The state's highest criminal court on Wednesday cleared the way for a Montgomery County man to get a new trial in the 1998 suffocation of a 17-month-old girl. With the move, the court stuck to an earlier decision granting the convicted murderer relief because a 2013 state law allows challenges when scientific evidence evolves after a trial. 

"I join this Court’s order because its effect is to grant Neal Hampton Robbins, applicant, the relief to which he has been due but has been denied for half a decade," a clearly frustrated Court of Criminal Appeals Judge Elsa Alcala wrote in an opinion on the court's order that a 2015 decision to rehear the case was "improvidently granted."

"This concurring opinion marks the third time in less than five years that I must document my position in favor of granting post-conviction relief to applicant, who is incarcerated for capital murder in a case in which there is no competent evidence that a murder even occurred," Alcala added.

The long-awaited decision involves the case of Robbins, who was convicted in the 1998 death of his girlfriend's daughter, Tristen Skye Trivet. Robbins had been caring for Tristen for hours while her mother was out. Tristen's mother checked on her once after Robbins left and thought the child was sleeping. When she checked 20 minutes later, she found that Tristen's lips were blue and that she was not breathing. Tristen was pronounced dead, and Robbins was later arrested and charged with capital murder. He was convicted in 1999 and sentenced to life in prison.

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In 2007, the original pathologist in the case, Dr. Patricia Moore, recanted her earlier conclusions at Robbins' trial that the death was a homicide, and Robbins' legal team has worked to get him a new trial. Moore has had a handful of infant death cases reviewed and conclusions changed because her findings of homicide failed to stand up on re-examination. 

In Tristen's case, Moore later reassessed her conclusions, saying she should have ruled the manner of death "undetermined" instead of "homicide." 

Robbins' case was buoyed by the 2013 passage of a state law that gave defendants a new challenge if they could prove that there had been a change in the science behind evidence presented at trial. 

"I'm extremely gratified that the Court of Criminal Appeals has declined the state's invitation to second-guess its decision 14 months ago granting Neal Robbins a new trial he so clearly deserves," said Brian Wice, Robbins' attorney. "All that Neal Robbins has ever asked for in the almost two decades that I've represented him is a fair trial with a reliable result. Today's decision now makes that dream a reality." 

Alcala's nine-page opinion on Wednesday detailed how the CCA should have never considered a prosecutor's request for a rehearing of the matter after the court decided in 2014, and that Robbins should get a new trial based on the 2013 law.

The four judges who disagreed with granting Robbins a new trial in 2014 — Presiding Judge Sharon Keller and Judges Lawrence Meyers, Michael Keasler and Barbara Hervey  — were part of the core that voted in 2015 to rehear the matter at the prosecutor's request. Alcala's opinion calls them out for what she sees as way to get a do-over for the state. Keasler and Meyers are running for re-election this year.

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"I believe that judges have the right to study the issues and upon further reflection change their minds," Alcala wrote. "But that does not appear to be what is occurring here," she wrote. She pointed out that three dissenting judges "maintain their former dissenting opinions that relief should not have been granted" to Robbins under the 2013 statute. "But they now appear to vote in a manner that has the effect of granting relief to applicant." 

Last year, the state's 2013 law was tweaked by the Texas Legislature in response to the CCA reconsideration of its earlier ruling.

The modified law, passed last year, gives criminal defendants the right to challenge their conviction not only if the science behind evidence used at the original trial had changed but also if the scientific conclusions by a testifying expert had changed.

The change was proposed by state Rep. Abel Herrero, D-Corpus Christi, in his House Bill 3724

Alcala addressed this end-run by the Legislature.

"This Court's judicial decisions should not require litigants to run to the Legislature for a statutory response to correct our judicial mistakes," Alcala wrote. "This court's judicial decisions should not give the appearance of indecision or manipulation for the achievement of a desired result." 

Judge Bert Richardson wrote a concurring opinion in which he agreed that Robbins should get a new trial because the state's chief witness — the medical examiner — changed her opinion about the death. But he disagreed with the majority that "resurrecting the Court’s 2014 opinion [in favor of Robbins] is the best way to accomplish that end result."

Instead, Richardson wrote that he could not join the majority opinion that the rehearing was "improvidently granted."

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He wrote that "the better approach is to resolve this case under the amended statute without having to resurrect the 2014 opinion."

Judge Meyers filed a dissenting opinion, saying he disagreed that the rehearing was improvidently granted. 

"As I indicated in my dissent to that original opinion, article 11.073 of the Texas Code of Criminal Procedure does not provide for relief based on any constitutional criteria," he wrote. 

The state Court of Criminal Appeals heard the matter last June as the 2013 law was being changed. By then, the changes had been approved by the Texas Legislature. The court took the matter under consideration during its summer break, and by the time the judges returned to work — Sept. 12 — the bill had been signed into law by Gov. Greg Abbott.

Reference Material

Texas Court of Criminal Appeals ruling on Neal Robbins
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