The Texas Court of Criminal Appeals (TCCA) has once again rejected the findings of a trial court that a death-row prisoner was entitled to relief from his conviction or death sentence.

Applying a narrow interpretation of a 2013 junk-science law, the court on March 11, 2020 set aside the recommendation of an El Paso County trial court that death-row prisoner Rigoberto Avila should be granted a new trial as a result of the prosecution’s reliance on false and outdated scientific evidence. The court wrote that Avila had failed to meet the “’Herculean’ burden to prove by clear and convincing evidence that no reasonable juror would have convicted him based on the new evidence.”

The ruling followed two other recent TCCA decisions refusing to overturn death sentences that trial courts had said were unconstitutionally imposed. In October 2019, the TCCA reinstated a death sentence imposed on Paul Storey, reversing a Tarrant County court ruling that had reduced Story’s sentence to life because the prosecutor lied to the jury that the victim’s family wanted the death penalty.

In June 2018, after already having been reversed by the U.S. Supreme Court on the same issue, the TCCA ruled that Bobby Moore is not intellectually disabled and may be executed, despite a finding by a Harris County trial court judge, a concession from the Harris County District Attorney’s office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. The Supreme Court later overturned the TCCA for a second time, and Moore was resentenced to life in prison.

Avila was sentenced to death for the alleged murder of his girlfriend’s 19-month-old son after the prosecution presented what Avila contended was false expert testimony that he had physically abused the child. At trial, the prosecutor told the jury: “There’s no other way the kid could have died.” With his execution looming in January 2014, Avila presented an expert medical report that showed that the infant may have died from accidental injuries caused by his four-year-old brother.

The TCCA stayed Avila’s execution based on a new 2013 law designed to assure prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. Avila’s case was one of the first sent back to a lower court for reconsideration under the junk-science law.

After conducting a hearing, Judge Annabell Perez ruled on October 9, 2018 that this new medical evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial.

The TCCA rejected the trial court’s findings in an unsigned opinion.

Avila’s lawyers said they were “deeply dismayed” by the Texas appeals court’s decision. “It should deeply trouble every Texan that, at least for the time being, Mr. Avila remains under a death sentence even though extensive and powerful scientific evidence raises grave doubts about his guilt,” the lawyers said. “The quality of [the court’s] opinion fails to respect either Judge Perez’s work in reviewing this case or the Legislature’s efforts to limit the destructive impact of ‘junk science’ in criminal cases.”

The decision was the latest in a pattern of allowing convictions or death sentences to stand despite being the products of false or misleading expert testimony. In 2019, Texas executed at least four men who had false scientific evidence presented in their cases. Larry Swearingen was executed on August 21 despite evidence from experts in multiple fields that the state had presented false testimony about multiple forensic issues, including that the crime actually occurred at a time in which it was physically impossible for Swearingen to have been the killer. Travis Runnels, Billie Wayne Coble and Robert Sparks all were executed despite the prosecution’s reliance on false testimony about the conditions of confinement in Texas prisons to show that the men would pose a continuing risk of violence in prison if their lives were spared.

In January 2020, in a non-capital murder case, the Court denied a new trial to former high school principal Joe Bryan even after new evidence showed that the state’s blood spatter testimony was false and the forensic expert who testified against Bryan admitted his conclusions were wrong. Turned down for parole seven times while insisting on his innocence, Bryan was finally released March 31, 2020.


Jolie McCullough, Texas Court of Criminal Appeals rejects new death penal­ty tri­al request­ed under junk sci­ence” law, Texas Tribune, March 11, 2020; Tommy Witherspoon, Former Clifton prin­ci­pal approved for parole after more than three decades in prison, Waco Tribune-Herald, March 20, 2020; Tommy Witherspoon, Former Clifton prin­ci­pal released after more than three decades in prison, Waco Tribune-Herald, March 312020

Read the Texas Court of Appeals deci­sion in Ex Parte Rigoberto Avila, No. WR-59,662 – 02 (Tx. Crim. App. Mar. 11, 2020) (per curiam).