new evidence established prima facie case for actual innocence because, taken together with medical examiner's trial testimony, it would mean that "the jury would no longer have any affirmative evidence to cause it to prefer the theory that [the deceased] was murdered as opposed to the theory that he was killed accidentally or with some lesser culpable mental state than is necessary to sustain a capital murder conviction"
How later courts described this case
- new evidence established prima facie case for actual innocence because, taken together with medical examiner's trial testimony, it would mean that "the jury would no longer have any affirmative evidence to cause it to prefer the theory that [the deceased] was murdered as opposed to the theory that he was killed accidentally or with some lesser culpable mental state than is necessary to sustain a capital murder conviction"
- State failed in its burden of production because evidence presented no rational basis for jury to prefer the theory that intent to obtain or maintain control over property was formulated before or during the homicide rather than after
- new evidence that short- distance falls could have caused the infant victim’s head injuries was a material exculpatory fact undermining expert testimony at trial that short-distance falls could not cause such injuries
- "That material [affidavits and reports of several scientists] indicates that what is called the biomedical analysis of infant head trauma (an area of scientific research that was beginning to develop in 1995 when applicant was tried and convicted) now shows that the type of head injuries that Brandon Baugh suffered could have been caused by an accidental short fall onto concrete."
Written by the judges who cited it.
The opinion
KEASLER, J.,
dissenting.
Without one word of analysis, four members of the Court reach the breathtaking conclusion that Cathy Lynn Henderson’s subsequent application meets the requirements of Article 11.071, Section 5(a). 1 Calvin Coolidge once said, “If you don’t say anything, you won’t be called upon to repeat it.” Today the per curiam opinion tacitly amends Silent Cal’s adage to say “If you don’t say anything, you won’t be called upon to justify it.” The only explanation for the absence of any analysis is that their conclusion is indefensible. They dare not set out their reasons because they might have to defend them. Instead, it is simply, “Because we say so.”
Over fifty years ago, Justice Robert H. Jackson warned: “There is a danger that, *696 if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” 2 But today, the majority employs neither logic nor common sense.
Section 5(a) prevents us from considering “the merits of or granting] relief based on the subsequent application unless the application contains sufficient specific facts” demonstrating that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt;.... 3
I.
Even assuming that the biomechanical evidence regarding causes of infant head trauma was previously unavailable, 4 Henderson has failed to present a cognizable claim of actual innocence based on newly-discovered evidence. 5 The “newly-available” biomechanical evidence does not constitute evidence that “unquestionably establish[es]” Henderson’s innocence under Ex parte Elizondo. 6 As the majority observes, the affidavits and reports of Drs. John J. Plunkett, Peter J. Stephens, Janice J. Ophoven, and Kenneth Monson concerning recent advances in “biomechanics and physics suggest that it is possible that Brandon’s head injuries could have been caused by an accidental short-fall distance.” The words “suggest,” “possible,” and “could” denote uncertainty. And here the obvious uncertainty pertains to whether Brandon’s death was the result of an accident. This is a far cry from setting out sufficient specific facts establishing actual innocence. Additionally, Dr. Bayar-do’s revised opinion, which the majority identifies as a “material exculpatory fact,” does not affirmatively rule out that Henderson acted intentionally. In short, the evidence submitted by Henderson only serves to support the defense she advanced during her 1995 trial-that Brandon’s death was the result of an accident, as opposed to an intentional act. Henderson has therefore failed to make the requisite threshold showing “by clear and convincing evidence that no reasonable juror would have convicted [her] in light of the new evidence.” 7
II.
Henderson has also failed to set forth sufficient specific facts establishing actual innocence under Schlup v. Delo. 8 The ma *697 jority is sphinx-like about Henderson’s Schlup-based claims, so I will discuss them here. First, she argues that the trial judge’s refusal to appoint a biomedical expert constituted a due process violation under Ake v. Oklahoma, 9 Second, reasserting an issue raised and rejected on direct appeal, 10 she claims that the trial judge’s “orders regarding production of the confidential map and refusing to suppress the evidence that the state obtained through use of the map violated [her] rights under the Fifth and Sixth Amendments.” Relying on Fisher v. United States, 11 she asserts that we erred in overruling her claim. Because this Court has already rejected the merits of this claim, it is procedurally barred 12 and therefore not cognizable. 13 Considering Henderson’s Ake due process claim, under Section 5(a)(2), she must make a prima facie showing of actual innocence. Henderson must therefore make a threshold showing that no rational juror could have found her guilty beyond a reasonable doubt in light of the new evidence. 14 For the same reasons discussed above with respect to her free-standing claim of actual innocence, Henderson has not met her burden under Section 5(a)(2). Henderson’s actions following Brandon’s death support this conclusion.
The author of Proverbs tells us, “The wicked flee when no man pursueth, but the righteous are bold as a lion.” 15 Over two thousand years later, in less majestic language, we noted that “[w]e have repeatedly held that flight is evidence of a circumstance from which an inference of guilt may be drawn.” 16 And this concept comports with common sense.
What is an innocent man or woman’s reaction when a baby has a serious accident? Is it to bury the baby and flee the state? Of course not. He or she administers first aid, calls an ambulance, calls a neighbor for help, drives the baby to the hospital — in short, takes remedial action. What did Henderson do? She buried Brandon’s three-and-a-half-month-old body and skedaddled to Missouri.
And what did Henderson do then? Why, she sipped a few margaritas and, according to her friend and confidant, admitted that she had “killed somebody or murdered somebody.” 17 Is this consistent with her innocence? Of course not.
We at least give lip-service to the principle that we consider the totality of the circumstances when deciding whether an application meets the requirements of Section 5(a). So in inferentially doing so, I can only conclude that the Court has used the “divide and conquer” or “piecemeal” analysis of the evidence condemned by the Supreme Court in United States v. Arvi- *698 zu 18 rather than considering the evidence as a whole. 19
III.
Finally, the Court brushes aside Henderson’s third claim — that she is no longer a future danger. But that is inconsistent with our opinion in Berry v. State, 20 handed down less than two weeks ago, in which the same five-judge majority held that a defendant who murdered one child and left another naked in a ditch on an anthill was not a future danger to society and reformed her sentence from death to life imprisonment. According to the majority’s reasoning, Henderson would be less culpable than Berry. The majority should explain why this claim is not cognizable. This claim amounts to nothing more than a challenge to the sufficiency of the evidence, which, in fact, is not cognizable. 21
In Berry, and again today, I detect a tendency in the majority of this Court to minimize the culpability of criminals who victimize the most vulnerable of human beings — our children.
IV.
Henderson’s application should be dismissed as an abuse of the writ. Because the Court refuses to do so, I dissent.
. TexCode Crim. Proc. Ann. art. 11.071 § 5(a) (Vernon 2005).
. Terminiello v. Chicago, 337 U.S. 1, 37 , 69 S.Ct. 894 , 93 L.Ed. 1131 (1949) (Jackson, J., dissenting).
. Tex.Code Crim. Proc. Ann. art. 11.071 § 5(a)(1), (2).
. Id. § 5(a)(1), (e).
. Ex parte Campbell, 226 S.W.3d 418 , 421 n. 7 (Tex.Crim.App. 2007) (citing Ex parte Broolts, 219 S.W.3d 396, 400 (Tex.Crim.App.2007); Ex parte Staley, 160 S.W.3d 56, 64 (Tex.Crim. App.2005)).
. 947 S.W.2d 202, 209 (Tex.Crim.App. 1996).
. Ex parte Elizondo, 947 S.W.2d at 209 ; see also Ex parte Blue, No. AP-75,254, 2007 Tex. Crim.App. LEXIS 318, at *27, 2007 WL 676194, *7 (Tex.Crim.App. Mar. 7, 2007).
. 513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995); see also Ex parte Brooks, 219 S.W.3d at 400 .
. 470 U.S. 68, 83-87 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985).
. Henderson v. State, 962 S.W.2d 544 , 551— 57 (Tex.Crim.App.1997).
. 425 U.S. 391, 404 , 96 S.Ct. 1569 , 48 L.Ed.2d 39 (1976).
. Ex parte Acosta, 672 S.W.2d 470, 472 (Tex. Crim.App.1984).
. Ex parte Campbell, 226 S.W.3d at 421 (citing Ex parte Brooks, 219 S.W.3d at 400 ; Ex parte Staley, 160 S.W.3d at 64 ).
. Tex.Code Crim. Proc. Ann. art. 11.071 § 5(a)(2).
. Proverbs 28:1 (K J V).
. Colella v. State, 915 S.W.2d 834 , 839 n. 7 (Tex.Crim.App.1995) (citing Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989)); see also Hernandez v. State, 939 S.W.2d 173, 178 (Tex.Crim.App.1997); Valdez v. State, 623 S.W.2d 317 (Tex.Crim.App.1981); Holloway v. State, 525 S.W.2d 165 (Tex.Crim.App.1975).
.31 R.R. at 347.
. 534 U.S. 266, 272-77 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002).
. See also Schlup, 513 U.S. at 328 , 115 S.Ct. 851 .
. 233 S.W.3d 847 (Tex.Crim.App.2007).
. Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim.App.1981); Ex parte Williams, 703 S.W.2d 674, 677 (Tex.Crim.App.1986); Ex parte McLain, 869 S.W.2d 349, 350 (Tex. Crim.App.1994).