in Re Rene Pesina
07-15-00380-CR
| Tex. | Nov 25, 2015Background
- Appellant Rene Pesina was placed on deferred-adjudication probation in 1996 for indecency with a child (victim M.P., now M.M.).
- In 2015 Pesina filed an Article 11.072 habeas application asserting: (1) actual innocence based on a recantation by M.M.; (2) ineffective assistance of counsel; (3) involuntary plea due to counsel's failures; and (4) Brady violations.
- M.M. sent electronic messages stating Pesina "didn't do anything to me," but refused to sign a formal affidavit and retained counsel who declined contact; Pesina submitted the messages to the court.
- The trial court denied the habeas application and later denied a motion requesting an evidentiary hearing; Pesina appealed the refusals to hold a hearing.
- Pesina argues he made the requisite threshold showing of "affirmative evidence" of innocence (like Ex Parte Franklin) and therefore was entitled to an evidentiary hearing — including the ability to subpoena the reluctant recanting victim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to an evidentiary hearing on Herrera-style actual innocence claim | Pesina: submitted newly discovered written recantation (electronic messages) that, if true, is affirmative evidence of innocence and requires a hearing | State: trial court declined hearing (implicit: evidence insufficient or discretionary) | Appellant argues the court erred; urges de novo review and a hearing (relies on Ex Parte Franklin/Brown) |
| Scope of evidentiary hearing — include other habeas claims | Pesina: if entitled to a hearing on innocence, he should be allowed to develop all other grounds (ineffective assistance, involuntary plea, Brady) in same hearing | State: court excluded hearings on other claims by denying a hearing entirely | Pesina urges reversal so all grounds can be developed together for efficiency and fairness |
| Compulsory process to subpoena a reluctant recanting victim | Pesina: due process requires ability to subpoena victim to testify when victim made unequivocal statements of innocence demonstrable by substantial evidence | State: court refused to compel testimony (implicit: concerns about reopening finality, practicality) | Pesina argues refusal violated due process and article 11.072; requests rule permitting subpoenas in narrow circumstances |
| Standard of review for denial of hearing | Pesina: de novo review because the habeas judge was not the trial judge and entitlement to hearing is mixed law/fact question | State: trial court applied its discretion under art. 11.072 | Pesina urges appellate de novo review citing Ex Parte Franklin; court should evaluate entitlement anew |
Key Cases Cited
- Ex Parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (applicant must make a claim that, if true, establishes affirmative evidence of innocence before entitlement to an evidentiary hearing)
- Ex Parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002) (procedures for entitlement to a hearing on newly discovered evidence of innocence)
- Ex Parte Franklin, 310 S.W.3d 918 (Tex. App.—Beaumont 2010) (applicant who submitted victim's recanting affidavit entitled to evidentiary hearing to present victim testimony)
- Matthews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due-process balancing test — opportunity to be heard meaningfully)