NO. 10-0859 - Supreme Court of Texas

NO. 10-0859
________________________________________________________________________
IN THE SUPREME COURT OF TEXAS
________________________________________________________________________
IN THE MATTER OF M.P.A.,
Petitioner,
________________________________________________________________________
On Appeal from the Third Court of Appeals
No. 03-08-00337-CV, Austin, Texas
________________________________________________________________________
PETITION FOR REVIEW
________________________________________________________________________
F. Clinton Broden
State Bar No. 24001495
BRODEN & MICKELSEN
2600 State Street
Dallas, Texas 75204
Telephone: (214) 720-9552
Facsimile: (214) 720-9594
clint@texascrimlaw.com
Deborah Hankinson
State Bar No. 00000020
HANKINSON LEVINGER L.L.P.
750 North St. Paul Street
Suite 1800
Dallas, Texas 75201
Telephone: (214) 754-9190
Facsimile: (214) 754-9140
dhankinson@hanklev.com
Dustin M. Howell
State Bar No. 24050169
BAKER BOTTS L.L.P.
98 San Jacinto Boulevard
Suite 1500
Austin, Texas 78701-4039
Telephone: (512) 322-2500
Facsimile: (512) 322-2501
dustin.howell@bakerbotts.com
ATTORNEYS FOR PETITIONER

IDENTITY OF PARTIES AND COUNSEL
Petitioner:
M.P.A.
Petitioner’s trial counsel:
F. Clinton Broden
BRODEN & MICKELSEN
2600 State Street
Dallas, Texas 75204
Nancy E. Kennedy
6440 N. Central Expressway
Suite 203
Dallas, Texas 75206
James H. Kreimeyer, Jr.
P.O. Box 727
Belton, Texas 76513-0727
Petitioner’s counsel on appeal:
F. Clinton Broden
BRODEN & MICKELSEN
2600 State Street
Dallas, Texas 75204
Deborah Hankinson
HANKINSON LEVINGER L.L.P.
750 North St. Paul Street, Suite 1800
Dallas, Texas 75201
Dustin M. Howell
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701-3089
Respondent:
State of Texas
Respondent’s trial and appellate counsel:
Richard J. Miller
John T. Gauntt, Jr.
James Murphy
BELL COUNTY ATTORNEY’S OFFICE
P.O. Box 1127
Belton, Texas 76513
i

TABLE OF CONTENTS
Identity of Parties and Counsel............................................................................................. i
Index of Authorities............................................................................................................iv
Statement of the Case ......................................................................................................... vi
Statement of Jurisdiction ..................................................................................................viii
Issues Presented (Briefed) .................................................................................................. ix
Issues Presented (Unbriefed).............................................................................................. ix
Statement of Facts ............................................................................................................... 1
I. Background: Abuse allegations in the midst of a bitter custody
dispute. .......................................................................................................... 1
II. M.P.A.’s adjudication and disposition. ......................................................... 3
A. Based primarily on the testimony of the alleged victim,
M.P.A. is adjudicated delinquent. ...................................................... 3
B. Relying on the testimony of Willoughby, the State convinces
the jury to sentence M.P.A. to twenty years’ confinement................ 4
III.
S.A. recants, stating that her mother manipulated her testimony as a
means of preventing her father from obtaining custody. .............................. 6
IV. Willoughby’s false testimony comes to light................................................ 7
Summary of the Argument .................................................................................................. 8
Argument............................................................................................................................. 9
I. The court of appeals erred when it held that Willoughby’s testimony
would have been admitted by the trial court despite the fact that it
was false and completely inaccurate. .......................................................... 10
A. The basis for Willoughby’s testimony did not satisfy this
Court’s relevance and reliability standards established in
Robinson........................................................................................... 10
ii

B. Because the State’s reliance on Willoughby’s testimony
directly contributed to the sentence M.P.A. received, the error
was harmful...................................................................................... 14
Conclusion and Prayer....................................................................................................... 15
Certificate of Service......................................................................................................... 17
Index to Appendix ............................................................................................................. 18
iii

INDEX OF AUTHORITIES
CASES
Page(s)
Burnett v. State,
88 S.W.3d 633 (Tex. Crim. App. 2002)................................................................. 10
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993) ............................................................................................... 11
E.I. DuPont de Nemours & Co. v. Robinson,
923 S.W.2d 549 (Tex. 1995) .......................................................vii, ix, 9, 10, 11, 14
Ex parte Chabot,
300 S.W.3d 754 (Tex. Crim. App. 2009)............................................................... 10
Ex Parte Fierro,
934 S.W.2d 370 (Tex. Crim. App. 1996)............................................................... 14
Ex Parte Johnson,
654 S.W.2d 415 (Tex. 1983) .................................................................................. 10
Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713 (Tex. 1998) .................................................................................... 9
In the Matter of M.P.A.,
No. 03-08-00337-CV, 2010 WL 2789649 (Tex. App.—Austin July 14,
2010, pet. filed) (mem. op.).........................................................viii, 3, 8, 13, 14, 15
In re D.I.B.,
988 S.W.2d 753 (Tex. 1999) .................................................................................. 11
In re D.W.P.,
No. 06-07-00113-CV, 2008 WL 53211 (Tex. App.—Texarkana Jan. 4,
2008, no pet.).......................................................................................................... 11
In re M.A.F.,
966 S.W.2d 448 (Tex. 1998) .................................................................................. 10
In re M.P.A.,
No. 03-00-00211-CV, 2000 WL 1759444 (Tex. App.—Austin Nov. 30,
2000, no pet.) (mem. op.) .......................................................................................vii
In re M.P.A.,
No. 03-02-00068-CV, 2002 WL 31833562 (Tex. App.—Austin Dec. 19,
2002, pet. denied) (mem. op.) ................................................................................vii
iv

Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992)............................................................... 11
Santana v. Texas,
397 U.S. 596 (1970) ............................................................................................... 10
State v. Central Expressway Sign Assocsiates,
302 S.W.3d 866 (Tex. 2009) ............................................................................ 10, 14
Timberwalk Apartments, Partners, Inc. v. Cain,
972 S.W.2d 749 (Tex. 1998) .................................................................................. 10
Volkswagen of America, Inc. v. Ramirez,
159 S.W.3d 897 (Tex. 2004) .................................................................................. 12
Whirlpool Corp. v. Camacho,
298 S.W.3d 631 (Tex. 2009) ................................................................ 11, 12, 13, 14
STATUTES
TEX. FAM. CODE § 56.01(a)..........................................................................................ix, 10
TEX. GOV. CODE § 22.001(a)(6)......................................................................................... ix
OTHER AUTHORITIES
20/20 Texas Girl Says Abuse Claims Were Coerced by Mom (ABC television
broadcast Jan. 6, 2006) ............................................................................................. 8
Gene G. Abel, Visual Reaction Time and Plethysmography as Measures of Sexual
Interest in Child Molesters, 10 SEXUAL ABUSE: J. RES. & TREATMENT 81,
91 (No. 2, 1998)...................................................................................................... 12
Gillian Smith & Lane Fischer, Assessment of Juvenile Sex Offenders: Reliability
and Validity of the Abel Assessment for Interest in Paraphilias, 11 SEXUAL
ABUSE: J. RES. & TREATMENT 207, 208 (No. 3, 1999).......................................... 12
John W. Strong, Language and Logic in Expert Testimony: Limiting Expert
Testimony by Restrictions of Function, Reliability, and Form, 71 OR. L.
REV. 349, 361 n.81 (1992) ..................................................................................... 15
Jordan Smith, Criminally Innocent: How Can You Be Exonerated of a Crime that
Never Happened?, THE AUSTIN CHRONICLE, Nov. 5, 2010, at 26 .......................... 8
TEX. R. EVID. 702.............................................................................................................. 11
v

STATEMENT OF THE CASE
Nature of the case:
Trial court:
Trial court’s disposition:
Court of appeals:
This is an appeal from a denial of habeas corpus. The
petitioner, M.P.A., was adjudicated delinquent as a
juvenile in October 1999 and received a 20 year
determinate sentence. The Third Court of Appeals
affirmed his adjudication and disposition. In re
M.P.A., No. 03-00-00211-CV, 2000 WL 1759444
(Tex. App.—Austin Nov. 30, 2000, no pet.) (mem.
op.). In November 2000, M.P.A. filed a bill of review
which was denied in August 2001. The Third Court of
Appeals also affirmed this decision in December 2002.
In re M.P.A., No. 03-02-00068-CV, 2002 WL
31833562 (Tex. App.—Austin Dec. 19, 2002, pet.
denied) (mem. op.). This Court denied review in that
case on June 5, 2003. 46 Tex. Sup. Ct. J. 762 (June 5,
2003). M.P.A. filed this, his first 1 writ of habeas
corpus, in March 2007 in Bell County district court,
asserting actual innocence and ineffective assistance of
counsel. And, based on new evidence regarding the
State’s expert witness’s false testimony, he challenged
his sentence, arguing that the basis for the expert’s
opinions did not satisfy this Court’s reliability
standards set in Robinson, and thus his testimony
should not have been admitted, and that this error
directly contributed to his sentence.
169th District Court of Bell County, the Honorable
Gordon G. Adams, Judge Presiding, Cause No.
222,074C.
Following a bench trial, the trial court entered an order
denying habeas relief on January 31, 2008, concluding
that M.P.A. had not satisfied his burden of proof on his
actual innocence, ineffective assistance of counsel, or
improper sentence claims.
The Third Court of Appeals rendered its decision on
July 14, 2010. The panel was comprised of Justices
1
M.P.A. did file an earlier habeas petition; however, it was abandoned based on the pendency of
his Bill of Review appeal. See In re M.P.A., No. 03-02-00068-CV, 2002 WL 31833562, at *2 (Tex.
App.—Austin Dec. 19, 2002, pet. denied) (mem. op.).
vi

Patterson, Pemberton and Waldrop. Justice Pemberton
authored the opinion. A copy of the opinion, In the
Matter of M.P.A., No. 03-08-00337-CV, 2010 WL
2789649 (Tex. App.—Austin July 14, 2010, pet. filed)
(mem. op.), is attached to this petition at Tab 3.
Court of appeals’ disposition:
The court of appeals affirmed. The court held that
M.P.A. failed to prove that no reasonable jury could
have convicted him in light of the new evidence. The
court also held that his trial counsel was adequate in
both the adjudication and disposition phases of
M.P.A.’s trial. Finally, the court rejected M.P.A.’s
request for a new disposition hearing based on the new
evidence of the State expert’s false testimony, holding
that “‘independent’ studies” available at the time of
M.P.A.’s trial validated the expert’s opinion. 2 The
court of appeals denied M.P.A.’s motion for rehearing
and motion for en banc reconsideration on September
9, 2010.
2
In fact, the only truly “independent” studies available at the time concluded exactly the opposite,
as demonstrated infra, Part I.A.
vii

STATEMENT OF JURISDICTION
The Court has jurisdiction of this case under section 22.001(a)(6) of the
Texas Government Code because the court of appeals in its opinion committed errors “of
such importance to the jurisprudence of the state” that they must be corrected. TEX.
GOV’T CODE ANN. § 22.001(a)(6) (Vernon 2004). The court of appeals’ mishandling of
this Court’s standards for admitting expert testimony, as established in E.I. DuPont de
Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995), creates precedent that, if not
corrected, will cause significant confusion for future litigants, not just in cases involving
prosecutors and defendants in juvenile cases, but in any case where the reliability of an
expert’s testimony is at issue.
The Court also has jurisdiction over this case under Texas Family Code
section 56.01(a), which states that “an appeal from an order of a juvenile court is to a
court of appeals and the case may be carried to the Texas Supreme Court by writ of error
or upon certificate, as in civil cases generally.” TEX. FAM. CODE ANN. § 56.01(a)
(Vernon Supp. 2009).
viii

ISSUES PRESENTED (BRIEFED)
1. Did the court of appeals err in determining that a State witness’s false “expert”
testimony regarding a psychological exam administered to an adolescent would
have been admitted by the trial court, despite a lack of validation for use of the test
on adolescents and in the face of multiple scientific studies questioning the test’s
accuracy and reliability in general?
ISSUES PRESENTED (UNBRIEFED)
2. Would a reasonable jury have convicted M.P.A. had the jurors known of the
alleged victim’s recantation and of the multiple false abuse allegations made by
the alleged victim’s mother?
3. Was M.P.A.’s trial counsel’s failure to sufficiently investigate the validity of the
tests the State’s “expert” relied upon, coupled with various shortcomings
throughout the adjudication phase of M.P.A.’s trial, sufficiently below an
objective standard of reasonableness as to constitute ineffective assistance of
counsel?
ix

STATEMENT OF FACTS
I. Background: Abuse allegations in the midst of a bitter custody dispute. 3
In Spring 1997, L.K.A. and S.E.A. were separated and embroiled in a bitter
custody battle over their two children, S.A., then 7, and A.A., then 5. II CR 389; III RR
86. While they had initially agreed to share custody of the children, III RR 87, L.K.A.
told acquaintances that this was not good enough, and that “one way or another that she
would have custody of her children and that [S.E.A.’s family] would pay for the way they
had treated her.” III CR 21-22.
In May 1997, L.K.A. followed through with her threats. First, she stole
$670.91 from her employer. III CR 327. Then, with a “friend” from work in tow, she
fled to Florida with the children, violating a court-ordered custody agreement. III CR
327-28; III RR 51. Once in Florida, she changed S.A.’s name to Ashley and A.A.’s name
to Dexter. III RR 29, 52. S.E.A. searched in vain for months, attempting to locate his
children. Finally, in early September, the Killeen police department discovered that a
school district in Fort Walton Beach, Florida had requested the children’s school records.
III RR 89. S.E.A. immediately filed an interference with custody action in Florida,
seeking to have the children returned to him in Texas. III RR 89-90.
Days after the custody action was served on L.K.A., she made her first
report of the alleged sexual abuse committed by M.P.A. and J.W.A., the children of
S.E.A.’s brother Robert. V CR 70-71. M.P.A. was fourteen at the time of the alleged
3
A time line that was introduced before the habeas court (V CR 214-17) is attached at Tab 4.
1

abuse and J.W.A. was fifteen. I CR 266. In her December 2006 deposition, L.K.A.
testified that both children had made their initial outcries to her the summer before, prior
to their leaving Texas. III CR 324. However, instead of reporting the abuse then, L.K.A.
waited until days after the children’s father located them in Florida to reveal these facts to
the Florida authorities. III CR 324.
Facing the threat of an order demanding the children’s return to Texas and
the threat of arrest for theft and parental kidnapping, L.K.A. again fled with the couple’s
children in November 1997, this time to her mother’s home in Muscatine, Iowa. III CR
163. And, again, she succeeded in secreting the children from S.E.A., this time for
almost a year. In August 1998, S.E.A. located his children in Iowa and again filed an
interference with custody action against L.K.A.. III RR 90-91. And, as in Florida,
L.K.A. repeated the sexual abuse allegations to Iowa authorities for the first time days
after being served with suit. III CR 163.
These allegations were not L.K.A.’s first sexual abuse allegations made in
the heat of a custody dispute, nor were they her last. In 1993, when L.K.A. was
separating from her first husband, Daniel Profit, she alleged to California authorities that
he had sexually abused their daughter Vanessa. V CR 53. The authorities investigated
the claim and determined it was without merit. V CR 53. In 2000, L.K.A. contacted
Texas CPS to report that J.W.A. and M.P.A., along with S.E.A., were all abusing her
children. III CR 254. Of course, by this time, J.W.A. and M.P.A. were both in prison,
and the authorities dismissed the case. III CR 257 (“Currently there are [sic] no risk to
the children. The alleged perpetrators are incarcerated and the children reside in a stable
2

home with their father.”). L.K.A.’s claim in Iowa, though, prompted an investigation by
authorities in Texas, ultimately leading to M.P.A.’s and J.W.A.’s prosecution for
allegedly abusing both S.A. and A.A. III CR 98-100. 4
II.
M.P.A.’s adjudication and disposition.
A. Based primarily on the testimony of the alleged victim, M.P.A. is
adjudicated delinquent.
The State called four witnesses in the adjudication phase of M.P.A.’s trial:
S.A.; S.A.’s brother A.A.; Alice Lindner, a nurse who examined the two children months
after the alleged abuse; and Dr. Pamela Green, an OB/GYN who examined the children
shortly after Ms. Lindner. As the court of appeals noted, S.A.’s testimony was
“somewhat equivocal or inconsistent when, where, and how often specific incidents
occurred and who might have been present.” 2010 WL 2789649, at *2. However, on
leading questions from the State, S.A. did manage to testify that she thought M.P.A.
made her put her “mouth on his private parts” and thought that he caused his “private
parts” to contact hers. I CR 117-18. Her brother, A.A., did not testify as to any specific
acts that M.P.A. committed, I CR 133, and the court directed a verdict against the State
on the charge involving conduct with A.A. I C.R. 253.
The jury then heard from nurse Lindner and Dr. Green. Nurse Lindner
testified that her examinations of the two did not reveal anything out of the ordinary,
though she did testify, over hearsay objections, that both children told her they had been
4
Tellingly, when S.A. was asked about the alleged sexual assault by Iowa officials, she “became
very anxious and said she couldn’t continue because she needed to talk to her mother about what to say.”
III CR 183. She even told an Iowa Detective that she would only talk with them if she first “could
practice with [L.K.A.] by having [L.K.A.] ask her questions.” V RR State’s Ex. 9.
3

sexually abused by M.P.A. and J.W.A. I CR 156-59. Dr. Green testified that her
examination of A.A. did not reveal any trauma, I CR 231-32, but that she discovered in
her examination of S.A. that she had a “scant hymen.” I CR 237. She also noted that
while it was not conclusive, such a finding could be consistent with “a suspicious finding
for possible vaginal penetration.” I CR 237-38. 5
B. Relying on the testimony of Willoughby, the State convinces the jury to
sentence M.P.A. to twenty years’ confinement.
In the disposition phase of the trial, the State offered the testimony of Dr.
Fred Willoughby, a psychologist who examined M.P.A. on behalf of the Bell County
Attorney’s office. II CR 13-14. On voir dire, Willoughby testified that as part of his
evaluation of M.P.A., he administered an “Abel Assessment,” which he said consisted of
a subjective component in the form of a questionnaire and an objective component
“where the individual sits in a room by him or herself and looks at a number of slides of
different ages and different genders, male and female, and it really measures one’s
response time, how one looks at the various slides in comparison to other slides.” II CR
17. He then testified that he sent the results of these tests to Dr. Abel’s offices in
Atlanta, Georgia, where they were scored and returned. II CR 17. The test, he said,
could indicate if an individual had a sexual interest in a particular gender or age group
based on the amount of time that person viewed the various slides. II CR 17-18.
5
As part of his evidence in the habeas hearing, M.P.A. introduced the affidavit of Dr. Stephen Ajl,
a world renowned child abuse physician. III CR 383. Dr. Ajl stated that he “strongly disagree[d]” with
Dr. Green’s conclusion that these were “suspicious” of possible vaginal penetration. III CR 383. M.P.A.
likewise introduced medical journal articles during the habeas hearing that sharply contradicted Dr.
Green’s testimony. III CR 350-81.
4

Willoughby then testified about the Abel Assessment’s acceptance,
reliability, and accuracy rates. He claimed it was “accepted in the scientific community”
and that “researchers at Brigham Young University have established the reliability of the
instrument and the classification accuracy of the instrument.” II CR 18. He also testified
to the test’s alleged accuracy rate, claiming that “[f]or classifying people who have a
significant sexual interest in female children under the age of fourteen, the accuracy rate
is 85 percent.” II CR 18. Based on this testimony, the trial court 6 allowed him to testify
as an “expert in the field of assessment and treatment of sexual offenders.” II CR 22.
Willoughby offered the same testimony before the jury. II CR 31-34. He
also testified that M.P.A.’s performance in a personality examination did not reveal any
“severe psychiatric problems,” II CR 36, and that his performance on the questionnaire
portion of the Abel Assessment was “socially desirable,” II CR 37. Willoughby
discounted these results, though, in light of the results from the Abel Assessment’s
objective test. Based on the results he received from Dr. Abel’s office in Atlanta,
Willoughby testified that M.P.A. demonstrated “significant sexual interest” in eight to ten
year-old females, and two to four and eight to ten year-old males. II CR 37. Willoughby
then testified that M.P.A. was a “pedophile” with a “high risk to reoffend.” II CR 38, 40.
In closing, the State relied heavily on Willoughby’s remarks. The State
told the jury that “you’ve heard the psychologist tell you he is a pedophile,” and that
6
For the sake of consistency, the body of the brief will refer to the district court that adjudicated
M.P.A. in 1999 as the “trial court.” The brief will refer to the district court that presided over M.P.A.’s
habeas action in the instant litigation as the “habeas court.”
5

“[h]e is at a high risk to reoffend.” II CR 69. The State also argued: “You know he’s
been classified as a pedophile by an expert. You know that he is interested in children,
interested in children, in fact, in the same age group as little [S.A.]. Think about her and
think about that.” II CR 70. The jury, which could choose a sentence ranging from
probation to forty years’ imprisonment, gave M.P.A. a twenty year sentence. II CR 72.
III.
S.A. recants, stating that her mother manipulated her testimony as a means
of preventing her father from obtaining custody.
In June 2001, less than two years after M.P.A.’s trial, and less than a year
after she left her mother’s home in Iowa and returned to Texas to live with her father,
S.A. recanted her allegation of sexual abuse against M.P.A. II 180, 188-89. In the Bill of
Review hearing that followed, S.A. testified that her mother told her to make the
accusations against M.P.A.:
[M]y mom told me to say those things. And like when you
hear something over and over again it’s like you start to like
believe it. You know, it’s like you remember it. And I didn’t
want my mom to go to jail. And it was like really hard to
choose over my mom or [M.P.A.] and [J.W.A.]. And that’s
why I lied.
II CR 184. When asked why she decided to recant, SA. stated “[b]ecause it’s not right
that they’re behind bars for something they didn’t do.” II CR 189. S.A. offered this
testimony despite several warnings that she could face perjury charges for admitting that
her prior testimony was false. II CR 161-62. The trial court even appointed S.A. her
own attorney prior to her testifying. II CR 152. Ultimately, though, M.P.A.’s Bill of
Review was denied, with the district court’s concluding that S.A.’s false testimony in the
prior proceeding would only constitute intrinsic fraud.
6

IV.
Willoughby’s false testimony comes to light.
In 2002, the Texas State Board of Examiners of Psychologists brought a
complaint against Willoughby, based on misconduct the Board alleged he committed
when he participated in M.P.A.’s trial. Among the violations the Board alleged were:
At the time the Abel Assessment was administered to the
juvenile patient, the scientific literature had not established
the instrument’s accuracy in predicting sexual interest in
adolescents. The scientific literature at the time called the
instrument a “nonvalidated instrument” for adolescent
subjects. . . .
Further, it is alleged that Respondent falsely testified in
October 1999 that the above-referenced article critical of the
Abel Assessment’s use with adolescents actually supported
his work. At the time of the Respondent’s testimony, the
instrument had not been independently validated by scientific
literature outside of the originator of the test (Dr. Abel). In
addition, it is alleged that Respondent misrepresented in his
testimony the accuracy rates for the assessment. . . .
Finally, Respondent erred in making a diagnosis of
“pedophilia” for the patient, in that the testing instrument is
not designed to produce a DSM-IV diagnosis.
III CR 288-89. The Board referred the complaint to Dr. Richard Long for an independent
evaluation of the claims. III CR 292. In his report, Dr. Long agreed that the violations
asserted in the Complaint were accurate. III CR 297-99. He noted that, with regard to
the misstated accuracy rates, “Willoughby’s misstatement is serious because in his
capacity as a forensic expert, he agreed to a specialized standard of accuracy and clarity,
one that must always serve the public trust.” III CR 299. Dr. Long concluded by stating
that he “would consider these and any related violations to be a significant departure from
the standards of our profession.” III CR 304.
7

Following Dr. Long’s evaluation, Willoughby entered into an Agreed Order
with the Board. III CR 313. In it, he admitted that he “misstated in his court testimony
the research that had been conducted with respect to the Abel assessment.” III CR 313.
The Board concluded that Willoughby violated the Board rules “pertaining to the
substantiation of and limitations on forensic services.” III CR 314. The Board officially
reprimanded Willoughby for his misconduct in M.P.A.’s trial and required him to work
under the supervision of another psychologist for up to one year. III CR 314. Based on
this new evidence, M.P.A. filed his writ of habeas corpus in Bell County, alleging that
Willoughby’s false testimony caused the jury to impose a more drastic sentence than it
otherwise would have given. The court denied his writ, and the court of appeals
affirmed, reasoning that at the time of trial, “‘independent’ studies had validated” the
Abel Assessment. 2010 WL 2789649, at *29. This appeal followed.
SUMMARY OF THE ARGUMENT
This case is about a young man, currently incarcerated in the TDCJ, who
was adjudicated delinquent as a juvenile based on the now-recanted testimony of the
alleged victim and the now-sanctioned false testimony of the State’s sole expert witness.
This young man has been eligible for parole for years, but cannot be released because he
has steadfastly refused to admit that he committed this crime. His struggle for relief in
the Texas court system has attracted the attention of national 7 and local 8 media.
7
20/20: Texas Girl Says Abuse Claims Were Coerced by Mom (ABC television broadcast Jan. 6,
2006) (summary of broadcast attached at Tab 5).
8

While media attention does not justify granting review, the habeas court’s
and court of appeals’ mishandling of the law governing admission of expert testimony
does. By setting a precedent so contrary to this Court’s established analysis for expert
testimony, the lower courts have committed error that requires this Court’s action.
Studies available at the time of M.P.A’s trial confirmed that the test Willoughby used to
diagnose M.P.A. as a “pedophile” had not been validated for use on adolescents; indeed
no independent study supported its use on adolescents. If Willoughby had testified
truthfully about this, it clearly would have been error to allow the jury to consider his
opinion, and this error directly contributed to the jury’s decision to sentence M.P.A. to
twenty years’ imprisonment. The court of appeals’ decision not only unjustly keeps a
young man behind bars, but it undermines years of precedent by this Court on the
necessary predicate for admitting expert testimony. Neither prosecutors nor the public
should think there is one standard for experts to condemn fungicides, see E.I. DuPont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 551 (Tex. 1995), or gas pedals, see
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 717 (Tex. 1998), and another
for determining criminal behavior.
ARGUMENT
Willoughby’s testimony was critical in the jury’s determination of M.P.A.’s
sentence. His characterization of M.P.A. as a “pedophile” with a “high risk to reoffend”
contributed directly to the jury’s sentencing decision. Because the Abel Assessment did
8
Jordan Smith, Criminally Innocent: How Can You Be Exonerated of a Crime that Never
Happened?, THE AUSTIN CHRONICLE, Nov. 5, 2010, at 26 (attached at Tab 6).
9

not satisfy this Court’s test for reliability for expert testimony laid out Robinson and its
progeny, the court of appeals erred when it determined that Willoughby’s testimony
would have been admitted even if he had testified truthfully.
I. The court of appeals erred when it held that Willoughby’s testimony would
have been admitted by the trial court despite the fact that it was false and
completely inaccurate.
A court’s erroneous admission of false testimony is reviewed for harmful
error. Ex parte Chabot, 300 S.W.3d 754, 760 (Tex. Crim. App. 2009). 9
“[I]f erroneously
admitted or excluded evidence was crucial to a key issue, the error is likely harmful.”
State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009). Determining
whether error is harmful or harmless requires a review of the entire record. See
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (When
considering whether error is harmless, “we analyze the entire record.”). This review is
performed de novo. 10 See Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002).
A. The basis for Willoughby’s testimony did not satisfy this Court’s
relevance and reliability standards established in Robinson.
The first prong of the harm analysis concerns whether it would have been
error to admit Willoughby’s testimony if it had been truthful and accurate. Because
9
“Juvenile cases, while classified as civil proceedings, are quasi-criminal in nature.” See In re
M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); see also Ex Parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983)
(“[T]he possibility of a punitive deprivation of personal liberty in juvenile proceedings required criminal
due process protections for the accused, regardless of the ‘civil’ label of the proceedings.” (citing Santana
v. Texas, 397 U.S. 596, 596 (1970))).
10
This case arises under this court’s appellate, not original, jurisdiction. See TEX. FAM. CODE ANN.
§ 56.01(a) (Vernon Supp. 2009). As such, the applicable standards of review are no different than if this
were M.P.A.’s direct appeal of his adjudication.
10

Willoughby testified as an expert, the answer to this question is governed by the
principles addressing admission of expert testimony, as established in Robinson.
To be admissible, expert evidence must “assist the trier of fact” and must
come from “a witness qualified as an expert by knowledge, skill, experience, training, or
education.” TEX. R. EVID. 702. Expert testimony must be relevant and reliable.
Robinson, 923 S.W.2d at 555 (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589-92 (1993)). Expert evidence is relevant if “there is a ‘valid scientific connection to
the pertinent inquiry as a precondition to admissibility.’” Id. (quoting Daubert, 509 U.S.
at 592). As for reliability, this Court has adopted six factors:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the
subjective interpretation of the expert; (3) whether the theory
has been subjected to peer review and/or publication; (4) the
technique’s potential rate of error; (5) whether the underlying
theory or technique has been generally accepted as valid by
the relevant scientific community; and (6) the non-judicial
uses which have been made of the theory or technique.
Id. at 557 (citation omitted). 11
This Court recently addressed the reliability of expert testimony in
Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009). Rejecting an expert’s
testimony regarding the source of a fire in a clothes dryer, the Court noted that “the only
11
Though this Court has not spoken on the subject, the Sixth Court of Appeals recently held that the
Robinson factors, when applied in the quasi-criminal setting of a juvenile proceeding, should establish an
expert’s reliability by the clear-and-convincing evidence standard for criminal cases, rather than the lower
civil standard. See In re D.W.P., No. 06-07-00113-CV, 2008 WL 53211, at *1 (Tex. App.—Texarkana
Jan. 4, 2008, no pet.) (citing In re D.I.B., 988 S.W.2d 753, 756 (Tex. 1999)); see also Kelly v. State, 824
S.W.2d 568, 573 (Tex. Crim. App. 1992) (establishing clear and convincing standard for burden in
criminal cases).
11

test on which he founded his theory . . . did not support all the various and critical parts of
his opinion.” Id. at 642 (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 906
(Tex. 2004)). “[C]ourts are to rigorously examine the validity of facts and assumptions
on which the testimony is based, as well as the principles, research, and methodology
underlying the expert’s conclusions and the manner in which the principles and
methodologies are applied by the expert to reach the conclusions.” Id. at 637. “Further,
each material part of an expert’s theory must be reliable.” Id.
If Willoughby had testified truthfully about the data then available on the
Abel Assessment, the trial court and jury would have known that:
• “The normative ground defined by Abel, et al. (1998) apparently
included only two adolescents. There was no evidence that the [Abel
Assessment] produced reliable scores for adolescents.” 12
• “The test-retest data do not support the reliability of the [Abel
Assessment] for use with adolescents.” 13
• “The screening validity data show that the ability of the [Abel
Assessment] to discriminate adolescent offenders from nonoffenders
was not significantly better than chance.” 14
• “The diagnostic validity data show that the ability of the [Abel
Assessment] to identify specific deviant attractions within the
adolescent perpetrator group was poor.” 15
• The accuracy rate in detecting sexual interest in girls aged 14 and under
was 65%, not 85% as Willoughby testified. 16
12
Gillian Smith & Lane Fischer, Assessment of Juvenile Sex Offenders: Reliability and Validity of
the Abel Assessment for Interest in Paraphilias, 11 SEXUAL ABUSE: J. RES. & TREATMENT 207, 208 (No.
3, 1999) (excerpt attached at Tab 7).
13
14
15
Id. at 213.
Id. at 214.
Id.
12

Shockingly, the authors of these studies were the very BYU professors that Willoughby
referenced in his sentencing testimony as having “established the reliability of the
instrument and the classification [of the] accuracy of the instrument.” II CR 18.
The court of appeals acknowledged these problems with the utter lack of
verification of the test’s accuracy and reliability for use on adolescents, but still
concluded that “‘independent’ studies had validated” the test at the time of M.P.A.’s trial.
2010 WL 2789649, at *29. This holding is absolutely unsupported by the record: the
only independent studies stated exactly the opposite. The only study stating it was
reliable was Dr. Abel’s own study, which is certainly not “independent.” Inexplicably,
the court of appeals acknowledged this by putting the word “independent” in quotation
marks, yet still concluded that the test had been independently verified. Further, Dr.
Abel’s study did not indicate that the test was “validated” for use on adolescents: of the
157 participants, only two (1.5%) were adolescents. 17
Simply put, the data available at the time of M.P.A.’s trial in no way
establishes that the Abel Assessment was “generally accepted as valid by the relevant
scientific community.” The only peer review to which it had been subjected concluded
exactly the opposite. Compare Whirlpool, 298 S.W.3d at 643 (rejecting testimony where
expert “did not indicate that his theory had been accepted as valid by any part of a
relevant scientific or expert community at large”). Indeed, the court of appeals
16
Gene G. Abel, Visual Reaction Time and Plethysmography as Measures of Sexual Interest in
Child Molesters, 10 SEXUAL ABUSE: J. RES. & TREATMENT 81, 91 (No. 2, 1998); available at V CR 149.
17
Id. at 84, available at V CR 142.
13

acknowledged the Abel Assessment has since been roundly rejected by courts across the
state and the country. 2010 WL 2789649, at *29 n.22 (collecting cases). The court of
appeals’ non-analysis leads to a conclusion that is unsupported by the record and flies in
the face of Robinson. The court should have considered whether the data Willoughby
relied upon was “valid support for the opinion reached.” Whirlpool, 298 S.W.3d at 642.
If the habeas court and court of appeals had properly “scrutinized” the new evidence
regarding the actual reliability and accuracy (or lack thereof) of the Abel Assessment,
they could only have concluded that it was inadmissible. See Robinson, 923 S.W.2d at
554 (“It is especially important that trial judges scrutinize proffered evidence for
scientific reliability when it is based upon novel scientific theories, sometimes referred to
as ‘junk science.’”). The courts’ failure to do so was error; therefore, this Court must
consider whether this error constituted “harm.” 18
B. Because the State’s reliance on Willoughby’s testimony directly
contributed to the sentence M.P.A. received, the error was harmful.
Error is harmful when it “cause[s] the rendition of an improper judgment.”
Cent. Expressway Signs, 302 S.W.3d at 870; see also Ex Parte Fierro, 934 S.W.2d 370,
375 (Tex. Crim. App. 1996) (“[A]pplicant has the burden to prove by a preponderance of
the evidence that the error contributed to his conviction or punishment.”). Here, the State
18
As noted above, the court of appeals held that Willoughby’s testimony would have been admitted
even if the trial court had known the truth about the reliability and accuracy of the Abel Assessment.
Nevertheless, even if this Court determines that somehow this conclusion was not error, it should still
consider whether such a finding would have been upheld on direct appeal had Willoughby testified
truthfully and whether, in any event, the jury would have been entitled to know that Willoughby’s
testimony was almost completely false and unsupported before sentencing M.P.A. to twenty years’
imprisonment.
14

elied heavily on Willoughby’s testimony, emphasizing in closing his conclusion that
M.P.A. was a “pedophile” with a “high risk to reoffend.” II CR 69-70. To argue that
Willoughby’s testimony did not result in a longer sentence strains the limit of reason. See
John W. Strong, Language and Logic in Expert Testimony: Limiting Expert Testimony by
Restrictions of Function, Reliability, and Form, 71 OR. L. REV. 349, 361 n.81 (1992)
(“There is virtual unanimity among courts and commentators that evidence perceived by
jurors to be ‘scientific’ in nature will have particularly persuasive effect.”). The court of
appeals did not reach the issue of harm. 2010 WL 2789649, at *29. Nevertheless,
because it would have been error to admit Willoughby’s inaccurate testimony, this Court
must, and the only conclusion is that this testimony contributed to M.P.A.’s sentence.
CONCLUSION AND PRAYER
The Abel Assessment is junk science with accuracy rates no better than a
coin flip. The only independent studies available at the time of M.P.A.’s trial confirmed
this. Yet, the court of appeals still concluded that the trial court would have admitted
Willoughby’s testimony regarding his wholly inaccurate and unsupported diagnosis.
This Court should grant review of this case, reverse the judgment of the court of appeals
and, at the very least, remand to the habeas court for resentencing on this basis. M.P.A.
also intends to establish his entitlement to release based on actual innocence or,
alternatively, to a new trial on the basis of ineffective assistance of counsel. Based on the
foregoing, the petitioner respectfully requests that this Court grant review in this case,
reverse the judgment of the court of appeals, and either render judgment releasing M.P.A.
from custody or remand his case to the district court for resentencing or a new trial.
15

Respectfully submitted,
BRODEN & MICKELSEN
By: /s/F. Clinton Broden
F. Clinton Broden
State Bar No. 24001495
2600 State Street
Dallas, Texas 75204
Telephone: (214) 720-9552
Facsimile: (214) 720-9594
clint@texascrimlaw.com
Deborah Hankinson
State Bar No. 00000020
HANKINSON LEVINGER L.L.P.
750 North St. Paul Street
Suite 1800
Dallas, Texas 75201
Telephone: (214) 754-9190
Facsimile: (214) 754-9140
dhankinson@hanklev.com
Dustin M. Howell
State Bar No. 24050169
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, Texas 78701
Telephone: (512) 322-2500
Facsimile: (512) 322-2501
dustin.howell@bakerbotts.com
ATTORNEYS FOR PETITIONER
16

CERTIFICATE OF SERVICE
I certify that a true and correct copy of this petition for review has been
served upon the following counsel of record for Respondent on the 23rd day of
November, 2010:
Richard Miller
James Murphy
Bell County Attorney’s Office
P.O. Box 1127
Belton, Texas 76513
county.attorney@co.bell.tx.us
/s/Dustin M. Howell
Dustin M. Howell
17

INDEX TO APPENDIX
Tab 1 Trial Court’s Judgment (V CR 200).
Tab 2 Trial Court’s Findings of Fact and Conclusions of Law (V CR 219-24).
Tab 3
Court of Appeals’ Opinion, In the Matter of M.P.A., No. 03-08-00337-CV,
2010 WL 2789649 (Tex. App.—Austin July 14, 2010, pet. filed) (mem.
op.).
Tab 4 “Time Line” introduced in habeas court (V CR 214-17).
Tab 5
Tab 6
Tab 7
Summary, 20/20: Texas Girl Says Abuse Claims Were Coerced by Mom
(ABC television broadcast Jan. 6, 2006).
Jordan Smith, Criminally Innocent: How Can You Be Exonerated of a
Crime that Never Happened?, THE AUSTIN CHRONICLE, Nov. 5, 2010, at
26.
Excerpt, Gillian Smith & Lane Fischer, Assessment of Juvenile Sex
Offenders: Reliability and Validity of the Abel Assessment for Interest in
Paraphilias, 11 SEXUAL ABUSE: J. RES. & TREATMENT 207, 208 (No. 3,
1999).
18

TAB 1

M.P.A.

TAB 2

M.P.A.
M.P.A.
J.W.A.
S.A.
A.A.
J.W.A.
S.A.
M.P.A.
M P A

M.P.A.

S.A.

S.A. A.A.
J.W.A.
M.P.A.

TAB 3

Page 1
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION
AND SIGNING OF OPINIONS.
MEMORANDUM OPINION
Court of Appeals of Texas,
Austin.
In the Matter of M.P. A.
No. 03-08-00337-CV.
July 14, 2010.
West KeySummary
Habeas Corpus 197 491
197 Habeas Corpus
197II Grounds for Relief; Illegality of Restraint
197II(B) Particular Defects and Authority for
Detention in General
197k489 Evidence
197k491 k. Perjured or Falsified Evidence;
Recantation. Most Cited Cases
The district court did not abuse its discretion in finding
that habeas petitioner had not met his “extraordinarily
high” burden of proving that no reasonable
juror could have convicted him of sexual assault of a
child in light of the victims' recantations of their accusations.
The victims alleged that their earlier accusations
against petitioner were the product of manipulation
by their mother. The state presented evidence
tending to indicate that the victims' father and biological
uncle to petitioner had manipulated and pressured
his children to recant. Which version to believe
turned largely on credibility determinations that the
district court was in the best position to asses.
From the District Court of Bell County, 169th Judicial
District, No. 222,074-C, Gordon G. Adams,
Judge Presiding.
F. Clinton Broden, Broden & Mickelsen, Dallas, TX,
James H. Kreimeyer, Belton, TX, for appellant.
Richard J. Miller, Bell County Attorney, James V.
Murphy, Assistant County Attorney, Belton, TX, for
appellee.
Before Justices PATTERSON, PEMBERTON and
WALDROP.
MEMORANDUM OPINION
BOB PEMBERTON, Justice.
*1 In 1999, M.P.A., then a juvenile, was adjudicated
delinquent for committing the offense of aggravated
sexual assault of a child and assessed a twenty-year
determinate sentence. He was subsequently transferred
to the Texas Department of Corrections, where
he remains incarcerated. M.P.A. filed an application
for writ of habeas corpus seeking release from incarceration
on grounds of actual innocence and ineffective
assistance of counsel during his delinquency
hearing. In the alternative, M.P.A. sought a new disposition
hearing on grounds that a key State expert
testified falsely and that his counsel had been ineffective
in addressing the expert's false testimony. Following
an evidentiary hearing, the district court denied
M.P.A.'s application. M.P.A. appeals, contending
that the district court abused its discretion in denying
relief with respect to each of his four habeas
claims. We will affirm the district court's order.
BACKGROUND
The underlying facts have been the subject of three
prior proceedings in this Court, two of which involved
appellant M.P.A. and one that involved
M.P.A.'s older brother, J.W.A. See In re M.P .A., No.
03-00-00211-CV, 2000 Tex.App. LEXIS 8027, 2000
WL 1759444 (Tex.App.-Austin Nov.30, 2000, no
pet.); In re M.P.A., No. 03-02-00068-CV, 2002
Tex.App. LEXIS 8952, 2002 WL 31833562
(Tex.App.-Austin Dec. 19, 2002, pet. denied); In re
J.W.A., No. 03-03-00464-CV, 2005 Tex.App. LEXIS
8435, 2005 WL 2574024 (Tex.App.-Austin Oct. 13,
2005, no pet.). The underlying facts center on allegations
that, on or around May 1, 1997, M.P.A., then
fourteen years of age, and J.W.A., then fifteen, sexually
assaulted two cousins, S.A., a girl, then seven,
and her younger brother A.A., then five. The cousins
are related through their fathers-the father of S.A. and
A.A., Stephan Arena, is the brother of M.P.A. and
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
J.W.A.'s father, Robert Arena. The two brothers, with
their respective children, lived in Harker Heights, as
did the men's mother, the common paternal grandmother
to their children. Robert, FN1 M.P.A. and
J.W.A.'s household also included Robert's wife and
the children's mother, Betty Arena. However, by the
time of the alleged assaults, S.A. and A.A.'s mother
and Stephan's wife, LaVonna Arena, had moved out
of the family home and filed for divorce. Around
May 16, 1997, LaVonna left Texas with S.A. and
A.A., in violation of a custody arrangement, moving
first to Florida and, in November 1997, to a city in
Iowa where her mother lived. There is conflicting
evidence as to exactly when the children first made
an outcry of sexual abuse, but it was a report made to
Iowa authorities in 1998 that ultimately led Bell
County authorities to investigate.
FN1. Given the common surname of these
relatives, we will often identify them by first
names for clarity.
During the investigation, J.W.A. signed two written
statements (an initial handwritten statement and a
signed typewritten statement) in which he confessed
to having oral sex with S.A. As for A.A., J.W.A. indicated
in his handwritten statement that he did not
remember any conduct with that child, but later denied
such conduct in his typewritten statement. Ultimately,
both M.P.A. and J.W.A. were charged with
three counts of aggravated sexual assault of a child.
Against M.P.A., it was alleged in count one that on or
about May 1, 1997, he had sexually assaulted S.A. by
causing her mouth to contact his sexual organ; in
count two, by causing S.A.'s sexual organ to contact
his sexual organ; and in count three, by causing
A.A.'s anus to contact his sexual organ. Against
J.W.A., it was alleged in count one that he had sexually
assaulted S.A. by causing her mouth to contact
his sexual organ; in count two, by causing S.A.'s sexual
organ to contact his sexual organ; and in count
three, by causing A.A.'s mouth to contact J.W.A.'s
sexual organ.
*2 On October 6, 1999, pursuant to a plea bargain,
J.W.A. pled true to the allegations regarding conduct
with S.A. and received a determinate sentence of
seven years. FN2 M.P.A., on the other hand, pled not
true to the charges against him. A few days after
J.W.A.'s adjudication, M.P.A.'s case proceeded to
jury trial before the Honorable Edward S. Johnson,
the presiding judge of the Bell County Court-at-Law
Number 1, sitting as a juvenile court.
FN2. A determinate sentence is one in which
the term of commitment begins in the custody
of the Texas Youth Commission (TYC)
with a possible transfer to the Institutional
Division of the Texas Department of Criminal
Justice (TDCJ). See Tex. Fam.Code
Ann. § 54.04(d)(3) (West 2008) (providing
for determinate sentencing); see also id. §
53.045(a)(5) (West 2008) (listing aggravated
sexual assault as offense for which determinate
sentence may be assessed).
M.P.A.'s adjudication
The State's case against M.P.A. rested primarily upon
the testimony of S.A. and A.A.; Alice Lindner, a sexual
assault nurse examiner (SANE) at Scott & White,
who had examined both S.A. and A.A. in June 1999;
and Dr. Pamela Green, an obstetrician and gynecologist
(OB/GYN) who had reviewed S.A.'s and A.A.'s
medical records from Nurse Lindner's sexual assault
exams.
By the time of trial, S.A. was nine years of age and
was still living with her mother, LaVonna, in Iowa.
While somewhat equivocal or inconsistent regarding
precisely when, where, and how often specific incidents
occurred and who might have been present,
S.A. testified, on leading questions by the State, that
M.P.A. had made her place her mouth on his “private
parts” and had caused his “private parts” to contact
hers on more than one occasion at her house, his
house, and/or their grandmother's house. She gave a
similar account during cross-examination.
The State next presented A.A. As of the time of trial,
A.A. had just turned eight years old. In the interim,
A.A. had moved back to Harker Heights, where he
was living with his father, Stephan. Although the
State was unable to elicit testimony from A.A. concerning
the specific acts it had alleged M.P.A. had
committed, A.A. did testify that, on one occasion, he
was in a room at his house with S.A. and M.P.A.
when M.P.A. told S.A. to “suck my thing.” According
to A.A., S.A. complied.
The next witness was the SANE nurse, Alice Lindner.
Lindner explained that as part of the sexual as-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
sault examinations she had performed on S.A. and
A.A, FN3 she asked the children questions about what
had happened to them. Over hearsay objections by
defense counsel, Lindner testified that S.A. told her
that “[M.P.A.] and [J .W.A.], they put their privates
in my butt,” and that A.A. told her that “[M.P.A.] and
[J.W.A.] have been making me suck their privates .”
FN3. The medical records of the examinations
were admitted into evidence at trial.
However, it does not appear that the medical
records were included in the record from the
writ hearing.
The final witness to testify for the State at the delinquency
portion of the trial was Dr. Pamela Green, the
OB/GYN. Having reviewed the records from Nurse
Lindner's exams, Dr. Green testified that a rectal
exam was performed on A.A., and that his “rectum
appeared normal.” Regarding the results of S.A.'s
exams, Green also testified that “the rectal exam was
normal.” The vaginal exam revealed that S.A. had a
“posterior rim hymen,” which Green testified was
“very common” in girls. However, Green was concerned
with the fact that, in her words, the hymen
“was very scant. It was only about a millimeter.” According
to Green, this “scant hymen,” while not alone
conclusive proof of penetration, was nonetheless
“consistent” with and “a suspicious finding for possible
vaginal penetration.” After Green testified, the
State rested its case.
*3 The only witness for the defense was M.P.A.
M.P.A. denied the allegations against him and testified
that he had never been alone with S.A.
The trial court granted a defense motion for directed
verdict to the third count (the count alleging that
M.P.A. had sexually assaulted A.A.) but submitted
the other two counts (pertaining to S.A.) to the jury.
The jury found that M.P.A. had committed both of
the remaining two counts of sexual assault.
The jury then heard evidence regarding disposition.
The State presented two witnesses. First, it called Dr.
Frederick Willoughby, a licensed psychologist and
registered sex offender treatment provider, who was
presented as an expert “in the area of sex offender
assessment and treatment.” Willoughby had performed
a court-ordered psychological evaluation on
M.P.A. in advance of trial, including the administration
of an “Abel Assessment.” According to Willoughby,
the Abel Assessment entailed a “subjective”
component in which the subject answers a series of
yes-or-no questions and an “objective” component in
which the subject views images of males and females
in different age categories on a computer. The subject's
“response time, how long they look at the slides
of the males and the females in different age categories”
is measured, Willoughby explained, and from
this data the subject's level of sexual interest in the
different age and gender categories can be determined.
Prior to his testimony before the jury, M.P.A.'s trial
counsel, Bobby Barina, conducted a voir dire examination
and asked a series of questions relevant to the
non-exclusive factors bearing on the reliability of
scientific evidence identified by the court of criminal
appeals in Kelly v. State, 824 S.W.2d 568, 573
(Tex.Crim.App.1992). Following this exchange,
Barina objected to the admission of Dr. Willoughby's
opinions derived from the Abel Assessment results
on grounds that the test was unreliable because its
rate of error in detecting sexual interest in girls under
the age of 14 was, according to Willoughby, as high
as 15 percent. The trial court overruled the objection.
Before the jury, and over the re-urged objection of
Barina, Willoughby opined that based on the results
of the objective component of the Abel Assessment
administered to M.P.A., M.P.A. had “displayed significant
sexual interest in eight to ten year-old females
and two to four and eight to ten year-old
males.” Willoughby added that “[b]ased on the results
of the Abel Assessment and the incidents that
took place,” he would consider M.P.A. a “pedophile”
who would require intensive and long-term treatment
to overcome his sexual attraction to children.
After Willoughby, the State called Kathie Lewis, a
Bell County probation officer, who opined that probation
and home supervision would not be appropriate
for M.P.A. The sole witness for the defense was
M.P.A.'s mother, Betty, who urged the jury to consider
probation for her son and insisted that she
would supervise him regardless of her personal beliefs
about whether he had committed the offenses.
*4 During closing arguments, the State repeatedly
emphasized the theme that M.P.A.'s status as an expert-diagnosed
“pedophile” with a “high risk to reoffend”
necessitated a lengthy incarceration rather than
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
probation. Following closing arguments, the record
of the disposition hearing reflects that, after “a long
recess,” the jury-whose punishment options had
ranged from probation to forty years' confinementreturned
with their verdict of twenty years' commitment
to TYC. M.P.A. was eventually transferred to
TDCJ to serve the remainder of his sentence, where
he remains.
M.P.A. brought a direct appeal from his adjudication.
He argued that the trial court committed reversible
error in excluding evidence relating to the alleged
bias and motive of the victims (including matters
relating to the ongoing divorce and custody disputes
between Stephan and LaVonna Arena) and in admitting
evidence of the victim's statements through
Nurse Lindner. Finding no abuse of discretion in the
trial court's challenged evidentiary rulings, this Court
affirmed the judgment. M.P.A., 2000 Tex.App.
LEXIS 8027, at *4-13, 2000 WL 1759444.
The present proceeding
In March 2007, M.P.A. filed an application for writ
of habeas corpus in Bell County's 169th district court.
Invoking the district court's plenary jurisdiction under
Article V, Section 8 of the Texas Constitution, FN4
M.P.A. asserted four constitutional claims that, he
insisted, were unavailable to him during his adjudication
and direct appeal. First, relying on “newly discovered
evidence”-chiefly, purported recantations of
both S.A. and A.A.-M .P.A. asserted that he is actually
innocent of sexually assaulting S.A. Second,
M.P.A. asserted that his trial counsel was ineffective
in failing to investigate and present evidence to
counter the State's evidence of his guilt. Third, relying
on “new evidence” that Willoughby had signed
an agreed order of the Texas State Board of Examiners
of Psychologists in 2003 admitting that he “misstated
in his court testimony the research that had
been conducted with respect to the Abel Assessment”
and accepted disciplinary sanctions, M.P.A. sought a
new disposition hearing on the ground that Willoughby
had committed “perjury” in his voir dire
testimony relevant to the reliability of the Abel Assessment.
Relatedly, in his fourth claim, M.P.A. asserted
that his trial counsel was ineffective in failing
to investigate the reliability of the Abel Assessment
sufficiently, or to consult or present his own expert,
to enable him to counter Willoughby's misstatement
during voir dire and prevent his opinions from being
admitted. Moreover, M.P.A. complained, his trial
counsel was ineffective in failing to present an expert
to attack Willoughby's reliance on the test before the
jury.
FN4. See Tex. Const. art. V, § 8 (“District
Court jurisdiction consists of exclusive, appellate,
and original jurisdiction of all actions,
proceedings, and remedies, except in
cases where exclusive, appellate, or original
jurisdiction may be conferred by this Constitution
or other law on some other court, tribunal,
or administrative body. District Court
judges shall have the power to issue writs
necessary to enforce their jurisdiction.”).
In support of his claims, M.P.A. attached documentary
evidence and the reporter's records from both his
trial and a 2001 bill-of-review proceeding in which
he had unsuccessfully attempted to challenge his adjudication.
See M.P.A., 2002 Tex.App. LEXIS 8952,
2002 WL 31833562. FN5 The district court also held
an evidentiary hearing. We will discuss this evidentiary
record as it is relevant to our analysis of
M.P.A.'s issues on appeal.
FN5. The State emphasizes that M.P.A. had
previously pursued a bill of review without
success, as well as filing an abortive habeas
petition under code of criminal procedure article
11.07 in the juvenile court, see Ex parte
Valle, 104 S.W.3d 888, 889-90
(Tex.Crim.App.2003) (juvenile adjudication
is not a “final conviction” from which habeas
relief is available under article 11.07),
and an unsuccessful federal habeas proceeding.
While criticizing M.P.A.'s multiple
“bites at the apple,” the State does not contend
on appeal that any of M.P.A.'s current
habeas claims are barred by virtue of his
raising or failing to raise his present claims
in prior proceedings. Consequently, we do
not belabor this procedural history except to
the extent that evidence presented in the billof-review
proceeding is relevant to our
analysis of M.P.A.'s present claims. We
note, however, that M.P.A.'s brother, J
.W.A., relying primarily on the record from
M.P.A.'s bill-of-review proceeding, previously
sought habeas relief in the district
court based on a claim of actual innocence.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
The district court denied relief without a
hearing, and we affirmed this judgment on
appeal. See In re J.W.A., No. 03-03-00464-
CV, 2005 Tex.App. LEXIS 8435, 2005 WL
2574024 (Tex.App.-Austin Oct. 13, 2005,
no pet.) (mem.op.).
*5 Following the hearing, the district court took the
matter under advisement and ultimately denied
M.P.A.'s application. It subsequently entered findings
of fact and conclusions of law. This appeal followed.
ANALYSIS
M.P.A. brings four issues on appeal that correspond
to his four claims for habeas relief. M.P.A. complains
that the district court abused its discretion in failing
to grant relief based on, first, his claim of actual innocence;
second, his claim of ineffective assistance
of counsel during the delinquency hearing; third, his
claim that Dr. Willoughby committed “perjury” during
the disposition hearing; and fourth, his claim of
ineffective assistance of counsel during disposition.
M.P.A. prays that we sustain either or both of his first
two issues, reverse the district court's judgment, and
render judgment releasing him from confinement. In
the alternative, M.P.A. urges that we sustain either or
both of his third and fourth issues, reverse the district
court's judgment, and order the juvenile court to hold
a new punishment hearing.
Standard of review
Absent a clear abuse of discretion, we must affirm a
trial court's decision on whether to grant the relief
requested in a habeas corpus application. See Ex
parte Karlson, 282 S.W.3d 118, 127 (Tex.App.-Fort
Worth 2009, pet. ref'd). We are to evaluate whether
the trial court acted without reference to any guiding
rules or principles. Ex parte Wolf, 296 S.W.3d 160,
166 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd).
In reviewing the trial court's decision, we view the
evidence in the light most favorable to the court's
ruling. Ex parte Wheeler, 203 S.W.3d 317, 324
(Tex.Crim.App.2006). In conducting our review, we
must be mindful that the trial court, as fact finder at
the habeas hearing, is the exclusive judge of the
credibility of the witnesses. See Ex parte Amezquita,
223 S.W.3d 363, 367 (Tex.Crim.App.2006). Thus,
we afford almost total deference to the trial court's
determination of the historical facts that are supported
by the record. Id. at 367. We afford the same
amount of deference to the trial court's application of
the law to the facts, to the extent that the resolution of
the ultimate question turns on an evaluation of credibility
and demeanor. Ex parte Peterson, 117 S.W.3d
804, 819 (Tex.Crim.App.2003) (per curiam), overruled
in part on other grounds by Ex parte Lewis,
219 S.W.3d 335, 371 (Tex.Crim.App.2007). If the
resolution of the ultimate questions turns on an application
of legal standards, however, we review the
determination de novo. Id.
Although the decisions of the court of criminal appeals
in habeas proceedings provide us some guidance,
we must also be mindful that our jurisdiction in
this proceeding is narrower than that exercised by the
high criminal court in the otherwise analogous context
of its post-conviction review of habeas corpus
applications in criminal cases. In those proceedings,
the court of criminal appeals has broad original jurisdiction
to issue the writ and acts as the “ultimate factfinder,”
with power to “make contrary or alternative
findings and conclusions” in derogation of the trial
court's findings and conclusions. See Ex parte Reed,
271 S.W.3d 698, 727 (Tex.Crim.App.2008). By contrast,
we lack original jurisdiction to issue the writ of
habeas corpus except in narrow circumstances not
present here. See Tex. Const. art. V., § 6 (courts of
appeals “shall have such other jurisdiction, original
and appellate, as may be prescribed by law”); Tex.
Gov't Code Ann. § 22.221(d) (courts of appeals or its
justices, concurrently with Texas Supreme Court and
its justices, have original jurisdiction to issue writ of
habeas corpus “when it appears that the restraint of
liberty is by virtue of an order, process, or commitment
issued by a court or judge because of the violation
of an order, judgment, or decree previously
made”); Ex parte Hofmayer, 420 S.W.2d 137, 138
(Tex.1967) (original habeas jurisdiction did not extend
to restraint of juvenile allegedly in violation of
due process). We do not act as a factfinder, but possess
solely appellate jurisdiction to review the district
court's order and its underlying fact findings and conclusions
to determine whether they are supported by
the record.
Actual innocence
*6 M.P.A. asserts that “new evidence” that became
available after trial establishes that he is actually innocent
of the sexual-assault charges on which he was
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
adjudicated delinquent. This type of claim is known
as a “bare” innocence or Herrera-type claim-it is
predicated not on the existence of any constitutional
defect in the trial process that yielded a defendant's
conviction, but on the claim that the defendant is actually
innocent, as demonstrated by new evidence
discovered or made available since trial. See Herrera
v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d
203 (1993); Ex parte Franklin, 72 S.W.3d 671, 675
(Tex.Crim.App.2002) (citing Schlup v. Delo, 513
U.S. 298, 314, 115 S.Ct. 851, 130 L.Ed.2d 808
(1995); Ex parte Elizondo, 947 S.W.2d 202, 208
(Tex.Crim.App.1996)). Because the incarceration of
a truly innocent person would in itself violate due
process, actual innocence is an independent ground
for habeas corpus relief under those circumstances.
See Elizondo, 947 S.W.2d at 204-05.
A bare innocence claim turns not on whether the
jury's verdict was valid, but on whether the new evidence
would have convinced the jury of the applicant's
innocence. See id. at 207, 209. “[T]he court
charged with deciding such a claim should make a
case-by-case determination about the reliability of the
newly discovered evidence under the circumstances,
... then should weigh the evidence in favor of the [applicant]
against the evidence of his guilt” adduced at
trial, id. at 207 (quoting Herrera, 506 U.S. at 244
(Blackmun, J., dissenting)), and “assess the probable
impact of the newly available evidence upon the persuasiveness
of the State's case as a whole.” Id. at 206.
Ultimately, the applicant must meet the “extraordinarily
high” burden of proving “by clear and convincing
evidence that no reasonable juror would have
convicted him in light of the new evidence.” See id.
at 209.
M.P.A. argues that he presented “new evidence” that
established, by clear and convincing evidence, that he
never sexually assaulted S.A. This evidence may be
summarized as falling into essentially three categories.
First, M.P.A. has relied on subsequent recantations
of both S.A. and A.A.-both now deny ever being
sexually abused by either cousin. They explain
their earlier accusations against M.P.A. and J.W.A. as
the product of manipulation by their mother,
LaVonna. With this testimony, M.P.A. presented,
second, evidence that LaVonna had the motive and
capacity to fabricate false sexual-assault allegations
by her children as a means of gaining advantage in
her custody battle with Stephan, with whom the children
had been living at the time of the alleged incidents.
Third, M.P.A. relies on what he terms “an
enormous amount of evidence corroborating the recantations,”
including evidence regarding the timing
of the children's alleged outcries (or absence thereof)
compared to events in LaVonna's divorce and custody
battles with Stephan, LaVonna's potential involvement
in inducing or encouraging the outcries,
and medical evidence.
*7 S.A. testified at both the bill-of-review hearing
and the habeas hearing. At the time of the bill-ofreview
hearing, S.A. was age eleven and living with
Stephan and A.A. After receiving warnings from the
juvenile court regarding the implications of providing
perjured testimony, S.A. testified that her prior testimony
at M.P.A .'s trial had not been true, that “my
mom [LaVonna] told me to say those things” and that
LaVonna would go to jail if she did not. Later, at the
habeas hearing before the district court, S.A., now
within a few days of her eighteenth birthday, elaborated
that LaVonna first began insisting that she accuse
her cousins of sexually assaulting her while in
Florida, after LaVonna had fled Texas with the children
in violation of a court order, and that LaVonna
told her that this was necessary to keep LaVonna out
of jail. S.A. acknowledged that when she traveled to
Texas to testify in M.P.A.'s trial, she had been accompanied
by her maternal grandmother while
LaVonna had remained in Iowa. While LaVonna had
not been physically present to influence her, S.A.
insisted that, nonetheless, “when I go home I'm going
home to my mom.”
A.A. also testified during the habeas hearing. He denied
that either cousin had sexually assaulted him.
A.A. testified to a conversation with LaVonna, his
maternal grandmother, and S.A. after they had moved
to Iowa when he was six or seven years old. According
to A.A., LaVonna told him to say that his cousins
had sexually assaulted him. A.A. claimed he complied
and later testified against M.P.A. at trial despite
his reservations that “this isn't really true” because he
thought “I shouldn't question my mother, you know,
because she is my mother and she's got wisdom.”
M.P.A. presented evidence during both hearings
tending to show that LaVonna had a poor propensity
for truthfulness, a pattern of using abuse allegations
to gain leverage in domestic disputes, including her
disputes with Stephan, and that the timing of these
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
allegations had tended to coincide with key events in
their dispute. This included proof that LaVonna had
made an allegation of sexual abuse against an exhusband
to whom she had been married prior to her
marriage to Stephan. LaVonna purportedly accused
him of sexually abusing their daughter, V.P., S.A.
and A.A.'s half-sister. Charges against the exhusband
were later dismissed.
According to Stephan, who testified at both hearings,
he first heard about the children's sexual-abuse allegations
against M.P.A. and J.W.A. after LaVonna
had fled Texas with the children, and he filed charges
against her for interference with child custody.
Within “a matter of days” thereafter, Stephan testified,
his divorce attorney (who had received a call
from LaVonna's divorce attorney) advised him “that
LaVonna said that she wouldn't come back to Texas
or bring the kids back to Texas because [J.W.A.] and
[M.P.A.] had been sexually assaulting” S.A. and
A.A.
Stephan explained that after he had ascertained that
LaVonna and the children were living in Iowa, he
initiated custody proceedings in that state. According
to Stephan, the resulting custody arrangement provided
that LaVonna would get temporary custody of
the children until Kris Weis, an Iowa social worker,
prepared a custody report. “And when her report was
finished,” Stephan testified, “me and the kids and
LaVonna had agreed that [S.A.] would stay with
LaVonna and [A.A.] would come to Texas with me.”
It was during this period that the children made the
outcries that triggered the criminal proceedings
against M.P.A. and J.W.A. in Bell County.
*8 Stephan subsequently attempted to obtain custody
of S.A. after she visited him during the summer of
2000 “and told me about the drug use and the abuse
in LaVonna's household.” Stephan claims he also
learned that LaVonna had been cohabitating with two
sex offenders, prompting him to have S.A. physically
examined. According to Stephan, after he tried to
gain custody of S.A., LaVonna accused him, M.P.A.,
and J.W.A. of sexually assaulting their children. At
the time these acts allegedly occurred, M.P.A. and
J.W .A. were incarcerated.
M.P.A. also presented testimony from a friend of
Stephan's and an acquaintance of LaVonna's. The
friend testified that she had encountered LaVonna
around the time she had filed for divorce. The friend
recounted that LaVonna was upset and told her that
“Stevie wasn't going to get the kids and she would do
whatever she had to do in order for him not to get
them.” Similarly, another acquaintance of the Arenas
testified that she had a conversation with LaVonna in
May 1997 during which LaVonna “told me specifically
that she, one way or another that she would
have custody of her children and that the Arenas
would pay for the way they had treated her; those
were her exact words.”
In addition, M.P.A. presented LaVonna's deposition
and trial testimony from a federal court lawsuit related
to these events that tended to demonstrate that
she had made numerous false statements to authorities
concerning such matters as when she had first
reported the alleged abuse to authorities, how she had
discovered the alleged abuse, and why she had fled
Texas with the children (including her admission that
she had stolen money from her employer shortly before
departing). M.P.A. even provided an affidavit
from LaVonna's own sister, who “hereby state[d]
categorically that [LaVonna] is a pathological liar
and would do anything to gain an advantage in a custody
proceeding, including lying about sexual abuse
concerning her children.”
M.P.A. also presented testimony from Dr. Stuart
Coles, the pediatrician at Scott & White who had
examined S.A. in 2000 at Stephan's request to determine
whether she had been abused while living with
her mother in Iowa. Coles determined that S.A.'s
“hymenal structure appear[ed] normal.” Coles added
that during the exam, S.A. “denied that she'd been
inappropriately touched by anyone.” Likewise, Arlene
Stoddard, a licensed professional counselor who
saw Stephan, S.A., and A.A. in 2000 and 2001, reported
that by this time [S.A.] had recanted her sexual
abuse allegations against her cousins and “admitted
that her biological mother influenced her to make
statements about the abuse.”
As evidence further supporting his position that S.A.
and A.A. were never abused, M.P.A. points to statements
in the report of Kris Weis, the Iowa social
worker, that she was “very confused” about the children's
sexual-abuse allegations and had reservations
about whether the children were being truthful in
their responses to her questions. Also, Adair Pickard,
a social worker with Catholic Charities, who had
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 8
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
counseled the children during their time in Florida in
1997, stated in a letter she later wrote in 2000 that
“[e]ach child denied abuse and no definitive indicators
were noted.” Additionally, an Iowa police detective
who interviewed the children reported that S.A.
refused to discuss the abuse without her mother present
and indicated that she wanted to “practice with
her mom by having her mom ask her the questions.”
The detective was “concerned that [S.A.] could be
coached by her mother and did not want her mother
in the room during the interview.” Furthermore,
M.P.A. also elicited testimony from the SANE nurse
who had examined S.A. previously, Alice Lindner,
tending to show that there were disagreements among
the medical team regarding their findings.
*9 Other key evidence presented by M.P.A. included
the testimony of a caseworker with the Texas Youth
Commission, who testified during the bill-of-review
hearing that M.P.A. had refused to admit that he had
committed the offenses for which he had been adjudicated
delinquent, and the testimony of J.W.A., who
by now had been paroled and appeared live at the
habeas hearing. J.W.A. denied sexually abusing either
cousin and attempted to explain why he had
given two written confessions to authorities and pled
true if he had been innocent. Both of J.W.A.'s written
statements (one handwritten and one typewritten)
were admitted into evidence at the habeas hearing. In
both statements, J.W.A. admitted to sexual conduct
with S.A. In his handwritten statement, J.W.A. professed
to not remember any conduct with A.A., while
in his typewritten statement he claimed that he had
“never done anything” with A.A. Near the end of the
typewritten statement, J.W.A. stated, “I don't remember
my brother doing anything.” The record of
J.W.A.'s judicial confession was also admitted into
evidence.
J.W.A. claimed he was “confused” at the time of his
plea and that his attorney did not explain to him what
was happening during the proceedings. J.W.A. also
asserted that he was “made” to write and sign his
confessions because he was not allowed to leave the
office of the investigating Harker Heights police detective,
Erika Jordan, until he had provided her with a
written statement. FN6
FN6. There was also evidence presented at
the habeas hearing concerning the results of
a polygraph examination that J.W.A. had
taken when he was released on parole. However,
“references to a polygraph test, or to its
results, are inadmissible for all purposes .”
Martinez v. State, 272 S.W.3d 615, 626
(Tex.Crim.App.2008). The State timely objected
to the admission of this evidence, and
we will not consider it in our analysis.
In response, the State attacked the credibility and
reliability of S.A. and A.A.'s recantations. While
making little attempt to defend the credibility or
character of LaVonna, the State presented evidence
tending to indicate that Stephan-S.A. and A.A.'s father
and biological uncle to M.P.A. and J.W.A.-
himself manipulated and pressured his children to
recant, both directly and through the involvement of
Loretta Matthews, a self-styled “evidence researcher”
who was assisting Stephan in his battles with
LaVonna. The State suggested that the timing and
circumstances of the recantations tended to show that
it was these claims, not the original outcries of sexual
abuse, that were the product of manipulation and
pressure.
The State elicited considerable evidence regarding
Matthews's contacts with and potential influence
upon the children in the months leading up to the
recantations. It called Matthews as a witness during
the bill-of-review proceedings. Matthews testified
that she had met the Arena family during the spring
of 2000 and was hired by Stephan in the summer of
2000. Matthews denied that she was hired in anticipation
of a custody dispute. According to Matthews, her
involvement in the case “started out as employment
and then it turned into [ ] volunteer” work. She ultimately
volunteered because, in her words, one, “Mr.
Arena could not afford” her services, and two, “this
case was important enough to volunteer my time.”
When asked what exactly she did for Mr. Arena,
Matthews testified, “At first he wanted to find out
why his children's statements were so inconsistent.”
Matthews added that she was referring to the allegations
made against J.W.A. and M.P.A. and also the
allegations of abuse in Iowa.
*10 Matthews denied influencing either S.A. or A.A.
to recant. Rather, Matthews testified that in July 2000
she had administered “scan questionnaires” FN7 to
S.A. and A.A. concerning their accusations. Matthews
recalled that A.A. wrote on his questionnaire
that he had lied about what M.P.A. and J.W.A. did to
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 9
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
him. S.A. did not recant on the questionnaire. However,
in June 2001, during an argument with Lisa
Jalbert, Stephan's girlfriend and later wife, S.A. made
an initial recantation. Later that day, Matthews testified,
she coincidentally happened to go to Stephan's
house “to give him documentation.” According to
Matthews, “Mr. Arena asked me to stay because he
wanted to have a witness concerning that he needed
to confront his daughter about something that she
told Lisa [Jalbert].” In the presence of her father and
Matthews, S.A. admitted “that she lied about
[M.P.A.] and [J.W.A.].” Matthews then asked S.A.,
“Why did you lie?” Matthews testified, “And that is
when she stated, ‘Because my mom told me to.’ ”
FN7. Matthews was unclear in her testimony
about the nature of this “scan questionnaire.”
The State could elicit only the following
explanation from Matthews: “A scan
questionnaire is a-I'm sorry, I went blank. A
scan questionnaire relies on the person's
statement, not the subject. The subject
comes in the statement.”
The State also elicited testimony from Matthews concerning
her personal beliefs regarding allegations of
sexual abuse. Matthews had written a letter to Police
Chief Mike Gentry of the Harker Heights Police Department
in which she had characterized false allegations
of sexual abuse as “the witchhunt of the 20th
century.” The letter concerned an allegation of sexual
abuse that had been made by Matthews's stepdaughter
against Matthews's husband.
S.A., A.A., and Stephan were all asked about Matthews's
involvement during their testimony. When
asked if Matthews had pressured her to recant, S.A.
stated, “It was more like encouragement.” A.A. similarly
acknowledged that he had met with Matthews a
“few” times and that, while denying that she had encouraged
him to recant, indicated that “[s]he just
wanted the truth regardless what it was.” As for
Stephan, he denied asking Matthews to convince the
children to change their stories. Stephan claimed that
he had merely “financed her trip” to Iowa to investigate
LaVonna for purposes of the custody proceedings.
When asked why Matthews had continued to
meet with S.A. and A.A. even after the custody proceedings
in Iowa had ended, Stephan testified, “Just
general visit, see how they were doing, how they
were getting along.” Stephan also acknowledged that
Matthews had been involved on his brother's behalf
in investigating the original allegations of abuse
against M.P.A. and J.W.A.
The State also emphasized evidence that by the time
they recanted, both S.A. and A.A. were living with
Stephan. S.A. and A.A. also testified that their relationship
with Stephan was much more favorable than
their relationship with LaVonna. While each testified
that they loved their father and had a good relationship
with him (S.A. adding that she had “always been
somewhat a daddy's little girl”), A.A. stated that he
hated his mother “[a] little bit” and S.A., while denying
that she hated or particularly disliked her mother,
stated that “I don't particularly like her either.” There
was also evidence tending to show that the children's
relationship with M.P.A. and J.W.A.'s parents, uncle
Robert and aunt Betty, could have provided a motive
to recant. S.A. was aware that Robert and his wife
“lost their business, they lost their house, all in an
effort to pay for [M.P.A.]'s trial.” When asked if “all
of this trouble” Robert and his wife were going
through was difficult on her father, S.A. testified, “I
think anyone would be generally upset about that.
And yes, my dad was somewhat upset.” S.A. further
testified that, after she had returned to Texas to live
with her father, she would see Robert and his wife
“maybe once or twice a month” and that they would
visit her family during Christmas and give gifts to her
and her siblings. S.A. admitted that when she saw
Robert and his wife, she would feel bad about her
cousins being incarcerated.
*11 Additionally, S.A. testified that before recanting,
her allegations had created tension with her father's
girlfriend and future stepmother, Lisa Jalbert. In fact,
S.A. acknowledged that she had first recanted in response
to Jalbert's accusations that S.A. was a liar
who put people in jail. The lead prosecutor during the
adjudication trial and the bill-of-review hearing,
Thomas Seigman, testified that he had several meetings
with S.A. and A.A. prior to trial. Regarding his
meetings with S.A., Seigman did not recall anything
that gave him reason to think that she was not being
completely honest with him about everything. According
to Seigman, “Every time I spoke with her she
didn't waver. She told me what had happened, and
she never told me that it didn't happen.” In an affidavit,
the other prosecutor during trial, Jeanne Parker,
similarly concluded that S.A. was a credible witness.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 10
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
As for M.P.A.'s evidence from health care providers
and counselors, the State argued that while Weis, the
Iowa social worker, had termed the children's abuse
allegations “confusing,” she also concluded in her
report that “I believe that both children were likely
sexually abused by their cousins in Texas,” and that,
“While they did not report this to Catholic Social
Service counselors [in Florida], that is not unusual.
And both children state that those counselors did not
ask them about any abuse.” Similarly, the Iowa police
detective who had expressed concerns about
LaVonna possibly coaching S.A. ultimately concluded
that both children were victims of abuse. The
State also emphasized that the offenses for which
M.P.A. and J.W.A. had been adjudicated delinquent
did not require vaginal penetration.
Finally, the State was able to challenge the reliability
of the recantations through evidence regarding the
original investigation (including police investigative
files that recount considerably more detailed allegations
by S.A. and A.A. than they later presented at
trial) and J.W.A.'s written confessions and plea, all of
which contradicted the recanting witnesses' claims
that no abuse had occurred. The State countered
J.W.A.'s assertions regarding his confessions with
testimony from Michael White, J.W.A.'s trial counsel,
who averred, “I was aware of the confession of
my client and I was present when he confessed. I had
no reason to believe, nor do I believe today, that any
part of the confession was not truthful.” White also
testified at the habeas hearing. He indicated that
J.W.A. “made specific, detailed admissions regarding
[A.A.]” and “general admissions regarding [S.A.]”
outside the presence of his father but would never
admit to those acts in his presence. White added that
J.W.A., in his view, “[a]bsolutely” pled guilty knowingly
and voluntarily, adding, “He wanted to avoid
his father knowing what he had done with [A.A.].”
In addition to the foregoing evidence, the record before
the district court included the juvenile court's
findings of fact and conclusions of law from the billof-review
proceeding. The juvenile court, which
heard the live testimony of S.A., Stephan, and Matthews,
found that “S.A., while in the custody of her
mother, was subject to manipulation as to the context
of her trial testimony,” but also that “S.A., while in
the custody of her father during the Bill of Review
proceedings, was likewise subject to her father's manipulation
individually, and through his ‘investigator,’
Loretta Matthews.” It further found that “S.A.'s
‘outcry’ and testimony as to the sexual assault were
corroborated by objective medical evidence of ‘hymenal
alteration’ as testified to by Dr. Pamela Green,
as well as Alice Lindner, R.N. (a sexual assault nurse
examiner), in the original trial proceedings.” The
juvenile court also found that “Loretta Matthews was
not a qualified ‘expert’ witness as to any matter about
which she testified.”
*12 The district court made the following fact finding
pertinent to M . P.A.'s actual innocence claim: “The
testimony of [S.A.] and [A.A.] in their recantations of
prior testimony was not credible, based on the testimony
of all the witnesses, confessions or admissions
of [J.W.A.], and other evidence.” Based on that finding,
the district court concluded that M.P.A. “failed
to meet his burden of proof and did not show by clear
and convincing evidence that no rational trier of fact
could have found the applicant guilty beyond a reasonable
doubt.”
On appeal, M.P.A. attacks the district court's finding
and conclusion in two basic ways. First, M.P.A. asserts
that the finding demonstrates that the district
court erred by considering not only “the evidence of
guilt adduced at trial,” but also “new allegedly inculpatory
evidence, such as the ‘confessions or admissions
of [J.W.A.]’ that were not introduced at trial.”
We disagree that the district court's references to
J.W.A.'s confessions demonstrates error. The finding
is consistent with the district court having considered
all of the evidence in the record in making its determination
as to whether the recanting witnesses were
credible. The credibility of the recanting witnesses
bears directly on the persuasiveness of the newly
discovered evidence, which was at the heart of the
district court's inquiry. See Elizondo, 947 S.W.2d at
207 (“ ‘[T]he court charged with deciding [an actual
innocence] claim should make a case-by-case determination
about the reliability of the newly discovered
evidence under the circumstances. The court then
should weigh the evidence in favor of the prisoner
against the evidence of his guilt. Obviously, the
stronger the evidence of the prisoner's guilt, the more
persuasive the newly discovered evidence must be.’ ”
(quoting Herrera, 506 U.S. at 244 (Blackmun, J.,
dissenting))).
Second, M.P.A. urges, in essence, that the evidence
favoring S.A. and A.A.'s recantation version of the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 11
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
facts is more abundant and persuasive than their
original version. As support for his position, M.P.A.
cites to two cases that presented facts similar to the
facts of this case in which the court of criminal appeals
granted habeas relief. In Ex parte Thompson,
the applicant was convicted of sexually assaulting his
five-year-old daughter, who was eight years old at the
time of trial. 153 S.W.3d 416, 418
(Tex.Crim.App.2005). At the habeas hearing, the
complainant, now 20 years old, testified that the sexual
abuse never happened, but that her mother had
pressured her into making the allegations against her
father as part of a custody dispute. Id. at 419. The
complainant's mother also testified at the habeas
hearing and admitted to having doubts about whether
the applicant had committed the acts for which he
had been convicted. Id. Additionally, there was testimony
that the physical evidence of abuse in the
case, a torn dress worn by the complainant at the time
of the alleged abuse, which had led the mother to
suspect that abuse had occurred, was the result of a
fall on a bus and not the result of anything the applicant
had done to the complainant. Id. Finally, the
applicant presented the testimony of Lynn Corsi, “an
attorney and licensed Master Social Worker who had
worked as an assistant district attorney prosecuting
cases of child abuse and neglect and who had
founded the Dallas Children's Advocacy Center.”
Corsi, who had reviewed the transcript and record of
applicant's trial, the affidavit and testimony of the
complainant, a three-hour interview with the complainant,
and the testimony at the habeas hearing,
opined that the complainant's recantation was valid
and explained in detail the bases for her opinion. Id.
at 420. The trial court found that the applicant had
satisfied his burden of proving his actual innocence
and recommended relief. Id. The court of criminal
appeals found that the trial court's findings were supported
by the record and granted relief. Id. at 420-21.
*13 In Ex parte Elizondo, the applicant was convicted
of sexually assaulting his stepsons, who were
eight and ten years old at the time the abuse allegedly
occurred. 947 S.W.2d at 209-10. The evidence at trial
consisted primarily of the testimony of the ten-yearold
stepson, which the court of criminal appeals characterized
as “perfunctory.” Id. at 210. More than thirteen
years after the trial, the stepsons, who the court
of criminal appeals observed were now “grown
men,” recanted, claiming that the trial testimony was
false. Id. The stepsons claimed at the habeas hearing
“that their natural father relentlessly manipulated and
threatened them into making such allegations against
applicant in order to retaliate against their natural
mother, his ex-wife, for marrying applicant years
before.” Id. In granting relief, the court of criminal
appeals explained:
Id.
The habeas court, which had the opportunity to
view the witnesses, concluded that [the stepson]
had testified falsely at trial. The record supports a
finding that the recantation in this case is more
credible than the trial testimony was. [The stepson]'s
recantation not only voids his trial testimony
which implicated applicant, but constitutes affirmative
evidence of applicant's innocence. We are
convinced by clear and convincing evidence that
no rational jury would convict him in light of the
new evidence.
As an initial matter, we observe that the procedural
posture of the above cases is different than the case
before us. In both Thompson and Elizondo, the trial
court that heard the newly discovered evidence found
that the applicant had met his burden of proving actual
innocence. The court of criminal appeals, acting
on the trial court's recommendation in each case,
granted relief. In this case, the habeas court found
that M.P.A. had not met his burden of proof and denied
relief. Thus, M.P.A. is asking us to overturn the
habeas court's ruling. Moreover, as previously noted,
our jurisdiction to disturb trial-court fact findings is
more limited than that of the court of criminal appeals.
Beyond these jurisdictional and procedural differences,
there are also key factual distinctions between
this case and the cases cited by M.P.A. In Thompson,
there was much stronger evidence supporting the
recantations than exists in this case. Not only did the
complainant recant, but the complainant's mother also
admitted that she now had doubts about the applicant's
guilt. Moreover, the applicant called an expert
witness with extensive experience advocating on behalf
of abused children who testified in detail why
she believed the recantation was credible. In
Elizondo, although the court's opinion did not provide
much detail concerning the facts and circumstances
surrounding the recantations, the court of criminal
appeals did emphasize that the recanting witnesses
were now adults. In this case, in contrast, S.A. first
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 12
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
recanted when she was eleven years old, and when
she later testified at the habeas hearing, she had not
yet turned eighteen. As for A.A., he was only sixteen
years old at the time of the habeas hearing. Perhaps
more importantly, there was considerable evidence
presented in this case tending to show that the recantations
themselves may have been the product of
pressure applied to the children by their father, the
father's family, and the father's “investigator.” No
comparable evidence was discussed in Elizondo or
Thompson.
*14 As the record reflects, this case arose during a
prolonged and bitter custody battle between Stephan
and LaVonna Arena. The district court considered the
allegations and subsequent recantations made by their
children accordingly. Having reviewed the entire
record, it is apparent that there is evidence supporting
both M.P.A.'s and the State's version of events. In the
end, which version to believe turns largely on credibility
determinations that the district court, which had
the opportunity to observe the recanting witnesses
(and their father) in person, was in the best position
to assess. We must be mindful that our role here is
simply to review the district court's finding and ensure
that it is supported by the record. On this record,
viewing the above evidence in the light most favorable
to the district court's ruling, we cannot conclude
that the district court abused its discretion in finding
that M.P.A. had not met his “extraordinarily high”
burden of proving that no reasonable juror could have
convicted him in light of the new evidence. See Ex
parte Brown, 205 S.W.3d 538, 545
(Tex.Crim.App.2006) (characterizing applicant's burden
to prove actual innocence as “a Herculean task”);
Ex parte Franklin, 72 S.W.3d at 677 (explaining that
when habeas applicant claims actual innocence, applicant
bears “the burden of proving his innocence
not just raising doubt about his guilt”); see also
Keeter v. State, 74 S.W.3d 31, 38
(Tex.Crim.App.2002) (holding that trial court acts
within its discretion in denying motion for new trial
on basis of recanted testimony “so long as the record
provides some basis for disbelieving the testimony.
Such bases include, but are not limited to: evidence
that the recanting witness was subject to pressure by
family members ... [and] circumstances showing that
the complainant recanted after moving in with family
members of the defendant”).
We overrule M.P.A.'s first issue.
Ineffective assistance of counsel at delinquency
hearing
In his second issue, M.P.A. urges that the district
court abused its discretion in refusing habeas relief
based on ineffective assistance during the delinquency
hearing. To obtain habeas corpus relief for
ineffective assistance of counsel under the Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), standards, applicant must show
that counsel's performance “was deficient and that a
probability exists, sufficient to undermine our confidence
in the result, that the outcome would have been
different but for counsel['s] deficient performance.”
Amezquita, 223 S.W.3d at 366 (quoting Ex parte
White, 160 S.W.3d 46, 49 (Tex.Crim.App.2004)).
Counsel's performance is deficient if it is shown to
have fallen below an objective standard of reasonableness.
Strickland, 466 U.S. at 687-88. Prejudice to
the applicant from counsel's deficient performance is
judged by “whether counsel's conduct so undermined
the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just
result.” Ex parte Chandler, 182 S.W.3d 350, 353
(Tex.Crim.App.2005) (quoting Strickland, 466 U.S.
at 686).
*15 M.P.A. insists that his trial counsel, Bobby
Barina, was ineffective during the delinquency hearing
by (1) failing to interview and call as a witness
Adair Pickard, the counselor for Catholic Charities in
Florida who, in 2000, allegedly wrote a letter to
Stephan that during therapy sessions in 1997, the
children “denied abuse and no definitive indicators
[of abuse] were noted”; (2) failing to introduce evidence
that during her videotaped interview with Kris
Weis, “[S.A.] became very anxious and said that she
couldn't continue because she needed to talk to her
mother”; and (3) failing to refute Dr. Green's expert
testimony. In regard to M.P.A.'s ineffectiveassistance
claims, FN8 the district court found that
“[t]he evidence presented to this Court indicated that
the actions of Bobby Barina during the trial of
[M.P.A.] were based on sound and legitimate trial
strategy. Applicant's trial attorney performed sufficient
trial preparation and investigation into the facts
of the case, and all decisions regarding evidence presented
were sufficiently explained and shown to be
sound trial strategy.” In light of these findings, the
district court concluded that “based on the facts
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 13
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
available to Applicant's trial counsel at the time of
trial that his actions and decisions were based on legitimate
trial strategy, and the trial preparation of
Applicant's trial counsel was adequate and within the
bounds of reasonably effective representation,” and
that “Applicant received a fair and reliable trial.”
FN8. As noted, M.P.A. also brings an ineffective-assistance
claim regarding evidence
presented during the disposition hearing.
Overview of trial counsel's representation
Before discussing M.P.A.'s specific allegations
against Barina, we think it is instructive to note the
circumstances surrounding Barina's representation at
the time of trial. As described in detail above, this
case involved allegations of sexual assault of two
young children by their two teenaged cousins on multiple
occasions. Both victims testified at trial. Additionally,
one of the alleged perpetrators, J.W.A., the
brother of Barina's client, had already confessed to
sexually assaulting S.A. and had pleaded true to the
allegations against him. Although this evidence was
not admissible in M.P.A.'s trial, Barina was aware of
the confession and guilty plea. Thus, it would have
been difficult, if not impossible, for Barina to argue
in good faith at trial the position that M.P.A. advances
currently-that the victims had not been sexually
assaulted after all.
Complicating matters even further for Barina were
last-minute developments involving J.W.A. Barina
testified that prior to trial, his client's family had
agreed that J.W.A., who had confessed to and been
adjudicated for the offense, would testify that J.W.A.
had abused the children and that M.P.A. had not done
anything. Combined with the testimony from Dr.
Green, which Barina regarded as weak and equivocal,
Barina “felt that [J.W.A.]'s testimony might elevate
whatever reasonable doubt might be raised.” During
trial, according to Barina, J.W.A's counsel gave him
permission to talk to J.W.A. about his testimony if he
were to call him at trial. During this meeting, Barina
recounted, J.W.A., somewhat agitated, began insisting
for the first time that he had seen M.P.A. “do it.”
Barina concluded that “[o]bviously, I could not call
[J.W.A.] to the stand and possibly suborn perjury,
and my client agreed that we should not call him to
the stand.”
*16 White, J.W.A.'s trial counsel, who had cooperated
with Barina in preparing for their respective trials
before J.W.A.'s plea, opined that Barina “was
effective as best he could with the facts that he had.”
He added that the most significant tactical focus was
going to be on the children, who “did not do well
during their initial interviews that we saw in their
own jurisdiction” and that even the prosecutors
“weren't so sure about how the victims or the children
would hold up in a courtroom.”
In summary, from the perspective of the attorneys
involved, and based on our own review of the record,
it appears that Barina was confronted with very difficult
circumstances in defending M.P.A. However,
despite these circumstances, the record of the adjudication
trial reflects that Barina succeeded in defeating
the State's motion to have the victims testify via
closed circuit television; he successfully moved for a
directed verdict on one of the three counts against his
client; he engaged in an effective cross-examination
of S.A. that elicited testimony emphasizing her lack
of knowledge or recollection regarding the details of
the alleged abuse; he objected to the hearsay statements
of Nurse Lindner and, outside the presence of
the jury, argued extensively that the State's claimed
hearsay exception did not apply, thus preserving that
issue for appellate review; also outside the presence
of the jury, he objected to Nurse Lindner's qualifications
as an expert; and he attempted to present evidence
relating to the custody battle between the parents
that could have gone to the issue of the bias and
motive of the victims to testify, although the juvenile
court ultimately excluded such evidence as not relevant.
With these observations in mind, we proceed to consider
M.P.A.'s specific allegations regarding certain
aspects of Barina's performance.
Failure to interview and call as a witness the counselor
for Catholic Charities
Barina testified at the bill-of-review hearing concerning
his knowledge of the children's interviews with
Catholic Charities in 1997. During M.P.A.'s direct
examination of him, Barina was shown the November
13, 2000 letter from Adair Pickard in which she
claimed that “[e]ach child denied abuse and no definitive
indicators were noted.” Barina did not recall
that alleged fact. On cross, the State established that
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 14
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
Barina had obtained Kris Weis's social study and
report, which had included information from Catholic
Charities that the children had not made an outcry
there, along with her opinions that this was not unusual.
In his 2007 affidavit to the district court admitted
during the habeas hearing, Barina explained why
he did not pursue this line of evidence during the
adjudication trial:
I did review the rendition in the Iowa report by
Catholic Charities that there was no outcry of sexual
abuse, but it appeared to me from the information
provided at the time that the Florida officials
had not directly confronted the children about possible
sexual abuse. The Iowa report referenced the
lack of outcry and then discussed the various reasons
why children typically might not volunteer
such information.
*17 My concern at the trial was that an effort to introduce
the opinion of a counselor to refute the
theory that a sexual assault had occurred, based
only on the fact that the children did not volunteer
the information to the Catholic Charities counselor,
would open the door for the State to bring in their
experts, such as Dr. Frank Pugliese and a representative
from the Children's Advocacy Center, to explain
how demonstrated anxiety and other behavioral
symptoms noticed in the children by the Florida
counselor could translate into evidence of classic
symptoms of sexual abuse. This would most affirmatively
bolster the State's case in the jury's
mind that sexual abuse did occur and work to the
detriment of my client. I was also concerned that
the State's effort to admit the judgment and judicial
confession of [M.P.A.]'s brother, [J.W.A.], in order
to hammer home that sexual abuse had indeed occurred,
might be granted, and would then and further
bolster evidence against [M.P.A.] as also having
committed the offense. Clearly, to open that
door was not in my client's best interest.
White, J.W.A.'s trial counsel, expressed a similar
view in his affidavit submitted to the habeas court:
I knew about the reports of Catholic Charities that
there was no outcry of sexual abuse to them by the
children while in Florida. It appeared to me that
neither [S.A.] nor [A.A.] were directly confronted
by the counselors at Catholic Charities as to
whether they had been sexually assaulted. From
my client's viewpoint, I was very concerned by the
Iowa report in that it appeared to explain why
[S.A.] and [A.A.] might not have volunteered such
information. To have introduced that type of testimony
could open the door to other experts to testify
as to possible symptoms of abuse demonstrated
by the children and the testimony of representatives
of the Child Advocacy Center regarding those
symptoms.
During the habeas hearing, Barina testified that he
had been unable to contact Ms. Pickard, although he
could not recall how many times he tried to contact
her or if he took other steps to ascertain Pickard's
opinions. Barina acknowledged that he “would have
thought about” calling Pickard to testify if Pickard
had told him, as she later wrote, that the children
“denied abuse and no definitive indicators were
noted,” but “might not have done it” in light of “other
issues in the trial.”
We cannot conclude on this record that the district
court abused its discretion in finding that Barina's
decision to not present evidence concerning Catholic
Charities was based on sound and legitimate trial
strategy. As Barina indicated in his affidavit, he was
concerned that if he presented this evidence suggesting
that the abuse might not have occurred, the State
would refute it with contrary and stronger evidence.
Barina was aware of the Iowa custody report that
referenced the lack of an outcry at Catholic Charities
and that discussed the various reasons why children
typically might not volunteer such information. By
calling Pickard to testify to discuss her findings,
Barina would have opened the door to the State calling
witnesses to testify in rebuttal as to why the children
might have been reluctant to discuss the abuse
during the 1997 interview.
*18 Citing to Wiggins v. Smith, 539 U.S. 510, 123
S.Ct. 2527, 156 L.Ed.2d 471 (2003), M.P.A. also
argues that Barina failed to fully investigate the evidence
Pickard would have been able to provide. In
Wiggins, the Supreme Court explained that “counsel
has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary.... [A] particular decision
not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a
heavy measure of deference to counsel's judgments.”
Id. at 522-23 (quoting Strickland, 466 U.S. at 690-
691). In this case, the district court found that Barina
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 15
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
“performed sufficient trial preparation and investigation
into the facts of the case,” and the record supports
that finding. Barina testified that he was aware
of the evidence concerning Catholic Charities and
that he attempted to call Pickard at least two times.
That he was ultimately unable to talk with her despite
his efforts to do so does not demonstrate that his performance
was deficient, especially in light of the circumstances
of this case and the “heavy measure of
deference to counsel's judgments” that is required.
Additionally, we observe that M.P.A. has failed to
establish that the decision to not present evidence
regarding Catholic Charities satisfies the second
prong of the Strickland inquiry. M.P.A. did not make
an offer of proof regarding exactly what evidence
would have been presented, other than the letter itself.
From that evidence, it appears that, at most,
Pickard would have testified that the children denied
abuse and that “no definitive indicators were noted.”
Given S.A.'s subsequent testimony at trial that abuse
did occur, we cannot say that the absence of Pickard's
testimony “so undermined the proper functioning of
the adversarial process that the trial cannot be relied
on as having produced a just result.”
Failure to introduce evidence relating to S.A.'s difficulty
in discussing the abuse with Kris Weis in the
absence of her mother
During the habeas hearing, Barina testified that he
was aware that S.A. needed to take a break during her
videotaped interview with Weis:
Q: [S.A.] testified that at some point during the taping
she had to take a break and go out and ask her
mother what to say during the videotaping. Do you
recall that being on the videotape?
A: You know, I recall that they-either turning off
or somebody stepping out in front. I haven't seen it
recently. I talked to Mr. White about it. But I recall
there was something where she does exit the room
either because it's turned off or because she just exits.
But yes, she does exit the room.
Q: Okay. Was that something that concerned you
as a defense attorney why she would have-why the
interview would have to be interrupted?
A: Yeah.
Q: What steps did you take to find out why, in fact,
the interview was interrupted?
A: I watched the tape. I tried to get a flavor for the
tape, one of the reasons that I called up there [to
Iowa]. I believe I talked to Erika [Jordan] ... about
it because she had made a call or two up there as
well to see what answers she got. And it was definitely
something that was becoming more and
more popular here to leave the screen, and I never
liked it here. So that's one of the things I would
have totally been curious about.
*19 Q: And did you get any answers to your inquiries
as to why she left the screen?
A: I'm sure.
Q: Do you recall what those answers were?
A: Specifically, no.
Q: Okay.
A: But I remember my thoughts were that other
things might have been in play. But what the answers
were from the people I spoke to, I don't recall
what those were.
On cross-examination, Barina explained that, in his
view, S.A. was asking to take a break during the interview
not so much because she needed to get her
mother to tell her what to say, but because S.A. was
not “feeling very well” and was nervous “about being
on camera.”
In his affidavit, Barina explained why he did not pursue
this matter during trial:
At the time of trial, I made repeated attempts to
contact LaVonna Arena, the mother of the victims,
[S.A.] and [A.A.], to get her side of the story and
arrange for her to testify at the trial. At the time,
there was a warrant in Bell County for her arrest alleging
a theft and I was not able to make contact
with her. I viewed the videotape made of [S.A.] in
Muscantine, Iowa, on December 11, 1998, as well
as reviewed the comments of the interviewing
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 16
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
counselor. A report from a police detective in Muscantine,
who was present during the videotaping,
stated that while the camera was recording her
statement, [S.A.] indicated nervousness about the
camera and microphone. After the camera was
turned off, the child told the interviewers that she
might be able to talk with them if her mother was
present, and that she could practice with her mother
by having her mother ask the questions. The detective
was concerned that the mother might be able to
coach the child and did not allow her to be in the
room.
My impression was that [S.A.] was feeling a great
deal of anxiety about discussing such personal issues
with strangers and on camera, and wanted her
mother to help calm down, not that she wanted her
mother to tell her what to say. The statement by the
later counselor that [S.A.] wanted to talk to her
mother about what to say seemed to me to be an
exaggeration of what actually occurred. The Muscantine
authorities, in spite of the above, were convinced
that sexual abuse to both children had occurred.
More importantly, though, the videotape referenced
possible additional sexual assaults that had not
been alleged by the State. I did not want the tape
admitted into evidence because the rule of optional
completeness would have allowed extraneous information
to come in that would work to my client's
detriment. I could not predict what the judge
would or would not allow in if the tape were to be
played. Likewise, I did not want any sponsoring
witness for the tape to elaborate on what it contained
or meant. All that would have led to was a
bolstering of the State's case against [M.P.A.]
Barina's concerns were echoed in White's affidavit:
I viewed the tape of [S.A.] and [A.A.] made in
Muscantine, Iowa, as well as the tapes made of
them by The Children's Advocacy Center, regarding
the allegations of sexual abuse. It did appear
that [S.A.] was concerned about the cameras and
microphones in the room and never asked to have
her mother present in the room. In fact, it is my
recollection that the interviewer from child services
was the one who suggested that they take a break.
My greater concern with the video was that the victims
appeared to discuss other incidents of sexual
assault by my client and [M.P.A.] that had not been
charged and that I hoped to keep out as extraneous
offenses.
*20 We cannot conclude on this record that the district
court abused its discretion in finding that
Barina's decision not to present evidence that S.A.
experienced difficulty in discussing the abuse in the
absence of her mother was based on sound and legitimate
trial strategy. Introducing evidence concerning
S.A.'s interview with Weis, Barina believed,
could have strengthened the State's case. The district
court could have found that this was a reasonable
belief. Whatever difficulty S.A. may have had in discussing
the abuse during the interview, she did ultimately
discuss it. Barina could have reasonably determined
that whatever he might have gained from
presenting to the jury information that S.A. needed to
take a break during the interview would have been
offset by the damaging nature of the interview itself.
In fact, the district court could have found, evidence
concerning the interview would have likely bolstered
S.A.'s trial testimony. Additionally, as Barina explained,
there were other explanations for S.A. taking
a break during her interview other than needing to
talk to her mother, and, if Barina had made an issue
of it, the State likely would have presented these alternative
explanations to the jury. The State's explanation
would have provided the jury with additional
reasons to credit S.A.'s trial testimony.
M.P.A. again argues that Barina failed to fully investigate
the evidence by not speaking personally with
Weis. However, Barina testified that he reviewed the
videotape and was aware of Weis's report and findings.
The district court would not have abused its
discretion in finding that, in light of what Barina already
knew and the strategic decision Barina had
made not to reveal that information to the jury,
Barina did not need to personally speak with Weis.
Additionally, we again observe that the second prong
of the Strickland inquiry has not been satisfied. When
S.A. testified at trial, her mother was not present. Yet
S.A. was nevertheless able to testify and describe the
alleged abuse. We cannot say that the jury not being
made aware that S.A., who was only seven years old
at the time of her videotaped interview in 1997, may
have needed to take a break during that interview “so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.”
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 17
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
Failure to refute Dr. Green's Expert Testimony
The entirety of Barina's cross-examination of Dr.
Green consisted of the following questions:
Q: Dr. Green, now you used the word “suspicious”
or possible. That's what we have here, it's possible
that penetration occurred.
A: Right.
Q: And that's all you're here to say. That's probably
an overstatement, but would that be a fair statement?
A: Yes.
Q: Now, you've never met [M.P.A.], is that correct?
A: No, sir.
Q: Now, the hymen as it exists here, is it possible
this could have occurred naturally?
A: I guess I want to know what you mean by naturally.
Could she have been born this way?
*21 Q: Probably a bad question. Let me withdraw
the question.
[Defense counsel]: That's all I have, judge.
In his affidavit, Barina explained the reasons for his
limited cross-examination of Dr. Green:
I determined not to vigorously cross-examine Dr.
Green because her testimony was very tentative
and cautious and I thought as good as I could hope
for. I did not want to risk the State taking her on redirect
examination to counter what few “possibilities”
I might be able to get her to admit to. Prior to
the trial and [J.W.A.]'s plea, [counsel for J.W.A.]
and I had discussed the feasibility of locating another
expert to refute her findings. However, with
the reality of [J.W.A.]'s plea, and after considering
the amount of time that had elapsed between the
time of the alleged assault and Dr. Green's examination
of the case, I determined that a vigorous
cross-examination would not be advisable because
of the threat of [J .W.A.]'s confession being introduced,
or even [J.W.A.] being called to the stand
himself.
....
Applicant makes reference to the reports in August
and September 2000 by pediatricians Stuart Coles
and Susan P. Nickel. Dr. Coles reported that “the
hymenal structure appears normal” with no sign of
injury or scarring, and Dr. Nickel found only that
her general examination was “generally unremarkable,”
without any mention of examination of her
genitalia. As pediatricians, rather than OB-GYN
specialists, there was no indication that they conducted
the sort of invasive examination as would
be done with a colposcope. Relying on additional
expert evidence to refute evidence of sexual assault
would have been a waste of time given brother
[J.W.A.]'s confession that it had occurred. Had
both brothers denied it, then I certainly would have
pursued that avenue of defense.
White, in his affidavit to the district court, explained
his opinion on Barina's strategy:
I was familiar with the trial strategy of Mr. Barina
in the representation of [M.P.A.], and we had discussed
some of the issues that would be in common
between our two cases. Concerning the calling of
an expert to refute the testimony of Dr. Green, it
was my opinion at the time that it was not necessary
because she could not testify with any certainty
that a sexual assault was committed, but only
that the physical evidence was at best suspicious.
My recollection was that Dr. Green was the only
OBGYN to review the photos of the examination
performed in this case. Some general practitioners
had examined the child, but no one with the credentials
of Dr. Green. I had discussed the weak
findings of any assault occurring but given the confession
of my client to the court that he had sexually
assaulted the children I was of the opinion that
to call an expert would not have given any great
advantage to the defense.
M.P.A. asserts that “scientific literature belied Dr.
Green's conclusions” regarding the significance of a
“scant” posterior rim hymen and that “renowned ex-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 18
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
perts who have reviewed Dr. Green's findings
strongly disagree” with Dr. Green's findings. M.P.A.
claims that Barina was ineffective in failing to refute
Dr. Green's testimony with his own medical expert
who, in M.P.A.'s view, would have been able to testify
“that the prosecution's physical evidence was not
indicative of sexual penetration and provided no corroboration
whatsoever” of S.A.'s allegations. See
Gerstein v. Senkowski, 426 F.3d 588, 608 (2d
Cir.2005).
*22 In making this argument, M.P.A. overlooks the
fact that Barina's trial strategy, as he explained at the
habeas hearing, was to have J .W.A. testify that it
was he, and not M.P.A., who had sexually assaulted
S.A. Thus, Barina's strategy was not to refute the
State's theory that S.A. had been assaulted. Rather, it
was to suggest that someone other than his client was
the perpetrator. Therefore, the district court could
have reasonably inferred that, at the time Barina was
preparing for trial, there was no reason for Barina to
find his own medical expert to refute Dr. Green's
testimony. To conclude otherwise would be to
impermissibly judge Barina's trial strategy in hindsight,
in light of the children's present claims that no
abuse had occurred.
We also observe that Green's testimony was, as
Barina observed, “very tentative and cautious” and
likely “as good as [he] could hope for.” All Green
could say regarding her finding was that it was “suspicious”
for “possible vaginal penetration.” And, in
his cross-examination of Green, Barina emphasized
that fact. That Barina did not cross-examine Green
more extensively does not demonstrate deficient performance.
As Barina explained, he “did not want to
risk the State taking her on re-direct examination to
counter what few ‘possibilities' I might be able to get
her to admit to.” Barina also explained that, prior to
trial, he and White “had discussed the feasibility of
locating another expert to refute her findings.” However,
“with the reality of [J.W.A.]’ s plea, and after
considering the amount of time that had elapsed between
the time of the alleged assault and Dr. Green's
examination of the case,” Barina “determined that a
vigorous cross-examination would not be advisable
because of the threat of [J.W.A.]'s confession being
introduced, or even [J.W.A.] being called to the stand
himself .” We cannot conclude that the district court
abused its discretion in finding that this was legitimate
and sound trial strategy.
We overrule M.P.A.'s second issue.
Issues related to Dr. Willoughby
M.P.A.'s two remaining issues concern the testimony
of Dr. Willoughby during the disposition hearing. As
noted, Willoughby was presented as an expert “in the
field of psychology and sex offender treatment” to
give opinions, derived from the results of courtordered
psychological examinations, concerning the
appropriate course of treatment for M.P.A. as it bore
upon the jury's disposition decision. As the proponent
of Willoughby's opinions, the State bore the burden
of demonstrating, by clear-and-convincing evidence,
their reliability (i.e., that they were based in sound
scientific methodology). See Jordan v. State, 928
S.W.2d 550, 555 (Tex.Crim.App.1996); Kelly, 824
S.W.2d at 573; see also Nenno v. State, 970 S.W.2d
549, 560 (Tex.Crim.App.1998) (observing that “this
inquiry is substantively identical to the inquiry mandated
by the Supreme Court in the federal system in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 506
U.S. 579 ... concerning the admissibility of scientific
evidence under Rule 702”). FN9 To be considered reliable,
scientific expert testimony must satisfy three
criteria: (1) the underlying scientific theory must be
valid; (2) the technique applying the theory must be
valid; and (3) the technique must have been properly
applied on the occasion in question. See Kelly, 824
S.W.2d at 573. “Factors that could affect a trial
court's determination of reliability include, but are
not limited to, the following: (1) the extent to which
the underlying scientific theory and technique are
accepted as valid in the relevant scientific community,
if such a community can be ascertained; (2) the
qualifications of the expert(s) testifying; (3) the existence
of literature supporting or rejecting the underlying
scientific theory and technique; (4) the potential
rate of error of the technique; (5) the availability of
other experts to test and evaluate the technique; (6)
the clarity with which the underlying scientific theory
and technique can be explained to the court; and (7)
the experience and skill of the person(s) who applied
the technique on the occasion in question.” Id. (emphasis
in original).
FN9. Although juvenile adjudications are
considered civil proceedings, criminal-law
evidentiary rules and principles govern. See
In re M.A.F., 966 S.W.2d 448, 450
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 19
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
(Tex.1998).
*23 In advance of Dr. Willoughby's testimony,
M.P.A.'s trial counsel, Barina, took Willoughby on
voir dire, outside the jury's presence, and examined
him regarding the Abel Assessment. Willoughby
explained the test as follows:
The Abel Assessment is composed of both an objective
part and then a questionnaire. The objective
part of the test is where the individual sits in a
room by him or herself and looks at a number of
slides of different ages and different genders, male
and female, and it really measures one's response
time, how one looks at the various slides in comparison
to other slides.
The results are computerized and sent to Atlanta,
Georgia, where the test is scored and then sent
back to me. The premise of the test is if one has interest
in children, that they proportionally will look
longer at the children's slides, say, than the adult
slides or the adolescent's slides.
In other words, in terms of the Kelly analysis, the
scientific theory underlying the objective component
of the Abel Assessment is that a person's sexual interest
in different age and gender categories can be
ascertained by measuring visual response time
(termed “VRT” in the literature) to persons in those
categories, while the Abel Assessment is a technique
applying that theory, and Willoughby's administration
of the Abel Assessment to M.P.A. would be the
application of the technique on the occasion in question.
See Emerson v. State, 880 S.W.2d 759, 768-69
(Tex.Crim.App.1994) (illustrating distinctions between
underlying theory, technique applying that
theory, and application on occasion in question in
regard to admissibility of opinions based on results of
horizontal gaze nystagmus (HGN) test).
Barina then inquired regarding factors bearing upon
the reliability of the Abel Assessment and its underlying
theory:
Q: Is [the Abel Assessment] accepted in the scientific
community as a test that's able to predict those
people who have an interest in, I guess, particular
types of sexes and age groups?
A: Different age groups and different races-not different
races, but gender, right.
Q: It is accepted.
A: Yes.
Q: And I take it by your answer earlier, you're familiar
with the underlying scientific theory.
A: Yes.
Q: Would you tell us about the existence of any literature
supporting or rejecting this underlying scientific
theory?
A: Yes. There [are] a number of articles out by
Gene Abel and his colleagues. Also researchers at
Brigham Young University have established the reliability
of the instrument and the classification accuracy
of the instrument.
Q: Any potential rate of error in the technique?
....
A: The accuracy rate for one having interest in
males under the age of fourteen, to classify those
people who do have significant sexual interest in
males under the age of fourteen, the accuracy rate
is 91 percent.
For those having significant sexual interest in
females under the age of fourteen, the accuracy
rate is 85 percent.
*24 Following these questions, Barina inquired about
the administration of the test to M.P.A. in particular.
He asked whether the accuracy of the test would be
impacted if the test subject had a reading disability
(Willoughby indicated that it “should not, not in the
objective part”) and whether Willoughby was in the
room while the test was being administered on
M.P.A. (he indicated no, as he would leave the room
after giving instructions). Thereafter, the State asked
Willoughby a series of questions regarding his qualifications.
Among other facts, Willoughby indicated
that he had previously performed assessments on
about thirty juvenile sex offenders, had contracts to
provide services for both Bell County district and
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 20
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
county courts, and had previously testified as an expert
in both Bell and Williamson counties.
After the State concluded its questions, it asked the
trial court to rule Dr. Willoughby qualified as an expert
“to answer certain hypotheticals and opinion
testimony in the field of psychology and sex offender
treatment.” Barina, while not disputing that Willoughby
was qualified as an expert in the field, objected
to Willoughby's testimony on the grounds that
(1) the Abel Assessment was “not sufficiently reliable”
because, per Willoughby's testimony, it had a
fifteen-percent error rate with respect to identifying
sexual interest in girls under the age of fourteen; and
(2) Willoughby failed to admonish M.P.A. of his
Miranda FN10 rights prior to administering the tests.
The trial court overruled both objections. Willoughby,
over Barina's renewed objection, proceeded
to opine, purportedly based on M.P.A.'s results from
the Abel Assessment's objective component, that
M.P.A. had “displayed significant sexual interest in
eight to ten year-old females and two to four and
eight to ten year-old males;” that, while not making a
formal diagnosis, he would consider M.P.A. a “pedophile”
who presented a high risk to re-offend; and
that M.P.A. would require intensive and long-term
treatment to overcome this strong sexual interest in
children.
FN10. See Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Having lost in his attempts to get Willoughby's opinions
excluded, Barina attempted to elicit Willoughby's
agreement that it was at least possible to
devise a treatment plan for M.P.A. that would not
require institutional confinement. He returned to a
similar theme during closing arguments, while also
suggesting to the jury that the Abel Assessment's
accuracy rate as described by Willoughby “wasn't a
great one.” In the context of emphasizing Willoughby's
acknowledgment that rehabilitation outside
an institutional setting was at least possible, Barina
termed Willoughby a “compelling witness, [who] had
many credentials.”
It turned out that the “researchers at Brigham Young
University” whom Dr. Willoughby had testified
“have established the reliability of the [Abel Assessment]
and the classification accuracy of the instrument”
had, in fact, advocated a diametrically opposite
view. In a pair of articles published in July 1999-
roughly one month before Willoughby had examined
M.P.A. and three months before trial-Lane Fischer
and Gillan Smith of BYU presented research they
had conducted to evaluate the reliability and validity
of the Abel Assessment's objective component when
used with both adults and juveniles. FN11 In the article
addressing the technique's use on adults, the researchers
acknowledged that the VRT concept had
some independent support in the research, that the
technique's originator Abel and his colleagues had
published a number of articles concluding that the
test was an effective means of screening or identifying
persons with paraphilias, and that the technique
was apparently being used by approximately 300
therapists in 36 states, two foreign countries, and
eight states' judicial systems. FN12 However, while
terming the Abel Assessment “a promising instrument
based on a sound idea” and “[t]he theory behind
it” as “reasonable,” the researchers concluded that
“the evidence of its reliability and validity for use
with adults is weak as of yet,” characterized it as a
“nonvalidated instrument,” and advocated “further
research” and “refinement” to ensure its reliability
and validity.
FN11. See Lane Fischer & Gillian Smith,
Statistical Adequacy of the Abel Assessment
for Interest in Paraphilias, 11 Sexual
Abuse: A Journal of Research and Treatment
193 (No. 3, 1999); Gillian Smith &
Lane Fischer, Assessment of Juvenile Sex
Offenders: Reliability and Validity of the
Abel Assessment for Interest in Paraphilias,
11 Sexual Abuse: A Journal of Research and
Treatment 207 (No. 3, 1999). These articles,
as well as others cited below, were included
in the habeas record.
FN12. See Lane Fischer & Gillian Smith,
Statistical Adequacy of the Abel Assessment
for Interest in Paraphilias, 11 Sexual
Abuse: A Journal of Research and Treatment
193 (No. 3, 1999).
*25 In the other article addressing the use of the Abel
Assessment on juveniles, FN13 the researchers concluded
that there had heretofore been no research
studies addressing the reliability or validity of the test
when used on juveniles:
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 21
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
FN13. Gillian Smith & Lane Fischer, Assessment
of Juvenile Sex Offenders: Reliability
and Validity of the Abel Assessment
for Interest in Paraphilias, 11 Sexual
Abuse: A Journal of Research and Treatment
207 (No. 3, 1999).
The normative ground defined by Abel (1998) apparently
included only two adolescents. There was
no evidence that the AAIP [Abel Assessment for
Interest in Paraphilias] produced reliable scores for
adolescents, could screen deviants individually
from normals, or could diagnose specific pathology
in deviant subjects.
Thus, the researchers undertook a study regarding
the use of the test on juveniles, and concluded:
• “The test-retest data do not support the reliability
of the AAIP for use with adolescents.”
• “The screening validity data show that the ability
of the AAIP to discriminate adolescent offenders
from nonoffenders was not significantly better than
chance.”
• “The diagnostic validity data show that the ability
of the AAIP to identify specific deviant attractions
within the adolescent perpetrator group was poor.”
• “While the AAIP is a promising instrument, its
ability to screen or diagnose adolescent perpetrators
reliably has not been demonstrated. No published
data support its use with such a population.
This study utilized a relatively small sample of participants
in residential and day treatment programs.
Further study with other populations and larger
samples may demonstrate its effectiveness in the
future.”
Also, Dr. Willoughby had overstated the accuracy of
the Abel Assessment that had been reported by the
test originator himself. While Willoughby had testified
to a fifteen-percent error rate (85 percent accuracy)
in detecting sexual interest in girls aged 14 and
under, Abel had published a 1998 study indicating
only 65 percent accuracy as to girls and that
group. FN14
FN14. Gene G. Abel, Jeffrey Huffman,
Brent Warberg & Clarence L. Holland, Visual
Reaction Time and Plethysmography as
Measures of Sexual Interest in Child Molesters,
10 Sexual Abuse: A Journal of Research
and Treatment 81, 91 (No. 2, 1998).
Willoughby did, however, testify consistently
with Abel's study in representing
that the Abel Assessment was ninety-one
percent accurate with respect to sexual interest
in boys of the same age group.
In 2002, Betty Arena filed a disciplinary complaint
against Willoughby with the Texas State Board of
Examiners of Psychologists (the Board) concerning
his examination of M.P.A. and subsequent trial testimony.
The Board's disciplinary proceedings against
Dr. Willoughby were ultimately concluded by an
August 2003 agreed order in which Willoughby accepted
a reprimand and various monitoring requirements
for having violated Board rules pertaining to
substantiation of and limitations on forensic services.
The agreed order, signed by Willoughby, included
findings of fact that Willoughby “misstated in his
court testimony the research that had been conducted
with respect to the Abel assessment” but “does not
admit any violations referenced in the foregoing
Finding[ ] of Fact.”
Relying on the foregoing evidence, M.P.A. alleged
that Dr. Willoughby “perjured” himself when testifying
that (1) “researchers at Brigham Young University
have established the reliability of the [Abel Assessment]
and the classification accuracy of the instrument,”
when they had actually attacked the technique's
reliability and accuracy, especially with regard
to its use with juveniles; (2) the technique was
85 percent accurate in detecting sexual interest in
prepubescent girls, when, in fact, Abel himself had
reported only 65 percent accuracy; and (3) the theory
or technique had been “accepted” in the scientific
community as being able to predict or detect sexual
interest in different age and gender categories, when,
in fact, the BYU researchers and the Board had demonstrated
the absence of independent verification of
reliability for adults and no research studies (except
their unfavorable one) for juveniles. In his third issue,
M.P.A. urges that the district court abused its discretion
in denying him relief on this claim.
*26 The State's “knowing” “use” of “false” testimony
violates due process. See Ramirez v. State, 96 S.W.3d
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 22
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
386, 393-97 (Tex.App.-Austin 2002, pet. ref'd). The
State does not dispute that it “used” Willoughby's
testimony within the meaning of this prohibition. As
for whether Willoughby's testimony was “false,”
while many of the cases refer to “perjured” testimony,
it has been held that “[t]here is no need for a
defendant to show the witness knew the testimony
was false or otherwise harbored a sufficient culpable
mental state to render the witness subject to prosecution
for perjury”; rather, “it is sufficient if the testimony
is false and misleading to the trier of fact.” Id.
at 395. Likewise, “whether the rule is violated or not
does not depend upon the defendant's ability to demonstrate
the witness's specific factual assertions were
technically incorrect or ‘false.’ It is sufficient if the
witness's testimony gives the trier of fact a false impression.”
Id. The State does not dispute that Willoughby's
testimony was false and misleading to the
trial court, at least with regard to Willoughby's depiction
of the the BYU researchers' articles. Finally, as
for whether the State acted “knowingly,” M.P.A.
concedes that the State's reliance on Willoughby's
false testimony was “inadvertent.” However, since
the time of the district court's habeas ruling, the court
of criminal appeals has held (albeit in a case where a
key witness was found to have intentionally lied on
the stand) that the State's unknowing use of the testimony
violated due process and was remediable
through post-conviction habeas relief. See Ex parte
Chabot, 300 S.W.3d 768, 770-72
(Tex.Crim.App.2009).
The district court did not make an explicit finding as
to whether Willoughby gave false testimony or did so
intentionally versus inadvertently. While M.P.A. portrays
Willoughby's agreed order as an admission of
intentional falsification, the State points out that the
order goes no farther than admitting “misstatements.”
However, the State joins issue primarily as to
whether M.P.A. has demonstrated harm from Willoughby's
testimony. The court of criminal appeals
has classified the “use” of “false” testimony by the
State as “trial error” that is subject to a harmless-error
analysis. See id. at 771 (quoting Ex parte Fierro, 934
S.W.2d 370, 374 (Tex.Crim.App.1996)). Consequently,
the court of criminal appeals has explained,
the “applicant has the burden to prove by a preponderance
of the evidence that the error contributed to
his conviction and punishment.” Id. (quoting Fierro,
934 S.W.2d at 374-75). This means that the applicant
must demonstrate that it is probable-i.e., more likely
than not-that the error contributed to the applicant's
conviction or punishment. See id. at 772; Fierro, 934
S.W.2d at 376. This harm standard is thus more demanding
than the harmless-error standard normally
applied to constitutional errors in criminal cases. See
Fierro, 934 S.W.2d at 376 (“The difference between
the ... standards is the difference between a possibility
and a probability.”).
*27 As the State suggests, M.P.A. can demonstrate
that Willoughby's complained-of statements probably
contributed to his punishment only if he can show (1)
it is more likely than not that Willoughby's opinions
derived from the Abel Assessment would have been
excluded had he testified truthfully or accurately during
voir dire; and (2) those opinions, once admitted,
more likely than not contributed to the jury's decision
to impose a twenty-year sentence and not some lesser
punishment. The district court did not make an explicit
fact finding as to the first requirement but did
make a finding regarding the second: “The evidence
presented indicated that the jury was not likely
swayed by the testimony of Dr. Willoughby, but
rather by the direct testimony of the two children in
this case.” Based on this finding, the district court
concluded that M.P.A. “failed to show by a preponderance
of the evidence that misstatements, if any, by
Dr. Willoughby contributed to his punishment.”
On appeal, M.P.A. urges that if Willoughby had testified
accurately about the contents of the BYU article
during voir dire-i .e., “the trial judge [was] told that
‘no data were available to support the use of the
[Abel Assessment] with adolescents' “-the trial court
would have had to “ignore[ ] the Daubert and Kelly
standard” to admit Willoughby's opinions derived
from the test. The State, urging that the habeas record
demonstrates that the Abel Assessment “was indeed
in widespread use and well accepted” at time of trial,
counters that Willoughby's opinions “concerning the
Abel Assessment may still have been allowed in evidence
... despite the only two articles critical of the
assessments being published very shortly before
trial.”
In addition to the reporter's record from M.P.A.'s
trial, the district court considered additional evidence
relevant to the harm determination during the habeas
proceeding. Both M.P.A.'s trial counsel, Barina, and
J.W.A.'s trial counsel, White, testified that, as they
prepared for Willoughby's testimony, FN15 they inquired
about the Abel Assessment with local practi-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 23
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
tioners and received favorable (or at least nonnegative)
feedback. Barina testified that in addition to
interviewing Willoughby, he consulted with a Waco
psychiatrist “who also liked the test as an assessment
tool,” regarded it as accurate, and was “actually the
test's biggest fan.” Barina further elaborated that both
Willoughby and a Dr. Hurlbert had previously utilized
the Abel Assessment when testifying as experts
in area courts on issues related to sex offender treatment,
and that “[t]he Abel Test, as far as I knew, had
become, for lack of a better word, in vogue just before
this trial in this area.” Barina added that he had
consulted several local attorneys regarding their impressions
of the Abel Assessment, and they had generally
indicated their belief that the test was “accurate.”
FN16
FN15. Apparently Willoughby also administered
the Able Assessment to J.W.A. and
was to testify in his trial before J.W.A. pled
out.
FN16. The one exception Barina noted was
his father, then a local judge.
White added that prior to J.W.A.'s plea, he and
Barina had jointly investigated the possibility of obtaining
an expert to attack the reliability of the Abel
Assessment, and determined the following:
*28 Q: And did you talk to Bobby Barina about
those [Abel] exams as well?
A: I discussed the case with Mr. Barina because the
family did want them to be defended jointly. I discussed
things with Mr. Barina probably once or
twice a week for several weeks.
Q: Okay.
A: And Mr. Willoughby came up. And it was in
regards to his evaluation or his examinations and
whether those things would be admissible or not.
Q: Okay. And what were your-your concerns about
the Abel exam?
A: That's pretty much at the beginning when
Daubert became an issue and those cases around
Daubert whether that was a scientifically reliable
test or not. The problem is it really had not swung
one way or the other whether such an examination
or evaluation would be admissible or not, whether
it was scientifically reliable. We couldn't really
find an expert to say yes, it was scientifically reliable.
We couldn't find an expert to say no, it was
not scientifically reliable.
Q: Did you attempt to contact any experts?
A: We-I discussed-I remember one expert. I can't
recall the name. That person would not go out on a
limb and say that that test was not scientifically reliable.
Both counsel opined that, given the feedback they
were obtaining and the use of the Abel Assessment
locally, Willoughby's opinions would have been admitted
regardless whether they had learned of the
BYU articles. Barina averred:
Applicant notes that at the time of trial that two articles
by Fischer and Smith concluded that studies
of the validity of the Abel Assessment were
“weak,” especially when used on adolescents.... I
was not aware of these studies, which apparently
came out only a few months before trial, and disagree
that I would be able to determine that the
theory behind the Abel Assessment was not accepted
in the scientific community. I had already
talked to two practitioners [Willoughby and the
Waco psychiatrist, as previously discussed] who
did accept it.
Similarly, White averred:
Subsequently to the plea of [J.W.A.], I have
learned that two articles had concluded that the validity
of the articles regarding the Abel Assessment
were “weak.” I was not aware of these two articles,
which had come out only shortly before trial, but I
have no reason to believe that Dr. Willoughby
would have been excluded as an expert if I had
known about them. I had spoken to at least one
other physician and he did not indicate that the test
was not scientifically accepted.
Additionally, Jeanne Parker, the prosecutor during
trial who had questioned Willoughby, opined that she
believed the evidence would have been admissible
regardless of the articles:
I was not aware of any articles or journals that had
called into question the effectiveness of the testing
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 24
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
done by Dr. Willoughby. Even if those articles
would have been brought to our attention I believe
that his testimony would have been admissible and
that the articles would have only gone to the weight
of his testimony. I had spoken with at least one
other physician and he did not indicate that the test
was not scientifically accepted.
*29 The habeas record also included two articles
published by Abel, the test's originator, subsequent to
M.P.A.'s trial. In one, published in 2000, Abel responds
to Smith and Fischer's articles, characterizing
their conclusions as outliers that were founded on
faulty research methodology and a misunderstanding
of the Abel Assessment. FN17 Abel indicated that, in
addition to his own 1998 study, “four independent
research groups” in1999 “presented studies based on
data sets from different parts of the country; two from
community populations and two from incarcerated
populations that confirmed th[e] utility” of “visual
reaction time in assessing child molesters.” FN18 In the
second article, not published until 2004, Abel and
several colleagues presented results of their research
to determine the validity of the Abel Assessment with
male adolescents who have molested children. FN19
They concluded that the test “is also a valid instrument
for identifying male adolescents who molest
children.” FN20 The authors acknowledged that “[a]
previous attempt to use VRT [visual reaction time] to
classify child molesters (Smith and Fischer, 1999)
had proved unsuccessful,” but again criticized the
methodology. FN21
FN17. Gene G. Abel, The Importance of
Meeting Research Standards: A Reply to
Fischer and Smith's Articles on the Abel Assessment
for Sexual Interest, 12 Sexual
Abuse: A Journal of Research and Treatment
155 (No. 2, 2000).
FN18. Id. at 155.
FN19. Gene G. Abel, Alan Jordan, Joanne
L. Rouleau, Robert Emerick, Sharen Barboza-Whitehead
& Candice Osborn, Use of
Visual Reaction Time to Assess Male Adolescents
Who Molest Children, 16 Sexual
Abuse: A Journal of Research and Treatment
255 (No. 3, July 2004).
FN20. Id. at 262.
FN21. Id.
During the years since M.P.A.'s trial, several courts,
both in Texas and elsewhere, applying Kelly,
Daubert, or similar standards to the records developed
in those proceedings, have excluded Abel Assessment-based
expert opinion as unreliable. FN22
However, the issue before us is not whether we
would exclude Willoughby's testimony based on current
jurisprudence and/or the records developed in
other cases, nor is it whether we would hold the trial
court's admissibility ruling to have been an abuse of
discretion when viewed through such hindsight. Instead,
we must determine, based on the habeas record
here, whether the district court abused its discretion
in failing to find that Willoughby's misstatements
more likely than not caused the trial court to admit
his opinions when it otherwise would have excluded
them. On this record, we cannot conclude that the
district court did. Among other things, the habeas
record reflects evidence that, by time of trial, “independent”
studies had validated VRT and the Abel
Assessment and that, moreover, the case law applying
Kelly and Daubert in Texas state courts was still
in its evolution.
FN22. See, e.g., In re CDK, 64 S.W.3d 679,
682-84 (Tex.App.-Amarillo 2002, no pet.)
(reversing parental-termination decree in
case where CPS used Abel Assessment results
against parents, emphasizing proof that
Abel's method for scoring computer test results
was proprietary and could not be independently
tested or validated); see also
Figueroa v. State, No. 04-08-00452-CR,
2009 Tex.App. LEXIS 5604, 2009 WL
2183460 (Tex.App.-San Antonio July 22,
2009, no pet.) (mem. op., not designated for
publication) (holding that sex-crime defendant
failed to establish reliability of Abel
Assessment results by clear and convincing
evidence); United States v. Birdsbill, 243
F.Supp.2d 1128, 1131-36 (D.Mont.2003) (in
sex-crime case involving both Native
American defendant and victim, holding that
Abel Assessment-based evidence was both
irrelevant and unreliable; provides extensive
review of research and scholarly debate concerning
the technique); United States v.
White Horse, 177 F.Supp.2d 973, 974-76
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 25
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
(D.S.D.2001) (finding that Abel Assessment-based
evidence offered by Native
American defendant accused of sexually
abusing his son was not reliable; held in part
that “the validity of the Abel Assessment
has not been sufficiently tested with regard
to Native American subjects”), aff'd, 316
F.3d 769 (8th Cir.2003); but see United
States v. Robinson, 94 F.Supp.2d 751, 752
(W.D.La.2000) (based on record that included
Abel's testimony, holding that Abel
Assessment-based evidence offered by sexcrime
defendant to prove that he lacked sexual
attraction to persons in victim's age
group was reliable and admissible).
In an unpublished opinion that predated
M.P.A.'s trial, this Court upheld a trial
court's exclusion of expert testimony derived
from Abel Assessment results. A juvenile
charged with sexual contact with a
child had attempted to introduce the evidence
to prove that he was not sexually attracted
to children in the alleged victims'
ages and genders and, in turn, did not
have the requisite intent to touch the victims'
“private parts.” See In re J.G., No.
03-97-00217-CV, 1998 Tex.App. LEXIS
3212, at *2-6, 1998 WL 271053
(Tex.App.-Austin May 29, 1998, no pet.).
The basis of this Court's holding was lack
of relevance-much like testimony regarding
the results of a polygraph test, the evidence
would have supplanted the jury's
decision on an ultimate issue within its
province and ability (whether the defendant
intended to touch the victims sexually
on the occasion in question) rather
than assisting the jury in understanding
the evidence. See id. This Court did not
address the reliability of the disputed evidence.
Thus, assuming without deciding that the State's “inadvertent”
“use” of Willoughby's misstatements
could otherwise have been a basis for habeas relief,
we hold that the district court did not abuse its discretion
in failing to find that the misstatements more
likely than not impacted the trial court's decision to
admit Willoughby's opinions. Because the district
court's disposition of M . P.A.'s false-testimony claim
can be sustained on this ground, we need not reach,
and express no opinion on, whether M.P.A. demonstrated
that Willoughby's opinions, once admitted,
probably contributed to the jury's punishment assessment.
We overrule M.P.A's third issue.
*30 In his fourth issue, M.P.A. urges that the district
court abused its discretion in declining to grant relief
on his claim that Barina rendered ineffective assistance
during disposition. M.P.A. complains that
Barina failed to adequately investigate the scientific
support for Willoughby's opinions prior to trial and
that if he had done so, Barina could have confronted
the witness when he testified falsely during voir dire
and gotten him excluded.
Again, the district court found that “[t]he evidence
presented to this Court indicated that the actions of
Bobby Barina during the trial of [M.P.A.] were based
on sound and legitimate trial strategy. Applicant's
trial attorney performed sufficient trial preparation
and investigation into the facts of the case, and all
decisions regarding evidence presented were sufficiently
explained and shown to be sound trial strategy.”
In light of these findings, the district court concluded
that “based on the facts available to Applicant's
trial counsel at the time of trial that his actions
and decisions were based on legitimate trial strategy,
and the trial preparation of Applicant's trial counsel
was adequate and within the bounds of reasonably
effective representation,” and that “Applicant received
a fair and reliable trial.” The district court did
not make any explicit findings relating to Barina's
performance specifically in regards to Willoughby.
We think it is important here to emphasize what the
Supreme Court said in Strickland concerning a court's
review of counsel's performance:
Judicial scrutiny of counsel's performance must be
highly deferential. It is all too tempting for a defendant
to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires
that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 26
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a
strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the
challenged action “might be considered sound trial
strategy.” There are countless ways to provide effective
assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way....
....
Thus, a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel's
challenged conduct on the facts of the particular
case, viewed as of the time of counsel's conduct. A
convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of
counsel that are alleged not to have been the result
of reasonable professional judgment. The court
must then determine whether, in light of all the circumstances,
the identified acts or omissions were
outside the wide range of professionally competent
assistance. In making that determination, the court
should keep in mind that counsel's function, as
elaborated in prevailing professional norms, is to
make the adversarial testing process work in the
particular case. At the same time, the court should
recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
*31 466 U.S. at 689-91 (internal citations omitted).
M.P.A. is claiming that Barina failed to adequately
investigate the scientific support for Willoughby's
opinions. When assessing the reasonableness of an
attorney's investigation, a reviewing court must consider
the quantum of evidence already known to
counsel and whether the known evidence would lead
a reasonable attorney to investigate further. Wiggins,
539 U.S. at 527; Ex parte Martinez, 195 S.W.3d 713,
721 (Tex.Crim.App.2006). “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations
unnecessary.... [A] particular decision not to investigate
must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of
deference to counsel's judgments.” Strickland, 466
U.S. at 691. “[S]trategic choices made after less than
complete investigation are reasonable precisely to the
extent that reasonable professional judgments support
the limitations on investigation.” Id. at 690-91.
Here, the record supports a finding by the district
court that Barina researched the issues related to the
Abel Assessment. In addition to the pretrial research
and investigation previously described, Barina testified
that he “would look at different testing [researchers]
were doing and trying to find out information
from testing organizations. You know, going to
the Baylor Law Library and reading up on it and
things like that.” Barina added he had previously
worked with Dr. Hurlbert and had prepared to present
him as an expert at trial, though “the cases always
worked out.” In this preparation, according to Barina,
“Hurlbert had already showed me how the tests
worked before, so I got to ask him questions about
that, and looked at him perform the test.”
Thus, Barina provided testimony from which the district
court could find that Barina investigated the reliability
of the Abel Assessment, and we are to defer to
the district court's assessment of the credibility of that
testimony. The remaining question is whether
Barina's decision not to investigate further and ultimately
uncover the BYU articles or other research
tending to refute Willoughby's opinions was reasonable
under “all the circumstances, applying a heavy
measure of deference to counsel's judgments.” See id.
at 691. In other words, under the circumstances, did
Barina exercise “reasonable professional judgment.”
See id. at 690-91.
We conclude that Barina did. The record reflects that
Barina, informed by his research regarding the Abel
Assessment and the then-existing law, made a strategic
decision to focus on the test's error rate. Through
his research, Barina had determined that the test had
an accuracy rate of only 85% and thus an error rate of
15%. FN23 This was, in Barina's view, a “horrible
number” that should have resulted in the test results
being excluded. And, as discussed above, Barina attempted
to persuade the district court to exclude Dr.
Willoughby's opinions as unreliable in light of the
test's error rate. Under all the circumstances confronting
Barina, and given the state of jurisprudence at the
time of trial, as we discussed above, we cannot conclude
that this was an objectively unreasonable deci-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 27
Not Reported in S.W.3d, 2010 WL 2789649 (Tex.App.-Austin)
(Cite as: 2010 WL 2789649 (Tex.App.-Austin))
sion. In fact, by raising the test's error rate at trial and
attempting to exclude the evidence on that ground,
Barina preserved this issue for appellate review. See
Emerson, 880 S.W.2d at 769 (declining to take judicial
notice of reliability of test that had “average
margin of error of .03%”); Kelly, 824 S.W.2d at 573
(listing “potential rate of error” as one factor courts
should consider in assessing reliability of particular
scientific technique).
FN23. At the habeas hearing, M.P.A.
claimed that the accuracy rate of the exam,
according to Dr. Abel, was only 65%. In
fact, the error rate varies depending on the
analysis. See Birdsbill, 243 F.Supp. at 1135-
36. Regardless of the actual error rate,
M.P.A. does not dispute that the error rate
was a legitimate issue for Barina to raise.
*32 Moreover, in addition to attempting to exclude
the evidence based on the error rate, Barina crossexamined
Willoughby and got him to admit that
treatment plans were available and that it was possible
for parents to provide a supervised environment
for their child if the child was placed on probation.
As noted above, Barina referred to the above testimony
in his closing argument, along with Betty
Arena's testimony in which she promised to provide
M.P.A. whatever level of supervision his treatment
required, regardless of her personal views as to
whether M.P.A. had actually committed the crimes
for which he had been adjudicated guilty. As Barina
explained in his affidavit, this was part of his strategy:
“My intention at the time was to preserve what I
perceived as good appellate issues with respect to
whether [M.P.A.] should have been committed to the
Texas Youth Commission rather than placed on some
treatment plan.”
M.P.A. failed to make such a showing. White testified
that he and Barina “couldn't really find an expert
to say yes, it was scientifically reliable” or “no, it was
not scientifically reliable.” When asked if he and
Barina had attempted to contact any experts, White
testified, “I remember one expert. I can't recall the
name. That person would not go out on a limb and
say that that test was not scientifically reliable.”
M.P.A. asserts that Barina could have called the BYU
researchers to refute Dr. Willoughby's opinions.
However, M.P.A. made no showing that the BYU
researchers or any other experts on the subject matter
were available to testify at the time of M.P.A.'s trial.
In light of the above, we cannot conclude that the
district court abused its discretion in finding that
Barina exercised sound and legitimate trial strategy
regarding Willoughby.
We overrule M.P.A.'s fourth issue.
CONCLUSION
We affirm the order of the district court.
Tex.App.-Austin,2010.
In re M.P.A.
Not Reported in S.W.3d, 2010 WL 2789649
(Tex.App.-Austin)
END OF DOCUMENT
M.P.A. also complains about Barina's alleged failure
to obtain a witness to counter Willoughby's testimony.
See Gersten, 426 F.3d at 611 (concluding that
counsel's failure to challenge prosecution's psychological
expert with his own expert constituted ineffective
assistance). However, “[t]rial counsel's failure
to call an expert is irrelevant absent a showing that an
expert witness was available to testify on this issue
and the expert's testimony would have benefitted
Appellant.” Garza v. State, 298 S.W.3d 837, 842
(Tex.App.-Amarillo 2009, no pet.) (citing King v.
State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983)).
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

TAB 4

M.P.A.
S.A. A.A.

A.A.
J.W.A. M.P.A.
S.A.
S.A.
A.A.

TAB 5

Format Dynamics :: CleanPrint :: http://abcnews.go.com/2020/US/story?id=1474625
http://abcnews.go.com/CleanPrint/cleanprintproxy.aspx?1290186864716
Page 1 of 2
11/19/2010
Texas Girl Says Abuse Claims Were Coerced by
Mom
Cousins Jailed for Molestations She Now Claims Never Happened
Jan. 6, 2006
Sixteen-year-old S.A.
longs for a normal
girl's life, but she is haunted by the fact that she sent
her teenage cousins to prison for a crime she now
says they didn't commit.
The sordid story began when S.A. just 7 years
old at the time, was caught in a bitter custody battle
between her parents, LaVonna and Stephan Arena.
Worried that she'd lose her daughter, LaVonna took
S.A. and her brother from their home in Texas
to a Florida homeless shelter. She then justified the
abduction by telling social workers her kids were
being molested.
S.A. now says her mother used her as a tool to
pry her family apart and to get her father to drop his
custody claim.
"I am responsible for putting them in prison, and now
that I am older and I can understand the
consequences of my actions, I need to step up and do
what I have to [to] make things right," she told
"20/20" in an exclusive interview.
Her cousin J.W.A. 17 at the time of the trial, was
released on parole after serving five years of a sevenyear
sentence. M.P.A. then 16 years old, is
currently serving a 20-year sentence in a Texas
prison.
She said they were "grilling me on whether I wanted to
plead the fifth or not, and just really rude to me. I was
like, 'Wait a second. You're a judge. You're supposed
to serve justice. And now I'm telling you the truth,
and you don't care.'"
In fact, Judge Edward Johnson of Bell County, Texas,
warned S.A. repeatedly that she could face
felony prosecution for perjury and a possible 10-year
prison sentence if she recanted her original charges.
Johnson refused "20/20's" request for an interview.
Even at her young age, S.A. refused to back
down and was willing -- as the judge warned she
might -- to go to prison.
"I really do think that two-to-10 years is a small price
to pay," she said.
Mother Now Spending Time With Convicted
Pedophiles
And perhaps this is the strangest twist in S.A.
story. While her mom still maintains J.W.A. and M.P.A.
molested her daughter, she allowed a twice-convicted
pedophile to live with her and S.A. A judge
found her mom's judgment so poor he awarded sole
custody of S.A. to her father, Stephan.
Trying to Make Things Right
S.A. has been trying to "make things right" since
she was 11, writing letters of apology to both
brothers in prison.
But perhaps her bravest moment came when she went
public with her story and returned to court, two years
after accusing her cousins. She faced the same judge
and prosecutor and told them she had lied to them
when she said her cousins molested her.
She hoped her honesty would bring real justice to her
family. Instead, she says, they treated her like a
criminal.

Format Dynamics :: CleanPrint :: http://abcnews.go.com/2020/US/story?id=1474625
http://abcnews.go.com/CleanPrint/cleanprintproxy.aspx?1290186864716
Page 2 of 2
11/19/2010
When "20/20" caught up with S.A. mom, she
was living with a boyfriend in Muscatine, Iowa.
She spoke briefly with "20/20" on the street. She said
the reports that she exposed her children to a sexual
predator are inaccurate.
In her brief sidewalk interview she at first stood by
her story that J.W.A. and M.P.A. had molested
her daughter. "I did not frame those boys and my
children asked me to take them out of there. In fact,
they begged me," she said.
It appears, however, that LaVonna's accusations are
part of a troubling pattern. Police records and family
testimony suggest that on three different occasions
she has falsely accused other family members of
abusing her kids, including a charge against
S.A. father, Stephan Arena.
"I believe it was in 2000 she accused me and J.W.A.
and M.P.A. again -- while they were incarcerated,"
he said.
vetted on appeal after appeal, and the evidence
remained what it was: convincing."
Wrongful conviction expert Paul Ciolino, whose
private investigative work has resulted in the release
of dozens of death row inmates, says there is just one
route for M.P.A. and J.W.A. .
"Without a crew of high-priced lawyers, the
governor's going to have to step in here and do the
right thing. ... These are two kids who don't have
resources… and no one's helping them," he said.
And young S.A.
is a victim too, not of
molestation, she says, but of guilt.
She says she thinks every day about the devious plots
she says her mother masterminded. Her hope now is
that somebody will step in and help her cousins.
"Just for somebody to care," she said. "Just for
somebody to realize, 'Hey, what happened to those
boys was wrong.'"
LaVonna Arena asked "20/20" not to use its sidewalk
interview with her, suggesting a more formal
interview later. She apparently decided against that
and stopped taking "20/20's" phone calls. Her live-in
boyfriend dropped a bombshell, however, explaining
to "20/20" by phone that LaVonna would like to tell
the truth and explain why she made S.A. lie. But,
her boyfriend said, "LaVonna is afraid she would go
to jail."
S.A.
bitter.
says it's that kind of attitude that leaves her
"When I realized she manipulated me, that was when I
was like, I really don't care about you anymore. ... I
can honestly say I hate her," she said.
Boys Need Lawyers or Intervention from Governor
S.A. cousin J.W A. submits to an annual
polygraph test administered by the state as part of his
parole agreement.
Peter Heller, who recently conducted the test on
said he feels confident that J.W.A. is truthful in saying
he never had sexual contact with his cousin.
Heller said, "In my opinion he was truthful to the
relevant questions. If I was to testify in court, my
opinion would be that he did not molest S.A.
J.W.A.
Despite S.A. assertion that she was not
molested and other evidence that supports her claim,
County Attorney Rick Miller wrote in a letter to
"20/20" that "all of these matters were thoroughly

TAB 6

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 1 of 8
11/19/2010
News: November 5, 2010
http://www.austinchronicle.com/gyrobase/Issue/story?oid=oid%3A1107839
Criminally Innocent
How can you be exonerated of a crime that never happened?
By Jordan Smith
Twenty-eight-year-old J.W.A. would like to visit California. He's never been there – in fact, he's
never traveled very far from his childhood home in Harker Heights, in Bell County. He'd like to see the
California coast and to visit with the parents of his girlfriend, who is also the mother of his three
children. But he's too scared to travel that far from home. "To me it's just not safe," he says.
It's not safe because J.W.A. is a registered sex offender. Unless he can find a way to clear his name,
he will have to register with the state for life for having allegedly molested his cousin S.A. when he
was 15 and she was just 7 years old.
J.W.A.
In April 1999, after questioning by police, confessed to having sexually abused S.A.
and he was subsequently sentenced to seven years in prison. The problem, according to J.W.A. his family
– including S.A. – and other supporters, is that he didn't molest S.A. Instead, he says, he
falsely confessed to the crime after being pressured to do so by a police detective, and then took a plea
J.W.A.
deal to avoid a trial that he was told would land him in prison for decades. In fact, says he
confessed in part because he was told that if he did so the state would not prosecute his younger brother,
M.P.A. whom S.A. had also accused. Yet M.P.A. was also charged with the crime.
M.P.A. did not confess and instead took his case to trial; in 1999, he was found guilty and sentenced to
20 years behind bars.
At 9 years old, S.A. testified against M.P.A. in court; two years later she recanted her testimony.
She had been told to implicate her cousins, she since says, by her mother, who at the time was involved
in a bitter divorce from her husband Stephan Arena, S.A. father and the boys' uncle. S.A.
has maintained, for more than a decade, that her original testimony was in fact a lie. (Initially, her
younger brother A.A. then 5, also said the cousins molested him. But J.W.A. confession
mentioned nothing about A.A. , and at M.P.A. trial the court dismissed for lack of evidence a charge
related to his having molested A.A. .)
Although both brothers and their original accuser insist the men are innocent, the courts have disagreed,
concluding that S.A. recantation is not as credible as her initial allegations – despite the fact that
she has steadfastly maintained not only that her cousins are innocent but also that no sexual crime
against her ever occurred.
No Evidence

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 2 of 8
11/19/2010
Unlike the dozens of Texas inmates who have been exonerated of sexual offenses they never committed
with the help of DNA evidence, M.P.A. and J.W.A. faced no biological evidence to prove or disprove the
original allegations made against them. Indeed, in the climate of increasingly strict sex offender laws,
and considering the credulity with which many lawmakers and members of the public regard all
M.P A. and J.W.A.
allegations involving sexual abuse, are likely to remain among a group of offenders
advocates and attorneys say are a growing population: individuals wrongly convicted of sex crimes who
have no concrete scientific proof to help them exonerate themselves. (For more on the consequences of
Texas' sex offender laws, see "Sex Offenders Exposed," Sept. 10.) "That's the classic example of a
messed-up system," says Mary Sue Molnar, founder of the fast-growing group Texas Voices, which
advocates for reforming the state sex offender laws. "I would bet my right arm that those boys are
innocent."
Texas has been home to more exonerations of the wrongfully convicted than any other state, and many
of the 42 exonerations so far have involved alleged sexual assault in which physical DNA evidence was
available to help eventually set the record straight. What happens when there is no biological evidence
available for testing? Those offenders, of whom experts say there are likely thousands in Texas alone,
are generally out of luck. "Wrongful convictions proven by DNA evidence are just the tip of the iceberg
of the exonerations that have occurred in Texas and throughout the U.S.," state Sen. Rodney Ellis, D-
Houston, said in an e-mail. "It is estimated that DNA would be available and useful in less than 10
percent of all serious cases, and there are many cases where evidence isn't preserved. One prominent
piece of research found that three to five percent of people in prison were wrongfully convicted. Even if
only one percent of Texas prisoners are innocent, that means that over 1,500 people in prison today
should not be there."
That's the case with M.P.A. and J.W.A.
M.P.A. and J.W.A.
, say their family members and supporters. were sent
to prison while still teenagers, though there was no evidence to suggest the assaults had even happened,
save for the testimony of the young S.A. S.A.
, now an adult, has recanted her
accusations multiple times – not only to the courts but also to a national audience on a 2006 episode of
ABC's 20/20. "I didn't even know what I was saying, and I didn't even comprehend the consequences of
what I was saying," she told 20/20. "Now that I am older, and I can understand the consequences of my
actions, I need to step up and do what I have to do to make things right."
Although the court and prosecutors should have been skeptical from the start, the state did not hesitate in
the face of S.A. accusations that her cousins had both sexually assaulted her, allegedly on
multiple occasions and in several locations, including at the children's grandparents' home – with no one
the wiser. But the Arena family, including S.A. father, Stephan, says that story never made sense
– and the family has been trying for more than a decade now to make the state listen to what they say
really transpired back in 1997, what the family says led to the conviction of two innocent teen boys.
They argue that S.A. was coerced into making the damaging accusations by her mother, LaVonna,
during a heated divorce and battle for custody over S.A. and her younger brother, A.A. . In the
spring of that year, according to court records, LaVonna stole several hundred dollars from the H-E-B
where she worked and fled the state with the children, initially to a homeless shelter in Florida, in
violation of a court order. In an effort to avoid trouble for disobeying the court, family members,
including S.A. say LaVonna asked her young daughter to say they'd left Texas because she'd been
abused. S.A. did as she was told.
In testimony, LaVonna denied that she ever told her children to make false accusations against their
cousins, but S.A. still maintains that is exactly what happened. "My mom is kind of mentally
unstable," S.A. now 21, married and in school full time, said during a recent phone conversation.
"I don't know what she was thinking, but she told me to say that my cousins had molested me, otherwise

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 3 of 8
11/19/2010
she would go to jail," she continued. "I was 7 at the time – I don't know what sexual molesting means,
but I do know what jail means."
It was not the first time LaVonna had raised the specter of sexual abuse – nor would it be the last.
According to court records, LaVonna had previously accused another man, the father of her eldest
daughter, of having abused their child, an accusation the girl denied. Also according to court records,
J.W.A.
LaVonna called Harker Heights police in 2000 – well after and M.P.A. had been sent to prison –
to report that M.P.A. and J.W.A. had again molested S.A. and her brother, A.A. . Since the boys
were already locked up, the police dismissed the allegation.
That should have been a red flag, says veteran Austin family law attorney Catherine Mauzy, who has
seen more than her share of divorce and custody cases in which allegations of sexual abuse are made. "A
really telling sign is when [accusations are made] multiple times," she said recently.
Unfortunately, there is a dearth of credible research suggesting how often false accusations are made
during custody or divorce battles. Mauzy notes that whenever allegations of sexual abuse come up, they
have to be taken seriously – in part because it is often difficult to know whether they are true. But
experience also tells Mauzy that false accusations are all too common: "Every single lawyer doing this
work for a while would say, 'Hell yes, it happens,'" she says. "It happens with frightening frequency."
Maybe not every day or every month, but inside of a year, she says, she'll have a case come across her
desk where such accusations crop up, most often with little evidence to help confirm one way or another
if they are true. "It's scary as hell."
Trusting the System
When the cops came calling in the spring of 1999, the boys' parents, Betty and Robert Arena, voluntarily
J.W.A. J.W.A.
took and M.P.A. to the police station for questioning. was 15 when the crime allegedly
happened ( M.P.A. was 14), but by the time the case was actually investigated – more than a year after
J.W.A.
LaVonna said S.A. first told her mother she'd been molested – he was 17. says that when he
went in to talk to the local police detective, Erika Jordan, he still had no idea what was going on. "I
didn't even know a crime had been committed," he recalled recently. But his dad had told him to go and
J.W.A.
"help them out. Be honest." Once inside an interview room, said, Jordan began reading information
to him from a paper; he needed to tell her what she wanted to hear, he says he was told. He told her he
didn't know what was going on and that he wanted to leave; that wouldn't be allowed, he recalls the
detective telling him.
Testifying at a hearing in connection with an appeal of M.P.A. conviction, Jordan told the court
J.W.A.
in 2001 that came to the police station voluntarily and gave his 1999 statement voluntarily. She
never advised him of his rights before or during the interview, she said, because he wasn't in custody and
was in fact free to leave at any time. "Did you ever tell him he was under arrest?" prosecutor Thomas
Seigman asked.
"No, I did not," Jordan answered.
"Did you ever lock any doors behind him?" Seigman continued.
"No, I did not," she said.
"A silly question: Did you ever hold a gun to his head or anything like that?" the prosecutor asked.

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 4 of 8
11/19/2010
"Absolutely not," Jordan replied.
J.W.A.
Despite what Jordan told the court, says he did not feel that he was free to leave without telling the
detective what he believed she wanted to hear. So he did, he says, parroting back to her the information
she'd just read to him about S.A. allegations. He figured it was the only way out. "I know that
sounds stupid," the now-28-year-old said this summer. "But I had listened to my dad: 'Trust the law;
trust the system,'" he'd been told. He just wanted out of the room, so he wrote a statement, confirming
that he'd assaulted his cousin – a statement that he says is not true and never was. His brother, M.P.A.
J.W.A.
was also questioned but refused to admit to anything. The truth, thought, would certainly come out.
But it was too late. Before long the boys had both been charged with sexual assault of a minor. "I took
J.W.A.
the plea bargain," says, for two reasons: First, his lawyer told him that if he copped to the crime,
the state would drop the charges against M.P.A. And second, he was also told that if he failed to take a
J.W.A.
plea for five years, a jury would most certainly sentence him to 40. As it turned out, got seven
years instead of five, and the state did not drop the charges against his brother. Instead, after a three-day
trial in 1999 – during which the court-appointed attorney failed to call any witnesses, except for
M.P.A. to counter the accusations – M.P.A. then 16, was convicted of aggravated sexual assault of a
child and given a 20-year determinate sentence. He isn't due to be released until 2019.
Molnar, the founder of Texas Voices, which has more than 600 active members advocating for
J.W.A.
commonsense changes to Texas' sex offender laws, says she's not at all surprised that pleaded
guilty – even though he maintains that he did not commit any crime. "Almost everyone takes a plea, and
we know exactly how that works: They are scared into it and told what a great deal they'll get," she says,
"as opposed to a jury, [which] could give you 30 or 40 or 50 years." That is appealing to people who
don't have the money to fight in court or who are afraid of a lengthy punishment. "Taking a plea doesn't
mean you're guilty," she says.
That's "absolutely" true, says Austin defense attorney Keith Hampton. "That happens all the time,
particularly in sex offense cases," which are emotionally charged and many times based on "he said, she
said" accusations.
The sad but generally unrecognized reality that people plead guilty to crimes they haven't committed has
also been acknowledged by the courts. In a case Hampton argued before the Court of Criminal Appeals,
the justices ruled in favor of a client's ability to file an appeal with evidence of his innocence even
though he'd previously pleaded guilty. There are any number of reasons that a person would plead
guilty, Hampton says one judge pointed out during that 2002 oral argument, none of which may have
any connection to the veracity of the underlying charge.
The Science of Prosecution
According to M.P.A. appellate attorney, Clint Broden, at least part of what sealed M.P.A. fate was
the testimony of state expert witness Fred Willoughby, a sex offender treatment provider who claimed to
be able to testify that M.P.A. was a "pedophile" and that he would be a "high risk" for committing
another sex offense. Willoughby knew that, he testified, based on the results of the so-called "Abel
Assessment," which he'd administered on M.P.A. and on which the teen had scored poorly.
The assessment tests sexual arousal, in part, by showing a series of photo slides and asking the observer
to click through the pictures. If the subject of the test lingers on a photo of a toddler, for example, it
J.W.A.
might suggest that the person has a sexual attraction to toddlers. says he remembers also taking the
test but insists he wasn't given any real instructions other than to look at photos. He said he quickly got

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 5 of 8
11/19/2010
bored, clicked through a series of them, and then stopped for a while in favor of daydreaming. M.P.A.
was given the same exam in August 1999 and, according to J.W.A. was similarly uninformed about the
process and uninterested in taking the test. Instead, M.P.A. was distracted frequently and would get up
from his seat and walk to gaze out the window, leaving any number of slides on the screen for long
periods of time.
Nonetheless, in court Willoughby testified that the Abel test is an "objective" measure of sexual interest;
in M.P.A. case – a teen he said he categorized as having a "meek" and "submissive" personality – the
test showed that he had a "significant sexual interest" in 8- to 10-year-old girls (exactly the age group his
cousin S.A. then fell into), an interest he said M.P.A. "may simply be unaware of."
More important, perhaps, is that Willoughby told the court that the test was widely used across the
country and had been demonstrated to provide reliable predictions of sexual interest when administered
to juveniles. In fact, that was not true. The experts Willoughby cited had established just the opposite:
Researchers had found only weak evidence that the test is reliable at all and, more importantly, that there
had not yet been any research to determine whether it was a good diagnostic tool to use on juvenile
offenders.
According to veteran licensed sex offender treatment provider Philip Taylor, the problem with
Willoughby's testimony began with his conclusion that M.P.A. is likely a pedophile. That is a
difficult diagnosis even under the best of circumstances, he says, and is even more controversial when
used to label a juvenile. "Unfortunately, there are a lot of ignorant practitioners who diagnose pedophilia
any time someone is charged with an offense against a minor," he says. "But people who study this
carefully ... point out that, one, not everybody who has pedophilia commits an offense and, [two], not
everybody who has committed an offense has pedophilia." Nonetheless, many "experts" will
"automatically diagnose as such, and it is such a scare term," he says. "I've practiced in this area for 20
years, and I can count on less than one of my hands, out of 2,500 guys I've seen, the number of cases of
pedophilia."
Taylor adds that sex offender treatment and diagnosis are areas ripe for abuse by professionals claiming
to be experts. "Absolutely. It's a bird's nest on the ground. It's why people don't bring much critical
thought to it," he says.
Moreover, he says, there have long been grave concerns about the use of the Abel Assessment – or
"Abel Screen," as it's also known. It was originally designed in 1995 by Gene Abel as an alternative for
the plethysmograph, a sensor that attaches to a man's penis to determine sexual arousal. That test was
not very well standardized, and Abel developed his alternative, using visual recognition. Still, the test is
proprietary, Taylor notes, meaning that "how it was developed, how it was normed, and how it is
scored" aren't known outside of the group that works directly with Abel in Georgia. "That is one reason
it does not have a good odor in the professional community," Taylor says, adding that the "Abel people
have no incentive to police its practitioners." In short, he says, the results of an Abel test are "not
acceptable in court any more than the plethysmograph is." (Abel Screening Inc. did not respond to a
request seeking information about the reliability of the test on juveniles.)
Indeed, in 2003, Willoughby was reprimanded by the Texas State Board of Examiners of Psychologists,
in part for his "failure to substantiate forensic opinions" delivered in court, according to an agency
document.
No Recourse

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 6 of 8
11/19/2010
So the testimony at M.P.A. punishment hearing by the state's own expert turned out to be false, and
S.A. the only witness to say the sexual assault had ever occurred, has recanted numerous times
(even after, when she was 11, the trial court threatened her with jail time for perjury if she were to
contradict the testimony she gave when just 9 years old). Yet the courts have denied both
any relief.
Broden initially filed M.P.A. appeal with the Bell County courts in 2007. He argued several points:
not only that S.A. had recanted her previous statements and that there was credible evidence that
LaVonna had fabricated the allegations in order to avoid trouble with the law for leaving Texas with the
children, but also that Willoughby had testified falsely about the validity of the Abel Assessment – false
testimony that made it appear to jurors that M.P.A. was in fact a dangerous person, a pedophile who
needed imprisonment. Moreover, at M.P.A. trial, prosecutors emphasized Willoughby's conclusions in
their closing arguments. "He's been diagnosed as a pedophile by an expert. He is at a high risk to reoffend,"
the prosecutor argued. "Our community simply cannot take that chance by releasing him back
in that home."
The state countered that S.A. original statement was far more credible than her recantation. The
recantation, they alleged, had actually been coerced by an unlicensed but self-described "investigator"
who had been helping the Arena family try to prove J.W.A. and M.P.A. innocence. ( S.A.
vehemently denies this.) Moreover, the state argued that it wouldn't make any logical sense for LaVonna
to fabricate a story involving the cousins: "there would be a difference between falsely accusing a soonto-be
ex-spouse to gain an advantage in a custody dispute and accusing a couple of nephews," the state
wrote in response to Broden's writ. "While the former might make some logical sense, the latter does
not."
Most strikingly, the state argued that even if Willoughby had misrepresented the credibility and
accuracy of the Abel Assessment, it didn't matter. According to the state, it was unlikely that the jurors
took that testimony into account when assessing punishment for M.P.A. – an argument they
bolstered using an affidavit from M.P.A. trial attorney, Bobby Barina, which he'd written in response
to a separate point of appeal that he had rendered an ineffective defense. "In my opinion, Dr.
Willoughby's testimony had zero impact on the jury," Barina wrote. Instead, it was solely S.A.
testimony that caused the jurors to sentence M.P.A. to 20 years, he claimed, an argument the state
adopted.
Yet researchers and appeals courts have long noted the effect that scientific "experts" have on juries. As
Arizona State University Law professor John W. Strong wrote in a 1992 article for Oregon Law Review:
"There is virtual unanimity among courts and commentators that evidence perceived by jurors to be
'scientific' in nature will have particularly persuasive effect."
Nonetheless, Bell County District Judge Gordon Adams denied M.P.A. appeal. Indeed, in his findings
of fact, Adams adopted whole the state's position. S.A. recantation "was not credible, based on
the testimony of all the witnesses, confessions or admissions of J.W.A. and other evidence," he
wrote. Moreover, he agreed that the Willoughby testimony likely had no effect on the jury.
The latest blow for the Arena family came from the 3rd Court of Appeals in July, when a three-judge
panel, led by Judge Bob Pemberton, affirmed Adams' conclusions and denied M.P.A. appeal;
M.P.A. lawyer, Broden, is currently preparing an appeal to the Texas Supreme Court. "I'm firmly
convinced of his innocence," he said in August.
Political Kryptonite
M.P.A. and J.W.A.

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 7 of 8
11/19/2010
For J.W.A. released from prison in 2005, there are few options to clear his name. Unfortunately, says Jeff
J.W.A.
Blackburn, founder and chief counsel of the Innocence Project of Texas, and M.P.A. aren't
alone. Blackburn says the IPOT receives more than 100 letters each week – 60% of all the project's mail
– from individuals who say they were wrongfully convicted of sex offenses. "In these cases there is
typically no biological evidence, and there is either no medical testimony," or there is the exaggerated
testimony of medical and other experts, as in the Arena case. "These cases pose a very special problem
for the justice system," he says. The reasons are obvious – and extremely political. "What elected judge
– which is all of them in Texas – is going to consider letting one of these people go as politically safe? If
you find me one, let me know," he says. "It is the classic conundrum; these cases are political
kryptonite."
J.W.A.
The answer, says Blackburn, is to reform state law in order to allow people like to challenge
convictions that were based on the use of faulty science. "There's a lot of junk science going on in these
cases," he says. Indeed, he notes that often, even if a child recants testimony regarding abuse – as did
S.A. – there are plenty of "experts" out there who will say, "See, that denial proves they were
abused! Yeah, OK, and your client gets convicted," he continued. "It's important, because how do you
defend against that shit?"
The specter of junk science in Texas courts has been getting lots of ink lately – including in the
increasingly politicized case of executed inmate Cameron Todd Willingham, put to death for the 1991
murder of his three young children in an arson fire in his home in Corsicana. Willingham maintained his
innocence, and the question of whether the fire was in fact arson has been plaguing the courts and Texas
politicians since 2004, when the first of now nine arson experts concluded that the state relied on
outdated and inaccurate science to determine that the fire was arson and that, in fact, there was no
evidence that the fire was anything more than a tragic accident.
The Texas Court of Criminal Appeals has recently begun to look critically at some "expert" opinions.
The court recently ruled that "scent lineup" evidence (that is, evidence that a canine can match a scent
from a crime scene to a particular person) is not on its own sufficient to prove guilt. In another opinion,
in mid-October, the court ruled that psychological testimony regarding a capital defendant's potential for
"future dangerousness" – as one of the special questions posed in death penalty cases, jurors are asked if
a defendant remains a continuing risk to the public – must be based on some empirical standard.
Still, the problem of junk science is growing faster than court and legislative actions to curb potential
abuses. And in sex offense cases, it often seems like anything goes. "In these cases, my God, it's
basically like there are no rules," says Blackburn. Molnar agrees: "There is junk science all over the
board – and there is no more junk science than is used in sex offenses," she says. "That is the junk
science capital of the world – or, the junk science capital of Texas."
The Timothy Cole Advisory Panel on Wrongful Convictions – named for the state's first posthumously
pardoned inmate, Tim Cole, who died in prison while serving time for a Lubbock rape he did not
commit – convened this year to study the causes of wrongful convictions and to make recommendations
to prevent future miscarriages of justice. In August the group released its final proposals, which include
a section on reforming post-conviction DNA testing and state writ laws. The panel suggests allowing
DNA testing in any case where there is untested evidence or where previous testing was done with
"older, less accurate methods" and allowing inmates with claims of actual innocence to appeal a
conviction "based on science that has since been falsified."
That's an important provision that could help wrongfully convicted sex offenders, many of whom have
been accused of abuse in connection with a custody or other domestic dispute, says Blackburn. Allowing
the courts to accept an appeal based on the validity of the science involved – like the science used

Austin Chronicle: Print an Article
http://www.austinchronicle.com/gyrobase/Issue/print.html?oid=oid:1107839
Page 8 of 8
11/19/2010
against M.P.A. and J.W.A. by psychologist Willoughby (who is still in practice in Williamson County
and still listed as a Texas practitioner using the Abel Assessment) – would "come closer to leveling the
playing field," says Blackburn.
Sen. Ellis believes the panel's recommendations are a modest and important "first step" to begin
repairing the reputation of Texas' criminal justice system. "In order to get those recommendations turned
into legislation and passed by the Legislature, we need prosecutors, law enforcement, the governor's
office, and advocates to make preventing wrongful convictions a top legislative priority," he said. "It
will take a commitment from all parties to pass the legislation to create meaningful change."
J.W.A. J.W.A.
It is unclear if any of the proposed changes might actually aid and M.P.A. Although
has been out of prison for just over five years now, unless he is able to clear his name, he will live the
rest of his life as a registered sex offender, branded as having once sexually assaulted a 7-year-old girl.
J.W.A.
Like thousands of other registered sex offenders, has been unable to find any meaningful work;
without access to resources, he and his girlfriend and their children are living with his parents. Betty and
Robert Arena have sacrificed much as well in their quest to help clear their sons; they lost their family
business, and at present seven members of the family are living in one small mobile home.
S.A. says she intends to continue to help her cousins in any way she can. " M.P.A. 's still locked up,
and, yeah, J.W.A. out now, but look at the laws in Texas – look at the way he has to register for the
rest of his life," she says. "I'm not going to give up, and neither is my family, until [the courts] finally
see it my way."
J.W.A.
says he's scared a lot of the time. Mostly, he's scared of moving outside his safety zone in Harker
Heights where people know him. He wants to get a real job, move into his own home, raise his young
family. But he also doesn't feel that he is able to take too many risks to make that happen – like leaving
Harker Heights. "I was a kid when I went to prison," he says. "Now I'm a grown man, but I'm still
scared."
Copyright © 2010 Austin Chronicle Corporation. All rights reserved.

TAB 7