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Click here for the full text of this decision FACTS:A jury convicted Cathy Lynn Henderson of capital murder in May 1995. The Court of Criminal Appeals affirmed her conviction and sentence on direct appeal. In October 1998, Henderson timely filed her initial application for writ of habeas corpus and amended it on Nov. 17, 1998. The CCA denied relief. Henderson made a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure Art. 11.071, �5. Henderson raised three claims in which she asserted that she has newly available evidence showing that: 1. she was innocent of capital murder; 2. “but for constitutional errors she would not have been found guilty”; and 3. she was no longer “death eligible.” HOLDING:The CCA granted Henderson’s request for a stay of execution and remanded her subsequent application for writ of habeas corpus to the trial court for further proceedings on Henderson’s first two claims. Henderson, the CCA stated, asserted that the critical issue in her trial was whether she intentionally caused Brandon Baugh’s death or whether Baugh’s death was the result of an accidental fall. In Henderson’s subsequent habeas application, she submitted significant recent scientific research and the affidavits and reports of several scientists. That material, the CCA stated, indicated that what is called the biomechanical analysis of infant head trauma � an area of scientific research that was beginning to develop in 1995 when applicant was tried and convicted � now shows that the type of head injuries that Baugh suffered could have been caused by an accidental short fall onto concrete. Although the details have varied, Henderson’s position throughout has been that Brandon fell out of her arms as she was carrying him and hit his head on the concrete playroom floor. At the time of Henderson’s trial, Dr. Roberto Bayardo, the highly experienced medical examiner for Travis County, testified that it was impossible for Baugh’s extensive brain injuries to have occurred in the way that Henderson stated. He testified that her story was false and incredible. His opinion and that of Dr. Sparks Veasay of Lubbock County was that Baugh’s injuries had to have resulted from a blow intentionally struck by Henderson. Bayardo 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 flat surface.” Baugh, Bayardo stated in 1995, was an abused baby whom Henderson had intentionally murdered. But according to the affidavits and reports submitted by Drs. John J. Plunkett, Peter J. Stephens, Janice J. Ophoven and Kenneth L. Monson, recent advances in the area of biomechanics and physics suggest “that it is perhaps possible that Brandon’s head injuries could have been caused by an accidental short-distance fall.” Trial judge Jon Wisser, the CCA stated, presided over applicant’s 1995 trial and is currently presiding over her subsequent writ application. Wiser “was sufficiently troubled by the initial scientific evidence presented to him that, on April 4, 2007, he recalled applicant’s original death warrant and rescheduled her execution for June 13, 2007, to give her sufficient time to gather additional material for this subsequent writ application.” Henderson did so. Bayardo also submitted an affidavit in which he recanted his opinion in the 1995 trial. His affidavit states the following: “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, I 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, 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, I would not have been able to testify the way I did about the degree of force needed to cause Brandon Baugh’s head injury.” The CCA stated that Bayardo’s re-evaluation of his 1995 opinion “is a material exculpatory fact.” Henderson’s subsequent habeas application, the CCA stated, contained sufficient specific facts establishing that Henderson’s first two claims satisfied the requirements of Art. 11.071, �5(a). Therefore, the CCA granted Henderson’s request for a stay of execution and remanded her subsequent habeas application to the trial court for further proceedings on Henderson’s first two claims. The CCA dismissed the third claim in her application � that she is no longer death eligible � because it was not legally cognizable under Art. 11.071, � 5. OPINION:Per curiam. Meyers, J., did not participate. CONCURRENCE:Price, J., filed a concurring statement. “Dr. Bayardo now avers that, given the new developments in the science of biomechanics, he could not now testify, as he did during the applicant’s 1995 trial, that Brandon’s head injury could not have been caused by an accidental fall such as that which the applicant described in her trial testimony. He now asserts that he”cannot determine with a reasonable degree of medical certainty whether Brandon Baugh’s injuries resulted from an intentional act or an accidental fall.’ . . . I believe this constitutes a prima facie showing of a cognizable claim of actual innocence.” DISSENT:Keller, P.J., filed a dissenting opinion in which Hervey, J., joined. “Before a court can consider the merits of a habeas application, the application must contain sufficient facts establishing one of the three exceptions listed in Article 11.071, �5(a). The facts alleged in the present application, even if accepted as true, do not establish any of the exceptions listed in �5.” Keasler, J., also filed a dissenting statement. “Even assuming that the biomechanical evidence regarding causes of infant head trauma was previously unavailable, Henderson has failed to present a cognizable claim of actual innocence based on newly-discovered evidence. The ‘newly-available’ biomechanical evidence does not constitute evidence that ‘unquestionably establish[es]‘ Henderson’s innocence . . . As the majority observes, the affidavits and reports of Drs. John J. Plunkett, Peter J. Stephens, Janice J. Ophoven, and Kenneth Monson concerning recent advances in ‘biomechanics and physics suggest that it is possible that Brandon’s head injuries could have been caused by an accidental short-fall distance.’ The words ‘suggest,’ ‘possible,’ and ‘could’ denote uncertainty. And here the obvious uncertainty pertains to whether Brandon’s death was the result of an accident. This is a far cry from setting out sufficient specific facts establishing actual innocence.”

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