The opinion
PD-0292-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/2/2015 12:04:39 PM
Accepted 11/2/2015 12:17:07 PM
ABEL ACOSTA
November 2, 2015
NO. PD-0292-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JENNIFER BANNER WOLFE,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT’S BRIEF
Oral Argument Requested
02-12-00188-CR
IN THE SECOND COURT OF APPEALS
AT FORT WORTH
On appeal from Cause Number 1200447D
in 213th District Court of Tarrant County, Texas
Honorable Louis Sturns, Judge Presiding
DAVID A. PEARSON, P.L.L.C.
State Bar No. 15690465
Attorney at Law
222 W. Exchange Ave., Ste. 103
Fort Worth, Texas 76164
(817) 625-8081
(817) 625-8038 (Fax)
david@lawbydap.com
ATTORNEY FOR APPELLANT
LIST OF PARTIES AND COUNSEL
MS. JENNIFER BANNER WOLFE APPELLANT
TDCJ #01776755
Lockhart Work Facility
P.O. Box 1170
Lockhart, TX 78644
HONORABLE DAVID A. PEARSON, IV ATTORNEY FOR APPELLANT
222 W. Exchange Ave., 103 (APPEAL)
Fort Worth, TX 76164
HONORABLE LISA MULLEN ATTORNEY FOR APPELLANT
1214 Fairmount (TRIAL)
Fort Worth, TX 76104
HONORABLE ROSE ANNA SALINAS ATTORNEY FOR APPELLANT
1214 Fairmount (TRIAL)
Fort Worth, TX 76104
HON. SHAREN WILSON DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TX
Fort Worth, TX 76196
HONORABLE TANYA S. DOHONEY ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196
HONORABLE KIM D’AVIGNON ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196
HONORABLE KEVIN BONEBERG ASST. DISTRICT ATTORNEY
401 W. Belknap St. TARRANT COUNTY, TEXAS
Fort Worth, TX 76196
-i-
HONORABLE LOUIS STURNS JUDGE PRESIDING
401 W. Belknap St. 213TH CRIMINAL
Fort Worth, TX 76196 DISTRICT COURT
TARRANT COUNTY, TX
-ii-
SUBJECT INDEX
List of Parties and Counsel ........................................................................................i
Subject Index ........................................................................................................... iii
Index of Authorities ..................................................................................................iv
Statement Regarding Oral Argument ........................................................................ 1
Statement of the Case ................................................................................................ 2
Statement of Procedural History ................................................................................ 2
Grounds for Review ................................................................................................... 3
Statement of Facts ...................................................................................................... 3
Summary of Argument............................................................................................... 7
Arguments and Authorities:
Ground for Review One:
Whether the Court of Appeals wrongly decided that the Appellant‘s
point of error that the trial court abused its discretion by admitting
unreliable expert testimony of abusive head trauma based solely on a
constellation of symptoms did not fairly include the issue whether the
expert testimony was unreliable given this specific injured party’s
history. ............................................................................................................. 8
Ground for Review Two:
Whether the Court of Appeals wrongly decided that the trial court did
not abuse its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms. ............15
Prayer for Relief .......................................................................................................28
-iii-
Certificate of Service ...............................................................................................28
Certificate of Compliance ........................................................................................29
-iv-
LIST OF AUTHORITIES
Cases Page
Cavazos v. Smith, 132 S.Ct. 2 (2011) ......................................................................27
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 572 (1993) .............9, 25
Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) ..................................20
Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) ................ 22, 23, 24
Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied, 2012 U.S.
LEXIS 3468 (U. S., May 14, 2012) ..................................................................24, 25
Ex parte Robbins, 2014 Tex. Crim. App. LEXIS 2014 (Tex. Crim. App.,
November 26, 2014) (Johnson, J., concurring), rehearing granted, In re Robbins,
2015 Tex. Crim. App. LEXIS 567 (Tex. Crim. App., May 13, 2015) ...................18
Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007), cert denied, 128 S. Ct.
2872 (2008) .............................................................................................................20
Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002) ........................................13
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) .................................13
Perry v. Cohen, 272 S.W.2d 585 (Tex. 2008) ........................................................14
State v. Bailey, 201 S.W.3d 739 (Tex. Crim. App. 2006) ................................13, 14
State v. Copeland, 2014 Tex. Crim. App. Unpub. LEXIS 929, No. PD-1802-13
(Tex. Crim. App. 2014) (not designated for publication) ......................................13
State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008), rev. denied, 749 N.W.2d
663 (Wis. 2008) ......................................................................................................25
State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998) ..................................13
-v-
State v. Schoonmaker, 176 P.3d 1105 (N. M. 2008), overruled in part, 332 P.3d
850 (N. M. 2014) ....................................................................................................26
Constitutions, Rules, Statutes
TX. R. APP. P. 38.1(i) ......................................................................................10, 13
TEX. R. EVID. 702 ..........................................................................................7, 9, 20
TEX. R. EVID. 705 ................................................................................................7, 9
Secondary Sources
Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms,
151 Forensic Sci. Int’l 71 (2005) ............................................................................27
Brandon J. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 VA. L. REV. 1, 12 (2009) ............................................21
Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and
the Criminal Courts, 87 WASH. L. REV. 5 (2009) ...............................................22
DNA Exoneree Case Profiles, INNOCENCE PROJECT,
http://innocenceproject.org/know/ ...........................................................................20
Minns, Shaken Baby Syndrome: Theoretical and Evidential Controversies, 35 J.
Royal College of Physicians of Edinburgh 5, 10 (2005) .......................................27
NATIONAL ACADEMY OF SCIENCES STRENGTHENING FORENSIC
SCIENCE IN THE UNITED STATES: A PATH FORWARD 112 (2009) (“NAS
Report), note 4; Daniel G. Orenstein, Comment: Shaken to the Core: Emerging
Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome,
42 ARIZ. ST. L.J. 1305 (2010) ...............................................................................24
-vi-
Sabra Thomas, Addressing Wrongful Convictions: An Examination of Texas’s New
Junk Science Writ and Other Measures for Protecting the Innocent, 52 Hous. L.
Rev. 1037 (Winter 2015) ........................................................................................21
Steven C. Gabaeff, M.D., Challenging the Pathophysiologic Connection between
Subdural Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome, West J
Emerg. Med. 2011; 12(2) May 144-158 ..................................................................17
Uscinski, Shaken Baby Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo)
57,59 (2006) ............................................................................................................27
Vinchon M, Delestret I, DeFoort-Dhellemmes S, et al. Subdural Hematoma in
Infants: Can It Occur Spontaneously? Data From a Prospective Series and
Critical Review of the Literature: Child Nerv Syst. 2010 .......................................17
-vii-
NO. PD-0292-15
IN THE
COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JENNIFER BANNER WOLFE,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
APPELLANT’S BRIEF
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, Jennifer Banner Wolfe, hereinafter referred to as the
Appellant, by and through her attorney of record, DAVID A. PEARSON, IV, and
respectfully files her brief in the above numbered cause, pursuant to the rules of
the Court.
STATEMENT REGARDING ORAL ARGUMENT
The Court gave notice on 16 September 2015 that oral argument will be
1 | Jennifer Banner Wolfe v. State, Appellant’s brief
permitted. The Appellant believes oral argument would be helpful to the Court’s
consideration of the issues in this case.
STATEMENT OF THE CASE
The Appellant was charged by indictment with Injury to a Child, Elderly or
Disabled, Serious Bodily Injury. (3 R. R. 10) (C. R. 10-11) The State and
Appellant waived a jury trial. The State waived paragraphs one through three of
the indictment, and proceeded on paragraph four plus the deadly weapon notices.
(C. R. 2-3) (3 R. R. 9) The Appellant entered a not guilty plea. (3 R. R. 9-11)
Following a bench trial the trial court found the Appellant guilty. (C. R. 268,
274-76) (8 R. R. 4) Following a brief sentencing hearing the trial court assessed
the punishment at 5 years in the Texas Department of Criminal Justice –
Institutional Division. (C. R. 274-76, 281) (8 R. R. 42-43) The trial court
certified that the Appellant had the right to appeal. (C. R. 277) Appellant timely
filed notice of appeal on 2 May 2012. (C. R. 278)
STATEMENT OF PROCEDURAL HISTORY
In a published opinion dated 26 February 2015, the Court of Appeals
affirmed, with one Justice dissenting, the judgment of the trial court. Jennifer
2 | Jennifer Banner Wolfe v. State, Appellant’s brief
Banner Wolfe v. State, 459 S.W.3d 201 (Tex. App.—Fort Worth 2015, pet.
granted) (Walker, J., dissenting). Neither party filed a motion for rehearing.
Pursuant to one extension granted by this Court, the Appellant’s Brief is timely if
filed on or before 2 November 2015.
GROUNDS FOR REVIEW
Ground for Review No. 1
Whether the Court of Appeals wrongly decided that the Appellant‘s point of error
that the trial court abused its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms did not fairly
include the issue whether the expert testimony was unreliable given this specific
injured party’s history.
Ground for Review No. 2
Whether the Court of Appeals wrongly decided that the trial court did not abuse its
discretion by admitting unreliable expert testimony of abusive head trauma based
solely on a constellation of symptoms.
STATEMENT OF FACTS
Joseph Bruce Casseaux, a paramedic at Medstar, received a call from
dispatch to go to a single-family home at 10:22 a.m. on April 1, 2010. When he
arrived, a firefighter was doing CPR on a very small child (“Jack”).1 Mr.
Casseaux was told that the child had choked on some food because the child was
1
To protect the anonymity of the child at issue, the Court of Appeals used aliases to refer to him and his mother.
3 | Jennifer Banner Wolfe v. State, Appellant’s brief
crying and screaming and just fell back unconscious. The child was blue,
indicative of low blood circulation. There was no spontaneous respiration, so the
child was clinically dead. (4 R. R. 11-15) Mr. Casseaux continued CPR and
started advanced life support. On the ride to Cook Children’s Medical Center, the
child began to have spontaneous respirations. (4 R. R. 16-17) The child had no
bruising, no physical signs of injury, and no injury on his head or face. (4 R. R.
31)
Months before, Mrs. “Smith”, Jack’s mom, interviewed Jennifer Wolfe for
in-home child-care for Jack. Mrs. Smith chose someone off a website with a list
of state certified providers. (4 R. R. 34, 38-39) Mr. and Mrs. Smith decided to
hire Ms. Wolfe. (4 R. R. 42) At seven months old, Jack could sit if he was
propped up, then he would go to one side or the other. (4 R. R. 46)
Mrs. Smith dropped Jack off at Ms. Wolfe’s house on April 1, 2010. (4 R.
R. 55) At about 10:40 a.m. Ms. Smith received a call at school. The fireman on
the phone told her she needed to go to Cook Children’s Medical Center. (4 R. R.
59) Ms. Wolfe told Mrs. Smith that Jack had eaten, was crying, so she set him
down, and he fell backward. (4 R. R. 61) Physicians treating Jack determined that
they needed to do surgery due to bleeding in his brain. (4 R. R. 63) Jack was in
Cook Children’s Hospital for nine days. The side of his head, where he had
4 | Jennifer Banner Wolfe v. State, Appellant’s brief
surgery, was very swollen, and he could not move his right side. (4 R. R. 65)
Brandy Pollifrone, an employee of the Texas Department of Human
Services, worked with child-care licensing and conducted abuse and neglect
investigations. (4 R. R. 103) Ms. Pollifrone was assigned to this case involving
in-home day care provided by Ms. Wolfe. (4 R. R. 105) Because Ms. Wolfe was
with Jack when he became symptomatic, (4 R. R. 112), Ms. Pollifrone went to Ms.
Wolfe’s home to investigate. (4 R. R. 114) Ms. Wolfe explained to Ms.
Pollifrone that Jack arrived at 7:15 a.m., had breakfast, and she put him down for a
nap. Jack woke up from the nap earlier than usual and was fussy, so she tried to
calm him. Ms. Wolfe received a text that her daughter was sick at school, so she
loaded up the children and drove to pick up her daughter. She returned home at
about 10:05 a.m. Ms. Wolfe set Jack down on the floor and went to get another
child out of the car seat. Jack fell back, crying, and Ms. Wolfe picked him back
up. Ms. Wolfe told him that he needed to sit. (4 R. R. 118-119) Jack fell back
again, and then he went quiet. Ms. Wolfe walked up to him and realized that Jack
was limp. (4 R. R. 122) Ms. Pollifrone determined from her investigation that
Jack was not sitting up on his own at that time. (4 R. R. 123)
Chelsea Adams, a friend of Ms. Wolfe, remembers Ms. Wolfe saying that
Jack cried all the time and that she felt bad for him because he cried all the time.
Ms. Adams spoke to Ms. Wolfe after the incident, and she said that Ms. Wolfe was
5 | Jennifer Banner Wolfe v. State, Appellant’s brief
very upset and shocked. (4 R. R. 158-161)
Dr. Richard Roberts, pediatric neurosurgeon at Cook Children’s Medical
Center, treated Jack beginning on April 1, 2010. (4 R. R. 167-69, 180) Jack’s
condition was compression of the brain. (4 R. R. 181) Dr. Roberts performed a
craniotomy and evacuation of a subdural hematoma. This is a procedure designed
to get the blood and anything that was causing the shift or increased pressure off
the brain and allow the brain to return to its normal state. (4 R. R. 200) When Dr.
Roberts opened the dura, he saw a rapid efflux of older-appearing blood. The
bleeding was representative of a torn or avulsed vein. (4 R. R. 203) Jack was in a
condition which if untreated presented a substantial risk of death. (4 R. R. 212)
His condition, as he presented, can result in a protracted loss of some body organ
or his brain. (4 R. R. 213) In a case where force is enough to avulse a bridging
vein from the sagittal sinus in a normal brain, the injury cause would typically be a
car accident or a fall from a second story window. (4 R. R. 218) Dr. Robert’s
opinion was that more force than was reported occurred to generate these injuries.
(4 R. R. 220) His opinion was that this was a non-accidental trauma. Jack had a
subdural hematoma with some brain swelling, retinal hemorrhages, and retinal
tears, which in Dr. Roberts’s opinion did not fit the story of a seven-month-old
falling on his back from a seated position. (4 R. R. 227)
Ann Ranelle, D.O., an employee of Fort Worth Eye Associates, consulted
6 | Jennifer Banner Wolfe v. State, Appellant’s brief
on Jack’s case. A trauma nurse at Cook Children’s Medical Center requested that
she check Jack to see if he had hemorrhages in the eye. (5 R. R. 5-6, 12-13) Dr.
Ranelle saw Jack in the pediatric intensive care unit. (5 R. R. 16) During Dr.
Ranelle’s exam, she didn’t see any hemorrhages in his right eye, but did see intra-
retinal hemorrhages in his left eye. The hemorrhages were only in the left eye. (5
R. R. 38-39) She found positive results for chemosis, which meant swelling in the
conjunctiva of the left eye. Chemosis can happen with traumatic injury. (5 R. R.
42-43) Dr. Ranelle saw multilayered, confluent hemorrhaging in Jack’s eye,
consistent in her opinion with non-accidental trauma. (5 R. R. 47)
SUMMARY OF THE ARGUMENT
The Appellant urged due process of law and Texas Rules of Evidence 702
and 705, to complain that the State experts issued the opinion of non-accidental,
intentional injury based upon finding subdural hematoma, retinal hemorrhage, and
brain swelling. Furthermore, in trial and appeal, the Appellant argued that given
no external, physical signs of trauma or injury to this complainant, the State
experts were improperly calling the injury intentionally inflicted based on the triad
of symptoms. Appellant incorporated in her brief the juxtaposition of the state
experts—even with this particular child and his old bleed—sticking to their
7 | Jennifer Banner Wolfe v. State, Appellant’s brief
diagnosis that if a certain constellation of symptoms is present—then, no matter
what, the injury is intentional. Therefore, Appellant precisely preserved and
argued on appeal whether the abusive head trauma expert testimony should have
been admitted—given this injured party and his history.
The trial court abused its discretion by allowing medical expert opinion that
shaken baby syndrome (SBS) or its current nomenclature, “abusive head trauma”
(AHT)) as support for its findings. The State presented testimony that the child
suffered a non-accidental, intentional, head injury; yet, the child displayed no
external, physical signs of trauma. There is an ongoing debate supported from
multiple sources and studies against the stock opinion that subdural hemorrhage,
retinal hemorrhage, and brain swelling in an infant is exclusively AHT.
There is instead disagreement in the medical community regarding the
diagnosis of abusive head trauma exclusively based upon subdural hematoma,
retinal hemorrhaging, and brain swelling. Against the backdrop that this
complainant had two preexisting and undetected old bleeds due to some
unestablished cause or causes, the trial court abused its discretion to admit and
consider the opinions tied strictly to these markers.
ARGUMENT
8 | Jennifer Banner Wolfe v. State, Appellant’s brief
Ground for Review No. 1:
Whether the Court of Appeals wrongly decided that the Appellant‘s
point of error that the trial court abused its discretion by admitting
unreliable expert testimony of abusive head trauma based solely on a
constellation of symptoms did not fairly include the issue whether the
expert testimony was unreliable given this specific injured party’s
history.
Jennifer Banner Wolfe voiced her objection and challenge to the State’s
experts and their reliance upon the scientific basis and theory of shaken baby
syndrome. (4 R. R. 6-8) Ms. Wolfe clarified and the trial court accepted that her
challenge to the scientific theory and method she referred to as “shaken baby
syndrome , would also refer to ”abusive head trauma (AHT)”, or “sudden impact
injury”. (4 R. R. 168) Ms. Wolfe specifically proposed and the trial court agreed
and acknowledged that her Daubert/Kelly challenge could be heard
contemporaneous with the State and Defense presentation of evidence. (4 R. R. 6-
8) (8 R. R. 4-5) The trial court ruled that it would hear the case as fact-finder, and
also perform the necessary gate-keeping function and rule on Ms. Wolfe’s
challenge. (4 R. R. 7-8)
At the close of evidence, the trial court carried the Daubert /Kelly challenge,
in order to have further time to review the materials presented on the issue. Prior
to sentencing, the trial court overruled Ms. Wolfe’s Daubert /Kelly challenge. (8
R. R. 4-5)
9 | Jennifer Banner Wolfe v. State, Appellant’s brief
In support of her challenge, Ms. Wolfe urged due process of law and Texas
Rules of Evidence 702 and 705. (7 R. R. 5) Specifically, Ms. Wolfe complained
that the State experts issued the opinion of non-accidental, intentional injury based
upon finding subdural hematoma, retinal hemorrhage, and brain swelling.
Furthermore, Ms. Wolfe, in trial and appeal, argued that given no external,
physical signs of trauma or injury, the State experts were improperly calling the
injury intentionally inflicted based on the triad of symptoms. (7 R. R. 6-7) Ms.
Wolfe argued in essence that the trial court should disregard the State experts’
opinions due to the general disagreement and retraction in the medical community
that a certain constellation of symptoms was exclusively child abuse. (7 R. R. 10-
11)
Citing default, the Court of Appeals declined to review the issue of whether
the diagnosis of abusive head trauma could be reliable with respect to Jack, given
Jack’s prior medical history, including the prior bleeding in his brain. (Opinion, p.
3, n. 3, p. 20-21) The Court of Appeals limited its analysis to “only the general
reliability of testimony relating to diagnosing abusive head trauma.” (Opinion, p.
21) Even assuming for the sake of argument that the issue was not briefed—that
the expert testimony was unreliable given this injured party’s medical history—the
Court of Appeals wrongly determined that the issue of whether the abusive head
trauma diagnosis applied to this complainant with his history, was not a
10 | Jennifer Banner Wolfe v. State, Appellant’s brief
“subsidiary question that is fairly included.” TEX. R. APP. P. 38.1(f). The Court
of Appeals claimed that Ms. Wolfe did not alternatively argue that the diagnosis of
abusive head trauma was unreliable as to this complainant. However, the record
below belies the Court of Appeals’ foundation for procedural default. Ms. Wolfe
did specifically cite the record reference to the “old bleed.” (4 R. R. 195, 199,
201, 238) Furthermore, Ms. Wolfe’s appellant’s brief included the following:
“According to Dr. Roberts, [the child] must have had another prior
hemorrhage, but according to Dr. Roberts the old blood would not
have caused the constellation or entirety of the injuries. (4 R.R. 222-
23) Dr. Roberts further acknowledged that there were two older
bleeds, and both were subdural. (4 R.R. 239-240, 243) On cross-
examination, Dr. Roberts unequivocally stated more than once that
his opinion that non-accidental trauma (child abuse) occurred was
based upon a patient with a subdural hematoma, retinal
hemorrhaging, and brain swelling. (4 R.R. 272-73, 280-81)”
So, clearly Ms. Wolfe incorporated in her brief the juxtaposition of the state
experts—even with this particular child and his previously undetected old
bleeds—sticking to their diagnosis that if a certain constellation of symptoms was
present, then, no matter what, the injury is intentional. Therefore, Ms. Wolfe
precisely briefed whether the abusive head trauma expert testimony should have
been admitted—given this complainant and his medical history.
Moreover, the dissenting Justice believed the issue was “fairly included” in
Ms. Wolfe’s point of error as presented. The dissent disagreed with the majority,
11 | Jennifer Banner Wolfe v. State, Appellant’s brief
stating that Ms. Wolfe fairly raised the issue whether the trial court erred to rely
upon the state experts’ opinions that the injuries sustained by Jack were “non-
accidental.” (Walker, J., Dissenting Opinion, p. 2)
Moreover, based on my review of the State’s expert testimony, a
serious question exists as to the reliability of their conclusion that
Jack suffered abusive head trauma. The undisputed evidence at trial
established the following: that seven-month-old Jack had experienced
at least two prior brain bleeds in his head and did not have a normal,
healthy brain at the time he became unconscious at Appellant’s home;
that according to Jack’s preoperative CT scan, the chronic bleeding in
Jack’s head and the brisk bleeding observed by Dr. Roberts during
Jack’s surgery were ‘side by side’; and that all three of the State’s
experts concluded that Jack’s injuries could not have been caused by
shaking alone but required a high-energy impact to Jack’s head, yet
Jack had no external injuries, marks, bruises, fractures, spinal or neck
injuries, or grip marks on his body. All three of the State’s experts
agreed that when a child with a normal, healthy brain experiences the
constellation of subdural hematoma, retinal hemorrhages, and no
explanation for the injuries, the typical diagnosis is abusive head
trauma. And all three of the State’s experts agreed that Jack did not
have a normal, healthy brain before he experienced this diagnostic
constellation. Yet, all three still opined that despite Jack’s already-
injured brain, the existence of this diagnostic constellation in Jack
meant that Jack’s head trauma was intentionally inflicted—abusive
head trauma.
(Walker, J., Dissenting Opinion, p. 3-5)
“I write additionally only to point out that serious questions exist regarding
the reliability of the experts’ opinions as applied to the undisputed facts
concerning Jack’s unhealthy brain and the lack of any physical injury to Jack.”
(Walker, J., Dissenting Opinion, p. 5-6)
12 | Jennifer Banner Wolfe v. State, Appellant’s brief
If the dissenting opinion author sees the issue, and writes separately to state
that the issue was fairly included, then that necessarily meant the subsidiary issue
was met the burden of “fairly included.”
“The standards of procedural default … are not to be implemented by
splitting hairs in the appellate courts.” Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992). The Texas Rules of Appellate Procedure require that
issues be “construed liberally” and that every subsidiary question, which is fairly
included, must be addressed. State v. Bailey, 201 S.W.3d 739, 743-44 (Tex. Crim.
App. 2006); TEX. R. APP. P. 38.1(f). An appellant’s brief must contain “a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” TEX. R. APP. P. 38.1(i). According to TEX. R.
APP. P. 38.1(f), the statement of an issue or point will be treated as covering every
subsidiary question that is fairly included.
An appellate court may not reverse a trial court “’on a theory that the trial
court did not have the opportunity to rule upon and upon which the non-appealing
party did not have an opportunity to develop a complete factual record.” Id. at
743, quoting Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002).
Procedural default rests on the basic principle of appellate jurisprudence that
points not argued at trial are deemed to be waived. State v. Mercado, 972 S.W.2d
75, 78 (Tex. Crim. App. 1998). This Court explained a two-fold purpose behind
13 | Jennifer Banner Wolfe v. State, Appellant’s brief
this principle: (1) To inform the trial judge of the basis of the party’s argument
and afford him an opportunity to respond to that argument, and (2) to give
opposing counsel the opportunity to respond to that argument. State v. Copeland,
2014 Tex. Crim. App. Unpub. LEXIS 929, No. PD-1802-13 (Tex. Crim. App.
2014) (not designated for publication). The Texas Supreme Court opined as
follows: “Appellate briefs are to be construed liberally, so that the right to
appellate review is not lost by waiver. Simply put, appellate courts should reach
the merits of an appeal whenever reasonably possible.” Perry v. Cohen, 272
S.W.2d 585, 587 (Tex. 2008).
In the record below, the State clearly had ample opportunity and actually did
develop its evidence and respond to the Appellant’s argument regarding the expert
testimony. In State v. Bailey, above, appellant who was charged with violations of
the Texas Securities Act claimed on appeal that the certificates of deposits at issue
were not securities under the Act as a matter of law. The appellant sought a trial
court ruling on that issue. On appeal, the Eighth Court of Appeals re-framed the
appellant’s complaint finding that the trial court erred in not charging the jury to
determine of whether or not a certificate of deposit is a security. Id. at 740. This
Court granted review and determined that the Court of Appeals committed error
when it addressed an issue not presented to the trial court or raised by the parties
on appeal. Id. at 742. This Court held that the Court of Appeals reformulated the
14 | Jennifer Banner Wolfe v. State, Appellant’s brief
issue to be that the trial court erred in charging the jury that the CDs were
securities and reversing on those grounds. This Court found that the issue of who
should make the determination of whether CDs qualify as securities is clearly
separate from whether the trial judge, in response to the agreement of the parties,
erred in deciding that the CDs were securities as a matter of law. Id. at 743. This
Court acknowledged that T.R.A.P. 38.9(b) instructs that briefing rules are to be
construed liberally, and gives the appellate courts some discretion in remedying
substantive defects in parties’ briefs, but it does not allow the court of appeals to
“reach out and reverse the trial court on an issue that was not raised.” Id. at 744.
As the dissent recognized in this case, Ms. Wolfe’s brief did not require nor
invite the Court of Appeals to “reach out” and create an issue on which to reverse.
The Appellant’s Brief squarely raised the issue whether this expert testimony in
this case with this complainant—was reliable in its conclusion that there was
intentional head trauma. In its Brief, the State never argued that this issue was
defaulted, yet the Court of Appeals “reached out” and found default.
Ground for Review No. 2:
Whether the Court of Appeals wrongly decided that the trial court did
not abuse its discretion by admitting unreliable expert testimony of
abusive head trauma based solely on a constellation of symptoms.
15 | Jennifer Banner Wolfe v. State, Appellant’s brief
Before testimony began, Jennifer Banner Wolfe voiced her objection and
challenge to the State’s experts and their reliance upon the scientific basis and
theory of shaken baby syndrome. (4 R. R. 6-8) Ms. Wolfe clarified and the trial
court accepted that her challenge to the scientific theory and method she referred
to as “shaken baby syndrome (SBS),” would also incorporate the affiliated terms,
“abusive head trauma” (AHT), or “sudden impact injury”. (4 R. R. 168) Ms.
Wolfe complained that the State experts based their opinion of non-accidental,
intentional injury exclusively upon finding subdural hematoma, retinal
hemorrhage, and brain swelling, without regard to the child’s prior undetected old
bleeds. Also, given no external, physical signs of trauma or injury, the State
experts’ myopic “medical diagnosis” of abuse was unreliable. (7 R. R. 6-7) Ms.
Wolfe complained in essence that the trial court should not rely upon the State
experts’ opinions due to the general disagreement and retraction in the medical
community that a certain constellation of symptoms was exclusively child abuse.
(7 R. R. 10-11)
In this record, without a shred of external damage, and no mark, bruise, or
any other physical sign of impact, the State experts bootstrap that an impact
occurred, and opined that Jack’s head trauma was intentional. Thus, the past
discredited science due to concluding head trauma was intentional in SBS without
any sign of external injury is germane to the point. This trial court was told—and
16 | Jennifer Banner Wolfe v. State, Appellant’s brief
the Court of Appeals was equally enthralled by—the assumption that an
intentional impact must have occurred, based on the same triad of symptoms that
are not sustainable to support SBS.
Ms. Wolfe presented to the trial court a peer-reviewed medical opinion
evidence (9 R. R.: Defense Exhibit 15) with the following relevant conclusion: “It
appears that the weight of evidence, bold old and new, suggests that increased ICP
is a valid, common and predictable cause of RH (retinal hemorrhage) and that
human shaking, by itself, in a healthy child, is insufficient to cause this.
Furthermore, children with perinatal SDH (subdural hematoma), or pre-existing
SDH of any cause, are prone to re-bleed, resulting in episodes of increased ICP
(increased intracranial pressure), new RH and more symptoms, which may occur
with minimal force applied to the head or with normal handling.” Steven C.
Gabaeff, M.D., Challenging the Pathophysiologic Connection between Subdural
Hematoma, Retinal Hemorrhage and Shaken Baby Syndrome, West J Emerg. Med.
2011; 12(2) May 144-158. (emphasis added)
“IDH (intradural hemorrhage) can occur in response to a variety of primary
insults. However, if a child has a preexisting SDH (subdural hematoma) of any
etiology, and chronic SDH has developed, shaking or even normal handling can
result in spontaneous re-bleeding of the previous SDH (subacute or chronic SDH).
Vinchon et al (Vinchon M, Delestret I, DeFoort-Dhellemmes S, et al. Subdural
17 | Jennifer Banner Wolfe v. State, Appellant’s brief
Hematoma in Infants: Can It Occur Spontaneously? Data From a Prospective
Series and Critical Review of the Literature: Child Nerv. Syst. 2010) in 2010
found 10% of all SDH cases over a three year period at his institution (16 children
total) had spontaneous re-bleeds without evidence of abuse. Again the distinction
between the previously healthy child and the previously damaged child must be
made.” Id. (emphasis added)
“As has been noted, some examples of ‘contradicted scientific evidence
relied upon by the state at trial’ included arson, infant trauma, bullet-lead analysis,
bite marks, some ballistics tests, blood splatter patterns, and scent line-ups.” Ex
parte Robbins, 2014 Tex. Crim. App. LEXIS 2014 (Tex. Crim. App., November
26, 2014) (Johnson, J., concurring), rehearing granted, In re Robbins, 2015 Tex.
Crim. App. LEXIS 567 (Tex. Crim. App., May 13, 2015).
The State called Dr. Richard Roberts who opined that in his medical
opinion, the retinal hemorrhage combined with the tearing of the retina, and
combined with the avulsion of the bridging vein, were classically associated with
high-energy input to the head. (4 R. R. 203, 220) He based his opinion on the
presence of subdural hematoma with some brain swelling, retinal hemorrhages,
and also retinal tearing. (4 R. R. 227)
Dr. Roberts also noted from the CT scans a chronic, or “old bleed”. (4 R.R.
195, 199, 201, 238) According to Dr. Roberts, Jack must have had another prior
18 | Jennifer Banner Wolfe v. State, Appellant’s brief
hemorrhage, but according to Dr. Roberts the old blood would not have caused the
constellation or entirety of the injuries. (4 R.R. 222-23) Dr. Roberts further
acknowledged that there were two older bleeds, and both were subdural. (4 R.R.
239-240, 243) On cross-examination, Dr. Roberts unequivocally stated more than
once that his opinion that non-accidental trauma (child abuse) occurred was based
upon a patient with a subdural hematoma, retinal hemorrhaging, and brain
swelling. (4 R.R. 272-73, 280-81) However, Dr. Roberts agreed on cross-
examination that because of Jack’s prior brain bleeds, “we are not talking about a
healthy brain.” (4 R. R. 243)
The State also called Dr. Ann Ranelle, with Fort Worth Eye Associates, who
testified that Jack was referred for non-accidental trauma, and she examined him
for hemorrhages in his eyes. (5 R. R. 13) As to the unilateral hemorrhaging, Dr.
Ranelle candidly stated that it is seen in non-accidental trauma, and “nobody has
ever said to me a reason why it’s – there’s just – there’s nobody who can come up
with anything that describes this amount of traumatic injury to the eye.” (5 R. R.
55) Dr. Ranelle acknowledged on cross-examination that given the prior bleeds,
Jack was not a “completely healthy child.” (5 R. R. 88)
The State called Dr. Jayme Coffman, CARE Team medical director at Cook
Children’s Medical Center. Dr. Coffman testified that the avulsed or torn bridging
vein had to be from trauma. (6 R.R. 95-96) She also testified that the
19 | Jennifer Banner Wolfe v. State, Appellant’s brief
retinoschisis, observed by Dr. Ranelle, is “only seen in trauma”, but for “one case
of leukemia.” (6 R.R. 96) Ultimately, Dr. Coffman opined that in this case there
had to be “impact or shaking and impact.” (6 R.R. 105) Dr. Coffman explained
away the lack of external injuries circumstantially as impact on something
“padded”. (6 R.R. 105-106) Regarding any current scientific discussion or
uncertainty, Dr. Coffman claimed that there is “no unrest” in the pediatric world or
the pediatric ophthalmology world or the pediatric neurosurgery world, only in the
medical examiner or biomechanical world.2 (6 R.R. 108)
A trial court’s decision to admit expert testimony is reviewed for abuse of
discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006). A
trial court abuses its discretion when its decision lies outside the zone of
reasonable
disagreement. Id. Concerning the admissibility of expert testimony, Texas Rule
of
Evidence 702 provides: “If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.” The
2
Dr. Coffman’s claim is unsubstantiated given Justice Ginsberg dissent in 11 v. Smith, 132 S.Ct. 2 (2011), and given
that the Court of Criminal Appeals recently recognized the current debate in pediatric head trauma. See Ex parte
Henderson, 384 S.W.3d 833, 834 (Tex. Crim. App. 2012).
20 | Jennifer Banner Wolfe v. State, Appellant’s brief
proponent of the scientific evidence must show, by clear and convincing proof,
that the evidence is sufficiently relevant and reliable to assist the jury in accurately
understanding other evidence or in determining a fact in issue. Gallo v. State, 239
S.W.3d 757, 765 (Tex. Crim. App. 2007), cert denied, 128 S. Ct. 2872 (2008).
The legal proposition that scientific evidence must be “reliable” in theory
and application, and the consequent correlation to fairness in prosecutions, cannot
be overstated. To underscore, as of January 2015, there have been 325 post-
conviction DNA exonerations in U. S. history. DNA Exoneree Case Profiles,
INNOCENCE PROJECT, http://innocenceproject.org/know/. In a 2009 study on
the first 232 exonerees, 156 men and women were identified as having trials in
which forensic evidence was presented. Brandon J. Garrett & Peter J. Neufeld,
Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1,
12 (2009). “An examination of the trial transcripts from 137 of those cases
revealed that 60% of the cases involved inaccurate forensic science testimony.”
Sabra Thomas, Addressing Wrongful Convictions: An Examination of Texas’s New
Junk Science Writ and Other Measures for Protecting the Innocent, 52 Hous. L.
Rev. 1037, 1038 (Winter 2015). “The Innocence Project, a national organization
dedicated to exonerating the wrongfully convicted, estimates that DNA testing is
not an option in 90% to 95% of criminal cases due to a lack of biological evidence
21 | Jennifer Banner Wolfe v. State, Appellant’s brief
that can be subjected to testing.” Id. There is no relevant DNA issue to later
correct any specious scientific conclusions used against Ms. Wolfe.
An Abusive Head Trauma (AHT) determination, just as Shaken Baby
Syndrome (SBS), is unique in prosecution because it relies upon three diagnostic
symptoms comprising the classic “triad” of symptoms: retinal hemorrhages;
subdural hemorrhages; and cerebral edema (brain swelling). According to the
State experts’ views in this case, this triad of physical findings was
pathognomonic (i.e., diagnostic of to the exclusion of other causes) for non-
accidental trauma. Their opinions were unreliable in part because there is far too
much documented retraction in the medical community associated with SBS
relative to this same classic triad of symptoms.
“Unlike any other category of prosecution, all elements of the crime—mens
rea and actus rea (which includes both the act itself and causation of the resulting
harm)—are proven by science. Degree of force testimony not only establishes
causation but also the requisite state of mind.” Deborah Tuerkheimer, The Next
Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 WASH.
L. REV. 5 (2009).
This Court granted relief and vacated a death sentence in Ex parte
Henderson, 384 S.W.3d 833, 833-34 (Tex. Crim. App. 2012). Henderson
involved an infant death where the applicant claimed at trial that the infant fell
22 | Jennifer Banner Wolfe v. State, Appellant’s brief
from her arms to the concrete floor, a distance of approximately four-and-one-half
feet. At trial the medical examiner, Dr. Roberto Bayardo, strenuously disagreed
that the infant’s death could have been accidental. Dr. Bayardo testified that “it
would have been impossible” for an accidental fall to produce the injuries
sustained by the infant. Dr. Bayardo testified “unequivocally” at trial that the
three-and-a-half-month-old child “came to his death as a result of a severe closed
head injury…characteristic of abuse, homicide.” Id. However, since the time of
trial, Dr. Bayardo changed his mind based upon “advances in the science of
pediatric head trauma.” Id. (emphasis added) Dr. Bayardo declared that, based
upon the physical evidence, he could not determine with a reasonable degree of
medical certainty whether the child’s injuries resulted from an intentional act or an
accidental fall. Id.
Dr. Bayardo further recanted that “because of recent scientific knowledge”
about how head injuries occur, he no longer believed if the injuries were from an
accidental fall, it would be the result of a fall from a height of over two stories. He
changed his manner of death finding from homicide to “undetermined”. The
applicant in Henderson also called two experts in biomechanical engineering who
both testified, “The application of biomechanics to the study of pediatric head
trauma and the medical community’s recognition of the role of biomechanics in
determining causes of injury are recent and still developing.” Id. (emphasis
23 | Jennifer Banner Wolfe v. State, Appellant’s brief
added)
Judge Cochran also cited the testimony of pediatric forensic pathologist and
medical examiner, Dr. Ophoven, who described a ‘pendulum swing’ in the
medical community with respect to pediatric injuries. “Now, with studies
applying biomechanics to the field of pediatric head injuries, doctors are more
cautious about ‘ruling out’ the possibility that a child’s head injury occurred
accidentally.” Id.
The expert in Henderson changed his opinion “based on medical advances”, and
based “upon advances in the science of pediatric head trauma.” Id., 384 S.W.3d at
834.
In Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert denied,
2012 U.S. LEXIS 3468 (U. S., May 14, 2012), habeas relief in a capital case was
denied. At trial, the medical examiner ruled the death caused by asphyxiation by
compression and the manner of death was homicide. At some point post-
conviction, the deputy chief medical examiner re-evaluated the autopsy findings
and changed the ruling from homicide to undetermined. The medical examiner
that performed the autopsy agreed with the change and explained that since her
original opinion she had more experience and had reviewed additional
information. Her opinion changed to manner of death of undetermined. Id.
In the dissenting opinion, Judge Cochran expressed her legitimate concern
24 | Jennifer Banner Wolfe v. State, Appellant’s brief
for convictions that rest upon specious forensic science. Id., (Cochran, J.,
dissenting). Judge Cochran, joined by two other judges, relied in part upon the
NATIONAL ACADEMY OF SCIENCES STRENGTHENING FORENSIC
SCIENCE IN THE UNITED STATES: A PATH FORWARD 112 (2009) (“NAS
Report), note 4; Daniel G. Orenstein, Comment: Shaken to the Core: Emerging
Scientific Opinion and Post-Conviction Relief in Cases of Shaken Baby Syndrome,
42 ARIZ. ST. L.J. 1305 (2010) (arguing that the criminal justice system must be
prepared to reexamine cases in which the conviction, was based entirely or
principally, on unsettled science when the science evolves substantially enough to
undermine confidence in a verdict).
Judge Cochran also made the somewhat poignant comparison to an arson-
murder case in which the experts at trial were confident that the fire that killed the
victim was set intentionally, but later experts reviewed the evidence and science
and could not determine whether the fire was arson or not. It was a fire of
undetermined and undeterminable origin and not capable of being scientifically
determined as arson or accidental. Ex parte Robbins, 360 S.W.3d at 469,
(Cochran, J., dissenting).
In the Daubert/Kelly hearing Ms. Wolfe directed the trial court’s attention
(7 R. R. 8-9) to an overturned conviction in State v. Edmunds, 746 N.W.2d 590
(Wis. Ct. App. 2008), rev. denied, 749 N.W.2d 663 (Wis. 2008). A jury convicted
25 | Jennifer Banner Wolfe v. State, Appellant’s brief
Edmunds on the basis of expert testimony that the child died as a result of Shaken
Baby Syndrome (SBS). The state experts testified that only shaking, possibly
accompanied by impact could explain the injuries. Ms. Edmunds filed her motion
for new trial in 2006, asserting that there were significant developments in the
medical community around “shaken baby syndrome” in the ten years since her
trial. The appeals court granted Ms. Edmunds a new trial due to a “shift in
mainstream medical opinion.” Id., 746 N.W.2d at 598-99. The Edmunds Court
was persuaded that “the emergence of a legitimate and significant dispute within
the medical community” and “medical developments and literature” in the ten
years since her trial provided new evidence that created a reasonable probability
that a different result would be reached in a new trial. Id.
The New Mexico Supreme Court reversed a child abuse conviction due to
ineffective counsel assistance where counsel was denied funds for a defense expert
to challenge the state expert’s opinion that the child suffered intentional abuse.
State v. Schoonmaker, 176 P.3d 1105 (N. M. 2008), overruled in part, 332 P.3d
850 (N. M. 2014). The appellant contended the child had been injured after falling
from a couch, combined with the child’s medical history including premature birth
and subsequent hospitalization. In Schoonmaker the state presented no external
evidence of shaking such as a neck injury or ‘gripping’ injuries. The case is
notable because the New Mexico Supreme Court specifically acknowledged the
26 | Jennifer Banner Wolfe v. State, Appellant’s brief
“disagreement” in the medical community as to the amount of time between when
injuries occur and when the child becomes symptomatic, and “whether injuries
like Child’s can be caused by short-distance falls, particularly in light of Child’s
medical history.” Id. at 1114.
Also noteworthy—given the complete absence of any physical sign of
external injury to Jack—is the significance of Justice Ginsberg’s mention of
multiple sources all pointing to the consensus that the commonly held opinion that
subdural hemorrhage and retinal hemorrhage in an infant was strong evidence of
SBS was unsustainable. Cavazos v. Smith, 132 S.Ct. 2 (2011) (Ginsberg, J.,
dissenting); See Bandak, Shaken Baby Syndrome: A Biomechanics Analysis of
Injury Mechanisms, 151 Forensic Sci. Int’l 71, 78 (2005) (“’Head acceleration and
velocity levels commonly reported for SBS generate forces that are far too great
for the infant neck to withstand without injury ….[A]n SBS diagnosis in an infant
…without cervical spine or brain stem injury is questionable and other causes of
the intracerebral injury must be considered.’”); Minns, Shaken Baby Syndrome:
Theoretical and Evidential Controversies, 35 J. Royal College of Physicians of
Edinburgh 5, 10 (2005) (“’[D]iagnosing ‘shaking’ as a mechanism of injury …is
not possible, because these are unwitnessed injuries that may be incurred by a
whole variety of mechanisms solely or in combination.’”); Uscinski, Shaken Baby
Syndrome: An Odyssey, 46 Neurol. Med. Chr. (Tokyo) 57, 59 (2006) (“’[T]he
27 | Jennifer Banner Wolfe v. State, Appellant’s brief
hypothetical mechanism of manually shaking infants in such a way as to cause
intracranial injury is based on a misinterpretation of an experiment done for a
different purpose, and contrary to the laws of injury biomechanics as they apply
specifically to the infant anatomy.’”) Cavazos v. Smith, 132 S.Ct. 2 (2011)
(Ginsberg, J., dissenting).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that the Court of Criminal Appeals reverse the judgment of the Court of Appeals
and remand this case for a new trial; or, in the alternative, remand this case to the
Court of Appeals for full consideration of the merits of whether the trial court
abused its discretion by admitting unreliable expert testimony on abusive head
trauma, and for such other relief as she may show herself deserving at law or in
equity.
Respectfully submitted,
DAVID A. PEARSON, P.L.L.C.
By: ______________________
David A. Pearson, IV
28 | Jennifer Banner Wolfe v. State, Appellant’s brief
Attorney for Appellant
222 W. Exchange Ave., Ste. 103
Fort Worth, Texas 76164
(817) 625-8081
FAX (817) 625-8038
State of Texas Bar Card
Number 15690465
david@lawbydap.com
CERTIFICATE OF SERVICE
I hereby certify that upon submission for filing a true and correct copy of the
foregoing APPELLANT’S BRIEF was e-served to Hon. Tanya S. Dohoney,
Assistant District Attorney, Tarrant County District Attorney’s Office at
CCAAppellateAlerts@TarrantCounty.com and was e-served to Hon. Lisa C.
McMinn, State Prosecuting Attorney at information@spa.texas.gov, and a file-
stamped copy will be served by U.S. mail to the Appellant, Jennifer Banner Wolfe,
TDCJ#01776755, Lockhart Work Facility, P.O. Box 1170, Lockhart, TX 78644.
David A. Pearson, IV
CERTIFICATE OF COMPLIANCE
I hereby certify that this document complies with Texas Rule of Appellate
Procedure 9.4( e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document complies
with Texas Rule of Appellate Procedure 9.4 (i)(1)and (2)(B), containing
7,558 words, including the caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendix. Signed on this the 2 November 2015.
___________________________
David A. Pearson, IV
29 | Jennifer Banner Wolfe v. State, Appellant’s brief