1. APPLICATIONS FOR WRITS OF HABEAS CORPUS
Presented by:
Gary A. Udashen
Udashen | Anton
2311 Cedar Springs Rd., Suite 250
Dallas, Texas 75201
fax
Board President – Innocence Project of Texas

2. RECOGNIZING VALID ISSUES
Does the Application:
Seek Relief From Final Felony Conviction (not probation)
Raise Constitutional or Fundamental Errors
Allege Confinement or Collateral Consequences
Plead Facts, Which, If True, Would Entitle Applicant to Relief

3. TIME LINE FOR DISTRICT COURT
State Has 15 Days To Answer
Within 20 Days of Expiration of Time For State’s Answer District Court Shall:
1. Decide Whether There Are Controverted, Previously Unresolved Facts Material To Legality of Applicant’s Confinement
2. If Yes, Enter An Order Designating Issues To Be Resolved

4. ORDER DESIGNATING ISSUES
The Court finds there are controverted, previously unresolved facts material to the legality of applicant’s confinement, to wit, whether the applicant received ineffective assistance of counsel. These issues shall be resolved by submission of affidavits and an evidentiary hearing.

5. WAYS TO RESOLVE ISSUES Affidavits Depositions Interrogatories
Forensic Testing
Hearings
Personal Recollection

6. IF NO ISSUES TO BE RESOLVED
Court Makes This Finding
Clerk Sends Application, Answer and Court’s Order To Court of Criminal Appeals

7. FINDINGS BY DISTRICT COURT
District Court Issues Findings of Fact and Conclusions of Law
Transmitted to Court of Criminal Appeals
Court of Criminal Appeals Grants or Denies Relief
Court of Criminal Appeals Not Bound By District Court’s Findings and Conclusions
Court Will Ordinarily Follow the Findings and Conclusions if Supported By Record

8. FACTS THAT BAR RELIEF Issue Could Have Been Raised on Direct Appeal
Issue Was Decided On Direct Appeal (exception on ineffective assistance)
Subsequent Writs
4th Amendment Violation Not Cognizable
Insufficiency of Evidence Not Cognizable (no evidence is cognizable)

9. WHETHER TO HOLD A LIVE HEARING
QUESTIONS: 1. Are there factual questions to be resolved? 2. Does resolution of the factual questions require credibility determinations? 3. Would hearing the witness testify aid the court in making credibility assessment?

10. LAWYER V. CLIENT SHOULD LAWYER ALWAYS WIN?
GALLEGO V. U.S., 174 F.3D 1196 (11TH CIR. 1999): “We cannot adopt a per se credit counsel in case of conflict rule” where “the defendant is going to lose every time.”
Judge should assess credibility of the lawyer and client based on their testimony.

11. COMMON ISSUES Ineffective Assistance of Counsel
Suppression of Exculpatory Evidence
New Evidence Establishing Actual Innocence
New Science
Perjured Testimony

12. INEFFECTIVE ASSISTANCE OF COUNSEL
Strickland v. Washington, 466 U.S. 668 (1984), test requires Applicant to show:
1. Counsel’s performance was deficient. Requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.
2. The deficient performance prejudiced the defendant.

13. DEFICIENT PERFORMANCE
An appellate court “must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance; that is, the [appellant] must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689

14. DEFICIENT PERFORMANCE
“In the absence of evidence of counsel’s reasons for challenged conduct, an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)

15. TRIAL COUNSEL’S REASONS
Record must show why counsel took the actions that constitute ineffective assistance. Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999)
Trial counsel must provide affidavit or testimony.

16. TRIAL COUNSEL’S REASONS
“Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)

17. TOTALITY OF REPRESENTATION
Appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) It is possible that a single egregious error of omission or commission by counsel constitutes ineffective assistance. Thompson, 9 S.W.3d 813

18. WHEN TO RAISE ISSUE
Ineffective Assistance of Counsel may (should) be raised for first time on a writ. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).
Trial record is rarely sufficient to show ineffective assistance.

19. GUILTY PLEAS
Must show that but for counsel’s errors defendant would not have entered a guilty plea. Hill v. Lockhart, 474 U.S. 52 (1985)

20. PLEA BARGAINING Lafler v. Cooper, 566 U. S. 156 (2012)
Strickland test applies to plea bargaining stage of trial. Deficient advice concerning plea bargain constitutes ineffective assistance. Defendant must show that he would have accepted the offer, the state would not have withdrawn it and the trial court would have accepted it.
Lafler v. Cooper, 566 U. S. 156 (2012)
Missouri v. Frye, 566 U.S. 134 (2012)
Ex parte Argent, 393 S.W.3d 781
(Tex. Crim. App. 2013)

21. PLEA BARGAINING
Failure to advise defendant prior to defendant’s entry of guilty plea that he had a viable legal defense that he did not perform an overt act needed to support his conviction constitutes ineffective assistance. State v. Diaz-Bonilla, 495 S.W.3d 45 (Tex. App. – Houston [14th Dist.] 2016, pet.ref’d)

22. INCORRECT ADVICE ON PAROLE ELIGIBILITY
Counsel’s misinformation to defendant as to his parole eligibility constituted deficient performance. Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)

23. IMMIGRATION CONSEQUENCES
Failure to advise defendant of deportation consequences of conviction is ineffective assistance. Padilla v. Kentucky, 559 U.S. 356 (2010) Prejudice shown from counsel’s erroneous advice that guilty plea would not result in deportation when applicant shows he would not have pled guilty had he known he would be deported. Jae Lee v. United States, 137 S.Ct (2017)

24. DUTY TO INVESTIGATE
STRATEGIC DECISIONS ARE BASED ON INVESTIGATION The Supreme Court has made clear that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at But when choices are made after less than complete investigation, they are reasonable only “to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691. And decisions made out of inattention are not strategic and afforded no deference at all. Wiggins v. Smith, 539 U.S. 510, 526 (2003)

25. FAILURE TO INVESTIGATE
Failure of trial counsel to investigate information that someone else committed the crime is ineffective.
Ex Parte Amezquita, 223 S.W.3d 363
(Tex. Crim. App. 2006)

26. IGNORANCE OF THE LAW
Counsel ineffective for lack of awareness of case holding that, on charge for possession of or attempt to possess controlled substance through use of fraudulent prescription form, State had to prove that defendant presented “fraudulent” form, not just that defendant committed “fraud” by interlineating upon otherwise legitimate form. Ex Parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017)

27. INEFFECTIVE ASSISTANCE DURING TRIAL
Attorneys rendered ineffective assistance by failing to investigate and present mitigating evidence of defendant being abused as a child in capital murder case. Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006) Trial counsel’s failure to impeach witness with his inconsistent statements, made when he told police that he saw shooter’s face but could not make it out, constituted deficient performance. Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016)

28. INEFFECTIVE ASSISTANCE DURING TRIAL
Failure to request limiting instruction.
Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001)
Failure to file application for probation.
Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998)
Failure to request accomplice witness instruction when case based entirely on accomplice testimony. Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)

29. INEFFECTIVE ASSISTANCE DURING TRIAL
A defendant has the right under Sixth Amendment to insist that counsel refrain from admitting guilt during the guilt-phase of a capital murder trial, even when counsel’s view is that confessing guilt offers the defendant the best chance to avoid the death penalty. McCoy v. Louisiana, 138 S.Ct (2018)

30. FAILURE TO OBTAIN EXPERT ASSISTANCE
Retained counsel performed deficiently in limiting, for economic reasons, his investigation of medical evidence before advising client to plead guilty. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)

31. FAILURE TO OBTAIN EXPERT ASSISTANCE
Failure to hire DNA expert in sexual assault and kidnapping prosecution amounted to deficient performance, although counsel consulted other attorneys, doing so was insufficient investigation in this case given the fact that counsel still lacked much understanding of DNA science, and expert testimony likely would have given a boost to the defense beyond what could have been accomplished through cross-examination. (no prejudice found) Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010)

32. FAILURE TO CALL EXPERT
Defense team’s failure to present physician’s expert testimony regarding sodium intoxication constituted ineffective assistance of counsel. Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014)

33. FAILURE TO OBTAIN EXPERT ASSISTANCE
Defense counsel ineffective for failure to request additional funds to replace an inadequate expert in firearms and toolmark analysis. Hinton v. Alabama, 571 U.S. 263 (2014)

34. FAILURE TO OBTAIN EXPERT ASSISTANCE
Ineffective assistance based on counsel’s failure to consult with an expert concerning sexual abuse and proper methods of interviewing children Wright v. State, 223 S.W.3d 36 (Tex. App. – Houston [14th Dist.] 2016, pet. ref’d)

35. PUNISHMENT PHASE INEFFECTIVENESS
The sentencing process consists of weighing mitigating and aggravating factors, and making adjustments in the severity of the sentence consistent with this calculus.
Failure to contact or call to testify twenty character witnesses is ineffective assistance.
Milburn v. State, 15 S.W.3d 267
(Tex. App. – Houston [14th Dist.] 2000, pet. ref’d.)

36. PUNISHMENT PHASE INEFFECTIVENESS
Failure of counsel to discover evidence showing that the defendant was not at the scene of a crime used as an extraneous offense at punishment phase constitutes ineffective assistance of counsel. Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012)

37. PUNISHMENT PHASE INEFFECTIVENESS
Trial counsel’s failure to investigate and discover defendant’s mental health history prejudiced defendant at penalty phase of trial; there was reasonable probability of less severe sentence; substantial mitigating evidence was available. Lampkin v. State, 470 S.W.3d 876 (Tex. App. – Texarkana 2015, pet. ref’d)

38. INEFFECTIVENESS ON MOTION FOR NEW TRIAL
Rights to effective assistance applies at Motion for New Trial. Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) To prove harm, must present a “facially plausible” claim that could have been argued in Motion for New Trial but was not. Cooks, 240 S.W.3d at 912

39. INEFFECTIVENESS ON APPEAL
To obtain relief in the form of a new direct appeal on a claim of ineffective assistance of appellate counsel, a habeas applicant must show that (1) counsel’s decision not to raise a particular point of error was objectively unreasonable, and (2) there is a reasonable probability that, but for counsel’s failure to raise that particular issue, he would have prevailed on appeal. Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012)

40. SUPPRESSION OF EXCULPATORY EVIDENCE
We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
Brady v. Maryland
373 U.S. 83 (1963)

41. THREE PART TEST TO OBTAIN RELIEF BASED ON SUPPRESSION OF EXCULPATORY EVIDENCE
The prosecution withheld or suppressed evidence.
The evidence was favorable to the defense.
The evidence was material to either guilt or punishment.

42. MATERIALITY TEST
Evidence qualifies as material when there is “any reasonable likelihood” it could have “affected the judgment of the jury.” To prevail on a Brady claim, the applicant need not show that he “more likely than not” would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to “undermine confidence” in the verdict.
Wearry v. Cain, 136 S.Ct (2016)

43. EXCULPATORY EVIDENCE
The State has an affirmative duty to disclose evidence favorable and material to a defendant’s guilt or punishment under the Due Process Clause of the Fourteenth Amendment. This duty attaches with or without a request for the evidence. When unsure of whether to disclose the evidence, the prosecutor should submit the evidence to the trial judge for his consideration.
Thomas v. State
841 S.W.2d 399
(Tex. Crim. App. 1992)

44. EXCULPATORY EVIDENCE
Prosecutor denied having any exculpatory evidence Exculpatory evidence suppressed: Eyewitness (Walker) who said Thomas was not in location where shooting occurred. Prosecutor later testified, “I would have brought (Walker’s testimony) to the court’s attention had I thought it would be exculpatory in any manner.” Thomas v. State

45. EXCULPATORY EVIDENCE
Because we agree that the credibility of the State’s only eyewitness, Anita Hanson, was crucial issue in applicant’s trial, we conclude that the State had an affirmative constitutional duty under Brady v. Maryland to disclose material evidence that impeached her testimony.
Ex Parte Richardson
70 S.W.3d 865 (Tex. Crim. App. 2002)

46. EXCULPATORY EVIDENCE
Previous statement from eyewitness that he could not identify the perpetrator is exculpatory evidence when eyewitness identifies defendant in Court. Smith v. Cain, 132 S.Ct. 627 (2012)

47. KNOWLEDGE OF POLICE
Knowledge of government agents, such as police officers, of exculpatory evidence is imputed to the prosecution. Prosecutor has a duty to learn of any favorable evidence known to the others acting in the government’s behalf, including the police. Kyles v. Whitley, 514 U.S. 419 (1995)

48. SNITCH TESTIMONY
When reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of immunity deal violates due process.
Napue v. Illinois
360 U.S. 264 (1959)
“Supreme Court has never limited a Brady violation to cases where the facts demonstrate that the state and the witness have reached a bona fide, enforceable deal.”
Lacaze v. Warden,
645 F.3d 728 (5th Cir. 2010)

49. SNITCH TESTIMONY
Brady applies to agreement “which are merely implied, suggested, insinuated or inferred.”
Question is whether there exists “some understanding for leniency.”
“It makes no difference whether the understanding is consummated by a wink, a nod and a handshake, or by a signed and notarized formal document ceremoniously impressed with a wax seal. A deal is a deal.”
Duggan v. State,
778 S.W.2d 465 (Tex. Crim. App. 1989)

50. WEARRY V. CAIN, 136 S.Ct (2016)
State failed to disclose that, contrary to the prosecution’s assertions at trial, Brown had twice sought a deal to reduce his existing sentence in exchange for testifying against Wearry. The police had told Brown that they would “talk to the D.A. if he told the truth.”

51. WORK PRODUCT
The privilege derived from the work-product doctrine is not absolute, and the duty to reveal material exculpatory evidence as dictated by Brady overrides the work-product privilege.
Ex Parte Miles,
359 S.W.3d 647
(Tex. Crim. App. 2012)

52. THE DALLAS COUNTY EXPERIENCE
Stanley Mozee and Dennis Allen
Writ Relief Granted January 10, 2018 (WR-82,467-01, WR-56,666-03)
Mozee and Allen convicted largely on the basis of jailhouse informants.
Informants testify at trial that they had no deal with state, had not asked for a deal and did not expect a deal.
Letters to prosecutor found in District Attorney’s file from informants, written prior to trial, asking when the prosecutor was going to follow through with the deals he had promised them.

53. TEXAS ACTUAL INNOCENCE STANDARD
Free Standing Actual Innocence Claim: Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) Applicant must show, by clear and convincing evidence, that newly discovered or newly available evidence of actual innocence unquestionably established innocence.

54. NEWLY DISCOVERED OR AVAILABLE EVIDENCE
Newly discovered evidence is evidence that was not known to the applicant at the time of trial and could not have been known to him even with the exercise of due diligence.
Ex Parte Brown, 205 S.W.3d 538
(Tex. Crim. App. 2006)
Newly available evidence is evidence that may have been known to the applicant but was not available for his use based on factors beyond his control.
Ex Parte Calderon, 309 S.W.3d 64
(Tex. Crim. App. 2010)

55. ACTUAL INNOCENCE STANDARD
Court must examine the new evidence in light of the evidence presented at trial
To grant relief court must believe that no rational juror would have convicted in light of the newly discovered evidence.

56. ACTUAL INNOCENCE STANDARD
Applies to:
DNA
New Scientific Evidence
Recantations
New Witnesses
Other New Evidence

57. RECANTATIONS Ex Parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005)
Complainant, daughter of Applicant, provided affidavit and testimony stating that sexual abuse never occurred.
Trial court found recantation credible
Expert witness testimony supported the recantation

58. GUILTY PLEAS Ex Parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002)
Recantation after guilty plea.
Actual innocence claims are not barred by guilty plea.
2015 – 68 out of 157 nationwide were cases where defendant pled guilty.

59. EX PARTE NAVARIJO, 433 S.W.3d 558 (Tex. Crim. App. 2014)
Complainant’s recantation alone insufficient to prove actual innocence. Court considers entire record in assessing actual innocence based on recantation, even if recantation itself is credible.

60. NON-RECANTATION ACTUAL INNOCENCE CASE
Defendant actually innocent of duty to register as a sex offender.
Ex Parte Harbin,
297 S.W.3d 283 (Tex. Crim. App. 2009)
Defendant not actually innocent of duty to register as a sex offender
Ex parte Wahlgren,
2017 WL
(Tex. Crim. App. 2017)

61. EX PARTE SONIA CACY, No. WR-85,420-10, (Nov. 2, 2016)
Cacy convicted of an arson murder based on false lab report that claimed there was gasoline on her uncle’s clothing.
Trial Court finds Cacy is actually innocent.
Court of Criminal Appeals Agrees

62. SAN ANTONIO FOUR Kristie Mayhugh Elizabeth Ramirez Cassandra Rivera
Anna Vasquez
Ex parte Mayhugh,
512 S.W.3d 285
(Tex. Crim. App. 2016)
Found actually innocent by Court of Criminal Appeals on November 23, 2016

63. SAN ANTONIO FOUR
Two young girls testified that the four women sexually assaulted them
One of the girls, now an adult, recants accusations
Other girl does not recant
Recantation supported by expert testimony
State’s medical evidence, that one of the girls had physical signs of abuse, is recanted by doctor based on new science

64. UNCONSTITUTIONAL STATUTE
Online solicitation of a minor statute declared unconstitutional in Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013)
Writs granted under Lo are not “actual innocence” findings. Ex Parte Fournier, 473 S.W.3d 789 (2015)
Fournier actually engaged in the conduct, so no new evidence of innocence.

65. EX PARTE MABLE, 443 S.W.3d 129 (Tex. Crim. App. 2014)
The term “actual innocence” only applies in circumstances where the accused did not actually commit the charged offense or any possible lesser included offense.
Subsequent lab testing on drug case showing no drugs does not prove actual innocence.

66. SCHLUP ACTUAL INNOCENCE CLAIM
Schlup v. Delo, 513 U.S. 298 (1995)
Actual innocence itself does not provide basis for relief
Actual innocence is used as a gateway to raise otherwise barred claims
Lower burden on applicant: requires preponderance of the evidence instead of the clear and convincing evidence standard on freestanding actual innocence claim

67. TEXAS CONDIFICATION OF SCHLUP
Art , Sec. 4(a)(2), C.C.P. allows subsequent writ when, “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.”

68. CHANGING SCIENTIFIC EVIDENCE
QUESTION: HOW SHOULD COURTS RESPOND TO CHANGES IN SCIENCE UNDERLYING CONVICTIONS

69. NEW STATUTE CONCERNING WRITS BASED ON NEW SCIENTIFIC EVIDENCE
Art Procedure Related to Certain Scientific Evidence.
(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the convicted person’s trial; or
(2) contradicts scientific evidence relied on by the state at trial:
(b) A court may grant relief if :
(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 ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

70. NEW SCIENCE
(B) the scientific evidence would be admissible under the Texas Rules of Evidence ; and (2) the court finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. (c) For purposes of a subsequent writ, a claim or issue could not have been presented in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application , as applicable, was filed.

71. NEW SCIENCE
(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since . . .

72. CHANGING SCIENTIFIC EVIDENCE
Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011)
Court concluded that Robbins “failed to prove that the new evidence unquestionably establishes his innocence.” Actual innocence claim rejected

73. ROBBINS I MAJORITY
Despite all experts agreeing that Dr. Moore’s findings and testimony were incorrect, majority refused relief because none of the experts affirmatively proved that “Tristen could not have been intentionally asphyxiated.” Majority concluded Robbins did not “have a due process right to have a jury hear Moore’s re-evaluation.”

74. Robbins case reconsidered under Art. 11.073 and relief granted
EX PARTE ROBBINS (ROBBINS II) 478 S.W.3d 678 (Tex. Crim. App. 2014) rehearing denied 2016
Robbins case reconsidered under Art and relief granted
Medical Examiner’s reconsideration of her opinion was new scientific evidence that contradicted scientific evidence relied upon by the state at trial.

75. EX PARTE KUSSMAUL, ET AL 548 S.W.3d 606 (Tex. Crim. App. 2018)
Relief granted under to four defendants, three who pled guilty to sexual assault, and one who was convicted of capital murder
Y-STR DNA testing results were exculpatory to all four defendants and constitute new scientific evidence

76. EX PARTE KUSSMAUL, ET AL 548 S.W.3d 606 (Tex. Crim. App. 2018)
A showing by a mere preponderance of the evidence that an applicant would not have been convicted if exculpatory DNA results are obtained is not sufficient to warrant relief on the basis of actual innocence, but statute governing procedure on new scientific evidence (Art ) affords an avenue for relief under the preponderance standard.

77. EX PARTE HENDERSON, 384 S.W.3d 833 (Tex. Crim. App. 2012)
Child dies of head injury.
Henderson says she dropped child.
Medical Examiner testified that it was impossible for child’s brain injuries to have occurred in the way Henderson stated. Medical Examiner says child’s injuries resulted from a blow intentionally struck by Henderson.

78. EX PARTE HENDERSON
Henderson submits evidence that recent advances in biomechanics suggest that it is possible that child’s head injuries could have been caused by an accidental short-distance fall. Additionally, Medical Examiner submitted an affidavit which recanted his testimony.

79. EX PARTE HENDERSON
Court finds new scientific evidence shows that a short distance fall could have caused the head injury.
Court finds new scientific evidence did not establish that Henderson was actually innocent but that it did establish a due process violation.

80. PRESENTATION OF FALSE TESTIMONY
Due process violated by state’s unknowing presentation of perjured testimony in murder prosecution. Ex Parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009).

81. PRESENTATION OF FALSE TESTIMONY
Ex Parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) (false testimony that defendant was shooter in aggravated robbery case is violative of due process) Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) (testimony of child victim’s parents regarding victim’s behavior after she was sexually assaulted was false and violated due process).