NO. 10-0859 - Supreme Court of Texas

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
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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.
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