concluding that applicant’s Herrera claim failed in part because the evidence of the victim’s extensive history of medical ailments was “available at the time this case was set for trial.”
How later courts described this case
- concluding that applicant’s Herrera claim failed in part because the evidence of the victim’s extensive history of medical ailments was “available at the time this case was set for trial.”
Written by the judges who cited it.
The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,126-02
EX PARTE CARMEN MEJIA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-1-DC-04-904057-B
IN THE 167TH DISTRICT COURT
TRAVIS COUNTY
FINLEY, J., filed a concurring and dissenting opinion in
which PARKER, J., joined.
CONCURRING & DISSENTING OPINION
Applicant was convicted of felony murder, injury to a child, and injury to a
child by omission and was sentenced to three terms of life imprisonment. Her
instant habeas application raises four claims: (1) false evidence; (2) Article 11.073;
(3) actual innocence; and (4) ineffective assistance of trial counsel. The habeas
court recommends we grant Applicant relief on all grounds. The Court’s per
MEJIA CONCURRENCE & DISSENT— 2
curiam opinion grants relief on Applicant’s actual innocence ground, citing Ex
parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), and Ex parte Tuley, 109
S.W.3d 388 (Tex. Crim. App. 2002), and declares Applicant “actually innocent.”
I disagree with our decision to do so for three reasons. First, Applicant’s
Elizondo claim is barred as subsequent under Code of Criminal Procedure article
11.07, Section 4(a)(1). See TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(1). The
“factual . . . basis” for Applicant’s Elizondo claim—Applicant’s daughter’s
admission that she caused the injuries to the decendent—was not only available at
the time of Applicant’s prior writ but was available at Applicant’s trial in the form
of testimony admitted to the jury. Second, even if we were to review the merits of
Applicant’s Elizondo claim, Applicant fails to meet Elizondo’s “herculean
burden.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). Third,
this Court should not be in the business of declaring successful Elizondo habeas
applicants “actually innocent.” See Ex parte Cacy, 543 S.W.3d 802, 804 (Tex.
Crim. App. 2016) (Yeary, J., concurring) (“[T]hough I remain content to grant
habeas relief to any applicant who satisfies the Elizondo standard, I would avoid
the label of actual innocence.”).
That leaves Applicant’s remaining claims. Applicant’s false evidence and
ineffective assistance of counsel claims are also barred for the same reasons as
MEJIA CONCURRENCE & DISSENT— 3
Applicant’s Elizondo claim. However, under Ex Parte Robbins, 478 S.W.3d 678
(Tex. Crim. App. 2014), Applicant’s Article 11.073 claim is not. Based on the
record before us, Applicant is entitled to Article 11.073 new science relief because
the scientific evidence that the State relied upon at Applicant’s trial—the medical
examiner’s conclusion that the death was a homicide—has now been contradicted
by new relevant scientific evidence that was unavailable at the time of trial and
which proves by a preponderance of the evidence that, had this scientific evidence
been presented at Applicant’s trial, Applicant would not have been convicted. See
Robbins, 478 S.W.3d at 692. Consequently, Applicant is entitled to habeas relief,
just not in the way the Court grants it. For the following reasons, I concur in the
Court’s decision to grant Applicant a new trial but dissent insofar as the Court
does so on actual innocence grounds.
I. Factual Background
a. Offense & Trial
Applicant was indicted for one count of felony murder, one count of injury
to a child, and one count of injury to a child by omission related to the death of
A.C., a ten-month-old. At trial, the State elicited testimony that A.C. had been
living with his father, Mauro Casiano, for one week in the duplex that Applicant
and her family rented. Casiano paid Applicant to care for A.C. while Casiano was
MEJIA CONCURRENCE & DISSENT— 4
at work. On the day of his death, A.C. was in Applicant’s care. A.C. sustained
third-degree burns on seventy percent of his body that ultimately caused fatal
organ failure.
Dr. Keith Kerr, a pediatric intensive care physician, testified at Applicant’s
trial that he treated A.C. at St. David’s Hospital and tried to stabilize A.C.’s body
temperature and blood pressure to be able to safely transfer A.C. to the pediatric
intensive care unit at Brackenridge Children’s Hospital. Dr. Kerr testified that
“full thickness burns” covered about seventy percent of A.C.’s body, beginning
across his chest and covering the rest of his body down to his feet. A.C.’s skin was
red and had peeled off in some places. Dr. Kerr also discussed A.C.’s non-burn
injuries, which included bruising to the right side of A.C.’s head that indicated
trauma. Dr. James Jackson, who treated A.C. in the emergency room at St.
David’s, testified that A.C. appeared “critically ill” when he arrived at the
hospital. Dr. Jackson also discussed the bruising to A.C.’s head but admitted it
could have been caused during A.C.’s treatment. Brooke Shertzer, a social worker
at St. David’s Hospital who did not treat A.C., testified that she saw that A.C. had
“severe burns” and was “extremely red.”
At Applicant’s trial, the State argued that Applicant intentionally held A.C.
down in scalding bathwater and caused the third-degree burns that led to his death.
MEJIA CONCURRENCE & DISSENT— 5
The State heavily emphasized Applicant’s several different explanations for
A.C.’s injuries to both hospital personnel and law enforcement. Applicant first
told Shertzer that while A.C. and one of her sons had been playing in the kitchen,
A.C. shook the stove and caused a pot of boiling water to fall on him. Doctors
determined this explanation was inconsistent with A.C.’s injuries. Dr. Kerr
testified that A.C.’s burns were not consistent with a pot of water having fallen on
him and were more consistent with A.C. having been held in scalding water: “The
child was struggling not to be in the water, but obviously somebody determined
that that is not what was going to happen.” A.C.’s back was spared from the burns,
which Dr. Kerr concluded meant that someone had their hand on A.C.’s back to
protect their hand from getting burned and was “obviously consistent with
someone doing it on purpose.” On cross-examination, Dr. Kerr testified that even
though he was not aware of the circumstances surrounding A.C.’s burns, the burn
patterns suggested to him that they were not sustained accidentally.
Applicant told detectives the pot-of-water story during her interview. Law
enforcement also determined that the evidence at Applicant’s apartment was
inconsistent with this explanation. Detective Robert Merrill, who investigated
Applicant’s case, testified that A.C.’s injuries were inconsistent with A.C. pulling
a pot of water onto himself. He testified that he measured Applicant’s stove and
MEJIA CONCURRENCE & DISSENT— 6
determined it was too tall for a child of A.C.’s age to have reached the stovetop.
Detective Merrill also testified that he and Detective Rogelio Sanchez had
conducted a water test. The hot water heater in the bathroom was set between 140
to 150 degrees, and the water heated to 147.8 degrees at the “top end.”
Detective Sanchez interviewed Applicant after A.C. died, during which
Applicant offered other explanations for A.C.’s injuries. Applicant told Detective
Sanchez that A.C. had gotten in the tub on his own, and her daughter Ana Patricia 1
had told her to tell the pot-of-water story. A.P. was about three years old at the
time A.C. was burned. Applicant then told Detective Sanchez that Casiano was
abusive towards A.C. and that he had raped Applicant. Applicant said that Casiano
had intentionally burned A.C. because he was angry that Applicant refused his
sexual advances. Applicant also said that Casiano had threatened to kill her and
her husband if they told law enforcement what he had done. Detective Sanchez
testified that Casiano had an alibi for both the alleged rape and the death of A.C.,
which was corroborated by the timekeeper and other employees at Casiano’s
worksite. After Detective Sanchez informed Applicant that he did not believe her
1
As Applicant’s habeas counsel notes, Applicant’s daughter Ana Patricia has been adopted and
has officially changed her name since she testified at Applicant’s trial. She testified at
Applicant’s habeas hearing under the initials A.P. and will be designated as such for the
remainder of this opinion.
MEJIA CONCURRENCE & DISSENT— 7
story was true, she told him that her daughter Jennifer had put A.C. in the
bathwater while Applicant was breastfeeding her infant daughter. Tapes of
Detective Sanchez’s interview with Applicant were played for the jury, though
Applicant’s explanation that Jennifer was responsible for A.C.’s injuries was not
recorded.
Phylip Peltier, a retired police officer who consulted on A.C.’s burns,
testified that based on his review of the photos of A.C.’s injuries, A.C. was likely
held down by an adult under his armpits and deliberately submerged in the
scalding water. Peltier rebutted all of Appellant’s explanations for A.C.’s injuries
and said that none were consistent with the burns that A.C. sustained. The chief
medical examiner for Travis County, Roberto Bayardo, testified that based on his
review of A.C.’s autopsy, A.C.’s death was a homicide and that A.C.’s injuries
were not consistent with him having pulled a pot of water onto himself.
The State also focused on Applicant’s lack of emotional response to A.C.’s
injuries. Shertzer described Applicant as not grasping the severity of the situation
and showing no emotion throughout her interactions with Applicant. On cross-
examination, Shertzer admitted that Applicant’s apathy could have been a trauma
response. Detective Sanchez testified that Applicant did not seem to have an
MEJIA CONCURRENCE & DISSENT— 8
emotional response when talking about A.C.’s injuries until she began discussing
Casiano’s alleged rape.
The State also alleged that Applicant failed to get A.C. potentially life-
saving medical care by waiting three hours to take him to the hospital. Applicant
told detectives that she had taken A.C. to a local non-emergency clinic before
taking him to the hospital. The owners of Applicant’s duplex, Domingo Diaz and
Elisa Romero, testified that Applicant asked Romero for $5 to put gas in
Applicant’s truck so she could take A.C. to the doctor. Romero testified that she
told Applicant to call the hospital or an ambulance and that Applicant declined.
Juana Lucas, Applicant’s neighbor, accompanied Applicant to the clinic.
Applicant told Lucas that she did not want to take A.C. to the hospital because
A.C. did not have Medicaid and she believed he would be seen more quickly at a
“private doctor.” Applicant and Lucas arrived at the clinic during its lunch hour.
The doctor at the clinic was Dr. Thieu Bui. Dr. Bui’s medical assistant, Kathy
Chau, testified that Applicant told Chau that she had a baby with a “small burn”
on his head, and that she wanted him to be seen by a private doctor. Chau informed
Applicant that the clinic was closed for lunch and that Applicant should take the
baby to the emergency room. Dr. Bui testified that he never saw A.C., but when
Chau told him that there was a baby with a burn, he told her that their clinic was
MEJIA CONCURRENCE & DISSENT— 9
not equipped to treat such injuries. Chau relayed this information to Applicant and
offered to call an ambulance for Applicant because “the child will die.” Applicant
said that she would take him to the hospital herself and then went back home to
pick up her husband and other children before taking A.C. to St. David’s.
Dr. Kerr testified that he would have been able to resuscitate A.C. if he had
been brought in to the hospital immediately, but because so much time had lapsed
between the injury and the treatment, A.C. suffered “irreversible shock” and fatal
organ failure. Dr. Jackson testified that it was “very difficult” to get intravenous
access to A.C. to begin circulating fluids, which suggested that A.C.’s burns were
more than an hour old. Dr. Jackson also testified that the chances of resuscitating
a patient diminish after a delay in receiving treatment. On cross-examination, Dr.
Jackson admitted that it was possible Applicant could have arrived at the
emergency room earlier than was indicated on the intake paperwork. Carol Morin,
an investigator with Child Protective Services assigned to Applicant’s case,
testified that when she interviewed Applicant at the police station, Applicant told
Morin that she knew where and when to take an injured child to the doctor and
had done so before with her own children.
In her defense, Applicant presented testimony from her children. None of
the children implicated Applicant in the death of A.C. at trial. Jose testified that
MEJIA CONCURRENCE & DISSENT— 10
A.P. had been in the bathroom with A.C. when A.C. was burned. Jennifer said Jose
turned on the water but testified that she remembered previously telling the
prosecutor that A.P. put A.C. in the bathtub. A.P. implicated her brother and
father at trial but had previously said in interviews that A.C. had burned himself.
Applicant also testified in her own defense. Her explanation at trial was that she
was in the bedroom nursing her youngest child when Jennifer told her that A.P.
was in the bathroom with A.C. Applicant testified that she went into the bathroom,
pulled A.C. out of the bathtub, and splashed cold water on him. She testified that
she did not go to the hospital immediately or call an ambulance because she did
not think A.C. would be seen without insurance. Applicant testified that the true
story was that A.P. had put A.C. in the bathtub, and that she lied to investigators
and doctors because she was afraid her children would be taken away from her.
In rebuttal, the State recalled Dr. Rene Jankowski to testify about typical
child development. Dr. Jankowski testified that none of the other children in
Applicant’s home, based on typical child development standards, would have
been able to hoist A.C. into the bathtub by themselves. Dr. Jankowski testified that
the children could have helped hoist A.C. into the tub, but he would have landed
in the tub headfirst and would have had some burns to his head and neck area,
assuming he was placed in the tub after there was already water in it. On cross-
MEJIA CONCURRENCE & DISSENT— 11
examination, Dr. Jankowski testified that if there was not water in the tub when
A.C. entered it, he may have hit his head on the side of the bathtub.
The jury convicted Applicant as charged in the indictment and sentenced
her to three terms of life imprisonment.
b. Appeal & Applicant’s first habeas application
Applicant timely appealed, and the court of appeals affirmed her conviction.
On appeal, Applicant argued that the evidence was legally and factually
insufficient to support her conviction for injury to a child by omission and that she
was denied due process because the State lost exculpatory evidence. The court of
appeals affirmed. Mejia v. State, No. 03-05-00838-CR, 2008 WL 2219981, at *8
(Tex. App.—Austin May 29, 2008, pet. ref’d) (mem. op., not designated for
publication). This Court refused Applicant’s petition for discretionary review.
Applicant filed her first application for writ of habeas corpus (the -01 writ)
in September 2014. In it, Applicant alleged four grounds. First, she alleged that
the State withheld material evidence, namely her children’s lost interviews, but
also the untaped portion of Applicant’s own interview with Detective Sanchez.
Applicant claimed that during the untaped portion of the interview, she made an
exculpatory statement that A.P. had been responsible for A.C.’s injuries. Second,
Applicant claimed that the manner in which she was interviewed violated her
MEJIA CONCURRENCE & DISSENT— 12
rights to due process and a fair trial, because law enforcement used coercive
interview methods by depriving her of sleep and interrogating her for over
fourteen hours.
Applicant also alleged that her trial counsel, Edward Carmona, rendered
ineffective assistance of counsel. Applicant claimed that Carmona had ongoing
personal and legal problems that distracted him from her case, including assault
charges against Carmona and his daughter, and a felony DWI charge against
Carmona. Applicant argued that because of these personal issues and Carmona’s
lack of experience, Carmona failed to get a copy of Applicant’s interview with law
enforcement, failed to investigate and present an expert witness, and failed to
procure a translator so that Applicant could understand various pretrial
proceedings. Carmona filed an affidavit stating he “did not have the necessary
expertise to handle the complexities of this case as it progressed to trial.” Diana
Salazar, Applicant’s second-chair counsel, filed a lengthy affidavit supporting
Applicant’s ineffective assistance of counsel claims against Carmona and asserting
Applicant’s actual innocence (though Applicant did not raise a claim of actual
innocence in her -01 writ). Applicant also alleged that her appellate counsel was
ineffective for failing to argue the voluntariness of Applicant’s statement to law
enforcement and failing to adequately argue Applicant’s lost-evidence claim.
MEJIA CONCURRENCE & DISSENT— 13
On October 8, 2014, this Court denied Applicant’s -01 writ without written
order. Ex parte Mejia, No. WR-82,126-01 (Tex. Crim. App. Oct. 8, 2014).
c. The instant habeas application & habeas evidence
Applicant filed the instant -02 application in September 2025. She raises
four claims: (1) false testimony; (2) Article 11.073; (3) actual innocence; and (4)
ineffective assistance of counsel. The parties agree that Applicant is entitled to
relief on all grounds. The habeas court recommends Applicant be granted relief
on all grounds. In support of her theory that A.C.’s burns were accidentally
inflicted, Applicant presented testimony from key prosecution witnesses at her
trial as well as other experts who reviewed medical evidence.
i. Dr. Keith Kerr
In his affidavit, Dr. Kerr testified that A.C.’s injuries could have been
caused accidentally by other children in Applicant’s home, contrary to his trial
testimony:
5. At the time of my trial testimony, I was not aware that
[Applicant’s] biological daughter [had] taken responsibility for this
incident. Given this information, along with the new evidence in the
case, it is now my opinion that A.C.’s injuries and ultimate death
could have been accidentally caused by the children in this case. The
burn patterns in this case are consistent with an accidental immersion
burn.
MEJIA CONCURRENCE & DISSENT— 14
6. I have been asked to provide my opinion regarding whether it is
possible that A.C.’s injuries occurred when the children mistakenly
turned on the hot water faucet in the bathtub after placing A.C. in the
tub. It is my professional medical opinion that the burn patterns
present on A.C., coupled with the measured temperature of the water
in the bathtub as documented in law enforcement’s worksheets, are
consistent with this fact pattern. If the children placed A.C. in the
tub, then mistakenly turned on the hot water faucet, and left the
bathroom to get their mother after A.C. began to exhibit extreme
pain, it is possible that A.C. suffered these burns as the scalding water
rose. In this scenario, given the extremely hot water temperatures
recorded in the tub, A.C. would have suffered full thickness burns in
a matter of a few seconds.
Dr. Kerr also reevaluated his opinion as to whether Applicant failed to timely seek
medical treatment for A.C. Dr. Kerr testified in his affidavit that the clinic’s failure
to call an ambulance for A.C. when they had a duty to do so contributed to the
delay in care. Contrary to his trial testimony, Dr. Kerr testified that “[g]iven the
severity of the burns, the baby’s chances of survival were slim.”
ii. Phylip Peltier
Peltier reviewed affidavits from medical personnel and A.P., the original
autopsy report, and temperature charts admitted at trial. In his affidavit and at the
habeas hearing, Peltier testified that “[i]t is possible that these injuries could have
been caused by another child as long as that child was physically able to reach the
hot water faucet and turn on the water.” Peltier echoed Dr. Kerr’s likely
explanation for A.C.’s injuries: that A.C. was placed in the bathtub by the other
MEJIA CONCURRENCE & DISSENT— 15
children, who then inadvertently turned on the hot water faucet, which was set to
extremely high temperatures. He also echoed Dr. Kerr’s medical opinion that in
this scenario, A.C. would have suffered from full thickness burns in “mere
seconds.”
iii. Dr. Elizabeth Peacock
Applicant also presents Dr. Peacock’s reevaluation of her autopsy. Dr.
Peacock was unavailable to testify at Applicant’s trial, so Dr. Bayardo testified to
her conclusions instead. In her affidavit, Dr. Peacock said that she no longer
believes A.C.’s death was a homicide:
6. When I reached my conclusion regarding the manner of death, I
based my conclusions on the investigation and the information that
was available to me at the time. I have recently learned that one of
[Applicant’s] children remembers that the scalding was caused by
the children and was an accident and remembers that [Applicant] was
not in the bathroom when the baby was burned.
7. At the time I wrote my report, I was not aware that a law
enforcement investigation showed the water temperature from the
tap was set at dangerously high levels.
8. Having had the opportunity to thoroughly review all of the
information that is now available, it is my opinion that the manner of
death was improperly classified as a homicide, and it is now my
opinion that the manner of death should be classified as an accident.
It is now my opinion that the totality of the evidence supports the
conclusion that the death occurred due to unintentional acts, not
child abuse.
MEJIA CONCURRENCE & DISSENT— 16
Dr. Peacock also discussed the apparent blunt force trauma to A.C.’s head, which
Drs. Kerr and Jackson testified to at trial:
4. The Medical Examiner’s Report that I authored contained a
diagram . . . that I created showing the injuries of the child. The
autopsy diagram that was entered as part of State’s 138—the Medical
Examiner’s Report testified to by my colleague, Dr. Bayardo—was
not created by me and appears to have been created by law
enforcement. There were differences between the two diagrams.
5. My diagram shows multiple splash burns and a contusion on A.C.’s
head. The diagram entered into evidence as part of State’s 138
indicates that there was blunt force trauma to both sides of A.C.s [sic]
head. My diagram does not reflect blunt force trauma to both sides of
A.C.’s head.
* * *
8. . . In my autopsy I noted a contusion to the scalp that was
characterized in the death certificate as blunt force trauma. It is now
my opinion that the cause of the contusion is undetermined. It is
unlikely that the injury contributed to the child’s death.
iv. Dr. Wendy Shields
Dr. Shields is a Senior Scientist at Johns Hopkins School of Health and
focuses her research on prevention of scald injuries. In conducting her analysis,
Dr. Shields reviewed A.C.’s injuries and medical reports as well as temperature
charts admitted at trial. Dr. Shields concluded that the water heater in Applicant’s
building was set to an unsafe temperature and that there was no scald protection
in the faucets. She also discussed other cases she had encountered during her
MEJIA CONCURRENCE & DISSENT— 17
research in which children had sustained injuries similar to A.C.’s under “similar
circumstances of A.C.’s injury.” Based on these observations, Dr. Shields opined
that “the primary causes of A.C.’s injury were the failure to 1. Properly set the
water heater to a safe temperature and 2. The failure to utilize temperature
limiting valves to control the temperature in the bathtub as recommended by the
manufacturers.”
Further, Dr. Shields discussed common factors that are likely to have
contributed to the delay in A.C.’s care. According to her research, “it is common
for burn victims to receive inadequate first aid treatment.” It is also common for
caretakers to turn to friends or family for guidance on their children’s injuries,
especially for burn injuries about which research has shown parents lack
knowledge. Finally, Dr. Shields noted that parents tend to supervise their children
in relation to known risks, and that “low income and immigrant families often lack
awareness of typical home injury risks.”
v. Dr. James Gallagher
Dr. Gallagher was retained to conduct a review of the medical evidence
surrounding A.C.’s death. Dr. Gallagher reviewed the trial testimonies of all
medical professionals who treated A.C. as well as the testimonies of Applicant’s
children. Dr. Gallagher also reviewed A.C.’s autopsy and medical records and law
MEJIA CONCURRENCE & DISSENT— 18
enforcement investigation materials. Dr. Gallagher noted that A.C. would have
sustained his injuries within “mere seconds” of the faucet being turned on.
Dr. Gallagher also described the likely scenario based on A.C.’s injuries:
Although the initial angle of [A.C.’s body] entering the water cannot
be determined with certainty, the majority of his body entered and
remained in the water at an oblique angle, with the child prone with
chest and head lifted or held up out of the water. In the water, the
child was tilted with his left side lower than the right: the child’s belly
was burned along with his arms, and legs while the head, upper chest,
back, and buttocks are more spared.
Contrary to Dr. Kerr’s and Peltier’s trial testimonies, Dr. Gallagher could “find
no clear evidence of the child being held down in the water.” Dr. Gallagher also
noted that Dr. Kerr’s explanation at trial that A.C. was held down in the water by
his back was inconsistent with A.C.’s injuries. If that had been the case, A.C.’s
stomach would have been pressed against the bottom of the tub and less burned
than it actually was. Dr. Gallagher testified that Dr. Kerr’s inference at trial that
the sparing under A.C.’s armpits meant he was held under the arms was not an
inference that “can be made from this physical finding.” Dr. Gallagher also
testified that “[t]here is no way to determine with certainty based on the
appearance of [A.C.’s] burn injuries whether his injuries were the result of a
deliberate or accidental immersion burn in the bathtub.” Dr. Gallagher concluded
MEJIA CONCURRENCE & DISSENT— 19
that “[b]ased on my training, experience, and the medical evidence, the injuries
suffered by [A.C.] are consistent with an accidental or unintentional burn.”
Dr. Gallagher also testified to A.C.’s apparent head contusions and said that
Dr. Kerr’s conclusion that A.C. suffered blunt force trauma to his head likely
influenced her conclusion that A.C.’s burns were intentionally inflicted. However,
Dr. Gallagher noted there was no evidence to attribute A.C.’s head injuries to
blunt force trauma. Dr. Gallagher’s opinion was that “the mark on [A.C.’s] head
characterized as a bruise may be a first-degree burn.”
As to whether Applicant acted reasonably in seeking medical treatment for
A.C., Dr. Gallagher testified that the immediate effects of burns like the ones A.C.
suffered would have been internal, so it would not have been readily apparent to
Applicant that A.C. was “nearing death.” He also testified that, in his opinion,
Applicant took reasonable steps to get A.C. medical treatment, particularly in light
of her beliefs about health care access and A.C.’s lack of documentation. Finally,
Dr. Gallagher disagreed with Dr. Kerr’s statement at trial that A.C. would have
lived if A.C. had been brought to the hospital immediately:
The severity and extent of the burns that [A.C.] suffered made his
injuries life threatening with little hope of survival and death the most
probable outcome. Even if he had been taken to an emergency room
immediately following the injuries and had been able to be
transported to one of the world’s devoted children’s burn centers, it
MEJIA CONCURRENCE & DISSENT— 20
is far more likely that he would have died. The burn injuries here
carry an approximate 20% chance of survival.
vi. A.P.’s Affidavit
Applicant also presented non-scientific testimony from her daughter A.P.
who signed an affidavit. It reads, in its entirety:
When I was about three years old, I remember being in a bathroom
with my older brother, younger sister, and a baby. I thought the baby
was a cousin or visitor. My younger sister, M—, was not in the
bathroom. My birth mother, Carmen Mejia, was not in the bathroom.
I don’t know how the baby got in the bathtub. I do remember turning
on the water. Almost right after I turned on the hot water, the baby
started screaming. I didn’t know what to do and I ran and got my birth
mother. I remember that the baby was very red and wouldn’t stop
screaming but I don’t remember much after that.
I don’t remember testifying at the trial or talking to investigators. I
thought my birth mother was in prison for being the adult in the
house when the baby was burned.
After the baby died, I lived with my siblings and birth father. I
remember that he abused me and I still have a scar from him hitting
me. I remember going to the hospital and then I didn’t see him again.
When I was about 16, I told my adopted mother that I remember
turning on the faucet. That is when she told me more information
about my birth mother.
I have talked about turning on the faucet with my siblings. When I
was a teenager, I went to therapy in New Braunfels. During a one-on-
one session I told the therapist I remembered turning on the faucet.
MEJIA CONCURRENCE & DISSENT— 21
I did not know everything about the case until the summer of 2024
when prosecutors from the Travis County District Attorney’s Office
reached out to my siblings to ask about the case.
On August 21, 2024 I met with Jenna Fechner, Vanessa Potkin,
Trudy Strassburger, Brenda Cachy Gutierrez at the St. Mary’s Law
School Law Library. I brough [sic] my sister, M— with me.
During the habeas hearing, A.P. testified that she did not “know if it was
my brother who had put [A.C.] in [the bathtub] or if he and him had help.” A.P.
clarified that A.C. was already in the bathtub when she (A.P.) turned on the faucet,
and that A.C. began crying “pretty instantly” when the water began running. A.P.
testified that after A.C. began crying, she went to go find Applicant elsewhere in
the house. A.P. could not testify with certainty where Applicant was in the
house—A.P. said that Applicant was either in the kitchen cooking or “she was in
her bedroom or a bedroom”—just that Applicant was not in the bathroom at the
time. When questioned by the habeas court, A.P. testified that she did not
remember much of what happened after she went to get Applicant; all she
remembered was turning the water on. A.P. also testified that she had no memory
of the police investigation that followed. The habeas court found “A.P’s poignant
testimony to be ‘extremely credible.’” Applicant also presented CPS records
during the habeas hearing. The habeas court ultimately found that “Applicant’s
trial was infected with constitutional error, that scientific evidence relied on by the
MEJIA CONCURRENCE & DISSENT— 22
State at Applicant’s trial has now been contradicted by relevant scientific
evidence, and that Applicant is innocent of the crimes for which she was convicted
and has been imprisoned for the past 22 years.” As to Applicant’s Article 11.073
claim, the habeas court specifically found:
[T]he new scientific evidence relates to a central issue at trial —
whether A.C.’s injuries resulted from an accident as Applicant
maintained or whether Applicant intentionally held A.C. down in
scalding water and delayed care to cover her abuse as the State
mentioned. Dr. Peacock’s conclusion that A.C.’s manner of death
was homicide carried enormous weight with the jury and under the
particular circumstances of this case equated with a guilty verdict.
The habeas court also found that had Dr. Peacock’s revised opinion regarding
A.C.’s cause of death been admitted at Applicant’s trial, the jury more likely than
not would not have convicted Applicant, especially given that “Dr. Peacock now
definitively finds that the manner of death was accidental.”
II. Actual Innocence
a. Applicable Law
An applicant can obtain relief on the basis that she is actually innocent of
the crime for which she was convicted in light of newly discovered evidence.
Elizondo, 947 S.W.2d at 205. When asserting such a claim, an applicant must prove
by clear and convincing evidence that no reasonable juror would have convicted her
based on the newly discovered evidence. Id. at 210. This is a “herculean” burden.
MEJIA CONCURRENCE & DISSENT— 23
Brown, 205 S.W.3d at 545. Newly discovered evidence is that which “was not
known to the applicant at the time of trial, plea, or post-trial motions and could
not be known to him even with the exercise of due diligence.” Ex parte Chaney,
563 S.W.3d 239, 274 (Tex. Crim. App. 2018); see also TEX. CODE CRIM. PROC. art.
11.07, § 4(c). An applicant may rely on a single piece or multiple pieces of new
evidence so long as the burden of proof is met, and the newly discovered evidence
must affirmatively support the applicant’s innocence. Id. To determine whether
an applicant has met that burden, the court must weigh the newly discovered
evidence against the State’s case at trial to determine the probable impact the
evidence would have had at trial if it had been available. Elizondo, 947 S.W.2d at
206.
b. Applicant’s Elizondo claim is barred under Article 11.07, Section 4
Applicant contends that newly discovered evidence demonstrates that she
is actually innocent of the crimes for which she was convicted. Specifically,
Applicant’s “newly discovered evidence” includes (1) A.P.’s 2024 affidavit and
habeas testimony that A.P. turned on the hot water that burned A.C. while
Applicant was absent; (2) Dr. Peacock’s 2024 revised opinion that the manner of
death was “accidental”; and (3) new affidavits from the State’s trial expert
MEJIA CONCURRENCE & DISSENT— 24
witnesses, Dr. Kerr and Peltier, stating that A.C.’s injuries could now be
consistent with an accident.
Applicant’s Elizondo claim fails because A.P.’s 2024 affidavit, which serves
as the basis for the revised medical opinions, is not “newly discovered evidence.”
During Applicant’s case-in-chief, she elicited testimony from her children Jose
and Jennifer that A.P. was in the bathroom at the time A.C. sustained his injuries.
Jose testified:
Q: I know it is hard to remember back, but do you remember the
baby that lived there?
A: (Nods affirmatively.)
Q: At the house at the time. And do you remember what
happened to him?
A: He got burned in the bathtub.
Q: He got burned in the bathtub, uh-huh. And did that scare you?
A: Kind of. Because I was like six or something.
Q: Yeah. It was kind of scary, huh?
A: (Nods affirmatively.)
Q: And do you remember who was in the bathroom at the time
when he first—
A: It was probably Ana.
Q: It was [A.P.]?
MEJIA CONCURRENCE & DISSENT— 25
A: That is who I saw in the bathroom.
* * *
Q: Do you remember if anyone else was in the bathroom when he
first got burned?
A: (Shakes head negatively.)
* * *
Q: Where were you when—
A: I was in bed watching TV.
Q: You were watching TV, and how did you first figure out that
the baby had been burned?
A: When I heard him cry.
Q: Heard him crying?
A: And my sister came over and told me.
Q: Your sister came over and told you?
A: (Nods affirmatively.)
Q: And what did you do next? Do you remember?
A: I woke up my mom, try to wake her up, and I couldn’t, and I
finally woke her up.
Q: You woke up your mother?
A: Yeah and she called my dad.
Q: And she called your dad. And where was she at?
MEJIA CONCURRENCE & DISSENT— 26
A: Bed sleeping.
Jennifer testified:
Q: Do you remember who was in the bathroom with the baby
when he got burned?
A: (Nods affirmatively.) Yes.
Q: Who was that?
A: Ana.
Q: Ana? And when you came before and you met with [the
prosecutor], do you remember talking to her?
A: (Nods affirmatively.)
* * *
Q: Do you remember telling her that [A.P.] put hot water on the
baby?
A: (Nods affirmatively.)
Q: That is a yes?
A: (Nods affirmatively.)
Applicant also presented testimony from Alia Alsaffar, a representative of Child
Protective Services:
Q: Have you had an opportunity to review the summaries of an
interview that you did with — well, did you interview [A.P.]
that day?
A: On July 29th?
MEJIA CONCURRENCE & DISSENT— 27
Q: Yes.
A: Yes.
Q: Have you had an opportunity to review your summaries of that
interview?
A: Yes
* * *
Q: . . . do you remember asking Patti if anyone had been hurt
recently?
A: Yes, I did ask her that.
Q: Okay. And do you remember asking Patti who took the baby to
the hospital?
A: Yes.
Q: And how did she reply?
A: She replied Carmen.
Q: Do you remember asking whether Carmen was her mother?
A: Yes, I asked her to identify who that was.
Q: She did say that it was her mother?
A: Yes.
Q: Do you remember asking her — do you remember her reaction
when you asked her what happened to the baby?
A: Yes, I do.
MEJIA CONCURRENCE & DISSENT— 28
Q: And what was that?
A: According to my notes, I had documented that soon after
asking what had happened to the baby, Patti shut down and
rolled up into a fetal position on the cushion. When I tried to
ask her again what had happened, she did not respond.
* * *
Q: What was her demeanor at that point?
A: She was pretty shut down in that she wasn’t responding, and
she was having a physical reaction by curling up in a fetal
position.
Q: Okay. Did she then tell you that the baby was burned?
A: Yes. After much delay, she then responded by telling me the
baby was burned.
Q: Do you remember asking her who had burned the baby?
A: Yes.
Q: And did she then explain to you that he burned himself?
A: Yes.
Q: Do you remember asking her where the baby was when it was
burned?
A: Yes.
Q: And can you tell the jury her response to that?
A: She told me that he was in the bathroom at their house when
he was burned.
MEJIA CONCURRENCE & DISSENT— 29
Q: And do you remember asking her who was in the bathroom
when this happened?
A: Yes.
Q: And what did she say to that?
A: She said that her younger sister Jenny was in the bathroom as
well as Kiki, or — that is what they called Jose — was in the
bathroom.
Applicant also presented testimony from Cindy Cantu, another representative of
Child Protective Services, who testified about an interview she conducted of Jose:
Q: Do you remember asking Jose Enrique about the day July 28,
2003 when a baby was injured at his home?
A: I know that I asked him about the baby being injured, but we
didn’t speak of a specific day.
Q: Okay. Do you remember his age at the time?
A: Jose’s age was eight. He told me he was eight.
Q: Do you remember him being uncomfortable in the beginning?
A: He was very uncomfortable throughout the interview.
Q: Do you remember him even going underneath a chair at one
point, not wanting to talk about it?
A: Yes.
Q: Do you remember that he initially — I’m sorry, do you
remember asking him about the baby being burned?
A: Yes.
MEJIA CONCURRENCE & DISSENT— 30
Q: Okay. And do you remember asking him who was with the baby
when he got burned?
A: Yes.
Q: Do you remember what he said in response to that?
A: He gave a lot of different answers, but primarily I think he said
that he did not know, that he saw the baby in the bathtub alone.
Q: You don’t remember him saying that [A.P.] was trying to —
and there is an inaudible portion, and to do something to the
baby?
A: No, I don’t remember that.
Q: Do you remember him saying that he was trying to bathe the
baby?
A: That he was trying to bathe the baby?
Q: Uh-huh.
A: No, I don’t remember that.
Q: Did you just watch that this morning?
A: Yes.
Q: Do you remember asking him where as [A.P.] at the time?
A: Yes.
Q: And do you remember him saying I think in the shower?
A: He gave a couple of different answers to that, and one of those
was in the shower, and then right after that, he said he didn’t
know, and then later in the interview, he said that she — the
MEJIA CONCURRENCE & DISSENT— 31
other — she and his sisters were in the kitchen eating
breakfast.
Q: And do you have — having reviewed the entire 50-minute
video, did you notice whether at any time he said that Ms.
Mejia, his mother, burned the baby?
A: He never said that.
Q: Do you remember him saying that he tried to pick the baby up
after he was burned?
A: Yes.
Q: Do you remember him saying that he called his mother to the
bathroom after the baby was burned?
A: Yes.
Q: Do you remember him saying that his mother called his dad
right away after that?
A: Yes.
Q: And do you remember him saying that his dad got there right
after?
A: He didn’t say specifically when his dad got there, but just that
his dad did show up.
Q: And do you remember asking where his mother was at that
time when the baby was injured?
A: I asked him where the — where his mother was when he saw
the baby in the bathtub, and he said that his mother was in the
bedroom.
MEJIA CONCURRENCE & DISSENT— 32
Q: Okay. Do you remember a discussion toward the end of the
interview about how he — where he actually told you he
sometimes had tried to bathe the baby but he knows the
difference between hot and cold water?
A: Yes.
Q: And at the very, very end when the interview ends, do you
remember that he was telling you specifically without you
asking something to the effect that may it was one of the little
girls because they don’t know. Do you remember that?
A: May I refer to my notes?
Q: Yes.
A: Yes, I think he did say that.
This testimony was compounded by Applicant’s trial counsel’s arguments
to the jury. During opening statements, Applicant’s trial counsel argued that
“what happened to [A.C.] was a tragic accident” that “happened when Ms. Mejia
wasn’t even in the bathroom . . . where [A.C.] was burned,” but “her children
were present. Maybe not all of them, but some of them were present in that
bathroom.”
In closing arguments, trial counsel again emphasized “this horrible
tragedy.” Counsel then argued:
The State would like you to believe that this whole injury, it is all
Carmen’s fault, but I am asking you to recall the evidence that you
heard about all the chaos and the confusion of this morning.
MEJIA CONCURRENCE & DISSENT— 33
We are not playing the blame game here, [A.P.] did it, it would have
been Jose. There were four very active young children at home at the
time that this injury happened. It could have been one of them. These
children are too young to be capable of this kind of evil. It was an
accident. Accidents happen.
Counsel later reminded the jury of Applicant’s interview with law enforcement,
emphasizing: “[S]he discovered the baby was burned. She never said [A.P.] did it.
She said she walked in and found [A.P.] there by the baby in the tub. No one is
calling [A.P.] a killer. She is too young. Kids have accidents.”
Even assuming these portions of argument and testimony are not sufficient
to show that Applicant—and her trial counsel—were aware of the evidence
implicating A.P. at the time of Applicant’s trial, the record clearly shows that
Applicant’s trial counsel had in his possession the summaries of the CPS
interviews. In fact, Applicant’s trial counsel unsuccessfully moved to admit those
summaries as evidence:
[Trial Counsel]: I wanted to move at this time to enter the
summaries of the children’s statements from
2003.
[The Court]: For —
[Trial Counsel]: I thought — I am moving to admit Defense 1, the
children’s summaries.
[The Court]: For what purpose? Is the State objecting?
MEJIA CONCURRENCE & DISSENT— 34
[The State]: Yes. Just like we — yes, we do. They are hearsay.
They need to call the witness.
[The Court]: No further argument, just asking me to admit?
[Trial Counsel]: Yes, Judge. They are part of what he has
reviewed, and he has had the State’s other
reports and information provided to him, so this
should be included as well.
[The Court]: Under rule 705, 705(d), specifically, of the rules
of evidence, I am going to deny your request.
Sustain the objection.
And even if that is not sufficient, it is hard to credibly imagine that “through the
exercise of reasonable diligence,” TEX. CODE CRIM. PROC. art. 11.07, § 4(c), trial
counsel could not have acquired copies of the actual notes taken during the CPS
interviews that were later admitted at Applicant’s habeas hearing.
Additionally, the factual basis for Applicant’s actual innocence claim was
known to Applicant at the time of her -01 writ. Part of Applicant’s ineffective
assistance of counsel claim in her -01 writ alleged that Carmona, her trial counsel,
was ineffective for failing to request exculpatory video statements of the child
witnesses from law enforcement until after they were lost. According to Applicant,
the video statements would have corroborated Applicant’s defense that A.P.
caused A.C.’s injuries. This further shows that A.P.’s admission is not “newly
MEJIA CONCURRENCE & DISSENT— 35
discovered evidence” because Applicant knew of it not only at the time of trial but
also at the time of her first habeas application.
Moreover, the revised medical opinions are also not “newly discovered
evidence” because they are each predicated on A.P.’s 2024 affidavit—which itself
is not newly discovered. In her affidavit, Dr. Peacock states that “it is my opinion
that the manner of death was improperly classified as homicide, and it is now my
opinion that the manner of death should be classified as accident.” But Dr.
Peacock readily admits that she has “recently learned that one of [Applicant]’s
children remembers that the scalding was caused by the children and was an
accident and remembers that [Applicant] was not in the bathroom when the baby
was burned.” The problem with that assertion, as the record makes clear, is that
that evidence was known by both Applicant and the State at the time of Applicant’s
trial. 2 Similarly, the affidavits by both Peltier and Dr. Kerr relay that they reviewed
A.P.’s 2024 affidavit and now conclude that A.C.’s injuries could have been
caused accidentally. Dr. Kerr specifically states that “[a]t the time of [his] trial
2
The same is also true about Dr. Peacock’s assertion that she “was not aware that a law
enforcement investigation showed the water temperature from the tap was set at dangerously
high levels.” As the trial record shows, Detective Merrill testified that he and Detective Sanchez
had conducted a water test and that the hot water heater in the bathroom was set between 140
to 150 degrees, and the water heated to 147.8 degrees at the “top end.” This evidence was
known to Applicant and the State at the time of Applicant’s trial.
MEJIA CONCURRENCE & DISSENT— 36
testimony, [he] was not aware that [Applicant’s] biological daughter [had] taken
responsibility for this incident. Given this information, along with the new
evidence in the case, it is now my opinion that A.C.’s injuries and ultimate death
could have been accidentally caused by the children in this case.” Yet, Applicant’s
trial counsel knew at the time of Peltier’s and Dr. Kerr’s testimony of the
children’s conflicting statements that pointed to A.P. 3
This Court’s precedent sets a demanding standard. Applicant is raising a
Herrera claim—“a ‘bare claim of innocence’ based solely on newly discovered
evidence.” Brown, 205 S.W.3d at 544 (discussing Herrera v. Collins, 506 U.S. 390
(1993)). As we explained in Brown, “‘newly discovered evidence’ refers to
evidence that was not known to the applicant at the time of trial and could not be
known to him even with the exercise of due diligence. He cannot rely upon
evidence or facts that were available at the time of his trial, plea, or post-trial
motions, such as a motion for new trial.” Id. at 545. In Brown, we held that a
recantation of sexual assault was not “newly discovered evidence” because the
3
Applicant’s trial counsel did cross-examine Dr. Kerr on several occasions to test Dr. Kerr’s
conclusion that the burn injuries were not consistent with an “accidental” cause.
MEJIA CONCURRENCE & DISSENT— 37
affidavit recanting the sexual assault was identical to the affidavit attached to the
applicant’s motion for new trial. Id. at 547.4
Based on the record before us, as well as the applicable law, the factual basis
for Applicant’s actual innocence claim was available at the time of Applicant’s
trial and at the time of Applicant’s initial habeas application. Consequently,
Applicant’s actual innocence claim is barred. See TEX. CODE CRIM. PROC. art.
11.07, § 4(c).5
c. Applicant’s Elizondo claim fails on the merits
Even if this Court were to consider the merits of Applicant’s Elizondo claim,
Applicant fails to meet Elizondo’s “herculean burden” for two primary reasons.
First, as detailed previously, the basis for Applicant’s Elizondo claim was already
4
See also Ex parte Briggs, 187 S.W.3d 458, 465 (Tex. Crim. App. 2005) (concluding that
applicant’s Herrera claim failed in part because the evidence of the victim’s extensive history of
medical ailments was “available at the time this case was set for trial.”).
5
Applicant’s false evidence claim fails for the same reasons. The factual basis for that claim—
that the State presented false evidence in the form of medical evidence to support the State’s
theory that the burns could not have been accidentally caused—was available at the time of
Applicant’s trial. In fact, as the record supra shows, Applicant’s trial counsel both argued this
point to the jury and admitted evidence to support it.
To the extent that the innocence gateway exception may apply, Applicant fails to show
innocence under the innocence gateway provisions. See Ex Parte Reed, 670 S.W.3d 689, 745
(“We have construed this language [innocence-gateway exception under Tex. Code Crim.
Proc. 11.071, § 5(a)(2)] as a ‘codification of the Supreme Court’s Schlup v. Delo standard’ . . . .
Importantly, even in the Schlup context, ‘actual innocence means factual innocence, not mere
legal insufficiency.’”). The same is equally true for Applicant’s ineffective assistance of counsel
claim.
MEJIA CONCURRENCE & DISSENT— 38
presented to the jury and the jury rejected that defense. The fact that the evidence
is not newly discovered since Applicant’s trial is the very reason why Applicant’s
Elizondo claim is defeated on its merits. Second, the expert testimony presented
by Applicant in the habeas hearing lacks the level of certainty necessary to rule out
homicide as the cause of A.C.’s death.
The lynchpin of Applicant’s Elizondo claim is A.P.’s allegedly new
admission that she caused A.C.’s burns. Fundamentally, for Applicant’s Elizondo
claim to be successful, a jury would have to believe A.P. that Applicant had no
involvement in A.C.’s burning and consequently find Applicant not guilty. The
problem with this logic is that this very defense was already presented at
Applicant’s original trial. As detailed previously, Applicant’s defense involved
calling her children—A.P., Jennifer, and Jose—to testify about what happened to
A.C. Applicant also introduced evidence from two CPS employees who testified
about interviews with the children after Applicant’s arrest. The children
uniformly testified (and told the CPS employees) that Applicant was not involved
in A.C.’s burning. In fact, several children testified that Applicant was not even in
the bathroom at the time A.C. was burned. This was also a central theme of
Applicant’s closing argument to the jury. Applicant’s trial counsel argued that
“[i]t was an accident” and “[a]ccidents happen,” and that “[i]t could have been
MEJIA CONCURRENCE & DISSENT— 39
one of [the children].” The jury rejected this defense and convicted Applicant on
all counts. It is difficult to imagine that a different result would be reached today
should Applicant present the same defense again at trial.
To the extent that the “new” medical opinions could be the basis for a
successful Elizondo claim, that argument is unpersuasive. As detailed later in part
III, Applicant’s new medical testimony forms the basis for a meritorious Article
11.073 claim. However, for the same reasons that the testimony suffices for the
purposes of Article 11.073, the testimony fails to suffice for Elizondo.
Applicant’s medical experts now agree that the evidence “could”—and I
emphasize “could”—be consistent with an accidental cause. Dr. Kerr testified
that A.C.’s injuries could have been caused accidentally by the other children in
Applicant’s home. In his affidavit, Dr. Kerr stated: “it is now my opinion that
A.C.’s injuries and ultimate death could have been accidentally caused by the
children in this case. The burn patterns in this case are consistent with an
accidental immersion burn.” (Emphasis added). In his affidavit and at the habeas
hearing, Peltier testified that “[i]t is possible that these injuries could have been
caused by another child as long as that child was physically able to reach the hot
water faucet and turn on the water.” (Emphasis added).
MEJIA CONCURRENCE & DISSENT— 40
This testimony is problematic for Applicant’s Elizondo claim for several
reasons. First, the medical experts themselves do not foreclose intentional
conduct as the cause of A.C.’s injuries. Second, a jury “could” disbelieve
Applicant’s medical experts and nevertheless find that A.C.’s injuries were
caused by intentional conduct. Third, a jury that did not believe A.P. would
certainly reject the changed medical expert opinions that rely on A.P.’s allegedly
new admission in her affidavit.
In any event, Applicant fails to meet Elizondo’s by clear and convincing
evidence burden.6 Even if this Court were to consider the merits of Applicant’s
Elizondo claim, the claim fails.
6
Consider the cases in which we have granted Elizondo relief, just to name a few. In Ex parte
Cobb, 710 S.W.3d 747, 760 (Tex. Crim. App. 2025), DNA evidence conclusively excluded the
applicant as a donor from a cup that the robber drank from and disposed at the scene of the
crime. In Ex parte Cook, 691 S.W.3d 532 (Tex. Crim. App. 2024), among many other pieces of
evidence that undermined the confidence in the applicant’s verdict was conclusive DNA
evidence that excluded the applicant as a donor of a blood stain on the victim’s bra and semen
on the victim’s panties. In Ex parte Reyos, No. WR-28,073-02, 2023 WL 6458560 (Tex. Crim.
App. Oct. 4, 2023), new fingerprint evidence conclusively excluded the applicant as the donor
of fingerprints in the victim’s hotel room, vehicle, and credit card. In Ex parte Santillan, No.
WR-49,763-02, 2023 WL 2150874 (Tex. Crim. App. 2023), DNA evidence conclusively
excluded the applicant as the donor of DNA on a jersey worn by the perpetrator of the offense.
The arduous Elizondo standard is clear: “The applicant must do more than merely raise doubts
about his guilt—he must produce affirmative evidence of innocence.” Cook, 691 S.W.3d at 561
(quoting Ex parte Reed, 670 S.W.3d 689 (Tex. Crim. App. 2023)) (internal quotation marks
omitted). Applicant certainly has raised doubts about her guilt. In fact, as I explain later, she has
sufficiently met the Article 11.073 standard to be entitled to habeas relief. She simply has not
met the high bar for relief on her Elizondo claim.
MEJIA CONCURRENCE & DISSENT— 41
d. This Court should stop using the actual innocence label
In any event, this Court errs to label Applicant “actually innocent.” I agree
with Judge Yeary that this Court should not be in the business of labeling
successful Elizondo applicants in that manner. See, e.g., Ex parte Cobb, 710 S.W.3d
747, 760 (Tex. Crim. App. 2025) (Yeary, J., concurring); Ex parte Warfield, 618
S.W.3d 69, 74 (Tex. Crim. App. 2021) (Yeary, J., concurring); Chaney, 563
S.W.3d at 286 (Yeary, J., concurring); Ex parte Cacy, 543 S.W.3d 802, 804 (Tex.
Crim. App. 2016) (Yeary, J., concurring).
In Cacy, Judge Yeary wrote:
The Elizondo standard, on its face, does not really focus on innocence
per se. It is, instead, an exceedingly high burden by which an
applicant must show that, if newly available evidence were added to
the evidentiary mix, no reasonable jury would have found the State’s
case to have been compelling enough to defeat the systemic
presumption of innocence. Simply put, the State would not have been
able to prove him guilty beyond a reasonable doubt, and a reasonable
jury would be obliged to declare him not guilty. This is not the same
as establishing that the applicant is manifestly innocent.
543 S.W.3d at 803 (Yeary, J., concurring). I agree with Judge Yeary’s
bottom line: “I would avoid the label of actual innocence—at least in the absence
of evidence that conclusively proves, not just that a reasonable jury, by clear and
convincing evidence, would not have convicted him, but that the applicant
manifestly did not commit the offense.” Id. at 804.
MEJIA CONCURRENCE & DISSENT— 42
To be clear, I am not advocating that we make the “herculean” Elizondo
standard more arduous. Cf. Cobb, 710 S.W.3d at 749–50 (Richardson, J.,
concurring) (“Despite that, in an unsolicited crusade now lasting almost a decade,
a member of this Court continues to advocate that the Elizondo standard is not
rigorous enough to identify the ‘actually innocent’ from the hundreds of non-
meritorious cases this Court has received.”). Nor do I imagine that Judge
Yeary is in fact advocating for such a change in our habeas jurisprudence. Id. at
760 (Yeary, J., concurring) (“Note that each of these was a concurring opinion.
I have no qualms about granting post-conviction habeas corpus relief to any
applicant who can satisfy the current Elizondo standard.”) (original emphasis);
Warfield, 618 S.W.3d at 74 (Yeary, J., concurring) (“I would also grant relief to
any post-conviction applicant who can satisfy the Elizondo standard. But I would
not necessarily call that applicant ‘actually innocent’ in doing so.”). I just happen
to believe that this Court should avoid the “term of art” that is the “actually
innocent” label. Cf. In re Allen, 366 S.W.3d at 706 (“‘Actual innocence’ is a legal
term of art, which has acquired a technical meaning in the habeas corpus
context.”). 7
7
In fact, the solution is quite a simple one. The Court’s per curiam order states: “We agree that
Applicant has established that she is actually innocent.” Ante at 2. The order then states: “Relief
MEJIA CONCURRENCE & DISSENT— 43
III. Article 11.073 8
In her Article 11.073 claim, Applicant argues that she is entitled to habeas
relief because new scientific evidence—Dr. Peacock’s re-evaluation and
conclusion that A.C.’s death was accidental—contradicts scientific evidence
relied on by the State at trial: Dr. Peacock’s initial conclusion that the death was a
homicide.
a. Applicable Law
Article 11.073 of the Code of Criminal Procedure provides:
(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 a convicted person relief on an application for
a writ of habeas corpus if:
(1) the convicted person files an application, in the manner
provided by Article 11.07, 11.071, or 11.072, containing specific
facts indicating that:
is granted.” Id. (citing Elizondo). The Court could simply delete the first sentence and limit its
order to only what it believes is necessary: “Relief is granted.” That being said, this Court errs
to grant relief on Applicant’s actual innocence claim in the first place.
8
I do not discuss Applicant’s ineffective assistance of counsel claim because that claim is also
barred. See Tex. Code Crim. Proc. art. 11.07, § 4(a). A nearly-identical version of this
claim was raised in Applicant’s initial habeas application which this Court denied. See Ex parte
Mejia, No. WR-82,126-01 (Tex. Crim. App. Oct. 8, 2014).
MEJIA CONCURRENCE & DISSENT— 44
(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
(B) the scientific evidence would be admissible under
the Texas Rules of Evidence at a trial held on the date of
the application; and
(2) the court makes the findings described by Subdivisions
(1)(A) and (B) and also finds that, had the scientific evidence
been presented at trial, on the preponderance of the evidence
the person would not have been convicted.
TEX. CODE CRIM. PROC. art. 11.073(a)–(b). Article 11.073 also includes its own
writ bar. Subsection (c) provides:
For purposes of Section 4(a)(1), Article 11.07, . . . a claim or issue
could not have been presented previously in an original application
or 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.
Id. art. 11.073(c). To make this determination, we consider:
[W]hether 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:
(1) the applicable trial date or dates, for a determination made
with respect to an original application; or
MEJIA CONCURRENCE & DISSENT— 45
(2) the date on which the original application or a previously
considered application, as applicable, was filed, for a
determination made with respect to a subsequent application.
Id. art. 11.073(d).
“Scientific method is defined as ‘[t]he process of generating hypotheses
and testing them through experimentation, publication, and republication.’” Ex
parte Robbins, 478 S.W.3d at 691. “‘Scientific knowledge’ includes a change in the
body of science (e.g., the field has been discredited or evolved) and when an
expert’s opinion changes due to a change in their scientific knowledge (e.g., an
expert who, upon further study and acquisition of additional scientific knowledge,
would have given a different opinion at trial).” Chaney, 563 S.W.3d at 255.
b. Evidence
The crux of Applicant’s new science evidence is Dr. Peacock’s change of
opinion since Applicant’s trial. At trial, Dr. Bayardo testified to Dr. Peacock’s
conclusion that the initial manner of death was homicide and that that conclusion
was based on the “anatomic findings” of the autopsy performed on A.C. “and
investigation information available to [Dr. Peacock] at the time.” In an affidavit
executed October 3, 2024, Dr. Peacock now avers:
Having had the opportunity to thoroughly review all of the
information that is now available, it is my opinion that the manner of
death was improperly classified as homicide, and it is now my opinion
MEJIA CONCURRENCE & DISSENT— 46
that the totality of the evidence supports the conclusion that the
death occurred due to unintentional acts, not child abuse.
To reach this new conclusion, Dr. Peacock re-evaluated the following materials:
[1] the transcript of the 2005 testimony of my colleague; [2] the
complete Medical Examiner file in this case including the report; [3]
photos, x-rays, and diagrams; [4] State’s Exhibit 138; [4] a sworn
2024 affidavit by A.P., the Applicant/Defendant’s daughter; and [5]
worksheets detailing law enforcement’s investigation of the water
temperature at the location.
Dr. Peacock also considered Dr. Gallagher’s report regarding A.C.’s burn injuries
and “believe[d] that the conclusions in Dr. Gallagher’s report are medically valid
opinions.” Dr. Peacock emphasizes that she “based [her] conclusions on the
investigation and the information that was available to [her] at the time,” and she
only “recently learned” of A.P.’s admissions and “was not aware that a law
enforcement investigation showed the water temperature tap was set at
dangerously high levels.” Dr. Peacock further emphasized:
In my autopsy I noted a contusion to the scalp that was characterized
in the death certificate as blunt force trauma. It is now my opinion
that the cause of the contusion is undetermined. It is unlikely that the
injury contributed to the child’s death.
During the habeas hearing, Dr. Peacock testified that she changed her opinion on
the case because of “the affidavit from the now adult young woman who was with
the child at the time,” referring to A.P.’s new affidavit. Addressing the State’s
MEJIA CONCURRENCE & DISSENT— 47
theory at trial that Applicant’s delay in seeking medical care was intentional, Dr.
Peacock further opined that it was likely A.C. would have died from his injuries
anyways, even with timely medical intervention.
c. Discussion
i. The writ bar
The preliminary question is whether Applicant’s Article 11.073 claim
survives the writ bar. The revised expert opinions satisfy the requirements of
Article 11.073(c) of the Code of Criminal Procedure under Robbins. In Robbins, we
observed:
The State argues Moore’s re-evaluated opinion was available at trial
because the same information was presented by the defense through
Dr. Bux. We disagree. The relevant evidence is the State’s evidence
on Tristen’s cause of death. It has changed. Moore’s re-evaluated
opinion on cause of death contradicts the evidence relied on by the
State at trial and was not available at that time because she re-
evaluated years after the trial ended.
478 S.W.3d at 692. Two observations about Robbins are also important. First,
Robbins was a subsequent writ. See id. at 689. Second, unlike an Article 11.073
claim that presents new DNA results or new testing, the expert in Robbins simply
“re-evaluated her testimony and opinion and [could] no longer stand by her trial
testimony.” Id. at 690.
Robbins remains good law. As in Robbins, the revised medical opinions here
MEJIA CONCURRENCE & DISSENT— 48
are based on the experts’ reevaluations of their trial testimonies such that each
expert could no longer stand by their original trial testimony. Consequently, the
revised medical opinions here, which are nearly identical in form to those in
Robbins, satisfy the requirements of Article 11.073(d).
ii. Merits
In Robbins, we held that the revised expert opinion as to the cause of death
“satisfies the requirements to be called ‘scientific knowledge,’ and thus falls
within the language of article 11.073.” 478 S.W.3d at 692. We further held that the
revised opinion “was not available at the time of trial because her scientific
knowledge has changed since the applicable trial date.” Id. We emphasized that
the expert’s “original trial testimony was the only evidence presented claiming
conclusively that [the complainant] died as the result of a homicide . . . [and t]he
State also emphasized [the expert’s] testimony in its closing statement when
arguing to the jury that the applicant caused [the complainant’s] death” Id.
Consequently, we found that “on the preponderance of the evidence that, had this
evidence been presented at trial, the applicant would not have been convicted,”
because “[i]t is hard to imagine any reasonable jury’s returning a conviction when
no one can even say confidently that a murder has been committed.” Id.
The same is likewise true here. Every single expert that testified at
MEJIA CONCURRENCE & DISSENT— 49
Applicant’s trial uniformly refuted Applicant’s accidental injury defense. Yet,
now, several of those experts cannot conclusively say—as they originally did at
Applicant’s trial—that A.C.’s death was a result of intentional homicide. As in
Robbins, “[i]t is hard to imagine any reasonable jury’s returning a conviction when
no one can even say confidently that a murder has been committed.” Id.
IV. Conclusion
I concur in the Court’s order vacating Applicant’s judgment of conviction
and remanding Applicant to the custody of the Sheriff of Travis County to answer
the charges set out in Applicant’s indictment. Based on the evidence in the habeas
record, I believe that Applicant has met her burden under her Article 11.073 new
science claim. I dissent insofar as the Court grants Applicant relief under Elizondo
and labels Applicant “actually innocent.”
Filed: January 22, 2026
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