Ex Parte Spencer, 2011 Tex. Crim. App. LEXIS 541

Spencer was convicted of murder in 1987 and sentenced to 35 years; at retrial in 1988 he was convicted of aggravated robbery and sentenced to life, with the conviction affirmed on appeal.
Spencer filed a habeas corpus application alleging actual innocence, ineffective assistance, and Brady/ Mooney violations; an evidentiary hearing was held and relief was recommended.
The Court remanded for additional findings on whether Spencer raised a freestanding actual-innocence claim, whether the evidence was newly discovered or newly available, whether advances in science apply, and whether the standard of proof was satisfied.
The trial court found no merit to Brady, ineffective assistance, or knowing use of false testimony; it found some purported new evidence credible but concluded that, taken together with the old evidence, no rational jury would convict, and recommended relief on actual innocence.
The Texas Court of Criminal Appeals remanded for further findings on forensic-visual-science methods, Edwards’s testimony, and laches, ultimately reviewing and denying relief; the State argued the new evidence did not meet the strict standard for actual innocence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a freestanding actual-innocence claim is proper and provable.	Spencer asserts actual innocence based on newly discovered evidence.	State contends no proper freestanding innocence claim and evidence not newly discovered.	Relief denied; no affirmative, unrebuttable innocence shown.
Whether the newly discovered evidence meets the Herrera/Schlup standard.	Spencer relies on new forensic-science and witness-reliability evidence.	State argues evidence is not newly discovered or probative enough to undermine verdict.	Relief denied; evidence does not unquestionably establish innocence.
Whether Brady/Perjury claims or ineffective assistance were proven.	Spencer alleged Brady violation, perjured testimony, and ineffective counsel.	State disputes these claims and argues lack of probative new material.	Relief denied on these grounds.
Whether advances in forensic-visual science can create new grounds for relief.	New science shows witnesses could not see faces under conditions.	Advances are not testable against conditions at trial and are not newly discovered evidence.	Advances not sufficient to warrant habeas relief.

Schlup v. Delo, 513 U.S. 298 (U.S. 1995) (standard for actual-innocence Schlup claim; probable innocence needed to warrant relief)
Herrera v. Collins, 506 U.S. 390 (U.S. 1993) (actual-innocence standard tied to constitutional error and innocence proof)
Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996) ( Herrera-type framework for new-evidence claims in Texas)
Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App.2002) (affirmative evidence of innocence required before weighing old and new evidence)
Ex parte Brown, 205 S.W.3d 538 (Tex.Crim.App.2006) (affirmative-evidence standard for bare actual-innocence claims)