Ex Parte Mello, 355 S.W.3d 827

Mello pleaded guilty in 1994 to indecency with a child by contact with deferred adjudication community supervision; he was released from supervision in 1998.
In 2009, Mello sought post-conviction habeas relief under article 11.072, alleging newly discovered evidence shows actual innocence.
A January 2010 habeas evidentiary hearing occurred; the habeas court issued findings and denied relief in May 2010.
Newly tendered evidence included J.A.L.’s June 2009 affidavit and related 2009–2010 affidavits/testimony by Montgomery, Tomlin, and others suggesting Mello was not the person identified as “Jimmy.”
State submissions showed contemporaneous references to Mello as “Jim/Jimmy” in older documents and photos; defense relied on evidence that the refrigerator of identity pointed to another individual.
The appellate court affirmed, holding no abuse of discretion and that Mello failed to prove actual innocence or that the new evidence would have prevented conviction when weighed against the old evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mello proved affirmative innocence under Herrera	Mello argues newly discovered evidence affirmatively shows innocence	State contends evidence fails to establish affirmative innocence	No; habeas court did not abuse discretion, no affirmative innocence established
Whether the newly discovered evidence would convince a reasonable jury	Mello contends new affidavits would negate old inculpatory evidence	State maintains evidence does not overcome old proof beyond reasonable doubt	No; record supports court’s conclusion that new evidence would not compel acquittal
What is the proper standard of review for 11.072 proceedings	Mello relies on Herrera-based framework	State emphasizes Garcia and appellate deference to habeas findings	Deferential abuse-of-discretion standard; affirm denial unless abuse shown

Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (actual innocence claims based on newly discovered evidence are cognizable)
Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002) ( Herrera-style, requires affirmative innocence and clear-and-convincing showing)
Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) (guilty plea considerations in innocence review)
Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) (new evidence weighed against old proof; innocence standard)
Ex parte Garcia, 353 S.W.3d 785 (Tex. Crim. App. 2011) (higher court guidance: 11.072 context; trial judge as sole finder of fact)
Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005) (explain tear-down of old vs. new evidence balance)
Ex parte Karlson, 282 S.W.3d 118 (Tex. App.-Fort Worth 2009) (deference to habeas court findings in 11.072)