During the investigation into the death of the child, Dr. Patricia Moore of the Harris County Medical Examiner's Office was asked to conduct an autopsy. She concluded in her report that the child died due to "asphyxia of the chest and abdomen" and that the child was the victim of a homicide. At trial, the defense expert, Dr. Robert Bux of the Bexar County Medical Examiner's Office testified that the cause and manner of death could not be determined.
In 2007, Dr. Dwayne Wolf of the HCMEO was asked to review Dr. Moore's findings in the case. In May of that year, Dr. Wolf amended the death certificate to indicate that the cause and manner of death could not be determined. Dr. Moore's supervisor at the time of the autopsy, Dr. Joye Carter, told Montgomery County prosecutors that she concurred with Dr. Wolf's findings.
Then Dr. Moore sent a letter to the Montgomery County DA's Office and stated:
Dr. Moore went on to state that since the date of the autopsy she had received additional training and believed that the bruises on the child's body could have been caused by aggressive CPR or other attempts to revive the child.
In June 2007, Mr. Robbins filed a writ of habeas corpus asking that his conviction be vacated as the result of newly discovered evidence. The State of Texas, in its initial response, concurred. The trial court, however, appointed another forensic pathologist to review the documents in the case. Dr. Thomas Wheeler of the Baylor College of Medicine also concluded that the cause and manner of death could not be determined.
A Montgomery County Justice of the Peace then appointed another forensic pathologist to review the case. This time the state got what it wanted - Linda Norton concluded that the child was suffocated. She said she believed the child was murdered but could not state beyond a reasonable doubt that Mr. Robbins killed the child.
In August 2008, both Mr. Robbins and the state prepared findings of fact and conclusions of law stating that Mr. Robbins was entitled to a new trial. However, after Ms. Norton reaffirmed her opinion that the child was murdered, the state changed its tune and urged the court not to grant any relief to Mr. Robbins.
In January 2010, the trial court denied relief for Mr. Robbins stating that the changed opinion of an expert witness was not sufficient to overturn a jury's decision to convict.
Last month the Texas Court of Criminal Appeals ruled that since Dr. Moore's trial testimony hadn't been proven false, that Mr. Robbin's claim of actual innocence failed. The majority found that Dr. Moore's changed opinion did not render her trial testimony false. The court relied on the fact that Dr. Moore testified "openly" about her findings and conclusions.
The court's rationale was that no one testified that Mr. Robbins didn't commit the murder.
In dissent, Judge Alcala (the newest member of the panel) argued that the majority was splitting hairs and denying Mr. Robbins the relief to which he was entitled. She wrote:
Mr. Robbins should receive a new trial. While Dr. Moore didn't lie on the stand during Mr. Robbins' trial, she has re-evaluated her findings and she has come to a new conclusion. That new conclusion contradicts the testimony she gave at trial. Had the jury heard this new testimony, the question becomes was there a murder?
I think we owe it to Mr. Robbins to find out.