Andrew Wayne Roark, Applicant, was convicted by a jury of injury to a child and was sentenced to 35 years’ confinement. This case involves a prosecution under the theory of Shaken Baby Syndrome (SBS). The State theorized that Applicant caused the infant victim serious bodily injury by violently shaking her and possibly striking her with or against something, respectively referred to as Shaken Baby Syndrome and Shaken Impact Syndrome. The defense argued that the injuries were caused by an old brain injury that began bleeding again either spontaneously or due to accidental trauma. In two issues, Applicant argues that he is entitled to a new trial under Article 11.073 of the Texas Code of Criminal Procedure and the Due Process Clause. We grant Applicant relief under Article 11.073 of the Texas Code of Criminal Procedure. The Applicant’s conviction is therefore vacated and the case is remanded to the trial court for a new trial. BACKGROUND Only July 16, 1997, the date of the offense, Applicant was babysitting his girlfriend’s 13-month-old child, B.D. He was her sole caretaker that day. That morning, Applicant took B.D. to her 12-month-old appointment with her primary care physician, Doctor Padma Bala. Dr. Bala physically examined B.D. and found nothing wrong with her. Applicant and B.D. left the doctor’s office and returned home at around 11:30 a.m. At 4:00 p.m., he called 911 because B.D. was unconscious, barely breathing, and near death. B.D. was transported to Methodist Charlton Medical Center in Dallas, where she was stabilized, then transported to Children’s Medical Center in Dallas. She was later discharged after her brain swelling (edema) subsided, but B.D. suffered permanent brain damage. Trial Theories The State primarily argued Applicant hurt B.D. after they returned home from Dr. Bala’s office. It conceded that there were no eyewitnesses to the crime, but it asserted that the medical evidence would show that B.D. was violently shaken and possibly struck against an object, which led to her brain swelling and eventually permanent brain damage. The defense primarily argued that the medical evidence would show B.D. sustained an injury two weeks before the day in question, which caused her brain to hemorrhage and a subdural hematoma to form.[1] It further argued that, the day of the incident, the old injury began bleeding again (rebled), which when combined with the preexisting subdural hematoma, led to her injuries. According to the defense, the old injury rebled spontaneously, when she hit her head in the bathtub, or when she rolled off her toddler bed. Trial Evidence State Marcus Jennings, a DeSoto Fire Rescue paramedic, was dispatched at about 4:00 p.m. to respond to a report that a baby had fallen off her toddler bed and was nconscious. When Jennings arrived, he saw Applicant was holding B.D. on the porch. She was still unconscious. Jennings administered first-aid and noted that B.D.’s blood pressure and pulse were low. He also noticed that her pupils were slightly constricted, which he thought meant that B.D. might have a neurological issue. Jennings testified that Applicant asked to ride in the ambulance but that he told Applicant no because there was not enough room, which was not true. He said he lied because he saw fresh bruising around B.D.’s vagina and did not want Applicant in the ambulance. Jennings transported B.D. to Methodist Charlton Hospital. Doctor Brenna Nance, who worked in the emergency room of Methodist Charlton Hospital, was the first doctor to treat B.D. She testified that B.D. was minimally responsive, had difficulty breathing, and an elevated heart rate. Dr. Nance also saw that B.D. had bruising in her genital area. After Dr. Nance stabilized B.D., she arranged for B.D. to be transported to Children’s Medical Center for further treatment. Dr. Nance wrote in her notes that she suspected child abuse based on the extensive bruising and sudden onset of devastating neurological problems given that B.D. appeared healthy that morning according to the history provided to her by Applicant.[2] Doctor Kathleen Murphy, the head of the pediatric intensive care unit at Children’s Medical Center and the first doctor to treat B.D. there, said that she immediately ordered a diagnostic examination, including a CT scan, and that she examined B.D. and saw that she had a retinal hemorrhage in her left eye and possibly her right, as well as fresh bruising in the genital area. Because of the bruising, Dr. Murphy called REACH, a team of doctors who worked in the hospital and specialized in child-abuse investigations. She learned a few days later that B.D. had not been sexually assaulted. According to Dr. Murphy, the CT scan showed both acute[3] and chronic[4] blood. The acute blood was from a subdural hemorrhage on the left side of B.D.’s brain, which was causing it to swell and push the right side of her brain against the inside of her skull. Dr. Murphy did not believe that slipping in the bathtub or rolling off a toddler bed could have caused B.D.’s injuries.[5] Dr. Murphy testified to the following regarding what could cause B.D.’s injuries: Q. A brain injury of the magnitude that this baby had, have you seen that in other patients? A. Yes. Q. And in the other patients that you’ve seen, did some of them have histories that would explain the injury and some have histories that don’t explain the injury? A. Correct. Q. And the histories that explain that type of injury, what kind of histories are those? Those are high speed impacts, like in motor vehicle accidents, falls from usually a second story house. I mean, these are just examples. You can see it – I have seen it on children riding bicycles without helmets, who fall going – or reportedly going fast. Q. What about babies, though? A. Babies who have this kind of head injury, given that they can’t attain rapid speeds without the help of an adult or a larger person, typically are either involved in a motor vehicle accident or a fall or nonaccidental trauma. That’s typical.[6] Dr. Murphy repeated this assertion multiple times when testifying.[7] Dr. Murphy also testified B.D. would have had obvious physical neurological symptoms if her brain had been swelling when Dr. Bala examined her earlier that day. Dr. Murphy also testified that subdural hematomas usually heal as a person’s body reabsorbs the blood but that sometimes there can be more bleeding if the body has difficulty. Dr. Murphy thought that the combination of B.D.’s retinal hemorrhages and edema were consistent with B.D. having been shaken or struck against something, especially when she compared the injuries to the medical history provided to her, which she thought did not line up. Doctor Janet Squires was the Director of General Pediatrics at Children’s Medical Center, and treated B.D. after Dr. Murphy stabilized her in the Pediatric Intensive Care Unit. During Dr. Squires’s physical examination, she noted retinal hemorrhages in both of B.D.’s eyes and bruising in the genital area. She explained that, while some retinal hemorrhages are common, like “flame hemorrhages,” which are caused when tiny blood vessels in the eye break, B.D. had “big blobs of blood” in her eyes, which are usually associated with major trauma, including Shaken Baby Syndrome (SBS). Dr. Squires wrote in her notes that she thought the genital bruising was “most consistent with a pinching or grabbing mechanism, and suggests to me physical abuse used at the time of cleansing of the diapered area.” Doctor Squires testified to the following regarding the specific retinal hemorrhages she observed and its association with SBS: A. In this case, you could see these big blobs of blood. And the significance are that they are broken blood vessels and there’s several things that can cause them, but it is very — and particularly the kind that we saw are associated with major trauma. They are actually very, very classically seen in the Shaken Baby Syndrome. Q. And what is it about the type of retinal hemorrhages that you saw? A In many conditions the retinal hemorrhages are called flame hemorrhages. They’re little hemorrhages, they’re just like little broken blood vessels. That’s what we most typically see with infections and some of the other things. What was different about this is there were big — they called them dot blots. They’re big globs of blood. And that is very, very characteristic of trauma. And that was what was unique to this or classical about these findings. * * * Q. And how does the presence of retinal hemorrhaging help your diagnosis? A. It helps a lot in that retinal hemorrhages – - Again, there’s a lot of things that cause retinal hemorrhages, but when you see these retinal hemorrhages it is very classic and it is literally thought now that the eyes themselves, in this rotational motion, that the retina is actually — they separate sometimes a little bit and you tear blood vessels. Just like the damage to the brain, you literally are tearing blood vessels and then you get these kind of blood clot, dot blot feature which is almost pathognomonic for child abuse. It’s not seen in very many other things, although you could think of certain things.[8] Doctor Squires stated that there are potentially other causes for a retinal hemorrhage such as a major car accident, cardiopulmonary resuscitation, infections, bleeding disorders, etc. However, she stated “this particular pattern, it’s very hard to think of much else besides trauma, and a lot of trauma.”[9] In addition, the increase in intracranial pressure from the bleeding subdural hematoma would only cause a “small amount of hemorrhages around the optic disc.”[10] Dr. Squires testified that B.D.’s CT scan “was very abnormal, full of brain swelling” and that B.D.’s brain had shifted across the midline. She also saw “abnormal fluid collections over the top of the brain, some of which was clearly fresh blood, and some of which was an abnormal collection interpreted as old blood.” Dr. Squires suspected that the old blood was probably from a previous shaking event but provided no evidence to this claim. Her testimony read as follows: Q. In this case with [B.D.] what was the significance of the old blood that was found? A. It was an abnormality and it needed to be explained. And in my assessment the most likely – - in my assessment the most likely thing is that this was old blood from – - probably a previous shaking event that had not come to medical attention.[11] When asked whether the acute blood could have been from a rebleed of an old injury, Dr. Squires said no because the brain swelling was “all fresh and new ” When asked later (when she was called as a State’s rebuttal witness) if an old brain injury can rebleed, the following exchange occurred: A. It’s controversial and it’s rare, but everybody suspects that there are some children who have abnormal spaces over the brain, usually it’s like after a brain tumor is removed or something, who have abnormal spaces that either spontaneously or sometimes after a minor fall that get a little bit of fresh blood. And that is pretty well accepted. Q. And in this particular case would that be applicable or—with regard to [B.D.]? A. No. Q. Why not? A. Well, it doesn’t cause brain injury. If these kids present they usually have headaches, sometimes they have a seizure, they can have a little vomiting or something like that, and it’s from that scenario that people get a CT scan and see this. It has nothing to do with their baseline neurologic status. They do not become comatose and they don’t have edema. I mean, where the whole brain swells up and shifts. And, also, typically when we see this it’s a small amount of blood usually in a fairly localized area in an abnormal space. * * * A. As I commented on, this whole area about rebleed is controversial and there are a lot of studies and people are trying to pick out children with abnormal spaces and do serial CTs and follow them. If it occurs, some people don’t even think it occurs, but if it occurs it’s rare and the amount of blood is a very small amount of blood. Veins, these bridge veins are thought to be stretched and possibly bleed into a little bit and leak into the abnormal space area. I do believe it and I have seen it and I have made that call in other children, but I don’t think it’s at all appropriate to a neuro[-]devastated child like this. Q. All right. And you mentioned earlier that you would not expect to see edema. What about [B.D.]‘s case is not—does not fit with that rebleed scenario? A. This whole brain was swollen. It was all shifted over. It was so swollen that later on the blood couldn’t get through and parts of the brain died. So, I mean, that’s not at all what you would see with a rebleed. There is a little bit of fresh blood.[12] Dr. Squires concluded that B.D. had been shaken because B.D. was “totally normal” at Dr. Bala’s office, but she was unconscious and near death by 4:30 or 4:45 p.m. Dr. Squires also said that the X-ray was “absolutely classic for shaken baby [syndrome.]“[13] She testified the following: Q. Dr. Squires, we need to talk about the type of force that’s necessary to create an injury like this in a shaking mechanism or a striking mechanism. What is the type of force that causes this injury? A. The type of injuries that were seen on the CT scan here are caused by vigorous shaking forces. They are movement forces of a rotational nature that cause tearing of some veins, which cause bleeding, but the injury is really to the brain, to the brain tissue itself, particularly the axons. So it is vigorous shaking motion of the head that causes these types of injuries in young children. * * * A. The act is one of picking up a child and extremely vigorously shaking the child so that the head is flopping back and forth. And in most cases, although not all cases, there’s an impact. The shaken baby syndrome is sometimes called shaken impact because we think in most cases there’s a slamming event where the head, which is moving fast, suddenly stops, and perhaps that’s where a lot of the injury occurs.[14] She went on to testify there was no evidence of an impact to B.D.’s head. Dr. Squires testified to the following: Q. Did [B.D] have any external injuries in her head? A. No, other than this which was older. Q. There was no skull fracture? A. No. No skull fracture. Q. And what’s the significance of that? A. If there had been a skull fracture we could say that there had been an impact. Either she had been against something or something had gone against her head. Without that you really can’t assess that there has been that impact for sure.[15] Dr. Squires testified that SBS was a well-documented theory and had been widely accepted since the 1960s.[16] According to Dr. Squires, the brain sits in cerebral fluid and can move, but it is connected to the dura, which is fixed in place, by small blood vessels all over the outside of it called “bridging veins.” And it is thought, Dr. Squires explained, that those vessels stretch and can break when a child is violently shaken. Dr. Squires testified that the primary injury with SBS is usually the stretching and shearing of axons, which is called a Diffuse Axonal Injury (DAI), not subdural bleeding. According to her, axons are long nerve-fibrous connections that run from brain cells on the surface of the brain down through the base of the brain, into the spinal cord, and out to the arms and legs.[17] She also noted that a DAI implies brain-cell death, not just subdural bleeding. Dr. Squires also testified that B.D.’s injuries could not have occurred from a short- distance fall, and B.D. had definitely been shaken. She testified to the following. Q. Dr. Squires, do you have an opinion whether this was accidental or non- accidental trauma? A. Yes. Q. And what’s that? A. My opinion is it’s non-accidental. Q. An injury of this nature, is that something that a thirteen[-]month[-]old could inflict on herself? A No. * * * Q. In this case are you able to determine if she was just shaken or if she just had an impact, one or the other? A. In this case, no. I can say she did not just have an impact. (emphasis added) Q. Okay. Is it possible that she had a shake and an impact? A. Yes. * * * A. In my education and attending meetings, to me it seems that at the current time most experts don’t think you have to have an impact, although that probably happens most of the time. So, they’re used sort of synonymously. We think most of the injury is the shaking, but perhaps in the stopping of the shaking there is quite a bit of damage done. * * * Q. So, the history that you had was that she had fallen backwards in the bathtub from a sitting position? A. Yes. Q. Is that fall backwards, is that going to cause the type of head injury and brain swelling that [B.D.] had that day? A. No. That’s not consistent with the injury.[18] Dr. Squires also testified that B.D. would not be neurologically normal, or have a lucid interval, between the time of the injury and being brought to the emergency room. This pinpointed the time of the injury which caused B.D.’s injuries to have occurred (and been neurologically continuous) between the pediatric appointment and arriving for emergency care. Dr. Squires testified as follows. Q. Based on the history that you have that she was seen by the pediatrician earlier that day, what is your opinion on when this injury took place? A. After this injury this child would not have been neurologically normal. Very quick. It would be hard to date this, to say four hours, or six hours, or twelve hours with great certainty, but after this injury she wouldn’t have been normal. as I’ve stated in my affidavit, I think we can say that this injury occurred on that day between 12:30 and 4:30 or the time after the doctor’s visit until the time she presented into the emergency room. * * * A. When you sustain this amount of injury, you don’t walk and talk and do normal things. And any person seeing a child after this would have known she was abnormal.[19] Doctor Nancy Rollins, a pediatric neuroradiologist, consulted with Dr. Squires and reviewed B.D.’s CT scan. She saw chronic blood on the left side of B.D.’s brain and acute blood that was underneath the chronic blood and went “all the way up over the top of the head” between the two halves of the brain. It also showed that the left side of B.D.’s brain was swollen, which was compressing the ventricle at the midline of the brain. According to Dr. Rollins, bleeding in the subdural space is caused by a pretty severe accident or severe non-accidental trauma. Dr. Rollins concluded that B.D.’s injuries were consistent with SBS as seen in the following testimony. A. The Shaken Baby Mechanism is physically taking of the child and shaking back and forth, often by the neck, and that causes – the baby’s head is big, relative to the size of the neck, the baby doesn’t have good strength in the neck muscles, and it causes kind of a whiplash injury to the baby’s brain. Q. And are the injuries you saw in [B.D] consistent with that type of violent injury? A. Absolutely.[20] Doctor Rollins also reiterated the assertion that B.D.’s injuries were not possible from a short-distance fall in the following testimony. Q. No. What I mean, I guess, is if you see this type of injury and you heard a history that you thought would be consistent with this type of injury, what kind of history do you think you would hear? A. Major car accident, child falling from a two story building, that kind of severe injury could potentially cause that.[21] B.D.’s brain swelling eventually began to subside, and she was discharged to the Baylor Institute of Rehabilitation, an in-patient facility, where she stayed for about six weeks before being discharged to attend out-patient rehabilitation. Doctor Frank McDonald, who was board certified in pediatrics and physical medicine and rehabilitation, treated B.D. at the Baylor Institute of Rehabilitation. He testified that B.D. could not do much more than roll over when admitted. Dr. McDonald believed that B.D. did not sustain a DAI based on the earlier scans or from an MRI he and another radiologist read. He also said that “[a]s a rule, DAI . . . is associated with prolonged or longer length of loss of consciousness or coma, and [B.D.] was not unconscious for that long of time,” and that “her recovery was quicker than I usually see with DAI.” But, he said, that she still had significant problems when she was discharged to outpatient rehabilitation, including difficulty using her right arm, hand, and leg for fine motor skills. Dr. McDonald testified that his “assumption from the history and the retinal hemorrhages were that the baby was battered.” Investigator Michael Crum was dispatched to the home after Applicant called 911. When he arrived, Jennings (the original paramedic) was already there. Crum saw that B.D. was having difficulty breathing and noticed the bruising in her genital area. Applicant told Crum that he had been taking care of B.D. since about 8:00 a.m., that he took her to her doctor’s appointment late that morning, and that everything was fine when they left the office at about 11:30 a.m. He also told Crum that he found B.D. on the ground unconscious when he went into her room to wake her up after a nap at about 4:00 p.m. After they spoke, Applicant and Crum went to Methodist Charlton where Dr. Nance was already treating B.D. Sergeant Carl Smith was dispatched to Methodist Charlton. When he arrived, Applicant and Crum were already there. Applicant told Sgt. Smith that he drove his fiancé (Bridgette) to work with B.D. that morning, then returned home with B.D. and put her down for a nap. He also told Sgt. Smith that Bridgette called him later that morning and told him to take B.D. to her doctor appointment, which he did, and that he left the office with B.D. at about 11:30 a.m. According to Applicant, he gave B.D. a bath that afternoon, which is when she slipped and hit her head while sitting down, then he put her down for a nap because she seemed fine. She was fine, he claimed, when he checked on her while she was napping, but when he walked into her room to wake her up just before 4:00 p.m., he found her on the ground. Sgt. Smith asked Applicant about B.D.’s bruising, and he responded that he saw the bruises the night before but did not know where they came from.[22] He suggested that B.D. fell a lot and that she might have fallen while she was playing. B.D.’s maternal step-grandmother, J.D., also testified. She said that Bridgette and Applicant used to live at her house but that the couple eventually started staying at the Applicant’s parents’ house. She also said that Bridgette stopped talking to her after the incident and that she thought it was because they had “different opinions” about what happened. According to J.D., she initially believed that Applicant was a good father figure, but later she noticed that B.D. would cry when Applicant held her. J.D. testified that she was the first family member (other than Applicant) to arrive at the hospital, and Applicant told her that he found B.D. on the floor unconscious when he entered her room to wake her up. J.D. said that Applicant was “real quiet” at the hospital, and it was like he had “no reaction.” She also said that she overheard Applicant tell Bridgette that B.D. had slipped in the bathtub, and Bridgette asked Applicant why he did not tell her. J.D. testified that she heard Applicant tell Bridgette that he forgot. The Defense The first defense witness was Doctor John Brett Dietze, B.D.’s neurosurgeon at Children’s Medical Center. He was brought in to drain the blood in B.D.’s subdural space to relieve pressure on her brain. Dr. Dietze could not remember if the blood he drained was old or new, but his records showed that B.D. had a left-frontal chronic subdural hematoma measuring 8 millimeters. Doctor Allen Marengo-Rowe, the Director of Special Hematology and Transfusion Medicine at Baylor Medical Center, also testified. He was a pathologist and board-certified hematologist, and he testified about the effects of edema, the body’s fibrinolytic system, and rebleeds. Dr. Marengo-Rowe explained that “any hemorrhage or any clot, any space- occupying lesion inside the head is bad news” and can cause edema because “the head cannot expand.” He explained, however, that the body has a system to dissolve clots called the fibrinolytic system. He testified people are particularly susceptible to spontaneous bruising or rebleeding when the fibrinolytic system is active. According to Dr. Marengo- Rowe, no doctor now could become a board-certified hematologist if they did not know about the fibrinolytic system and how it can cause rebleeds. Dr. Marengo-Rowe also testified about DAIs and retinal hemorrhages. He said that DAIs tend to cause permanent brain damage, whereas a patient might recover from subdural-hematoma induced edema in only a few days if the blood is drained. He explained that people who sustain DAIs quickly exhibit neurological symptoms, like loss of consciousness, but that people who sustain a subdural hematoma might not exhibit neurological symptoms for weeks, if at all. Dr. Marengo-Rowe testified that he did not know if B.D. sustained a DAI or was only suffering from a subdural hematoma because DAI can only be definitively diagnosed after an autopsy. He also said that retinal hemorrhages are common with SBS, but that they also frequently occur other ways, like from edema, when a person experiences apnea, or even after a bad cough or a large bowel movement. Doctor Robert Bux, the Chief Deputy Medical Examiner for Bexar County, was the primary defense expert witness. He testified that, when a DAI is sustained, the long tail of axons break and rupture, then “curl[] up into a little ball . . .” and die. According to him, some people think that violently shaking a baby can cause a DAI because SBS is an “acceleration/deceleration” injury, but he did not believe that a person could shake a child with sufficient force.[23] He said that people generate only about 8 to 9 G forces shaking something with their hands and arms, but “you need somewhere around 250 or 300 G forces” to cause a DAI.[24] Biometrically, it did not make any sense, based on what was done in the laboratories, to think that simple shaking can cause that kind of injury to the brain. He also noted that people who sustain DAIs experience a rapid onset of symptoms, such as a loss of consciousness or obvious neurological deficits: “It’s like a light switch going out ” He did not think that B.D. sustained a DAI because there was no evidence of cortical atrophy, and the clinical course did not support it. Dr. Bux testified the following: On the 19th, which is two and-a-half days after she’s admitted, she’s transferred to the floor. She’s alert. She’s feeding. She’s moving. In the next few days she starts saying words, becomes more active. She’s discharged to rehab and by the end of rehab is walking and moving everything, and the only real deficits that are apparent are eye deficits which are a consequence of that part of the brain being lost due to the compression of that artery. There was some weakness that was found on the right side and again that goes with the same area of the brain, but that resolved fairly quickly, and the big thing is, she’s alert and eating and moving and progressing, and that’s not what you see with somebody with [DAI]. Those people stay in a coma for a long time. If they’re ever going to come out of it, they’ll slowly come out. They typically will stay neurologically devastated for the rest of their lives. * * * . . . Again, the areas that are defected by her are the areas that are just in that one area that’s ischemic from the pressure. The rest of her brain appears to be working normally and that would not be in keeping with somebody that had a [DAI].[25] Dr. Bux agreed that rebleeds can happen due to minor trauma or even spontaneously, and he agreed that falling in a bathtub is the type of “seemingly inconsequential” trauma that could cause a rebleed. Dr. Bux thought that B.D. sustained a subdural hematoma as long as four to five weeks before the incident and that it rebled spontaneously or due to minor trauma, eventually preventing blood from passing through the left parietal occipital region, which died as a result. He determined that the rebleed could have happened “anytime, certainly, up to 48 to 72 hours . . . .” before B.D. lost consciousness. The defense also called Mickie Roark (Applicant’s mother) to testify. She said that she was at the house when Applicant left to drive Bridgette to work the morning of the incident and that she left afterwards. The next time she spoke to Applicant that day, she said, was at about 1:00 p.m. when she called to see how B.D.’s doctor’s appointment went and to make sure that Applicant told Dr. Bala that B.D. was running a temperature the night before. Mickie next spoke to Applicant at about 3:00 p.m. to tell him that she was headed home but was stopping at the grocery store first. While they were on the phone, Mickie heard B.D. making noises in the background and asked Applicant to put B.D. up to the phone so she could hear B.D. better. When Mickie arrived home, three police officers were there. They asked to look around the house, including to take pictures of the bathtub and where B.D. slept and to measure the height of the bed off the ground. Mickie testified that she voluntarily let them in and that, while they were in the house, Applicant called. Mickie said that she told Applicant to tell the doctors everything that he could remember. Shortly thereafter, Mickie’s husband returned home, and they drove to Children’s Medical Center. When Mickie arrived at the ICU, she said that she saw Dr. Dietze talking to Bridgette and Applicant. He was telling them, according to Mickie, that he had just drained blood from B.D.’s subdural area that was “two and a half weeks old,” and Mickie said that she told Dr. Dietze that two weeks earlier B.D. fell and hit her forehead on the edge of their coffee table, leaving a mark. Mickie also said that she spoke to Dr. Murphy at Charlton Methodist and quickly realized that she had gotten only a “very brief history from Bridgette.” Mickie was a registered nurse and thought that Dr. Murphy also needed to know that B.D. had tubes inserted into her ears a week before and that B.D. developed two bruises on her head that were obviously thumb prints left where the anesthesiologist would have pulled back her head to sedate her. Mickie thought those things were important because B.D.’s bruising, in her experience, was abnormal for a toddler. She also wanted to ask Dr. Murphy if she was going to get a hematology consult “because [she] felt like this bleeding was very scary and not expected, I mean, unusual.” To Mickie’s knowledge, Dr. Murphy never consulted with a hematologist. Mickie testified that she told Dr. Squires about the coffee-table incident and ear surgery and that she also asked Dr. Squires to get a hematology consult, but she never did. Mickie said that, when she asked Dr. Squires if she was going to investigate possibilities other than SBS, Dr. Squires “[v]ery clearly” responded “absolutely not, she was finished.” Mickie also disputed J.D.’s testimony that B.D. cried every time Applicant picked her up, noting that she spent a lot of time with Applicant, Bridgette, and B.D. since they were mostly staying at her house, and she said that she would not have left B.D. alone with her son if she did not trust that he could take care of her. Applicant testified next. He said that he woke up at about 6:30 a.m. the morning of the incident, then woke up Bridgette and B.D. before driving Bridgette to work with B.D. After returning home with B.D., Applicant said that he laid down on the couch in the living room and watched television with B.D. until his mother (Mickie) called him around 9:30 a.m. to remind him about B.D.’s doctor appointment and that he told a nurse at Dr. Bala’s office that B.D. had a bad diaper rash, diarrhea, and a fever the night before. According to Applicant, he and B.D. left Dr. Bala’s office around noon, then he fed her ravioli when they arrived home, and his mother called while B.D. was eating. Applicant decided to give B.D. a bath, he said, because she had ravioli on her face and in her hair. Applicant claimed that this is when B.D. slipped backward while she was sitting in the bathtub and hit her head. Applicant also testified that B.D. cried but that he put her down for a nap because she quickly calmed down and was acting normal. Applicant testified that he checked on B.D. a few times while she was sleeping and that his mother called again at 3:00 p.m. to check in. Applicant said that, while he was on the phone with Mickie, he went into B.D.’s bedroom to wake her up because Applicant needed to pick up Bridgette from work, but he decided to leave her in bed a little longer and to watch television in the living room for 15 to 20 minutes because she was still tired. When he entered B.D.’s room to wake her up, Applicant said that he found her on the ground beside her bed. At first, Applicant thought that she had climbed down when he went into the living room to watch television, but then he noticed that she was face down on the comforter on the ground next to the bed. He said that she was limp and pale when he picked her up and that she had a little blood in her mouth. He thought that was because she bit her tongue. Applicant said that he immediately tried to rouse her, and he called 911 when he could not. That was at about 4:00 p.m. Applicant testified that he administered CPR while he was on the phone with the dispatcher, tilting B.D.’s head back, checking her airway for blockages, and blowing into her mouth three times. The State played the 911 recording, and Applicant identified at which point during the call that he began to administer CPR. However, the State continued playing the tape, and Applicant told the dispatcher a few seconds later that B.D.’s jaw was locked, at which point Applicant conceded that he could not recall exactly when he administered CPR. Bridgette testified that Applicant drove her to work with B.D. at about 8:00 a.m. and that she called Dr. Bala’s office about an hour later to schedule B.D.’s yearly checkup and because B.D. had a fever the night before. She also said that she called Applicant after she hung up with Dr. Bala’s office and told him about the appointment. She and Applicant spoke again at 1:30 p.m. when she called to see how the doctor’s appointment went. Applicant told her that everything was fine and that B.D. was eating ravioli. They next spoke between 4:00 and 4:15 p.m. when Applicant called and told her about B.D. and that she needed to go to Charlton Methodist Hospital at once. Bridgette said that she arrived at the hospital between 4:30 and 4:45 p.m. She could not visit B.D. in the ICU, but someone told her that B.D. was being transported to Children’s Hospital, and she rode in the ambulance with B.D. Bridgette said the doctors in the ICU at Children’s Hospital told her they needed a CT scan of B.D.’s head. She said that doctors showed her blood in B.D.’s cranial cavity and told her that it needed to be drained. Bridgette, Applicant, his parents, and his sister all waited in the waiting room with several other family members. Bridgette testified that four to five hours later, Dr. Dietze announced that the procedure went well, and she told him about B.D.’s ear surgery three weeks earlier and the bruising on her chest, jaw, face, and behind one of her ears after the surgery. She also told Dr. Dietze that a week after her surgery (two weeks before the offense), B.D. hit her head on a coffee table. Bridgette said that Children’s Hospital discharged B.D. to Baylor Rehabilitation Center, where B.D. stayed for about six weeks, before being discharged to attend outpatient rehabilitation. According to Bridgette, right before Applicant’s trial began, B.D. was learning to speak Spanish, was getting good grades, and was getting good reports from her teachers. Bridgette agreed, however, that B.D.’s “right [arm], it doesn’t — It doesn’t like to relax. It’s real stiff, but she moves it around. She’ll do flips and stuff, but if she’s just standing like this, her arms tend to stay up.” Bridgette testified that Applicant babysat B.D. alone only a few times and for only an hour or two at a time before she moved into the Applicant’s family home, but after he quit his job around the time of B.D.’s ear surgery, he spent a lot of time babysitting. She conceded, however, that Applicant’s mother (Mickie) was with him most of that time because she took leave from work to be with B.D. after the surgery. When asked whether Bridgette had noticed bruises in B.D.’s genital area, she said that B.D. had no bruising when she left that morning, which concerned her,[26] and when asked whether Applicant called her or 911 first, she could not recall. But when her memory was refreshed,[27] she agreed that she previously testified that Applicant called her before he called 911 and that he was “frantic” and “crying” when he called. She also remembered that Applicant told her that he lightly “shook [B.D.] to see if she was responsive” after he performed CPR. When presented with a diary entry, Bridgette claimed that she did not type it, but later admitted that she did. It read, Everything was going as expected on Wednesday, July 16th, 1997, until about 4:20 p.m. That is about what time I got a phone call from my fiancé stating that my little girl was unconscious and barely breathing. My heart fell to the floor, as well as my mouth. Tears automatically formed, building up a rapid speed. Panic and confusion just took over every action of my body. I wasn’t prepared to hear him crying on the other end of the phone telling me what he did. My main thought was what had happened. I told him to come get me, as stupid as realistically it really would have been. He hung up the phone. Everyone at work was in awe at my face, it being as white as a ghost and it being as still as a wall. I told them, my co-worker, what had been said. I noted the severity of the situation and what exactly happened. Then Ethel, my supervisor, brought it to my attention that him coming to get me would be stupid. I completely –[28] C. Closing Arguments The State argued that the defense’s rebleed theory was a hypothetical conjured by experts who never examined B.D. and that the argument that B.D. did not sustain a DAI was a red herring because none of the State’s doctors diagnosed B.D. with a DAI. The State theorized that Applicant snapped because he was caring for another person’s child, who was fussy and crying, had diarrhea, and threw food all over herself while she was eating ravioli. It also pointed out that Applicant said on the 911 call that he found B.D. five minutes before he called, That’s where the five minutes occur because no reasonable person is going to walk in and find a baby not breathing and immediately run to the phone and not call 911, unless you did something really wrong, unless you really screwed up and you know that you’ve hurt this child and you’re going to get in big trouble for it.[29] It also highlighted Dr. Squires’s rebuttal testimony that, when retinal hemorrhages are sustained during CPR, they are caused by the chest compressions, but Applicant testified that he never performed chest compressions. The State also attacked the credibility of Applicant’s witnesses. According to the State, Mickie and Bridgette lied to protect Applicant. Mickie lied about asking Dr. Murphy to run a specific hematology blood-clot test,[30] and they both lied about the coffee-table incident. The State also argued that no one claimed that B.D. had fallen and hit her head on a coffee table until Mickie testified[31] and that Bridgette lied about whether Applicant called her or 911 first, about whether Applicant shook B.D. when he was administering CPR, and about not writing the journal entry that appeared to implicate Applicant to at least some degree. The defense argued that Dr. Squires wrongly diagnosed B.D. with DAI, the type of injury that causes the immediate onset of neurological symptoms, because people who sustain DAIs do not recover as quickly as B.D. According to the defense, B.D. had a prior brain injury that spontaneously rebled or rebled after B.D. slipped and hit her head in the bathtub or after she rolled off her toddler bed, and the additional blood caused her brain to swell, leading to her injuries. It acknowledged that Dr. Bala gave B.D. a clean bill of health the morning of the incident, but it argued that the reason B.D. appeared fine was because her chronic subdural hematoma was not big enough to cause physical neurological symptoms. The tipping point at which the pressure in B.D.’s head began to increase and physical symptoms began to manifest, the defense claimed, was after the rebleed. PROCEDURAL HISTORY Applicant was convicted of injury to a child in March 2000 and was sentenced to 35 years’ imprisonment. He appealed to the Dallas Court of Appeals, raising eleven points of error, but the court affirmed his conviction. Roark v. State, No. 05-00-00584-CR, 2001 WL 1173916 (Tex. App.—Dallas Oct. 5, 2001, pet. ref’d) (not designated for publication). Applicant filed a petition for discretionary review, which we refused, and we denied relief on his initial writ application.[32] In August 2008, Applicant filed a second state writ application, which we filed and set for submission, but we later dismissed it at Applicant’s request once Article 11.073 became effective. Act of May 20, 2013 83rd Leg., R.S., ch. 410, § 1, 2013 Tex. Sess. Law Serv. 410, 410 (codified in the Texas Code of Criminal Procedure in Article 11.073). Applicant then filed his third writ application relying on Article 11.073. That application is the subject of this opinion. In December of 2014, the habeas court filed extensive conclusions of facts and recommendations of law recommending that we grant Applicant relief on both Article 11.073 claim and due-process grounds. TEX. CODE CRIM. PROC. art. 11.073; Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (per curiam). Applicant submitted additional supporting evidence after the findings were entered, and two days of live hearings were held. These hearings focused on the new science involving rebleeds of subdural hematomas. In April of 2019, the habeas court filed findings of fact and conclusions of law with the limited scope of reviewing rebleeds. This Court remanded the application back to the habeas court to fully brief all of Applicant’s claims. The habeas court subsequently issued agreed supplemental findings of fact and conclusions of law recommending, again, that we grant relief under Art. 11.073 and on due-process grounds. We filed and set Applicant’s third application for submission.[33] SUBSEQUENT WRIT BAR Section 4 of Article 11.07 prohibits this Court from considering the merits of, or granting relief on, a subsequent writ application unless the applicant can show a new legal or factual basis for bringing the claim or claims. Tex. Code Crim. Proc. art. 11.07, § 4(a)(1). There is no dispute that Applicant’s application is a subsequent one and that Section 4(a)(1) applies. A legal basis is unavailable if it “was not recognized by and could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state” on the date the previous application was filed. Id. art. 11.07, § 4(b). An applicant must allege facts that are “at least minimally sufficient to bring him within the ambit of that new legal basis for
