, Deposition

♦ Cause No. 14,967; Lanita Harmes and Jason Kyle Endhott v. Michael Scott Milter. District Court Lampasas County, Texas; August 25,2003, Deposition

♦ Cause No. 01-05823; Randy E. Kenner, and Cindy Kenner v. Chrysler Motors Corp, et al. 192nd District Court, Dallas County, Texas; May 21,2003, Deposition

♦ Heloise Medine v.. General Motor, St. Bernard Parish, Louisiana; March 24,2003, Deposition ♦ Cause No. 2001-02048; Lorenzo Vargas Ramirez v. Mega Interest, Inc, doing business as Jet Wrecker Service and William Mark Sheppard, in the 55th Judicial District, Harris County, Texas- February 27,2003, Deposition

♦ Bagwell; January 27, 2003, Deposition

♦ Horacio Orozco, et al v. Park Village/Partners, LP. et al.; January 14,2003, Deposition

10/22/2007 Auto Fire &Safety Consultants, Inc. CawCope Expert Testimony ^ ♦. Cause No. 2001-CVE-000391-D1, 49* District Court of Webb County, Texas. Candido Arreola Virginia Arreola, Delia Sanchez, Jorge Meza and Norma Coria and Benjamin Guijosa Garcia Individually and on behalf of Ruth Guijosa Coria, Deceased v. Mauricio Juarez and Montemavo'r Trucking, Inc, October, 31, 2002, Deposition

♦ Cause No. 3-01-0232; U.S. District Court for the Middle District of Tennessee; Dianne Coggins Guardian and Next Friend of Lindsey Garretson v, KLLM, Inc, KLLM Transport Services Inc and Vernon Sawyer Transportation; September 18,2002, Deposition ♦ Cause No. A-000200-C, Teresa Kovatch v. West Orange Grove I.S.D. and Rickey Allen Ryan 244* Judicial District Court of Ector County, Texas; June 28, 2002, Deposition ♦ Cause No. A-165,158 in the 58th District Court of Jefferson County, Texas, Howard Pete v. David Wilson, James Thorpe d/b/a J&L Transportation; June 24, 2002, Deposition ♦ B&D Trucking, Inc. v. Brian J. Goodman for the law firm of Rose Walker, Dallas, Texas- April 29 2002, Deposition

♦ Cause No. 2000-48432; Homer Douglas Brown, Jr., Individually and as Next Friend of Ruby Brown, Deceased, and in his Representative Capacity as Administrator of the Estate of Ruby Brown, Deceased vs. Nathaniel Tramaine Bans, Frank Gillman Pontiac Co. and Gillman, Inc d/b/a Gillman Honda; In the 80th Judicial District Court of Harris County, Texas; March 26 2002 Deposition '

♦ Cause No. 31,225-98-6; Yolanda Tipps, tndividualfy and As Next Friend of Jason Donnell Tipps a minor, v. Gayle Marcus Hogue and Pilgrim Pride Corporation; in the Judicial Court of Anqeli'na County, Texas; March 11, 2002, Deposition

♦ Cause No. 98-3704; Heather Moran, et al v. General Motors Division B, 27th Judicial District Court St. Landry Parish, Louisiana; April 10,2001, Deposition

♦ Cause No. 99-00514; Johnny Ray Foley, as Wrongful Death Beneficiary, and as Heir to the Estate of Patricia Ann Foley, Deceased, v. Andy Tran; 280th Judicial District Court of Travis' County Texas; September 13,2000

♦ Cause No. 98-00099; Rafael Astacio v. General Motors Corporation, Commonwealth of Massachusetts Superior Court. Law firm was Cambell Edwards and Conroy, 1Constitution Plaza Boston, MA

♦ Cause No. 98-08441; Brett Fishburn and Christine Fishburn for Joseph Fishbum v. Warren E Collins, Inc. and Terry L Thompson; 157th Judicial District Court of Harris Countv Texas- September 15,1999

♦ Cause No. 109278, Patrick Day v. Kinsel Industries, 268^ District Court of Fort Bend County Texas

10/22/2007 Auto Fire &Safety Consultants, Inc. Ca^Cope Expert Testimony H ♦ Cause No. 97-561,021, Elwood Ellis v. Burlington Northern Santa Fe Railway Company the Citv of testa ) JdmeS A"an C°X' 'n thS 72"d D'StriCt C°Uri °f Lubb°Ck C°Unty' Texa* (Live

♦ oaUSeuNO--r?f980"7"TDj Memphis, TN JoneS V- Covenant TransPort &Daniel Beck, 13th Judicial District Court un, .

♦ JanisLynn Mann Jackson v. General Motors Corp &Burlington Northern Railroad CODA Enerav and Mobil Producing y/

♦ Cause No. C-2371-03D; Daniel Villarreal, et ux v. Eliodoro, et al; in the 206th Judicial District Court, Hidalgo County, Texas

♦ Cause No. 33.702-361; Paul Emola, efal. v. Mr. Coffee, Inc., et al; 361st Judicial District Court of Brazos County, Texas; September 19,1991

10/22/2007 Auto Fire &Safety Consultants, Inc. WLumG EXHIBIT TEN if/s^c/ 12 i MR. BARROW: I have no objections, You; 2 Honor.

3 THE COURT: State's 18 is admitted. 4 (State's Exhibit(s) No. 18 Admitted) 5 MS. STROUD: This is a stipulation of 6 evidence in which the defendant has stipulated tothos< 7 two priors.

8 THE COURT: All right. 9 MS. STROUD: At this time, the State would 10 call Martha Alford! >

11 THE COURT: You may proceed, Ms. Stroud. 12 MARTHA ALFORD, 13 having being first duly sworn, testified as follows.- 14 DIRECT EXAMINATION

15 BY MS. STROUD:

16 Q. fould you state your name for the record 17 A. Martha Alford.

18 Q. Ms. Alford, where are you from? 19 A. Born, you mean?

20 Q- Where were you born? 21 A. San Antonio, Texas.

22 Q. When did you come here to Houston? 23 A. In '78.

24 Q. Are you a little bit nervous? 25 A. Yeah. • 1 church? w

2 A. A little after 10:00.

3 Q. While you were at the church, did you have any 4 food or drink?

5 A. No.

6 Q. Prior to going ,to the church, had you had any 7 alcoholic beverages? 8 A. No.

•

9 Q. When you left the church, who left with you? 10 A. Linda.

11 Q- Was it just the two of you in your car? 12 A. Yes.

13" Q. And what kind of car were you driving? 14 A. A Ford Focus.

15 Q. And was that your car? 16 A. No.

17 Q. Whose car was it?

18 A. It was a rental car she rented. ^ 19 Q. So, Linda had rented the car. And were you 20 driving it?

21 A. Yeah.

22 Q. Can you tell the Court why you were driving and 23 not Linda?

24 A. Because it was raining and Lakewood Church was 25 real far from where I live, and she felt more comfortable 16

1 with my driving-'over there. -r' 2 Q. Was she used to driving in Houston? 3 A. No.

4 Q. When you left the church and you were driving, 5 where was Linda sitting? 6 A. On the passenger side. 7 Q. Did you have your seat belts on? 8 A. Yes.

9 Q. When you left the church, where did you and Linda 10 go?

11 A. We were going home, but sh

14 Q. You were going to Taco Cabana? 15 A. To get something to eat .

16 Q- And is this Taco Cabana on your way home? 17 A. Yes.

18 Q. Are you familiar with the area where Taco Cabana W

19 is located?

20 A. Yes.

21 Q- Martha, would a map of the' area that the Taco 22 Cabana is located, would it help you explain to the jury 23 where your car was that day? 24 A. Yeah.

25 MS. STROUD: Your Honor, may I approach? I ; is 1 remember stopping and looking in front of me since I was 2 not going at the light. The driveway is right before the! 3 light. I stopped, looked straight ahead and saw cars 4 stopped waiting for the turn.

5 Q. Martha, let me stop you there. 6 You indicated that you were in this lane 7 here; is that correct?

8 A. Yes.

9 Q. Referring to State's 17.

10 Now, was there a vehicle in front of you? 11 A. No.

12 Q. Was there anything in front, between you and the 13 red light for this intersection?

14 A. No.

15 Q. Can you tell the Court what cross street this is? 16 A. Jones.

17 .Q. Jones Road? -

18 A. Yes.

19 Q. In your opinion, is that a very busy 2 0 intersection?

21 A. Yes.

2 2 Q. When you were stopped here, getting ready to make 23. your turn, did you come to a complete stop or did you 24 slow down?

25 A. I stopped. 20

1 Q. You stopped. ~~

£••••• 2 And you stated there.were no vehicles in 3 front of you; is that correct?

4 A. Yeah.

5 Q. Do you remember seeing any other vehicles? 6 A. Yes .

7 Q. And where were they located?

8 A. One was directly in front of me over here

9 (indicating).

10 Q. And was he trying to also make a turn?

11 A. No. He had a red light.

12 Q. He had a red light?

13 A. He was stopped.

14 Q. But was he in a turn lane?

15 A. Yes.

16 Q. And anybody else?

17 •A. There was -- I'm not sure which lane, but either 18 here or here, there was another vehicle (indicating). 19 And they had a red light and they were waiting. 20 Q. And so, as you stopped, ready to make your turn 21 into the Taco Cabana, what do you remember happening? 22 A. I looked in front of me and saw the traffic. And 23 I looked towards the -- this lane that you can make a 24 right-hand turn on to make sure --

25 Q. Are you referring to this lane here (indicating)? 21

A. Yes

2 Q. Where this arrow shows a right-hand turn? 3 A. Because it's so close to the driveway of the Taco 4 Cabana that I am driving into, I wanted.to make'sure that 5 it was clear and when I turned --

6 Q. And after you turned, what happened? 7 A. My sister screamed out, Watch out. And I looked 8 at her and said, What?

9 And the next thing I saw was the grill of his 10 car at the window and the grill hit her and the glass 11 shattered. And I tried to catch her. I didn't see him. . 12 And that is all that happened. 13 Q. Martha --

14 A. Yeah.

15 Q. -- are you testifying that Linda had time to yell 16 out, Watch out, and you had time to respond and turn your 17 head and say, What?

19 Q. Before the vehicle hit your vehicle; is that 20 correct?

^21 A. No. Right as the impact — right when it hit. 22 Q. Is when you turned and said, What? 23 A. Yes. And it hit.

24 Q. And you said you tried to;catch Linda? 25 A. Yes. Because she was bouncing around. I EXHIBIT ELEVEN

REPORTER'S RECORD a'% ♦ VOLUME 6 OF 7 VOLUMES %.

5 DANIEL JAMES SIXTA IN THE DISTRICT COURT

6 Appellant

7 /

8 VS . HARRIS COUNTY, TEXAS

•9

10 THE STATE OF TEXAS

11 Appellee 351ST JUDICIAL DISTRICT

CD _€ 14 ^s'^£0oS'^0,v>• .- ********* * * ********* > —3 CO _£ __ f~- 2Z» O -XI

15 I* sc** a —c d ..—/ _,_

PUNISHMENT Orn _— —• ~; ^-*- £0*' en O —•;'. ...

16 cv 0&. ******************** __

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18 On the 13th day of December, 2002, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Mark Kent Ellis, Judge presiding, held in Houston, Harris 22 County, Texas:

23 Proceedings reported by computer-aided 24 transcription/stenograph machine.

25 1 APPEARANCES

4 MS. MARKAY STROUD

5 Assistant District Attorney 6 SBOT NO. 24000229

9 SBOT NO. 24008031

11 Houston, Texas 77002 '•

12 PHONE: 713.755.5800

18 1314 Texas Avenue, Suite 1300

25 1 (Open court, defendant present, no jury) 2 (Witnesses sworn)

3 THE COURT: Gentlemen, the Rule has been 4 invoked. That means you have to be outside the courtroom 5 unless you are testifying. You cannot talk to one 6 another about the testimony. You can only talk about it 7 here in court, so please step out in the hallway. 8 Here's the stipulation.

9 (Discussion off the record) 10 THE COURT: Mr. Sixta, I'm not -- whatever 11 happened last night, •obviously,' I'm glad you're alive and \ / 12 all that stuff, but that's not relevant to this hearing. 13 So, you're not to talk about it. Nobody is going to ask 14 you any questions about it. So, that's not relevant to 15 the decision the jury has to make. All right? 16 THE DEFENDANT: I understand, sir. 17 THE COURT: Okay. Bring me the jury. 18 (Open court, defendant and jury present) 19 THE COURT: Please be seated.

20 All right. Is the State ready to proceed on 21 punishment?

22 MS. SHIPLEY: We are, Your Honor.

23 THE COURT: Defense ready to proceed on 24 punishment?

25 MR. BARROW: Yes, sir. EXHIBIT TWELVE

REPORTER'S RECORD % # VOLUME 6 OF 7 VOLUMES %Ml TRIAL COURT CAUSE NO. 923949

8 VS HARRIS COUNTY, TEXAS

^A?*f9 CD 14 CO ******************** > _£ za O-X' 2J> c~> —C d —r ... 15 Orn — .—-. ^Z- PUNISHMENT .

cn —' —:

16 ******************** __

-D no 17 CO ••

r" O JT" (./'j cn at 18 On the 13th day of December, 2002, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Mark Kent Ellis, Judge presiding, held in Houston, Harris 22 County, Texas:

23 Proceedings reported by computer-aided 24 transcription/stenograph machine. 25 ___^ 36 1 Q. Mr. Sixta, when were you first aware that a 2 fatality had occurred on February the 21st of 2002? 3 A. After we were leaving the hospital, the deputy 4 informed me.

5 Q. So, and you heard -- that would be Deputy Smith? 6 A. Correct.

7 Q. And you heard all the testimony over the past two days of you showing no remorse, correct? 9 A. Yes, sir.

10 Q. The fact of the matter is, no one had informed 11 you that --

12 MS. STROUD: Object to leading, Your Honor. 13 THE COURT: Sustained.

14 Q. (By Mr. Barrow) The first time you understood 15 there was a fatality was when?

16 A. When I left the hospital with the deputy. : 17 Q. You were unaware at the scene?

18 A. Yes, sir.

19 Q. Did you ever even approach Ms. Alford's vehicle? 20 A. I didn't have an opportunity. I was trying to 21 help my passenger and the paramedics arrived and then the 22 officer came and got me.

23 .X Q. Did you serve in the military, Mr. Sixta? 24 A. Y e s, sir .

25 Q. What branch? 37

1 A. The Marine Corps. 2 Q. And when was your service?

3 A. 1978 to the late 1980s.

4 Q. Honorably discharged? 5 A. Yes, sir.

6 Q. What rank did you achieve?

7 A. Corporal.

8 Q. Prior to February the 21st of 2002, were you 9 employed?

10 A. Yes.

11 Q. And what was your employment? 12 A. I owned the Guardian Fence Company and Sixta 13 Access Systems.

14 Q. And could you briefly describe what your job . 15 entailed?

16 A. I specialized in installations of access 17 equipment, automatic gates, telephones, surveillance 18 cameras, electronics dealing with such. 19 Q. How do you feel about the events that occurred on 20 February 21st, 2002, Mr. Sixta?

21 A. I've been devastated every day. If I could, I 22 would replace her life with my own. 23 MR. BARROW: Pass the witness.

24 THE COURT: Ms. Stroud.

25 MS. STROUD: Thank you, Your Honor. EXHIBIT THIRTEEN

COURT OFCRIMINAL APPEALSACTIVITY: FY 2013 Pending: Cases Pending: maen1 Added TendanPecket Dftposjaons wwan Regular Appeals Direct Appeals: Death Penalty 17 S 25 10 15 DNA Appeal-Death Sentence 0 4 4 3 Habeas Corpus _ Extraordinary Mailers IS 209 224 215 9 OAerAppeah 2 3 5 3 2 Petitions for Discretionary Review {includes Granted MRU _ Reinstated) 328 1,470 1,798 1,491 307 Granted Petitions for Discretionary Review 64 121 1X5 102 83 Redrawn Pennons fer Discretionary Review 9 195 204 191 13 SUBTOTAL 435 2,010 2,445 2,013 432 ^/Applications for Writ ofHabeas Corpus U.07Writs (other tban death penalty) 597 4,288 4,885 4,473 412 11.071 Writs (deathpenalty) 24 43 67 54 13 Supplemental 11.07 Writs (other than death penally) 78 352 327 103 Supplemental 11.071 Writs (death penalty) 9 15 14 10 SUBTOTAL 768 4,698 5,406 4,868 538 OriginiAProceedings1 Writs ofCertiorari 0 7 7 7 0 Writsof Habeas Carpus 2 66 68 63 5 Supplemental ReceivedWrit ofHabeas Corpus 0 1 1 0 1 Writs ofMandamus 76 641 717 676 41 Supplemental Received Writ ofMandamus 29 219 248 209 39 Origmal_ Supplemental 11.071 Matters 0 10 10 10 0 Writs of Prohibition 1 S 9 7 2 Supplemental Received Writ ofProhibition 1 1 2 2 0 SUBTOTAL 109 953 1,062 974 88 Morions for Rehearing& Reconsideration Rehearing on Direct Appeal 1 5 5 0 Rehearing onRefused Pennons for Discretionary Review 3 60 63 61 2 Rehearing onGranted Petitions for Discretionary Review 5 10 15 15 0 Rehearing onHabeas Corpus (filed _ set) 1 12 13 13 0 Motions for Reconsideration (for original proceedings _ 11.07 &11.071 wits) 2 12 14 12 2 Motions for Stay ofExecution (for 11.071 writs) ] 6 7 5 2 SUBTOTAL - 13 104 117 111 Martens for Extensions of Time3 V 1,53$ 1^525 1,5-5 TOTAL 1,265 9^90 10355 9,491 1,063

PENDING CASE STATUS: FY 2013 9/1/2012 8/31/2013 Not Setfor Set/or Total Not Setfor Set/or Total Submission Submission Submitted PetuSn- Submission Submission Submitted Pending* Direct Appeal: Death Penally 9 2 6 17 8 1 6 15 Direct Appeal: DNAAppeal 0 0 0 0 2 1 0 3 yOther Appeals 0 0 0 0 0 2 1 V Direct Appeal: Habeas Corpus _ Extraordinary Matters 6 5 4 15 3 0 6 9 Granted Petitions forDiscretionary Review 16 11 44 64 28 10 45 83 TOTAL 31 18 54 103 41 12 59 112

I'^^^'Z^^J^*"****"*** Onuyn^cas-r^^cndofo* previous fiscal year (Angaa 31)dnc todocket adjustment*. -ttiginalprocccdjr^ arcfiledibtcetlywithIlKDim otX'^^ MANNER OF DISPOSITION: Appeals &Original Proceedings. FY 2013 Direct Appeals: Dismissed - Art. 11.07, Section 4 858 Death Penalty Ksmissed- Art 11.07, Tot.Gov. Code 5501.0081 SS Affirmed Dismissed 10 132 TOTAL: Death Penalty 10 Filed & set 182 Habeas corpus remanded for evidemiary faearing/affwim order 352 Death Pmahy - DNA Appeal Habeas carpus remanded ara>b^onprcn_tnreiy forwarded 11 Affirmed Habeas corpus remanded for report/findings 9 1 Other Appeals Habeas corpus remanded live hearing 4 3 TOTAL: Otter Appeals Habeas corpus returned to district clerk 4 1 Habeas corpusdismissed/Daniel 6 Habeas Carpus _ Extnwrdiluuy Matters Habeas corpus reliefdenied without written order 953 Habeas corpus application granted Habeas corpus reliefdenied with written order 57 180 Habeas corpus application denied 15 Habeas corpus reliefdenied with hrg on findings oftrial court 42 Habeas corpus application dismissed Habeas corpus reliefdenied wfo hrg on findings oftrial court 1,237 1 Habeas carpus denied in part and dismissed in part Habeas corpus demed/dtsmissed withorder 35 1 Mandamus conditionally granted Habeas corpus dismissed -juvenile matter I 10 Mandamus _ prohibition relictconditionally granted Habeas corpus dismissed - misdemeanor offense 5 2 Habeas corpusdismissed- moot Prohibition reliefgranted 39 1 Habeas corpus dismissed - sentence discharged 198 demanded to (rialcourt 3 Habeas corpus dismissed - community supervision not revoked Withdraw prior opinion - habeas corpus relief granted 2 Habeas corpus dismissed withwritten order 22

11 TOTAL: Habeas Corpus _ Extraordinary Matters 215 Habeas corpus dismissed for non compliance 236 Habeas corpusdismissed- Vbarra 79 TOTAL: Direct Appeals 22, TOTALMPPLICATIONS FOR WRIT OF HABEAS CORPUS S 4,800

Petitions forDiscretionary Review 11.071 AopifcatiotK far WritafHabeas Corpus 2 11.071 Writdenied/dismiss withorder 2 Granted 11.071Writ deniedwith writtenorder 117 27 Refused 11.071 Writ dismissed with order 1,090 26 Struck 11.071 Writ filed —set 230 6 Untimely 11.071Writ remanded with order 52 7 Withdrawn 0 TOTAL: 11.071 Applications for Writ ofHabeas Corpus 68 TOTAL: Petitions f«r Discretionary Review 1,491 Original Proceedings - Non Capital Granted Petitions for Discretionary Review Motion for leave to file denied without written ordcrV- 640 Affirmed court of appeals Motion Snr leave tofife held mabeyance with written order 26 228 Affirmed as reformed Motion for leave to file dismissed - Padilla 2 75 Affirmed court ofappeals, remanded totrial court Motion fe leave Co file denied withwritten order 4 I Court ofappeals, asmodified, affirmed Motion for leawto file abuse order entered 2 2 Dismissed as improvidentty granted Motion for leave to file dismissed asmoot 1 3 Dismissed Reversed court ofappeals, trial court reformed 2 4 Filcd&sct Reversed conn ofappeals, trial court reinstated 5 10 Reversed court of appeals, acquittal ordered TOTAL- Original Proceedings -NonCapital 964 2 Reversed court ofappeals &remanded to court ofappeals 23 Original Proceedings - Capital Reversed court ofappeals &remanded totrial court 6 Motion far leaveto filedismissed moot Reversed court ofappeals &affirmed trial court 11 Motion forleaveto file filed andset 3

Reversed court ofappeals _ trial court, remanded _ trial court 1 Motion for leave to file denied w/owritten order 3

Reversed court ofappeals Motionfor leaveto file dismissed 3 3 I Vacated court ofappeals &remanded to court ofappeals IS TOTAL: Original Proceedings 16 TOTAL.- Granted Petitions for Discretionary Review 102 Mortons lorReconsideration and Stay ofExecution Redrawn Petitions for Discretionary Review Motionforreconsideration denied 92 Granted Motion fbr reconsideration granted 4 3 12 Refused Motion fbrreconsideration—no action 3 187 89 Untimely Motion forreconsideration - dismissed 1_ 47' TOTAL: Redrawn Petitlm_ for Discretionary Review 191 Motion figstay nf wrecction denied Mil mder 5 TOTAL: Motkns far i-consHerarlou and Stay ofExecution 245 Applications for WritofHabeas Corpus Abuse ofwrit orderentered 22 Abuse ofwrit order previously entered 63 Dismissed-

EXPARTE ( IN THE 351st DISTRICT COURT

) OF

DANIEL JAMES SIXTA ( HARRIS COUNTY, TEXAS Applicant

APPLICANT'S PROPOSED FINDINGS OF FACT,

CONCLUSIONS OF LAW, RECOMMENDATION, AND ORDER

FINDINGS OF FACT

1. The expert evidence needed for Applicant's defense could have been obtained by Applicant's trial counsel, had he made the effort. His court-ordered affidavit makes clear that his effort fell short of that required by due process of law. He failed to talk to experts, and, he made no effort to gain further funds for that purpose.

2. The question in this case is not merely whether Applicant's new evidence ground satisfies the newly discovered evidence test; the application in this case shows that his innocence is "intertwined" with the violation of his constitutional right to due process of law. He was denied his defense.

3. Applicant's first two applications were filed by Applicant, pro se, and the record makes clear that he was ill-equipped to negotiate the habeas process.

CONCLUSIONS OF LAW

1. The record, together with the application when considered in its entirety, shows that relief should be granted. 2. Further, the Court has considered the Application for writ of habeas corpus, the State's answer, Applicant's response to the State's answer, and official court records in the above-captioned cause. The Court finds that the applicant has shown sufficient specific facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavailable; and that, by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex. Code Crim. Proc, Art 11.07, Sec. 4(a)

RECOMMENDATION

It is the recommendation of this Court that relief be GRANTED.

ORDER

THE CLERK IS ORDERED to prepare a transcript of all papers in cause no. 923949-C and transmit same to the Court of Criminal Appeals as provided by Tex. Code Crim. Proc, Art. 11.07, Sec. 3.

The transcript shall include certified copies of the following documents:

A. The applicant's Application for a Writ Of Habeas Corpus; B. The State's answer;

C. The applicant's Response to the State's Original Answer; D. The indictment, judgment and sentence and docket sheets in cause number 923949-C (unless they have been sent to the Texas Court Of Criminal Appeals pursuant to a post-conviction writ of habeas corpus order); E. The State's proposed findings of fact, conclusion of law and order; F. Applicant's proposed findings of fact, conclusions of law and order; G. The Court's orders re. the Application THE CLERK is further ORDERED to send a copy of this order to the applicant's habeas attorney, Ardon Moore, P.O. Box 133183, Tyler, TX 75713; and a copy to the counsel for the State, Ana M. Benavides, 1201 Franklin, Suite 600, Houston, TX 77002.

By the following signature, the Court adopts Applicant's Proposed Findings Of Fact, Conclusions Of Law, Recommendation, and Order in cause no. 923949-C.

Signed on this day of j 2014.

Judge Presiding

351st District Court

Harris County, Texas Cause No. 923949-C

EX PARTE ( IN THE 351st DISTRICT COURT

CERTIFICATE OF SERVICE

The undersigned counsel certifies that I have served a copy of APPLICANT'S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION, AND ORDER in cause no. 923949-C to the State's attorney on the day of , 2014, by mail to the listed address:

ANA M. BENAVIDES

Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600

Houston, Texas 77002

Ardon Moore Attorney At Law P.O. Box 133183 Tyler, TX 75713 Texas Bar I.D. No. 14390000 903-593-1116 Cause No. 923949-C

APPLICANT'S RESPONSE TO STATE'S ORIGINAL ANSWER

Applicant, DANIEL JAMES SEKTA, by his undersigned attorney responds to State's Original Answer as follows: I.

The State has launched the customary attack against an applicant's effort to obtain more than "one bite out of the apple." Tex. Code Crim. Proc. Art 11.07, Sec. (a). However, this harsh rule, which presents applicants with "Herculean" tasks, is satisfied by the facts presented in the application and record in this case.

H.

The purpose of the Habeas Corpus Reform Act of 1995 was to encourage all- inclusive initial applications. Ex parte Kerr, 64 S.W.,3d 414, 418 (Tex. Crim. App. 2002) The Act was meant to be restrictive, but not prohibitive. Applicant urges that wherithe rule is too strictly applied, especially with regard to pro se applicants, it becomes prohibitive, thus unconstitutional. (Applicant has made the rule's constitutionality an issue in his ninth ground.)

HI.

The record itself, as set out in the application, together with the affidavits, shows the failure of Applicant's trial counsel to provide a defense, a defense which was out there, waiting to be discovered and presented by him, the person constitutionally obligated to discover and present it. Yet, it was Applicant, himself, an "indigent," who was left to discover it for himself, after his trial, and in a time and manner showing acceptable due diligence. rv.

Further, in ground two of his application, Applicant shows that a constitutional error was "intertwined" with his actual innocence, a violation of his right to due process of law.

Also, Applicant has shown 1) that recently enacted Art. 11.073, Tex. Code Crim. Proc. appears to elevate the status of scientific evidence 2) that Applicant received no "heads-up" or advise from court or counsel regarding his habeas rights, and 3) that habeas action should be considered as a "collateral consequence of conviction" and thus inside the scope of trial counsel's representation.

VI.

Having been denied his defense, and found guilty as charged, he was then denied mitigating evidence which would have lessened his punishment. (This denial is made clear by the record.) There was no anecdotal evidence regarding Applicant's good qualities, no showing of anything in his life which might have caused his behavior, no attempt to humanize him, no showing of his long list of accomplishments. Art 37.01, Sec. 3, Tex Code Crim. Proc. is not that difficult to understand.

VH.

Further, Applicant's effort to kill himself the night before his punishment hearing together with its obvious effects on his body, did not go unnoticed by the trial court, as the judge remarked, "Mr. Sixta, I'm not - what ever happened last night, obviously, I'm glad you're alive and all that stuff..." The judge then admonished Applicant not to mention the incident before the jury. Then, remarkably, Applicant was pressed on to testify. (This is all supported by the record and the application.)

Vffl.

While the record shows that Applicant worked hard all his life, receiving many recognitions, both as a civilian and in the military (the jury heard none of it) the fact remains that he was unskilled in the law, and his first two applications, both pro se, failed. He was unable even to get his "FACTS" in the correct place on the writ-form. Now we are asked to find that his lack of legal training, his indigency, have doomed him, and that his receiving a fair trial and due process of law is a chancy endeavor.

rx.

The State raises questions which have been answered in the application. For example, Applicant has explained that the newly discovered evidence, although discoverable by his trial counsel, was left to be discovered by Applicant, himself. Applicant also has urged that this failure to present his defense violated his right to due process of law.

X.

For these reasons, and all the reasons before the Court in the application, the Court should consider the merits and grant relief based on the instant application for writ of habeas corpus. XI.

Service has been accomplished by sending a copy of this instrument to the following person at the following address:

Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002

SIGNED this day of May, 2014.

Respectfully submitted:

ARDON MOORE Attorney and Counselor at Law P.O. Box 133183 Tyler, TX 75713 Texas Bar I.D. No. 14390000 903-593-1116 FILED Chris Daniel District Clerk Cause No. 923949-C ^ Tim$:_l _j^_____ . / HarrWCwhf& TeKBF ^i ; / /Y/ /—. EXPARTE § IN THE 351st PISTELICTcCOURT OF i-y DANIEL JAMES SIXTA, Applicant § HARRIS COUNTY, TEXAS

STATE'S PROPOSED FINDINGS OF FACT. CONCLUSIONS OF LAW AND ORDER

The Court has considered the application for writ ofhabeas corpus, the State's answer, and official court records in the above-captioned cause. The Court finds

that the applicant has failed to include sufficient specific facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavailable; or that, by a preponderance ofthe evidence, but for a violation ofthe United States Constitution, no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. ll!07§4(a)(West2013). ORDER

THE CLERK IS ORDERED to prepare a transcript of all papers in cause number 923949-C and transmit same to the Court ofCriminal Appeals as provided by Tex. Code Crim. Proc. Ann. art. 11.07 §3 (West 2013).

a"' I

W The transcript shall include certified copies ofthe following documents: A. the applicant's Application for aWrit ofHabeas Corpus; B. the State's answer;

C. the Court's order;

D. the indictment, judgment and sentence, and docket sheets in cause number 923949 (unless they have been sent to the Texas court of criminal appeals pursuant to a post-conviction writ of habeas corpus order); ^.

E. the State's Proposed Findings of Fact, Conclusion of Law and Order- and '

F. the applicant's Proposed Findings of Fact, Conclusions of Law, and Order (if any).

THE CLERK is further ORDERED to send a copy of this order to the applicant's habeas attorney, Ardon "Ace" Moore, P.O. Box 133183, Tyler, TX 75713; and acopy to the counsel for the State, Ana M. Benavides, 1201 Franklin, Suite 600, Houston, Texas 77002.

By the following signature, the Court adopts the State's Proposed Findings of Fact, Conclusions of Law and Order in cause number 923949-C.

Signed on this j day of fJ I4 UL{ ?2014 /niA/L JUDGE PRESIDING ¥ t iU E& juf Chris Dank:' District Cierr

MAY IIIW. \ Cause No. 923949-C Time: LZ__-_ iReFriij Cosintypl'ojsfa osintjfiioj'

( ^4 Doputy\f. {' : / I )'• u

EXPARTE 1/ IN THE 351st DISTRICT COURT OF DANIEL JAMES SIXTA, Applicant HARRIS COUNTY, TEXAS

The undersigned counsel certifies that I have served a copy of the State's Proposed Findings of Fact, Conclusion of Law, and Order in cause number 923949-C to the applicant's habeas attorney on May 2, 2014, by mail to the listed address:

Ardon "Ace" Moore, Attorney at Law P.O. Box 133183 Tyler, TX 75713

Ana M. Benavides Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-6657 Texas Bar ID #24057467

i f)C£ lieOPS 0*2)513-IHt* 7?C&, HENDERSON v. Ex Parte Cathy Lynn HENDERSON.

No. AP-76925.

~ December 05, 2012

Jani J. Maselli, Houston, for Appellant.Carl Bryan Case, Jr., Asst. District Arty., Austin, for State.

OPINION

This is a subsequent application for writ of habeas corpus in a capital case, in which applicant asserted that she has newly available evidence that: (1) shows that she is innocent of capital murder; and (2) but for constitutional errors, she would not have been found guilty. On June 11,2007, we found that the application satisfied the requirements for a subsequent writ under Article 11.071, Section 5, and remanded the application to the triarcourt for further proceedings. We will grant relief and remand the cause for a new trial.

In accordance with our remand order, the trial court held an evidentiary hearing. Applicant presented the testimony of six expert witnesses. Reiving on new developments in.the science of biomechanics, these witnesses testified that the type of injuries that Brandon Baugh suffered could have been caused by an accidental short fall onto concrete. Dr. Roberto Bayardo, the medical examiner who testified at trial that applicant's position that Brandon's injuries resulted from an accidental fall was false and impossible, testified at the evidentiary hearing that he now believes that there is no way to determine with a reasonable degree of medical certainty whether Brandon's injuries resulted from an intentional act of abuse or an accidentalfall. The State presented five expert witnesses who testified that, notwithstanding the studies cited by applicant's experts, it was very unlikelythat Brandon's injuries were caused by an accidental short fall onto concrete.

Followingthe evidentiary hearing, the trial court recommended granting a new trial. The court found that all of the expert witnesses were truthful and credible. The court further found that Dr. Bayardo's re- evaluation of his 1995 opinion is based on credible, new scientific evidence and constitutes a material exculpatory fact. The trial court concluded that applicant has proven by clear and convincing evidence that no reasonable juror would have convicted her of capital murder in light of her new evidence.

In post-conviction habeas corpus review,this Court is the ultimate fact finder, but the trial judge is the original fact finder. As a matter of course this Court will defer to and accept the convicting court's findings of fact and conclusions of law, as long as they are supported by the record. This is particularly true in matters concerning the weight and credibilityof the witnesses and, in the case of expert witnesses,the level and scope of their expertise.

1 In this case, the trial court's findings of fact are supported by the record. Although we need not accept the trial court's conclusions concerning actual innocence, we accept the court's recommendation to grant relief and remand for a new trial.

CONCURRING OPINION

Back in|2007/I voted toallow the applicant inthis cause toproceed on the merits ofasubsequent writ application because I believed that her application contained previously unavailable specific facts sufficient to make out a prima facie case for a constitutional claim of actual innocence.1 Now that the applicant has had a chance to develop a record in support of her claim of actual innocence, I agree with bothJudge Keasler (and, implicitly, Judge Cochran) that her evidence falls short of satisfying the "Herculean""burden imposed on applicants making a bare claim of actual innocence under the standard we laid out in Ex parte Elizondo.2 And yet, the convicting court has recommended that we grant the applicant a new trial, and the State has declared itself content to go along with that ultimate recommendation^PWfite separately to explain why, particularly in light of my concurring opinion last year in Ex parte'Robbins;3l, too, am content to grant the applicant a new trial in this case—but on the basis of the inadvertent use of false evidence rather than actual innocence.

A bare claim of actual innocence and a claim that false evidence was inadvertentlyused to obtain a conviction both fall along a continuum of due process violations. At one end of the continuum is a claim that the State has knowingly used false or perjured testimony. Here, due process is primarily concerned with the fairness of the trial.* Because of the State's complicity in undermining the integrity of the process, the standard for materiality is comparatively low: a reasonable possibility that the false or perjured testimony contributed to the conviction.5 At the other end of the continuum is a bare claim of actual innocence. An actual innocence claim does not depend upon a showing of misconduct of any kind on the part of the State. The due process concern is with the accuracy of the result.6 For that reason, an actual innocence claim will result in habeas corpus relief only upon a showing of extreme materiality: the applicant must be able to show by clear and convincing evidence that, given the newly available evidence of innocence in addition to the inculpatory evidence presented at trial, no reasonable juror would have convicted trim.? And, as Presiding Judge Keller has advocated, and I agree, i"[t]he unknowing use of perjured or false testimony falls [or at least should fall] in between these endpoints, with a mid-level standard (or standard!) of materiality^8 Thus, as the particular due process claim moves from the fairness end ofthe continuum towardthe accuracy end,the standardfor materiality shouldrise concomitantly, culminating in the Herculean burden associated with a bare claim of actual innocence.

Though I do not think that the applicant has proven actual innocence in this case, I do believe that she has established that her conviction violated her rightto dueprocess.(She has proven to mysatisfaction that her conviction was based in critical part upon an opinion from the medical examiner that he has now disowned because ithas been shown by subsequent scientific developments to be highlyquestionable|ln Robbins, a non-death-penalty capital murder case, the applicant raised claims of actual innocence and the inadvertent use of false evidence. I joined the majority opinion denying relief on both claims, but wrote separately to express my view that, "when it comes to claims of the inadvertent use of false evidence, we must not be overly liberal in how we characterize 'false' evidence."^ One immediately obvious difference between Robbins and the instant case is that Robbins did not involve intervening scientific developments—the medical examiner in Robbins simply changed her mind between the time of her trial testimony and the post-conviction writ proceedings.10 Here, the medical examiner currently believes that intervening research in the science of biomechanics has undercut his trial testimony, and the convicting court has accepted that as a sufficiently accurate statement of the condition of current scientific/medical knowledge to justify the conclusion that the applicant's trial was rendered unfair—and quite possibly inaccurate—by the medical examiner's now-disowned trial testimony. Under these circumstances, I am far less hesitant to characterize the trial testimony as "false." \

, ^ Nor does ittrouble me that, when the applicant filed her subsequent writ application in 2007, she did not a include a false-evidence claim, per:se.=Having-fiJecLhersubsequent writ application two-and-a-half years I

^ My concurring opinion in Robbins was fueled by aconcern that the materiality standard we have applied ^— to claims oftheinadvertent use offalse or perjured evidence since Chabot may notbesufficiently stout. To my way of thinking, such claims fall closer to the accuracy-of-the-result actual-innocence end of the 5 continuum than the fairness-of-the-process State-complicity end. Accordingly, while a claim that the State inadvertently used false or perjured testimony should not be subject to quite the same Herculean standard of materiality as an actual innocence claim, still, if we are to recognize it as a valid due process claim at all, we should subject it to a materiality standard that is relatively high. I did not think that Robbins could meet such a high standard of materiality and believed that to grant him relief under the circumstances of that case would effectively undermine our actual innocence jurisprudence. I therefore voted to deny relief in Robbins.

By contrast, on the facts of this case, as detailed in Judge Cochran's concurring opinion, it is evident to me that the applicant can^meerpracfically^any-standard of materiality less than that applicable to a bare actual innocence claimTln Ex parte Chayez,Jjecently took theposition thatasubsequent post-conviction habeas applicant shouldTrotrbe permitted toproceed tothe merits of Wsluiadvertent-usej^-fdse^eviderice claim because, regardless of whatever standard of materiality we might apply,the subsequent applicant cc^d^^tposslbTy'Tneerit.1'* Inthis case, my view isjusttheopposite. While she cannot satisfythe Herculean materiality standard to satisfy a claim of actual innocence, the present applicant has demonstrated materiality under whatever marginally lesser standard we may care to carve out to govern a claim that due process has been violated by the inadvertent use of false evidence. That is enough to convince me that the Court appropriately adopts the convicting court's ultimate recommendation- acceded to by the State—to grant the applicant a new capital murder trial.

This case raises the same novel and difficult issue for the criminal-justice system that this Court faced, and, I maintain, fumbled in Ex parte Robbins:1 Changing science has cast doubt on the accuracy of the original jury verdict.2 Dr. Roberto Bayardo, who performed the autopsy of the victim in this case, testified unequivocally at trial that three-and-a-half-month-old Brandon Baugh "came to his death as a result of a severe closed head injury . characteristic of abuse, homicide." He concluded, without a scintilla of doubt, that the cause of Brandon's death was a severe closed-head injury and the manner of death was homicide. Dr. Bayardo was the State's star witness at trial on the cause and manner of Brandon's death. But, based on advances in the science of pediatric head trauma, he has since changed his mind: "Based on the physical evidence in the case, I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall." This scientific uncertainty about Brandon's manner of death raises an extremely serious concern about the accuracy of the original jury verdict.31 write separately to provide some factual context for the habeas judge's recommendation to grant a new trial, the State's decision to agree with that recommendation, and this Court's adoption of the habeas judge's findings of fact and ultimate recommendation.

On the morning of January 21,1994, Eryn and Melissa Baugh left their infant son, Brandon, with applicant, their regular babysitter.* That day, both applicant and Brandon disappeared. A kidnapping investigation began the next day. On February 1, applicant was arrested by the FBI in Kansas City. At first, applicant denied any knowledge of Brandon's location or well-being. Later, she stated that Brandon's grandmother, driving a car with Oklahoma license plates, picked him up during the afternoon of January 21. Eventually, applicant admitted that Brandon was dead, but claimed that his death was an accident. She also said that she had buried his body in a wooded area near Waco, that she had used a spade to dig the grave, and that she could take officers to his grave.

The single contested issue in the 1995 capital-murder trial was whether applicant intended to kill Brandon or whether she recklessly, negligently, or accidentally caused his death. In her statement, applicant contended that Brandon's death was an accident-he accidentally fell from her arms onto a linoleum- covered concrete floor.5The State's primary evidence to prove that applicant intended to kill Brandon consisted of the circumstantial evidenceproduced by the autopsy.6 At trial, Dr. Roberto Bayardo, the long time and highly experienced medical examiner for Travis County, testified that it was "impossible" for Brandon's extensive brain injuries to have occurred in the way that applicant stated. He said that her story was false and Incredible." In his opinion (and that of Dr. Sparks Veasey, the Deputy Chief Medical Examiner of Lubbock County), Brandon's injuries must have resulted from an intentional blow./ He concluded, "I would say the baby was caught up with the hands by the arms along the body and then swung and slammed very hard against a surface." In Dr. Bayardo's opinion, Brandon's death was the result of child abuse: "this is the worst case of head injury [at the hands of a person] I [have] ever seen." The jury agreed and convicted applicant of capital murder in May 1995.

This Court affirmed applicant's.conviction and death sentence on direct appeal8 and denied relief on her initial writ application in 2002.9 The federal district judge denied her federal habeas petition in 2004,10 and the Fifth Circuit affirmed that denial in 2006.11

The Honorable Jon Wisser presided over applicant's 1995 trial and is currently presiding over her subsequent writ application.Judge Wisserwas sufficiently troubled by the preliminaryscientific evidence initially presented to him that, on April 4,2007, he recalled applicant's original death warrant and rescheduled her execution to give her sufficient time to gather additional material for this subsequent writ application.

On May 23,2007, three weeks before her re-scheduled execution date of June 13,2007, applicant filed this subsequent application for habeas relief based on recent scientific advances in the area of biomechanics and physics-advances that led Dr. Bayardo to recant his conclusive opinion that Brandon's head injuries could not have been caused by an accidental, short-distance fall. Dr. Bayardo's 2007 affidavit stated, y

Since 1995, when I testified at Cathy Henderson's trial, the medical profession has gained a greater understanding of pediatric head trauma and the extent of injuries that can occur in infants as a result of relatively short distance falls, based in part on the application of principles of physics and biomechanics. Specifically, and as shown in the reports that I have read, even a fall of a relatively short distance onto a hard surface can cause the degree of injury that Brandon Baugh experienced. If this new scientific information had been available to me in 1995,1 would have taken it into account before attempting to formulate an opinion about the circumstances leading to the injury.

I have reviewed the affidavit of John Plunkett dated May 18,2007,12 and I agree with his opinion. Based on the physical evidence in the case, I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall. In fact, had the new scientific information been available to me in 1995,1 would not have been able to testify the way I did about the degree of force needed to cause Brandon Baugh's head injury.

Faced with this recantation, we held that applicant's first two claims-(i) she is innocent of capital murder, and (2) but for constitutional errors she would not have been found guilty of capital murder—satisfied the requirements of article 11.071, § 5(a). We then remanded her application to the trial court for consideration of the merits. Judge Wisser held hearings between November 17,2008, and March 5,2009, and listened to the testimony of twelve witnesses. Seven ofthese witnesses were medical doctors and four were scientists with Ph.Ds. The twelfth witness was Linda Icenhauer-Ramirez, one of applicant's trial attorneys.

At the habeas hearing, Dr. Bayardo testified that, because of recent scientific knowledge about how head injuries occur, he would no longer use words like 'Impossible" or "incredible" to describe applicant's version of the events. Also, he would no longer assert that Brandon's injuries, if they were caused by an accidental fall, would have to be the result of a fall from a height of over two stories. He stood by the cause of death: a heavy blow to the head. But he would change the manner of death from "homicide" to "undetermined." He stood by his trial testimony that the comminuted depressed fracture of the back of the skull, which caused radiating fractures, was the result of a single blow. Dr. Bayardo said that, because Brandon sustained just one injury and that was to the back of his head, he doubted his prior finding of "homicide." In other child homicides, the infants had multiple injuries to the side or front, rather than the back, of the head.'3 Dr. Bayardo flatly contradicted his trial testimony when he concluded, "I don't believe it's a casebf child abuse." Applicant also called Dr. Monson, an assistant professor of biomechanics at the University of Utah, who studies traumatic brain injury in children; Dr. Plunkett, a forensic pathologist who studies pediatric head trauma; and Dr. Van Ee, who has a Ph.D. in biomedical engineering and studies impact and orthopedic biomechanics. They testified that the application of biomechanics to the study of pediatric head trauma and the medical community's recognition of the role of biomechanics in determining causes of injury are recent and still developing. The medical community did not recognize a role for biomechanics in cases such as this one in 1998, when applicant filed her first habeas application.

These experts testified about "drop" experiments conducted with crash-test dummies and infant cadavers that measured the impact and injuries involved in short-distance falls, and how those experiments show the potential for head injury and death when babies fall short distances. Dr. Monson testified that he calculated the g-force involved in the fall (as described by applicant) to be 120 to i63g. Dr. Monson could not rule out the possibility that Brandon's death resulted from a short-distance fall: "So recognizing that the calculated values are well above when simple skull fracture may occur and also recognizing that there aren't data defining exactly when a fracture of this severity may occur, I have to conclude that you simply cannot rule out that possibility."

Dr. Plunkett testified about his playground-equipment study that included cases in which small children who fell short distances suffered complex skull fractures, brain injury, and death. He also could not rule out the possibility of an accident.

Q. As a pathologist who has done intensive work in this area and now is an author and speaker and expert in the field, do you think it's scientifically plausible to offer an opinion on the cause of an infant's death in a case like this without any review or application of biomechanics?

A. Not today, that's not acceptable.

Q. Why not?

A. Unless your experience is in the area of bioengineering, very few physicians have the necessary knowledge to evaluate, to rigorously evaluate, Brandon's injury. It's got to go beyond medicine.

Q. Based on your studies and your work, Dr. Van Ee's work, the CRABI14 dummy tests that you've seen, allofyourreview ofthe medical reports,and a portionof Brandon Baugh's skull this morning, in your opinion, can any person conclude rationally and with certainty that the death of Brandon Baugh resulted from an intentional murderous act?

A. No.

Q. Could Brandon, in your opinion, have suffered a complex comminuted skull fracture from a drop of four feet—four and a half feet landing on the back of his head on a hard floor?

A. Yes. Dr. Van Ee performed an accident reconstruction using the CRABI-6 infant dummy. He testified that Brandon was probably traveling 11miles per hour when he hit the concrete floor. "Severe injury is certainly a possibility and may even be likely for this type of impact." He testified that Brandon's skull fracture could have resulted from a fall of about four feet onto a carpeted or linoleum-covered concrete surface. He said there was now no "correct scientific support" for Dr. Bayardo's trial testimony.

Applicant's experts generally concluded that it was possible that a short-distance fall, like the one that applicant reported, could have caused Brandon's injuries. The State's experts then testified about the limitations and shortcomings of the studies and experiments described by applicant's experts and the rarity of head injuries with diffuse brain injury and complex skull fractures such as those Brandon suffered.

The State called Dr. Rangarajan, who has a Ph.D. in biomedical engineering and engineering mechanics. He designs crash-test dummies for government and industry use. Dr. Rangarajan designed a newborn- infant dummy for car-seat tests in Japan, and he testified about the limitations of using a dummy's response to predict injury. He noted that "dummies are calibrated to perform well in automotive seated posture." And, the dummies are only biofidelic (able to produce true human-like responses) within calibration limits. He said that there are not enough biomechanics data to assess the probability of injury, but he did not know whether the tests conducted by the defense experts were an accepted way of predicting severe head injury: "I don't know how to answer the question because I cannot say. I'm not like—I'm not the general secretary of the scientific community."

Dr. Case, a medical examiner, neuropathologist, and forensic pathologist who has published articles on short-distance falls and pediatric head injuries, also testified for the State. She has written on how to distinguish between accidental head injuries and inflicted or abusive head injuries. A marker, "the presence of the diffuse distribution of subdural blood over the cerebral convexities," signals brain injury produced by a blow to the head. Short falls, on the other hand, cause focal injuries, not diffuse ones.^ Only "one to two to three percent of all short falls will result in a simple linear skull fracture." Brandon's injury, "a depressed comminuted skull fracture," signaled that he had suffered a blunt impact blow. "In my opinion, this is not going to result from a short fall [of] less than six feet. This fracture is not a fracture that I have ever seen in a short fall or that I have ever seen described in a short fall." Brandon had a "diffuse subdural hemorrhage," but Dr. Case could not tell whether it was the result of a single impact or multiple impacts.

Dr. Case disagreed with Dr. Bayardo about the significance of the fact that there were no other injuries on Brandon's body. In her experience, 25 to 50 percent of children who died from abusive head injury had no other marks on their body. Dr. Case specifically criticized Dr. Plunkett's work and testified that it was "on the fringe" and not widely accepted in the professional-medical community. Dr. Case thought the defense's focus on the fracture was misguided because "You have to focus on the entirety of the head injury."

Dr. Pustilnik, the Chief Medical Examiner for Galveston County and an assistant professor in pathology at UTMB,testified for the State and said that biomechanical engineering "looks at the body in what they call finite-point analysis. In certain instances it falls apart when you have to look at differential . mechanisms when you have both rigid structures in the body interacting with liquid or gelatinous structures in the body." He said that there was "absolutely" a danger in taking readings from accelerometers in the crash- test dummies and making assumptions about how an infant of those dimensions would behave:

[I]t's not any good to use the CRABIfor head injury in these youngjnfants because no one has studies on head injuries on infants the way they have studies on CRABI models. They don't have-you know, three- month-olds don't have accelerometers behind their ears, so you can never know.

Dr. Pustilnik also criticized the cadaver studies because there were too many unknowns: Were the children stored cold, room temperature, or frozen? Were they dried out? Were they dropped with the scalp intact? "Youjust don't know. It's not in the papers." It was Dr. Pustilnik's opinion that Brandon suffered "multiple impacts to the back and left or perhaps even right left-side back area" of his head.

Dr. Jenny, a professor of pediatrics and the director of the child protection program at a hospital in Providence, Rhode Island, has studied child abuse and car safety and has specialized in treating babies with head injuries. She also questioned the usefulness of the defense studies and testified that, based on the severity of Brandon's fractures, it was "highly likely" that he had been a victim of multiple impacts or crush injuries to his head. The fracture pattern was not consistent with a short fall from a care-giver's arms. Dr. Jenny characterized Dr. Plunkett's testimony about playground falls as disingenuous, and Dr. Van Ee's accident reconstruction "drop" tests with the CRABI-6 as lacking a proper protocol. She said it was "impossible" for Brandon to have suffered his injuries in a short fall. She disagreed with the other State's experts that such injuries were possible, though improbable, from a short fall. Those falls create "linear parietal" fractures, rather than complex fractures.

Dr. Gill-King, the director of the Laboratory of Forensic Anthropology and Human Identification, and a professor of forensic anthropology and pathology, who focuses on the material properties of bone, testified for the State. He likened the radiating fractures found on Brandon's skull to those created from shooting a BB-gun multiple times at a window: "Afracture stops another fracture." He disagreed with Dr. Bayardo that there was one blow to Brandon's head because the injuries were distinct outside-to-inside injuries: "I concluded there were at least three separate applications of force. There may have been more, but there were at least three." He also stated that the CRABI-6 dummy's head does not in any way accurately portray the properties of a human infant head.

In rebuttal, applicant called Dr. Ophoven, a pediatric forensic pathologist and medical examiner, and Dr. Stephens, a forensic pathologist and former medical examiner.

Dr. Ophovendescribed the "pendulum swing"in the medical^ommunity with respect to pediatric injuries: before the 1980's, a doctor would generally accept a family member's report that a child's head injury occurred accidentally. In the late 1980's, doctors began to routinely disbelieve family members' reports of children's accidental head injuries and to assume abuse. Now, with studies applying biomechanics to the field of pediatric head injuries, doctors are more cautious about "ruling out" the possibility that a child's head injury occurred accidently. After reviewing the materials in this case, including the State's experts' testimony, Dr. Ophoven stated that short falls like that described here "rarely cause fatal injuries, but have the potential to kill." She stated that biomedical analysis is important

8 in cases like this one, where there is no evidence of pre-existing or fresh abuse or assault and where the history comes in as a possible accidental fall. She said that Dr. Van Ee's and Dr. Monson's reports support their opinions that fatal injuries can occur from a fall of 46 inches onto the concrete surface described here. She also said that Brandon's injuries were consistent with a single blow; she did not see evidence of multiple impacts. She based this on "confluence bleeding from a single area of impact," and the "clear continuity between the fractures in the back with the fractures on the side[.]" She said that she would not rely on a forensic anthropologist, like Dr. Gill-King, to help her with the cause of death or nature of injuries or number of impacts because "theirs is the area of bones and their training is not in making a determination and rendering it."

Recent studies have clearly said, very clearly, you can not tell the difference between an accidental fracture and an inflicted fracture by how bad it is, how complicated it is, whether or not it crosses the suture line, whether or not it comes apart on the sides, that you cannot look at the fracture and say, I see abuse.

Dr. Ophoven summarized her testimony as follows:

So this issue here is, is it my opinion that there is science to study the force that could be generated in a fall? Yes. Do we have reasonable expectations of what's the amount of force it takes for those falls to cause a fatal injury or death? Yes. Could those forces have been generated in this case? Yes. Do I have an opinion about what happened to Brandon? I can't answer the question, but what I can say is he sure could have fallen and died.

The defense also called Dr. Stephens, who said that a medical examiner's change of the manner of death from "homicide" to "undetermined" represents a paradigm shift. He did not regard Dr. Plunkett's work as marginal but instead opined that some professionals in the medical community would not let go of old beliefs when faced with studies that challenged them. He personally had seen cases in which short- distance falls had killed children. He did not agree with much of what Dr. Pustilnik had to say, and discounted the significance of fracture lines hitting one another. He also agreed with Dr. Bayardo that the injuries Brandon sustained were the product of a single blow or impact.

Applicant also called her trial attorney to testify that she filed a pre-trial motion for funds to employ a biomechanical expert, but her motion was denied.

In sum, all but one of these ten medical and scientific experts agreed that Dr. Bayardo's trial testimony was now known to be scientifically inaccurate: Brandon's autopsy results did not establish that his death was the product of an intentional homicide. Indeed, all but one of these experts basically admitted that science cannot answer the question of whether Brandon's death was the result of an intentional homicide. It could have been an intentional homicide; it could have been an accident. Based upon the totality of the evidence, Judge Wisser recommended that this Court

vacate the judgment of conviction in this cause, and . order that Applicant be returned forthwith from her present place of confinement to the custody of the Sheriff of Travis County Texas, where she may thereafter be held to answer any indictment or other charges made against her arising out of the death of Brandon Baugh.

II.

Dr. Bayardo's change in opinion on the manner of death from "homicide" to "undetermined" does not mean applicant is actually innocent of homicide. Nor does it mean that his trial testimony was "false" at the time it was given, based upon the state of scientific knowledge that he relied upon at that time. Due process was not violated at the time of trial, but nevertheless, the scientific testimony that supported a finding of "homicide" in the original trial has been retracted. Dr. Bayardo's current scientific uncertainty, as well as the uncertainty of all but one of the experts at the habeas evidentiary hearing, casts a pall upon the basis for the jury's verdict and upon its accuracy. At worst, the result of a change in the manner of Brandon's death to "undetermined" is only an admission that science cannot resolve the issue of whether Brandon's death was the result of a homicidal act. The jurors would have to decide that crucial question based upon the rest of the evidence.

The problem is that we do not know whether the jury would have found that applicant intentionally (as opposed to recklessly, negligently, or accidentally) caused Brandon's death absent Dr. Bayardo's expert scientific opinion.161 recognize that this case does not fit neatly into our habeas statute or our actual- innocence jurisprudence.1? But until the Supreme Court (or this Court) holds that a conviction later found to be based upon unreliable scientific evidence violates the Due Process Clause,181 will stick by what I said in my Robbins dissent.

Who should decide whether the newly discovered unreliability of the expert scientific testimony was so crucial to the original jury's verdict that the accuracy ofthat verdict can no longer be relied upon?

I fall back upon the wisdom and experience of the habeas judge—the "Johnny—on—the—Spot" factfinder to whom we will defer whenever the record supports his essential factual findings.19

Judge Wisser held a series of live hearings so that he could hear, first-hand, from all the experts. And he has concluded that the accuracy of the verdict can no longer be relied upon. The followingfindings—all supported by the record—are especially important to Judge Wisser's recommendation of a new trial:

7. Dr. Roberto Bayardo served as the Chief Medical Examiner of Travis County for twenty-eight years, and personally conducted the autopsy of Brandon Baugh in February 1994.

8. [Applicant] claims that the infant died when he accidently fell from her arms to the concrete floor of her home, a distance of approximately four-and-one-half feet. At the trial, however, Dr. Bayardo strenuously disagreed that the infant's death could have been accidental. Dr. Bayardo told the jury in no uncertain terms that "it would have been impossible" for an accidental fall to have produced the injuries sustained by the infant; that the claim of an accidental fall therefore was "incredible" and that to have sustained these injuries from a fall, the infant "would have to fall from the height higher than a two story building." For these reasons, Dr. Bayardo opined in his autopsy report that the manner of death was "homicide," meaning that the only way the infant could have sustained his fatal injuries was by means of a deliberate and murderous blow struck by Applicant.

10 g. Dr. Sparks Veasey, then the Deputy Chief Medical Examiner of Lubbock County, also testified for the State at the trial. He reviewed Dr. Bayardo's autopsy report and photographs, and testified that the death resulted from blunt force trauma, probably resulting from "slamming into a wall or floor." As Dr. Plunkett has pointed out, however, Dr. Veasey's essentially repetitive testimony was uninformed by modern scientific learning and suffered the same vices as did the testimony of Dr. Bayardo. The State did not call Dr. Veasey as a witness at the evidentiary hearing. The Court does find that, if the jurors had heard Dr. Bayardo's re-evaluation, they would not have credited the then-conflicting testimony of Dr. Veasey.

10. Based on the trial court record and the Court's personal recollection of the trial, the Court finds that the trial testimony of Dr. Bayardo was the critical evidence upon which the conviction of Applicant rested, and was the evidence upon which the essential element of culpable mental state hinged. The "impossible," "incredible," "two story building" and "slamming" testimony of the State's chief expert medical witness ruled out accidental cause. On that basis, the State persuaded the jurors that Applicant was guilty of murder beyond a reasonable doubt.

13. Dr. Bayardo and Dr. Plunkett both testified at the evidentiary hearing. Based upon the content of their written submissions, the testimony of each witness during direct and cross-examination, and the demeanor of each witness, the Court finds the Affidavit and testimony of Dr. Bayardo, and the Affidavit, report and testimony of Dr. Plunkett, are true, and that each of these witnesses is credible.

17. Dr. Bayardo testified at the evidentiary hearing that he continues to hold the opinions that he expressed in his Affidavit, and that [he] continues to share the views expressed by Dr. Plunkett in the latter's evaluation. Addressing the words he used in his testimony to the jury in 1995, Dr. Bayardo testified at the evidentiary hearing that he would not use 'Impossible" or "incredible" were he to testify to the jury today, "because of the new knowledge about how these types of injuries occur."

18. Dr. Bayardo also explained that he used the "two-story fall" analogy in his 1995 testimony because "that's what I was taught during my residency and during my training that that's the way that these types of injuries happen," and "at that time, we didn't have any information about the biomechanical way of explaining these injuries." The two-story analogy "would have been my usual answer in cases like this" in 1995. but he would not say so today, because the new scientific developments in biomechanical investigations "put a doubt in my mind."

19. In his 1995 Medical Examiner's Report Dr. Bayardo states that, in his professional opinion, the manner of the infant's death was "homicide." At the evidentiary hearing, however, Dr. Bayardo explained that he wrote "homicide" in 1994 because "at that time we didn't have any information about the biomechanical way of explaining these injuries[.]" He then testified that if he were preparing his report today, he would not have opined that the manner of death was homicide, but instead, "I would leave it undetermined,".

11 20. Applicant's witness, Dr. Peter J. [Stephens], is also a former Medical Examiner. He testified that this re-evaluation of the manner of death by Dr. Bayardo—from "homicide" to "undetermined"—was a significant "paradigm shift" representing a very fundamental re-evaluation.

21. In addition, Dr. Bayardo explained that there were other circumstances that now cause him to doubt that Brandon Baugh's death was a homicide. He testified that

All the previous cases I've seen that were the result of a homicide injury had the multiple, recent, and other injuries and also had multiple fractures of ribs and extremities, and they also had multiple bruises or scrapes of similar ages. And this baby did not have any of those injuries, and that the location [of the injury] was also different from the other cases I've seen.

22. Because Dr. Bayardo's testimony at trial was the critical evidence upon which the conviction of Applicant rested, and was the testimony upon which the essential element of culpable mental state hinged, the Court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted Applicant of capital murder beyond a reasonable doubt in light of this new evidence.

In his Finding of Fact Number 23, Judge Wisser explicitly addressed the "guilty conscience" evidence detailed by Judge Keasler:

23. In making its Finding No. 22, the Court has not overlooked the State's evidence at trial concerning Applicant's flight after the death of the infant. While flight might be some evidence of a guilty conscience, it is equivocal evidence at best, and on the basis of personal recollection, the Court finds that the evidence of flight did not have the capacity to prove the mens rea of capital murder beyond a reasonable doubt.

24. In making its Findings, the Court has also considered the Applicant's evidence of the new scientific analysis, unavailable at the trial, upon which Dr. Bayardo based his re-evaluation. The Court has done so in order to assure itself that Dr. Bayardo's re-evaluation is based upon a solid scientific foundation, and therefore supports the Court of Criminal Appeals' statement that the re-evaluation is a "material exculpatory fact."

25. In this regard, the Court has read, heard, considered, and evaluated the reports and materials of Drs. Plunkett, Stephens, and Monson upon which Dr. Bayardo relied in his Affidavit, the trial testimony of these three experts, and the corroborating reports and evidentiary hearing testimony of Drs. Janice Ophoven and Chris Van Ee.

26. The Court finds that Dr. Plunkett's Affidavit, his own report and materials, as well as the report of Dr. Peter Stephens, and the report of Dr. Kenneth Monson and the observed testimony of each of these witnesses at the evidentiary hearing, are truthful and credible.

27. Dr. Plunkett's report in the present case, and those ofthe other experts, show that the 1995 testimony of the State's chief experts was, at bottom, scientifically flawed and grounded upon the belief that "short- distance falls" can never case fatal infant head trauma. This belief no longer enjoys acceptance in today's scientific community.

12 28. Dr. Monson made and explained a number of biomechanical calculations that he performed as an expert witness for Applicant, and concluded that the infant's assumed fall from Applicant's arms "had the potential to produce a serious injury," and that "the possibility [of accidental death] cannot be ruled out given the current state of knowledge." The Court finds that Dr. Monson's Report and testimony are truthful and credible.

29. Dr. Monson testified that, from an assumed fall height of 46 inches from Ms. Henderson's arms, the head of the infant would have been traveling at a speed of almost 11 mDes an hour when it struck the floor, and that because the floor was a concrete, unyielding surface, the deceleration from 11 miles per hour to zero was virtually "instantaneous."

30. Applicant's witness Dr. Kenneth Monson, and State's witness Dr. Nagaranjan Rangarajan, largely agree that scientific evidence available today cannot rule out the possibility of accidental death.

31. At trial, Dr. Bayardo testified that the fatal trauma sustained by Brandon Baugh was the product of a single blow to the infant's head. This, of course, is consistent with the infant having fallen from Applicant's arms, and reaching a speed of eleven miles per hour when the back of his head struck the concrete floor, and thereby absorbed all the energy (G force) of the fall "virtually instantaneously." No evidence was introduced by the State that would have permitted the jury to find, much less beyond a reasonable doubt, that the infant sustained fatal trauma by reason of multiple blows to the head.

32. At the evidentiary hearing, Dr. Bayardo provided a detailed explanation of his conclusion that the infant died as a result of a single blow to the head. He used his autopsy photos for this purpose, as well as explaining the "soft tissue" and other analyses that he observed or performed during the autopsy. Based both upon its assessment of Dr. Bayardo's testimony at the evidentiary hearing, and upon its personal recollection of Dr. Bayardo's testimony at the trial of this case in 1995, and at many other criminal trials at which this Court served as trial judge, this Court finds that Dr. Bayardo's "single blow" analysis is truthful and credible.

33. Drs. John Plunkett, Janice Ophoven, and Peter Stephens each testified at the evidentiary hearing that they agreed with Dr. Bayardo's single blow analysis. The Court finds that all this testimony is truthful and credible.

34. The reports of Drs. Plunkett, Stephens, Ophoven, and Monson, and these witnesses' corresponding testimony at the evidentiary hearing, support a finding that the biomechanical analysis that has been presented and used in this case was not available to Applicant in November 1998. Although biomechanical studies and analyses had been used theretofore for accident prevention research and application—helmets, airbags, seatbelts, child restraint seats, etc .—itwas not until the early 2000's that research began to focus for the first time on short distance falls and other traumatic events involving head injuries to infants and young children.

35. The Court also heard the testimony of the State's experts, Drs. Mary Case, M.D., Carole Jenny, M.D., N. Rangarajan, Ph.D., Stephen Pustilnik, M.D., and Harrell Gill-King, Ph.D. The Court finds that their testimony is truthful and credible.

13 36. However, despite finding that both Applicant's and State's expert witnesses were truthful and credible, the Court finds that Dr. Bayardo's re-evaluation is based upon credible, new scientific evidence, and that the re-evaluation is, as the Court of Criminal Appeals stated, a "material exculpatory fact."

37. Accordingly, the Court finds that Applicant has met her burden of proof under Sections, 5(a)(1) and 5(e) of Article 11.071,namely, that the factual basis of her claim was unavailable to her at the time she filed her prior application on November 17,1998, and that the basis of her claim was not ascertainable through the exercise of reasonable diligence on or before that date.

Judge Wisser's single Conclusion of Law is: "Applicant Cathy Lynn Henderson has proved by clear and convincing evidence that no reasonable juror would have convicted her of the capital murder of Brandon Baugh in light of the new evidence presented in her Application." Judge Wisser signed his findings and conclusions on May 14,2012. On June 13,2012, the State filed its response:

The State has reviewed the habeas court's findings and conclusions on the first subsequent writ application. Given that Dr. Roberto Bayardo, one of the State's major witnesses, has changed his opinion concerning the cause and manner of death of the infant Brandon Baugh, and in light of the court's findings that this new medical testimony would have impacted the jury's decision, the State does not oppose the habeas court's recommendation that the applicant's cause be remanded for a new trial.

The State's position is not based on the belief that the applicant is not guilty. Nor do we agree with the theory of biomechanics as presented by defense experts and relied upon by Dr. Bayardo. But we do believe that the community must have confidence in a fair process and accurate outcome. To this end, we believe Dr. Bayardo's reevaluation and the habeas court's recommendation are important enough to merit a reconsideration of all the evidence, including the new scientific theories, by a jury.

Our decision not to file objections to the habeas court's findings, nor to oppose the court's recommendation for a new trial, is done so that this matter can be fully and fairly litigated.20

Under the standard for determining a bare claim of actual innocence announced in Ex parte Elizondo, an applicant must show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence."21 This is what applicant claims; this is what the trial court concluded— that no reasonable juror would have found applicant guilty of the capital murder of Brandon Baugh—at least not to a level of confidence beyond a reasonable doubt.

Judge Wisser did not have to find that Brandon's death was an accident to conclude that applicant was entitled to a new trial based on Dr. Bayardo's changed testimony and the new expert testimony concerning scientific advances in biomechanics and forensic pathology. Judge Wisser's factual finding that "if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted Applicant of capital murder beyond a reasonable doubt in light of this new evidence" is entitled to deference because it is supported by the record.22 That does not mean that applicant is actually innocent of capital murder. It simply means that the crucial evidence that had supported both the cause of Brandon's death and applicant's intent to cause his death has been retracted. The present guilty verdict is based on scientifically unreliable evidence, but, after another capital murder

14 Pice M&ope.

trial, a guilty verdict could be based on scientifically reliable evidence or evidence that forthrightly admits that science cannot resolve the question of either causation or intent.

Given Judge Wisser's profound concerns about the impact of Dr. Bayardo's expert testimony at trial on the critical, disputed issue of applicant's intent, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence.^ Despite every participant's honesty and good faith, this-as the District Attorney of Travis County forthrightly recognizes—is a case that should be retried to ensure the accuracy of our verdicts and the integrity of our system. With these comments, I join the Court's order.

Like the majority of the Court, I conclude that the death sentence imposed against Cathy Lynn Henderson, applicant, must be vacated and that she must receive a new trial for the charge of capital murder of Brandon Baugh. In reaching this conclusion, I follow the recommendation of the trial court and the State's attorney and join the Court's majority opinion granting relief. I also join the concurring opinion by the Honorable Judge Cochran with two exceptions. I disagree with her conclusions that (1) this case is the same as Ex parte Robbins, 360 S.W.3d 446 (Tex.CrimApp.2011), and (2) this case permits us to decide whether there is a due-process violation outside the context of a death-penalty case. I write separately to explain why I conclude that this case presents more compelling reasons for granting relief than those presented in Robbins. See id.

In Robbins, this Court denied the applicant relief. Id. at 448. If this case was factually identical to Robbins, the same precedent that was used to deny relief in Robbins would compel denying relief in this case. See id. Instead, the Court grants relief in this case. I conclude that, although they share many factual similarities, Robbins and this case differ as to the findings of fact rendered by the respective trial courts: This trial court finds that new scientific evidence is the basis for ordering a new trial, whereas the Robbins trial court found that use of false evidence was the basis for ordering a new trial. Id. at 457.

The Robbins trial court's findings stated that medical examiner "Dr. Moore's trial opinions were not true. They were based on false pretenses of competence, objectivity, and underlying pathological reasoning, , and were not given in good faith." Id. at 477 (Alcala, J., dissenting). The trial court characterized Dr. Moore's testimony as "expert fiction calculated to attain a criminal conviction." Id. Furthermore, the trial court found that Dr. Moore was "biased toward the State" at the time she testified. Id. at 474 (Cochran, J., dissenting). In my dissenting opinion in Robbins, I concluded that the record supported the trial court's characterization concerning the falseness of the testimony and that the use of that testimony violated the Due Process Clause of the Fourteenth Amendment. Id. at 476-77 (Alcala, J., dissenting); see also Ex parte Chabot, 300 S.W.3d 768,770-71 (Tex.CrimApp.2009); Ex parte Napper, 322 S.W.3d 202,242 (Tex.CrimApp.2010).

Here, the trial court has not made any factual findings to suggest that, at the time that it was introduced, the medical evidence underlying applicant's conviction was known to have been false. More specifically, nothing in the trial court's findings suggests that Dr. Bayardo based his testimony on false pretenses of competence, a lack of objectivity, prosecutorial bias, or expert fiction calculated to attain a criminal conviction. The absence of these types of findings distinguishes this case from Robbins and renders it a

15 new-science case rather than a false-testimony case. Compare id. at 457. As Judge Cochran accurately observes in her concurring opinion today, Dr. Bayardo's testimony was "based upon the state of the scientific knowledge" and was not known to have been false at the time it was given. For this reason, I join Judge Cochran's opinion today, although I did not in Robbins. See id. at 476 n. 1 (Alcala, J., dissenting).

In Robbins, I explained that I did not join Judge Cochran's dissenting opinion "because the change in Dr. Moore's testimony is not due to new scientific principles but is instead, according to her, due to her having more experience as a medical examiner, and according to the trial court's findings, due to her trial testimony being the result of prosecutorial bias." Id. Today, I join Judge Cochran's concurring opinion because this case falls squarely within her assertion that executing a defendant whose conviction is premised on now-discredited scientific theories violates due process, even though those scientific theories were once considered valid and true at the time they were applied.

Furthermore, although I disagree with the Honorable Judge Price's analysis of Robbins, I agree with his conclusion that this case presents a stronger reason to grant relief than that presented in Robbins: Without relief, applicant will be executed for a conviction that we now know was premised largely on faulty science.

The Supreme Court has succinctly observed that "the penalty of death is qualitatively different from any other sentence." Lockett v. Ohio, 438 U.S. 586,604,98 S.Ct. 2954,57 L.Ed.2d 973 (1978) (internal quotations omitted). Among these differences is that a death sentence "is unique in its total irrevocability." Furman v. Georgia, 408 U.S. 238,306,92 S.Ct. 2726,33 L.Ed.2d 346 (1972) (Stewart, J., concurring). The Court has held that the "qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Lockett, 438 U.S. at 604. This heightened need for reliability requires a mechanism that enables judicial enforcement of that sentence to evolve with the science that serves as the basis for imposition of that sentence.

Whether we ultimately apply the faulty-science theory to due-process complaints beyond the death- penalty context is a question for another day. The holding of this case is quite narrow: Due process prohibits the execution of a person when faulty science was essential to the State's establishment of an element necessary for conviction^here, that the cause of death of the complainant was intentional—and the habeas record shows that today's scientific community reaches a different consensus—here, that the cause of death is undetermined.

In accordance with the trial court's recommendation, I join in the Court's judgment granting relief and remanding for a new trial.

DISSENTING OPINION

Like this Court's order remanding the matter to the trial court for findings of fact and conclusions of law, the Court's opinion today grants Cathy Henderson relief without one word of analysis why she is entitled to it. In fact, the Court does not even identify the legal basis for granting Henderson relief. Instead it issues a legally hollow opinion with a staggering result. Readers of both our remand order in this matter and today's opinion will undoubtedly and justifiably be both baffled and appalled by the Court's opinion. I

16 count myself among them. The unmistakable message of the Court's per curiam opinion is this: despite applicable legal precedent to the contrary and overwhelming inculpatory facts, we grant Henderson relief solely because we want to. And to future applicants, this message's implication is clear: with luck, your writ application may also be viewed with such grace.

In her subsequent application for a writ of habeas corpus, Henderson asserts she is entitled to relief for three reasons: (1) she is actually innocent of capital murder because no reasonable juror would convict her of capital murder in light of new scientific evidence (Herrera1 -type claim); (2) but for constitutional errors—namely a violation of Ake v. Oklahoma2 and a Fifth Amendment claim previously raised and rejected on direct appeals —no rational juror could have found her guilty beyond a reasonable doubt in light of the new evidence (Schlup* -type claim); and (3) she is no longer death eligible. The Court came to the breathtaking conclusion that Henderson satisfied Texas Code of Criminal Procedure article 11.07, § 5(a) with her allegation that then Travis County Medical Examiner Dr. Roberto Bayardo's reevaluation of his opinion at trial was newly discovered evidence that established her innocence. The Court remanded the matter to the trial court for further proceedings on Henderson's first two claims and dismissed her third.s

After several evidentiary hearings, this matter now returns to us with the trial judge's findings of fact and conclusions of law recommending that we grant relief on Henderson's first actual-innocence claim. Dr. Bayardo's reevaluation of whether the injuries suffered by Brandon Baugh, the three-and-half-month-old victim of this capital murder, were intentionally inflicted is the crux of Henderson's actual-innocence claim and the foundation of the trial judge's recommendation to grant relief. Despite our instructions in the remand order, the trial judge did not enter findings of fact or conclusions of law on Henderson's Schlup claim, which if the Court were to expressly reject Henderson's actual-innocence claim, as it should, would require remanding to the trial judge to address this issue.

By explicitly stating that the trial judge's findings of fact are supported by the record, the Court, by implication, reaches the opposite conclusion as to the trial judge's conclusions of law—that they do not share the same record support. But it nonetheless "accepts" the trial judge's recommendation to grant relief and give Henderson a new trial on an unknown basis. Surely, it cannot be actual innocence otherwise the Court would have found the trial judge's conclusions are supported by the record or would have expressly found Henderson proved her actual innocence. In its zeal to grant Henderson relief, the Court is forced to look elsewhere to accomplish its goal, and left without a clear legal path, the Court takes the indefensible position to grant relief without justification or explanation. The facts adduced at trial and in the subsequent evidentiary hearings in light of our actual-innocence case law make it clear why the majority could not adopt the trial judge's conclusions and grant Henderson relief on actual-innocence grounds; the burden is too high, the inculpatory facts are too great, and the "new evidence" is too weak.

To put the issue of Dr. Bayardo's reevaluation in perspective, it is appropriate to start with his testimony at Henderson's 1995 capital murder trial. At the time, Dr. Bayardo had been Travis County's Chief Medical Examiner for eighteen years and throughout his career he had performed approximately 15,000 autopsies. He personally performed Brandon Baugh's autopsy and testified to the extent of Brandon's injuries at trial. Dr. Bayardo concluded, "It is my opinion, based upon the autopsy findings, that the decedent, Brandon Baugh, came to his death as a result of a severe closed head injury. There was

17 comminuted fracturing of the back of the skull and subdural and subarachnoid hemorrhages implying that a severe force had been given to the head and characteristic of abuse, homicide."6 Dr. Bayardo also concluded that it would have been "impossible" and 'Incredible" for a fall from four to four-and-a-half feet to have caused Brandon's injuries. He also testified that Brandon's injuries were not accidental because the fractures crossed the suture lines found in an infant's not-fully formed skull which would require a severe degree of force. Further, the injury's location—the back of the head—was a characteristic of an abused child because most accidents occur on the sides of the head. Dr. Bayardo explained that "[t]his is an injury that you see when a baby's head is slammed or thrown very forceable against a flat surface" and in order for Brandon's injury to result from a fall, "he would have to fall from a height higher than a two- story building."? On cross-examination, Dr. Bayardo conceded that his testimony was limited to the cause of death and he was unable to tell the jury the exact nature of the severe force or how that force was inflicted.

At the habeas hearing and in his affidavit, Dr. Bayardo testified that after reviewing reports from Drs. John Plunkett, Peter Stephens, and Kenneth Monsoon—Henderson's proffered experts who discussed how biomechanics could explain that Brandon's injuries were accidental—he would no longer testify that the manner of Brandon's death was homicide; instead he would now conclude that it was "undetermined," as opposed to accidental. According to his affidavit, Dr. Bayardo also claims that he would not be able to testify about the degree offeree needed to cause Brandon's head injury and would not conclude that an accidental fall was "impossible" or "incredible" in explaining the cause of Brandon's injuries.

Even after the benefit of multiple evidentiary hearings where the trial judge took testimony from expert after expert, Henderson is no closer to establishing her innocence than she was in her claims she asserted in her subsequent appUcation.8 Henderson presents a bare innocence claim. We have labeled the burden of establishing a bare claim of actual innocence a Herculean task.9 In satisfying this heavy burden, Henderson's newly discovered evidence must constitute affirmative evidence of her innocence.10 Henderson must show by clear and convincing evidence that no reasonable juror would have convicted her in light of the new evidence.11 Whether an applicant satisfies this burden requires the evaluation of "the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, so we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial."12

The trial judge concluded that Henderson "has proved by clear and convincing evidence that no reasonable juror would have convicted her of the capital murder of Brandon Baugh in light of the new evidence presented in her Application."^ The Court's opinion acknowledgesthat in most circumstances we appropriately defer to and accept the trial judge's findings of fact and conclusions of law when they are supported by the record. However, we may make contrary findings and conclusion when our independent review of the record reveals the findings and conclusions are not supported by the record.1* Here, the trial judge's conclusion is not supported by the record and is demonstrably wrong because it implicitly mischaracterizes Dr. Bayardo's new opinion, improperly focuses on Dr. Bayardo's reevaluation in isolation, and fails to weigh such exculpatory evidence against all of the evidence of guilt adduced at trial.

Dr. Bayardo's testimony was merely one piece of evidence that established Henderson's guilt at trial and shed light on her intent that fateful day. Henderson was the last one to have seen Brandon the day he

18 went missing after he was dropped off at Henderson's home where she cared for Brandon and Megan Baugh. There were no calls to 911 that day from Henderson's home or from her neighborhood. There were no other pleas for help. She had the Baughs' emergency contact numbers. But they were not called. After Brandon died, she wrapped his body in a blanket and put his body in a Bartles & Jaymes wine cooler box and secured it with tape later matched up to tape found in her home. With Brandon's body in the trunk of her car, Henderson put her daughter Jennifer and Megan, Brandon's older sister, in the car with a spade and her neatly packed suitcase and drove to Round Rock to get her car's oil changed.

On her way out of town and with the two girls in tow, she drove to the bank to withdraw $2200 through a cash advance on her credit card. After repeated attempts proved unsuccessful, she was finally able to withdraw $1000. Henderson told the bank employee that she needed the money because her father just died and she needed to be with her family. At some point in the afternoon, she stopped at McDonald's to get the girls something to eat. She then drove to Holland, Texas where her husband's relatives lived. She arrived unexpectedly. They had not seen Henderson in five or six months. Once there, she told her husband's relatives that she needed to go to the store and would be back soon. She asked her eleven-year- old niece to babysit Jennifer and Megan. She never returned. Instead, she continued north where outside Waco, just off a country road near a stand of trees, she buried Brandon in the box, using the spade she packed. Investigators would later find Brandon's diaper bag in a ditch in the vicinity where they found Brandon's buried body.

Later that night she checked into a motel in Blackwell, Oklahoma under the name Tracy Simms and listed a Missouri address. The next day, Henderson arrived in Trenton, Missouri and dropped in on a longtime friend Linda Brewer. It too was an unexpected visit. The two discussed Henderson's troubling custody issues and how she was ordered to have only supervised visitation with her other daughter. Henderson told Brewer that the children she watched were picked up by their grandparents who would take care of them for a week so she decided to visit her in Missouri. Only three days after Brandon was killed and while having a few margaritas with a friend, Henderson admitted that she had "killed somebody or murdered somebody."^

Henderson and Brewer then drove to Independence, Missouri to see other friends. After her arrival in Independence, Henderson told Brewer that she had a new identity, was getting new licence plates for her car, and wondered how she would look with red hair. Brewer began to realize Henderson's trip was no longer just an opportunity to come back and visit. When asked why she needed to change her identity, she responded, "I can't do life. I don't want to talk about it anymore." With the use of a Social Security card another friend found, she assumed the identity of Patricia Keith. Reluctant to drive her vehicle because she was afraid the police would be looking for it, she got some old Missouri license plates and put them on her car. She dyed her hair red. With her new identity, she rented an apartment under her assumed name. She also began a sexual relationship with the male friend who gave her the Social Security card and new license plates and wanted him to move in with her. She attempted to find a job in Independence. She did all of this within three or four days after Brandon's death.

When a police officer knocked at the door of her apartment looking for information on Henderson and Brandon, she claimed that she had never seen the person (Henderson) in the pictures. At first, the officer did not recognize her from the pictures. But the officer returned, and Henderson gave a false name. After

19 Henderson consented to a search of the apartment, the officer discovered the Social Security card Patricia Keith's name along with the receipt for the oil change and apartment rental receipt. She was subsequently arrested and claimed that she did not know what this was about, threatened the officers with a false imprisonment suit, and complained that she was going to miss a hair appointment.

She was then interviewed by an FBI agent to whom she gave conflicting stories. Her first story was that she did not have any information about Brandon. In her second story, she claimed that the Baughs' grandmother came to pick Brandon up. She then claimed she packed up the girls and brought them to the bank, McDonald's, and the relatives' home in Holland and drove to Blackwell, Oklahoma, checking into the motel under Tracy Simms and finally arriving in Trenton and Independence, Missouri. But when the agent suggested that Brandon was dead, and perhaps it was an accident, Henderson said "yes." When asked "Did you bury him?" she responded "Of course, I did. He's just a baby." Henderson's final version was that around 10:30 in the morning, Brandon fell from her arms and hit the tile floor. She stated she attempted CPR for about an hour, but she knew he was dead. She admitted to burying Brandon near Waco with a spade she brought from home.

Dr. Bayardo was not the only witness who gave expert testimony concerning the manner of Brandon's death. The jury heard from Lubbock County Deputy Chief Medical Examiner Dr. Sparks Veasey III. Like Dr. Bayardo, Dr. Veasey concluded that Brandon's injuries were "consistent with a baby's head [being] slammed into a blunt object, a baby being held by the legs and slammed into a wall or a floor. They are consistent with a baby being forcefully—extremely forcefully thrown into a blunt—into a blunt object."16 He further concluded that Brandon's injuries were inconsistent with an accidental drop from a distance of four to five feet and was certain that Brandon's injuries were not the result of an accident. In addition to Dr. Veasey, Henderson's own expert corroborated Dr. Bayardo's and Dr. Veasey's conclusions. After reviewing the autopsy report, photographs, and videotape, Dr. Kris Sperry, the Fulton County Deputy Chief Medical Examiner in Atlanta, Georgia, opined that Brandon's crushing skull fractures were not accidental.

The trial judge's conclusion that Henderson proved by clear and convincing evidence that no reasonable juror would have convicted her of capital murder simply failed to weigh Dr. Bayardo's reevaluation against the evidence of guilt adduced at trial. The trial judge came to the remarkable and unsupported mixed finding and conclusion that

Because Dr. Bayardo's testimony at trial was the critical evidence upon which the conviction of Applicant rested, and was the testimony upon which the essential element of culpable mental state hinged, the Court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted Applicant of capital murder beyond a reasonable doubt in light of this new evidence.17

Contrary to Judge Cochran's belief, the trial judge's opinion that "no rational juror could have or would have convicted Applicant of capital murder beyond a reasonable doubt in light of this evidence" is a conclusion of law, and therefore not entitled to deference.

20 The trial judge claimed to be mindful of Henderson's flight, only to "find [ ] that the evidence of flight did not have the capacity to prove the mens rea of capital murder beyond a reasonable doubt." But "[w]e have repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be drawn."18 Notably, the trial judge did not hear from Dr. Veasey or Dr. Sperry in connection with Henderson's application and Henderson does not directly challenge their conclusions. We do not know if their conclusions would change like Dr. Bayardo's when presented with Henderson's experts' affidavits and reports. On this record, we cannot assume they would. However, the trial judge cavalierly found that "if the jurors had heard Dr. Bayardo's re-evaluation, they would not have credited the then-conflicting testimony of Dr. Veasey ."^ Such idle speculation is certainly not a finding that this Court should adopt. Even if true, what about Dr. Sperry's testimony offered by Henderson herself? The findings and conclusions are silent about the potential impact of Dr. Sperry's corroborative testimony of both Dr. Veasey's and Dr. Bayardo's opinions at trial. >

More importantly, it is the trial judge's failure to consider all of Henderson's actions after Brandon's death that is the most troubling. After Brandon's death, there was no attempt to call for help. She attempted to hide the evidence of Brandon's death by burying him near Waco with the spade she brought from home. While having drinks with friends she admitted to killing or murdering someone. Further, Henderson did not merely engage in a very deliberate plan to flee. She actively attempted to evade law enforcement through assuming a new identity, changing her appearance, changing her licence plates, and starting a new life in Missouri while leaving her family behind. And when the jig was up, she first claimed not to know what happened to Brandon before finally admitting to burying him and changing her version of events to describe an accidental death. These are not the acts of an innocent person. In the face of common sense and our case law, it would be preposterous to conclude that Dr. Bayardo's new opinion that the manner of death should be undetermined, as opposed to accidental, would undermine all of the incriminating evidence establishing Henderson's guilt.

Byleaving its rationale unstated, the Court avoids confronting our holding in Ex parte Robbins,20 our recent opinion addressing a factually similar actual-innocence claim and precedent determinative of Henderson's actual-innocence claim. In Ex parte Robbins, Dr. Patricia Moore, an assistant medical examiner, testified at Robbins's capital murder trial that the child victim's death was caused by "asphyxia due to compression of the chest and abdomen and that the manner of death was homicide."21 Many years after the juryfound Robbins guilty of capital murder, Dr. Moore's report and conclusions were reexamined by several other medical examiners who disagreed with her conclusions. Dr. Moore herself also reevaluated her report and came to the conclusion that her opinion had changed and the cause and the manner of the victim's death should be listed as undetermined.22 Like Henderson, Robbins claimed this reevaluation was newly discovered evidence that demonstrated his actual innocence.^ In denying Robbin's actual-innocence claim, we held that

[Robbins] failed to prove that the new evidence unquestionably establishes his innocence. Moore can no longer stand by her trial testimony, but rather than completely retracting her trial opinion, she is of the current opinion that the cause and manner of death of [the victim's] death are 'undetermined/ Moore cannot rule out her trial opinion as a possibility of how [the victim] died. Hence, Moore's reevaluation

21 falls short of the requisite showing for actual innocence because it does not affirmatively disprove that [Robbins] intentionally asphyxiated [the victim] .24

Like Dr. Moore's reevaluation in Ex parte Robbins, Dr. Bayardo's reevaluation did not render void his trial testimony.2s The jury could have considered Dr. Bayardo's testimony that the manner of death was "undetermined" and still have found Henderson guilty based on all of the evidence presented at her trial, including Dr. Veasey's and Dr. Sperry's expert conclusions.26 Henderson's reliance on Dr. Bayardo's reevaluation merely serves to retroactively impugn the State's case at trial and does not affirmatively demonstrate her innocence.2? On this record and particular claim of actual innocence, we are compelled to follow Ex parte Robbins and conclude that Henderson failed to satisfy her Herculean burden—to show by clear and convincing evidence that no reasonable juror would have convicted her in light of Dr. Bayardo's reevaluation.

In its response, the State does not contest the trial judge's findings and conclusions, and does not oppose granting Henderson relief. The State takes this position while simultaneously making it clear that it does not believe that Henderson is not guilty and disagrees with the biomechanical theory presented by Henderson's experts and relied upon by Dr. Bayardo in his reevaluation. The State's concern for the community's confidence in the criminal justice system expressed in its response is laudable. But it is neither legally controlling, nor a particularly persuasive argument for granting Henderson relief when the State still contests Henderson's underlying factual contentions. The State's acquiescence cannot not bridge the gulf between Henderson's asserted claims and the burden she must satisfy to be legally entitled to relief.

Today, the Court's decision casts aside its established legal principles and grants relief to an applicant not entitled to it. The Court accomplishes this feat by abandoning all standards necessary for an applicant to obtain relief, only to replace them with an unexplained, ad hoc determination. "Because we want to" is not a substitute for legal reasoning. And any suggestion to the contrary is untenable. Further, we have denied past applicants similarly requested relief on similar evidence. We owe a duty to all applicants that we will measure the merits of their claims equally.

Henderson's Herrera-type claim of actual innocence should be denied and her pending Schlup-type actual-innocence claim should be remanded to the trial court for findings of fact and conclusions of law. It is a travesty to grant this child killer relief on some unknown legal principle while her tiny, defenseless victim lies dead and reburied. Therefore I dissent with all the vigor at my command.

Something is missing here. While the Court states that it accepts the trial court's recommendation granting relief, it does so without providing any legal basis for that ruling, and I cannot find a ground upon which relief should be granted. And to justify its decision, the Court makes a quantum leap from "advances in science" to granting relief, which presents a whole new dilemma for the criminal justice system and this case in particular.

22 The real issue in this case is whether the admission of potentially unreliable evidence requires this Court to grant relief regardless of the state of the remaining record. Eleven expert witnesses testified at Applicant's writ hearing, some for both sides. The trial court found all of the experts credible but focused on a change in the testimony of expert Dr. Bayardo to conclude that Applicant had proven by clear and convincing evidence that no reasonable juror would have convicted her in light of the "new evidence." This Court now defers to that conclusion. However, nowhere in Dr. Bayardo's altered testimony does he state or indicate that his original opinion was false, nor does he refute the medical science relied upon by the other State experts. Instead, Dr. Bayardo changed his opinion on the manner of death from "homicide" to "undetermined" based upon changes in the science upon which he relied. While a change in Dr. Bayardo's testimony could render his opinion unreliable, "unreliable" testimony does not equate with "false testimony" or "innocence," nor does it automatically require a new trial.

The admission of expert testimony is governed by Texas Rule of Evidence 702, and to be admissible under this rule, the party offering the scientific expert testimony must demonstrate by clear and convincing evidence that such testimony is both relevant and reliable. Kelly v. State, 824 S.W.2d 568,572 (Tex.CrimApp.1992). The focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific methodology such that testimony about "junk science" is weeded out. Jordan v. State, 928 S.W.2d 550,555 (Tex.CrimApp.1996).

Whether the science at issue is a "hard" science1or a "soft" science,2 "reliability should be evaluated by reference to the standards applicable to the particular professional field in question." Coble v. State, 330 S.W.3d 253,274 (Tex.CrimApp.2010); see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113S.Ct. 2786,125 L.Ed.2d 469 (1993) (holding that when the subject of the expert's testimony is scientific knowledge, the basis of his or her testimony must be grounded in the accepted methods and procedures of science). Therefore, a change in the science upon which an expert relied in providing his trial testimony might indeed undermine the reliability of his testimony. But it does not necessarily follow that the testimony was "false"or that the existence of new science necessarily implicates innocence. For example, in this Court's unanimous opinion in Ex parte Miles, 359 S.W.3d 647 (Tex.CrimApp.2012), we adopted the trial court's conclusion that the "gunshot-residue standards, as testified to at trial, are no longer reliable." Id. at 663. However, we did not adopt the trial court's conclusion that "Applicantshould also be granted relief, independently, on the ground of flawed forensic testimony." Id. Instead, we looked to all of the evidence presented and only then determined that actual-innocence relief was warranted. Other decisionsfrom this Court recognizeboth the advancement in science and the legislative directiveto apply that science to our caselaw through Chapter 64 of the Texas Code of Criminal Procedure. While further testing may prove to be inconclusive or even exculpatory, relief may nonetheless be denied based on the volume of other evidence. See Gutierrez v. State, 337 S.W.3d 883 (Tex.CrimApp.2011); Prible v. State, 245 S.W.3d466 (Tex.CrimApp.2008).

Furthermore, even if a change in the underlying science means that the expert testimony was unreliable, it does not automatically result in a due process violation (and thus a new trial). An additional analytical step is required. Only when the admission of unreliable testimony was harmful is due process implicated and a new trial appropriate. See Coble, 330 S.W.3dat 280. Accordingly, relief should only be granted if the applicant demonstrates the error affected his or her substantial right to a fair trial. See Tex.RApp.

23 Proc. 44.2(b); Coble, 330 S.W.3d at 280 (explaining that harm occurs when the error had a substantial and injurious effect or influence in determining the jury's verdict). A criminal conviction should not be overturned by the erroneous admission of evidence "if the appellate court, after exarnining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410,417 (Tex.CrimApp.1998).

This reliability analysis is consistent with our policy interest in the finality of convictions. The Supreme Court has emphasized its enduring respect for "the State's interest in the finality of convictions that have survived direct review within the state court system." Calderon v. Thompson, 523 U.S. 538,555,118 S.Ct. 1489,140 L.Ed.2d 728 (1998). "Without finality, the criminal law is deprived of much of its deterrent effect." Teague v. Lane, 489 U.S. 288,309,109 S.Ct. 1060,103 L.Ed.2d 334 (1989) (plurality op.). To abide by Judge Cochran's suggestion that any intervening scientific development should result in a new trial would seriously undermine the stability of our criminal justice system. Most convictions involve some type of scientific evidence, whether hard (e.g., DNA or urinalysis) or soft (e.g., eyewitness identification or forensic psychiatrists testifying about future dangerousness). Rarely is a case wholly dependent on science alone. Thus, if we were to grant a new trial with every scientific advancement, without proof that the original science was indeed faulty, the finality of convictions would be illusory. While the evolution of science is important to the improvement of our system, each case must be decided individually, taking into account all of the evidence.

In summary, intervening scientific developments might result in unreliable expert testimony, and the admission of this unreliable evidence might rise to the level of a due process violation. But this case does not present us with such a scenario. Dr. Bayardo changed his opinion on the manner of death from "homicide" to "undetermined" based upon changes in the science upon which he relied. Perhaps this makes Dr. Bayardo's trial testimony unreliable, but as Judge Cochran acknowledges in her concurring opinion, this "does not mean applicant is actually innocent of homicide" or that "[Dr. Bayardo's] trial testimony was false' at the time it was given, based upon the state of scientific knowledge that he relied upon at that time." The "new evidence," even if based on "new science," must still affirmatively establish that the applicant is entitled to relief. See Ex parte Spencer, 337 S.W.3d 869,879 (Tex.CrimApp.2011).

Additionally, when the entire record is considered, it is clear that Appellant's substantial rights to a fair trial were not affected by the admission of Dr. Bayardo's testimony. See Coble, 330 S.W.3d at 280 ("In making a harm analysis, we examine the entire trial record and calculate, as much as possible, the probably impact of the error upon the rest of the evidence."). As Judge Keasler competently outlines in his dissenting opinion, there is ample evidence to support that Appellant intentionally caused Brandon's death. See Tex. Penal Code § 19.03(a)(8). Certainly, in this context, Dr. Bayardo's unreliable testimony could not have a substantial and injurious effect or influence in determining the jury's verdict. See Coble, 330 S.W.3d at 280. The record provides fair assurance that the error would not influence a jury, or would have but a slight effect. See Johnson, 967 S.W.2d at 417.

For these reasons, I respectfully dissent.

PER CURIAM.

24 PRICE, J., filed a concurring opinion.COCHRAN, J., filed a concurring opinion in which WOMACK, JOHNSON, and ALCALA, JJ., joinedALCAIA, J., filed a concurring opinion.KEASLER, J., filed a dissenting opinion, in which KELLER, PJ., and HERVEY, J., joined-HERVEY, J., filed a dissenting opinion in which KELLER, PJ., and KEASLER, J., joined-MEYERS, J., not participating.

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