Ex Parte Elizondo

The court on the district dismissed the suit grounds University, agency, that the state TEXAS UNIVERSITY OF immune from all claims. suit on Ntreh’s DALLAS, Petitioner, AT appeals University The court of held that the v. is immune from suit on Ntreh’s federal statu tory claim but on his breach of contract NTREH, Respondent. Abraham Nee statutory and state claims. 936 649. S.W.2d No. 96-1316. University appeals only the re from mand of Ntreh’s claim. The Uni contract Supreme Court of Texas. immunity versity’s supported assertion of June 1997. today Sign our decision Federal — University, Texas Southern S.W.2d — (Tex.1997). explained For the same reasons there, hearing argument, without oral grant application University’s for writ modify judg of appeals’ error and the court for ment to affirm dismissal of Ntreh’s claim Tex.R.App.P. breach of contract. 170. ELIZONDO, parte Ex Joe Rene Applicant. 72235.

No. Texas, Appeals Court Criminal En Banc. 18, 1996.

Dec. Dissenting on Denial of Opinion Rehearing Judge Womack June Pinson, Morales, Austin, B. Dan James for

Petitioner. Rich, Dallas, Frazin, Alan

Shawn M. B.

Respondent.

OPINION CURIAM.

PER Ntreh, undergraduate

Abraham at the Dallas,

University was found of Texas University disciplin- in a

guilty plagiarism

ary proceeding expelled. Ntreh sued University breach contract and for national) (Ntreh is a Ghanan

discrimination

in violation of state federal statutes. in a applicant was convicted pun His aggravated sexual assault.

trial of in the confinement ishment was assessed $10,000.00. life and a fine penitentiary for Eli Appeals affirmed. The Ninth State, (Tex.App.— 65 697 S.W.2d zondo refd). 1985, year, But PDR last Beaumont mainly re testimony was witness whose convicting applicant recanted. sponsible for result, filed instant has As that evi petition alleging available to be innocent of the crime shows him dence which he convicted. for was I. threshold,

At we decide whether the Due Process Clause the Unit forbids, just not ed States Constitution execution, as well of an but the incarceration pause long person. innocent We need Although it question. is some answer this requires es times said Due Process reliability pecially high in mecha level sentence, leading to a death Beck v. nisms Alabama, 625, 100 447 U.S. S.Ct. 2382, 2389-90, (1980), it is 65 L.Ed.2d reasonably entertain clear the basis ing posteonviction claims of actual peculiar capital innocence not eases. As in Herrera v. Court observed Beaumont, Barlow, Douglas appellant. Collins, upon holding which we based McWilliams, Rodney Conerly, Paul Asst. Holmes: Beaumont, Mallín, Attys., Dist. M. Charles Eighth and Petitioner asserts that Worth, Paul, Atty., Asst. Dist. Fort Matthew to the Fourteenth Amendments United Atty., Austin, State’s for State. prohibit the States execution Constitution person crime who is innocent proposi- This for which he was convicted. appeal, has tion an elemental would OPINION the Constitution proposition similar MEYERS, Judge. prohibits imprisonment of one who innocent the crime for which he was Ap State ex rel. Holmes v. Court of all, purpose After central convicted. peals, 389, (Tex.Crim.App. 885 S.W.2d any system justice is to of criminal convict 1994), accepted proposition we that the guilty and free the innocent. person “execution of an vio innocent would 853, 859, late the Due Process Clause the Four (1993). L.Ed.2d Thus Herrera’s teenth Amendment to the United Con States exacting a more standard should stitution” and announced that this Court applied he be in his case because was con- begin postconviction appli entertain express- fined under a sentence of death was alleging cations for the corpus writ of habeas ly rejected by the Court. independent actual innocence ground as an for relief. The instant cause comes to us on Petitioner asserts that this case different one application. such because sentenced to been petitioner’s claim not II. [But] death.... imposing error that some made was “in to be held that order him, capital upon sentence but a fun- inno- a claim factual entitled to relief on finding error made in him damental was cence must show that based guilty underlying of the murder the first and the entire strange juris-

place. It would a rather be him, no jury that record before circumstances, prudence, in these could rational trier of fact find that under held our Constitution he could doubt.” S.W.2d reasonable executed, spend that he could but However, application stan- no life prison. the rest of his dard was made that case because petition no for the writ 506 U.S. S.Ct. at pending this Court at that time. before 122 L.Ed.2d at 219-20. context, therefore, present more com- the explanation role and of plete of this Court’s represent These remarks the of at views of an the criteria use to assess the merits we justices, including five Justice least O’Connor is actual innocence claim indicated. who, although concurring she opinion filed a joined by Kennedy, in which she was Justice outset, anomaly in perceive At the we an joined opinion the of the Court. Like- also which the ulti- opinion, describes Holmes wise, recognize the seem to no dissenters actual mate for relief criterion under significant in difference between cases which as if our task were to decide innocence test penalty the death been assessed guilt support a whether the evidence of could actually in person cases which innocent light in of the discovered conviction merely has been incarcerated. Such evidence of innocence. characterization because, if relief misleading corpus is habeas challeng- Whether is viewed as upon finding that no is to be conditioned simply ing death sentence also applicant af- rational could convict the detention, challenging continued he still is ter introduction of right punish him.... [T]he State’s dence, impossible for theoretically it becomes legitimacy punishment inextricably any burden habeas sustain his guilt. entwined with out- exculpatory evidence can never because 433-34, 113 506 U.S. at S.Ct. at weigh inculpatory evidence this stan- under (Blackmun, J., Holmes, 122 L.Ed.2d at sufficiency. 238 dissent dard of See 885 S.W.2d (Clinton, J., ing). dissenting). at 417-18 excerpts clear think it from these We legal sufficien we conduct a When person the incarceration an innocent is as prescribed ey-of-the-evidenee review as Due Process much a violation Clause Virginia, Jackson v. person. the execution of It as is such (1979), weigh we do not L.Ed.2d claims, are follows that of actual innocence tending guilt to establish the evidence postconviction cognizable in a this.Court in tending against the evidence to establish corpus proceeding pun whether credibility of assess nocence. Nor do we assessed is death or confinement. ishment the evi on each side. view witnesses We raise In either such claims issues of in favorable to the verdict dence a manner magnitude. parte constitutional Ex federal practice, this we assume guilty. means Bravo, S.W.2d lightly exculpatory jury weighed that the (Tex.Crim.App.1982)(habeas will lie to entirely excul disbelieved evidence and jurisdictional review and constitutional de assumption patory We make this witnesses. conviction). judgment in a To the exculpatory fects evi powerful matter no how Binder, parte that Ex 660 S.W.2d 103 extent us or credible may seem to how dence parte May, may appear. incul (Tex.Crim.App.1983) and Ex If the defense "witnesses standing enough for (Tex.Crim.App.1986) patory are to the alone is evidence S.W.2d in people rational to believe contrary, expressly overrule them. we defendant, course, any person simply we do how much Of who has once not care evidence is on the other side.1 finally credible been a fair should wage, permitted to and we not be do course, lately Of we have come to permit wage, him to collateral attack appeals hold that the do have au courts making exceeding conviction without thority sufficiency to conduct factual reviews ly persuasive inno case appeal, on direct and we have indicated that insist, entirely cent. It is thus reasonable authority, capital have also such cases insist, we continue to that an exculpatory may on a claim of actual relief based weighed against inculpatory evidence. Clew State, that the innocence must “demonstrate 922 S.W.2d 130 & 136 true, (Tex.Crim.App.1996). kind evi creates doubt But this dentiary quite review is different from that efficacy verdict sufficient which the is examined to determine confidence the verdict and that undermine whether, viewing it in a most favorable probable would be dif verdict verdict, any rational trier of fact could Holmes, [on ferent 885 S.W.2d retrial].” guilty have found the defendant rea hold, But it is reasonable to and we Indeed, sig sonable doubt. one of the most reject implication of confi nificant between the so-called differences in a undermined dence verdict is when “legal” or “factual” the so-called “consti newly the discovered evidence renders sufficiency-of-the-evidence tutional” stan constitutionally legally case or insuffi State’s permit dards is that the latter does not a cient for conviction. weighing inculpatory against exculpatory of evidence. expres- unusual In we took this directly from sion of the standard Justice Because, evaluating a habeas Byron concurring opin- perfunctory White’s newly or discovered available evidence Holmes, 885 ion in Herrera v. Collins. proves the innocent of the be at In Herrera 398-99. S.W.2d convicted, for which was is crime he task death because sought to reverse his sentence the the probable impact to assess of years later to some witnesses came forward upon persuasiveness of available evidence the justices the implicate his brother. Most of whole, the case as a we must neces State’s White, Court, including re- Supreme Justice weigh sarily exculpatory such evidence of actual to hold that Herrera’s claim fused against the adduced at trial. evidence independently cognizable in a innocence Virginia v. of eviden The Jackson standard Indeed, proceeding. tiary simply appropriate to federal habeas sufficiency is not ques- specifically purpose. they declined to decide this First, recently under Jack- 1. has stated that to the Jackson standard.... son, credibility assessing of the appropriate the of the Jackson is not claims of assessment scope generally the of re- based on new evidence and actual innocence witnesses contrast, coupled standard] with claim of constitutional error at [Carrier a view. In under the 298, 330-31, Delo, Schlup may newly presented v. 513 U.S. call trial. evidence indeed 868-69, 808, 851, L.Ed.2d 838 115 S.Ct. 130 question credibility the witnesses into trial_ (1995), [Further,] ÚieJack the Court differentiated between presented [u]nder at Jack- set forth in Mur son, son standard and the standard question trier of fact has whether the Carrier, 2639, 478, ray S.Ct. 477 U.S. finding guilt requires a power to make (1986), governs the miscar L.Ed.2d binary response; has either the trier fact justice applicable petitioner riage inquiry to a it does not.... power as a matter of law or to death raises who been sentenced Thus, Jackson, though mere under existence showing exception to a innocence as actual would be deter- evidence convict of sufficient prejudice in a writ. Under cause and successive claim, petitioner’s true not minative of Carrier, petitioner must that "a constitu show Carrier. under probably resulted in the con tional violation has 868-69, Schlup, S.Ct. at 513 U.S. at of one who is innocent.” viction added). (emphasis Justice 130 L.Ed.2d at 838 Schlup, S.Ct. at 513 U.S. at separate expressed in a also the view O’Connor explained: at The Court L.Ed.2d opinion be ill-suited as that Jackson "would proof.” requires Id. at Though burden of the Carrier standard a sub- (O'Connor, concurring). equivalent showing, L.Ed.2d at 840 it is no means stantial applicant’s proof in plainly describing burden of tion because facts showed Herr- guilty any proceeding era to be of the crime under he does not a collateral where that, simply rationality standard. The Court of a reasoned attack factfinder’s verdict. hand, if it were even unconstitutional execute fn Justice supra. See On other person, it formulation, innocent would not be unconstitu- it focuses Blaekmun’s because tional to execute Herrera since was not proof, directs the on the burden of innocent. court, factfinder, weigh the new- discovered, against ly exculpatory evidence view, White, subscribing to this Justice inculpatory evidence offered at trial writing only for and without elabora- himself affir- purpose determining whether tion, petitioner, surmised a habeas even matively be innocent. shows the standard, generous the most under would at Thus, Blackmun continues: Justice required least be that no to show rational could have convicted him in peti- placing the burden on the Because Clearly, newly discovered evidence. what pre- prove tioner to innocence creates that, Justice White meant this to sus- valid, it sumption that the conviction is innocence, a tain a claim of actual necessary appropriate to make fur- should, minimum, able reliability presumptions ther about persuade the court that the new evidence generally. guilt. a reasonable about raises doubt Rather, charged deciding court White, According to Justice Herrera had not case-by-case such a claim should make a approached per- even minimum level this reliability about determination suasion, necessary it was so to consider evidence under the cir- persuasion level what further would have weigh The court should cumstances. then required for prevail been him to mer- prisoner in favor of the its. against guilt. of the evidence his Obvious- justices But the three who would have ly, stronger prison- the the the evidence of granted partial Herrera relief did address guilt, persuasive er’s the more the justices, question. Writing the for these Jus- discovered evidence must be. argued: tice Blackmun fitting approach more to Id. This is a far the government prov- bears the burden of issues, focusing factual on the resolution of ing guilt beyond a the defendant’s reason- quantum proof required of for an burden and doubt, government able but once the has finding in the instance rath- affirmative first so, proving the of done burden innocence er than standard associated with a on the to must shift the convicted defendant. finding. review of that Accord- deferential inquiry The actual-innocence is therefore that, ingly, hold exercise of our we now the sufficiency distinguishable for from review jurisdiction arti- postconviction habeas under question the the not of where is of cle 11.07 11.071 the Code of Criminal the whether defendant is innocent Procedure, job jury’s is not review the to has government but whether met its dis- verdict but to decide whether proving the constitutional burden of defen- covered would have convinced the guilt dant’s a reasonable doubt. jury of applicant’s innocence. challenge a defendant When seeks of after he determination has been is, question what level of The further sentenced, validly it is convicted and fair to have must court confidence proving him place on the burden his met concluding that his innocence, just raising doubt about his Blackmun and those who burden. Justice guilt. joined suggested him in Herrera that “to Herrera, 506 U.S. at 113 S.Ct. at innocence, obtain on a claim of actual relief (Blackmun, J., dissenting) at 244 122 L.Ed.2d petitioner probably show must that he (citations omitted). has since innocent.” But the applicable reflection, higher acknowledge now indicated that a standard On Herrera-type claims. is not a suitable standard for that Jackson (O’Connor, J., Delo, 874], Schlup [at 122 L.Ed.2d 203 (1995), petitioner concurring). 130 L.Ed.2d 808 ' in an a claim of actual innocence effort raised contrast, accompanies Schlup, his bring himself within the “narrow class of with an assertion of claim innocence miscarriage impheating cases” fundamental For that rea- constitutional error trial. justice exception showing as an to a son, Schlup’s may not conviction be enti- prejudice cause and for failure to raise the one, degree respect to the tled same claim in an earlier writ. The Court took Herrera’s, product such as of an pains Sehlup’s distinguish between claim any trial. error-free Without new presented petitioner in and the claim innocence, even the of a dence of existence Schlup’s claim of Herrera. innocence did concededly meritorious constitutional viola- relief, provide a but tied alone basis not in sufficient to a tion is itself establish showing a of constitutional error trial. miscarriage justice that would allow had Herrera’s claim of actual innocence noth- reach the habeas court merits ing leading proceedings with the to his to do However, petitioner if a barred claim. conviction; simply claimed that execution presents of inno- Schlup such as Eighth an innocent man would violate strong that a have cence so court cannot expounded upon The Court Amendment. confidence in the outcome trial un- situations, the differences between the two also that the trial less the court is satisfied emphasizing greater that must be burden er- was free non-harmless constitutional prevail borne in order to in a naked claim of ror, may petitioner pass through actual innocence: gateway his argue the merits of under- Schlup’s thus in at two claim differs least lying claims. important ways presented from Schlup’s Consequently, evidence of inno- First, Schlup’s claim of inno- carry less a burden. cence need provide by itself cence does not basis (on assumption petition- Herrera Instead, relief. his claim for relief de- was, principle, legally well- er’s validity pends critically his founded), evidence of innocence would Brady Schlup’s Strickland and claims. strong enough to had to make have “not claim of innocence thus itself “constitutionally intolerable” execution claim, gateway but constitutional instead of a product was the even conviction through which a habeas must Schlup, trial. the evidence fair For pass to have his otherwise barred constitu- his to doubt about establish sufficient the claim considered oh merits.” tional justify his execution the conclusion that [404], at 506 U.S. S.Ct. 853 justice miscarriage a unless of would 862], 303; [Schlup 122 L.Ed.2d see also [at of a fair product his conviction was the [(8th [738], Delo,] 11 F.3d at 740 Cir. trial. 1993)]. question about the ... If no there were importantly, assumptions a court’s More trial, a Herrera- criminal fairness the validity proceedings the that about fail unless the type claim would have to fundamentally in are resulted conviction court itself convinced federal habeas in Schlup’s in case than Herr- different estab- unquestionably that those facts new Herrera, petitioner’s claim was era’s. Schlup’s innocence. On other lish assumption that the trial evaluated on the hand, merely were habeas court had resulted in his conviction been

that facts raised suffi- that those new convinced peti- In such a when error-free. guilt to Schlup’s under- cient doubt about jury of his has been “tried before tioner in the of the trial mine confidence result protections peers, panoply full with the was that that trial without assurance affords criminal de- that our Constitution error, Sehlup’s by fendants,” U.S., [419], untainted constitutional at 113 S.Ct. 853 jus- showing of innocence would 870], threshold appropriate 122 L.Ed.2d it is [at the constitu- tify the merits of “extraordinarily high” a review of an stan- apply Id., [426], 113 S.Ct. 853 tional claims. at dard of review. light him ror have convicted 861- would

Schlup, U.S. at 115 S.Ct. at (footnotes evidence. omit- new L.Ed.2d at 828-29 ted). clear This discussion makes words, “unques- interpret In other high applies to as- exceedingly standard language to mean the tionably establish” of actual innocence sessment claims convincing.” “clear and thing same as by accompanied a claim constitu- are not appli- important It is remember the trial has tional error trial. Where petition cant’s this case habeas error-free, constitutionally a conviction been jury’s Nowhere does attack on the verdict. respect. ha- greatest to the is entitled invalid or that the verdict is that the “new beas court be convinced What he wants should be invalidated. appli- unquestionably' [the establish facts new trial based innocence.” Id. cant’s] proves claims his innocence. We which he cognizable a claim have held that such

Accordingly, we to the views of the adhere in- punishment of an Court, corpus because Supreme expressed Schlup, Due claim, person nocent violates the Process a Herrera-type case of United States Constitution. Clause of the [the] habeas court must be “convinced that Consequently, if S.W.2d 389. unquestionably appli- [the facts establish new prove by elaborate, can clear and Schlup innocence.” did not cant’s] Court, in however, to this the exercise its as to level of confidence invoked jurisdiction, would by phrase “unquestionably of the use estab- acquit him on his higher But we based lish.” know that it is level not,” is entitled relief. We turn likely of confidence than “more than now to adduced applicable a consideration since that is the standard by applicant purpose for that in the instant Schlup-type claims. the context of a cause. Schlup-type claim the Court ex- “petitioner

plained that a must show that the error ‘probably’

constitutional in the resulted III. conviction of one who was innocent.” aggravated Applicant’s convictionfor Id. at L.Ed.2d at assault, validity which is sexual here (setting standard, forth Camer challenged, testi solely upon based was applicable later held Schlup type was Robert, mony step-son of his one claims). The Court further articulated the alleged inculpatory in that case. This victims “probably resulted” standard as follows: given in testimony was court both hearsay report victim himself and must show that is more step-mother police and of a officer who likely than not that no reasonable complaint investigate dispatched have him in the sexually explicit step-mother. made A the new evidence. picture by and a drawn Robert at school 327, 867, at 115 at 130 Id. S.Ct. L.Ed.2d at sexually by him suggestive note written to “probably resulted” and “more also re one his female classmates were likely interpreted not” language than was to it the seizure ceived in evidence because was essentially thing. ques- mean the same during by of these items the child’s teacher is, HerreraAype present- in the situation tion subsequent inter precipitated class that here, required what level of confidence is ed by rogation father and the of Robert his “unquestionably implement establish” to eventually police, leading to the criminal Schlup language. We know from prosecution aggravated sexu “extraordinarily high” standard. must be However, drawing al assault. neither the Id. at S.Ct. at L.Ed.2d nor the that the child note intimated We hold that in the case a Herr- at 828. assaulted, sexually either had been abused or innocence, era-type claim actual by any person. No by or other incriminating or by offered and other was must show clear convincing ju- received at trial. evidence that no reasonable was, McCORMICK, P.J., WHITE,* testimony might

Robert’s be ex- and clearly MANSFIELD, KELLER, JJ., pected, perfunctory. But it state to did and dissent younger and his brother Robert were opinion. this sexually explicit both to video- made view BAIRD, concurring. Judge, tapes by appli- their natural mother and Ap In State ex rel. Holmes v. Court of cant, also, husband. The were her children (Tex.Cr.App.1994), peals, we 885 S.W.2d trial, testimony at according to the adduced vehicle, appropriate is held habeas perform applicant, made on to have to fellatio cases, capital to assert claims of factual oral contact with their mother’s sexual evi innocence on based breasts, and to have anal intercourse both Id., Today, the at 398. dence. 885 S.W.2d They applicant. mother with their and with majority holding old, extends Holmes eight years respectively, were ten and majority non-capital Additionally, the eases. allegedly the time these events occurred. adopts standard and alters Holmes later, years It is more than now thirteen Supreme standard announced grown and Both now the children are men. Delo, 298,115 in Schlup v. S.Ct. U.S. testimony given by Robert at (1995). 130 L.Ed.2d 808 Because the stan They say trial false. that their natural was from dard Holmes was derived Herrera relentlessly manipulated father and threat- Collins, 390, 428-29, allegations making into ened them such (1993)(White, J., con L.Ed.2d against against applicant in order retaliate time, problem, I curring), have no this mother, ex-wife, marry- their his natural altering our standard follow course, applicant years ing before. Of we juris of “actual innocence” Court’s evolution cannot know all doubt whether this join majority prudence. Consequently, I father, allegation is true. Them is still who opinion. testify, it. But their alive and able denies face, implausible par- and claim not on its why separately explain I I believe write ticularly complete any given the lack of other “by applicant has shown clear ease, inculpatory evidence in the direct have would no reasonable circumstantial, jury that another think him in oí the new evidence.” hearing including the Ante, 947 S.W.2d at entitled to habeas of Robert’s discovered mature recantation relief. testimony, new juvenile would view the acquit the more credible and would dence as I. court, applicant. The which had the A. The Trial witnesses, opportunity to concluded view charged aggravat- Applicant falsely had at trial. The that Robert testified ten-year-old stepson, ed assault of his sexual finding the recanta- supports record only presented At the State Robert. trial case more credible than the tion this teacher, Robert, his school four witnesses: testimony Robert’s recantation trial was. policeman. The testi- stepmother his testimony impli- his voids parents were mony that Robert’s indicated affirmative applicant, cated but constitutes re-married and Robert divorced. Both later We are applicant’s innocence. evidence of He stepmother. convincing evidence lived with father and clear and convinced convict him on alternat- that no rational visited his mother Accordingly, ap-' Robert, light of ing According the new evidence. weekends. mother, plicant entitled to relief. applicant, these'weekend visits “dirty mov- watched Robert his brother Department Texas The Director engaged ies” and Robert and brother is, Justice, Division Criminal Institutional applicant. oral with mother and sex their therefore, applicant to the ordered to return of his that sometimes friends Robert testified custody county from which was of the participate. applicant mother and charges may answer the received so that he after Rob- discovered These matters were against him. * J., WHITE, right opinion. a written reserves the to file sexually explicit applicant

ert’s teacher obtained a note and their mother are innocent since by sexually written Robert as well as a ex- 1990.

plicit drawing. testimony ap- Based on this plicant aggravated was convicted of sexual Judge’s Findings D.The Habeas assault and sentenced to confinement for life hearing application, After the on this $10,000.00. and fined entered, alia, Judge inter the follow- ing findings of fact: Application B.The Habeas testimony 3. ... [T]he [Robert] was application, applicant his -writ contended part critical and substantial of the evi- testimony Robert’s was false and that there upon ap- dence which the conviction of newly exists discovered evidence of inno- rested, plicant since said child witness cence. application supported by was complaining was the actual witness affidavits wherein Robert and his brother allegations related at trial who sexu- stated that neither appli- their mother nor by applicant. al assault sexually Rather, cant ever assaulted them. newly 4. The Court finds that their natural father forced them to make the evidence exists which demonstrates the charges against earlier ap- their mother applicant factual innocence of plicant through physical threats of violence. aggravated offense of sexual assault of perjured The brothers stated Robert himself which he stands this applicant trial and that is inno- cause. cent. 5. ... [T]his Hearing

C.The Habeas to-wit: the statements made [Rob- At hearing, the writ Robert through and his broth- from 1990 the time of the ert] they er engaged evidentiary hearing testified never in sexual acts in this cause cre- applicant. with their mother or efficacy When Rob- ates a to the doubt as drawing ert’s teacher discovered the verdict sufficient to undermine confi- note, stepmother. she notified Robert’s Af- dence the verdict and that verdict discussing ter drawing the note and would be different in a new trial. Robert, police Robert’s father notified the boys they and ordered both to state had testimony by ... ... [T]he [Robert] engaged in sexual acts with their mother and uneontroverted. The Court therefore applicant. Robert’s father threatened to finds clear and spank boys every day for the rest of their falsely testified in Au- [Robert] they lives if did not make these statements.1 gust, at the time of the trial of father, boys were afraid of their who cause, primarily upon this and it was repeat forced them to their statements over testimony the false [Robert] tape and over into a recorder until he was was convicted this cause. angry satisfied. Robert’s father was with his promised get ex-wife and often back at her 8. The Court finds that were to way “one or another.” testimony consider the entire record of original jury and evidence before the they The brothers testified did not realize cause, rendered verdict this their prison mother and were in and the discovered evidence ... years until Robert was fifteen sixteen old no rational trier of fact could find letter, mother, and found a written their guilt beyond a reasonable doubt. addressed to their father. On his seven- birthday, teenth Robert left his father’s 9. The Court further finds that the Thereafter, home. Robert informed the Pa- ... was necessari- testifying ly role Board that he lied when at his unknown to at the time of trial mother’s and that his mother inno- ... the “failure” to discover such cent. The brothers have maintained that evidence was not due to a want 1. Robert’s brother testified that their natural fa- ther beat them.

212 2)

diligence part applicant trial; on the ... ent in a new that the discover- cumulative, merely not and corrobora- ed evidence is and that uncontroverted Rob- tive, collateral, impeaching.... or falsely applicant’s ert testified trial and testimony ... probably applicant primarily [T]he will upon was convicted this 3) bring and, testimony; about different result on anoth- false trial er of this cause. to applicant evidence unknown at the time of and his failure to it discover upon findings, Based these Judge the habeas diligence. was not due to of due want applicant concluded was entitled relief and supported These factual are determinations grant recommended that this Court the relief and, therefore, by the record should be ac- by requested applicant. Turner, Court, cepted by supra, this and is entitled relief. II. Due Deference III. by “findings,

We are bound conclu- or sions recommendations of trial court The Burden of Proof postconviction reaching appli- a decision on a accept Even if we refused to the habeas corpus.” parte cation for writ of habeas Ex fact, Judge’s findings applicants never- Bates, 894, (Tex.Cr.App. 640 S.W.2d Schlup, theless entitled to relief. Under su- 1982). However, hearings, in habeas “by pra, applicant must show clear and con- judge is the fact who determines the finder vincing evidence that no reasonable credibility of the witnesses and we defer to light have convicted him the new findings by they supported if are those Ante, Clear at 209. evidence.” S.W.2d Turner, parte record. Ex 545 S.W.2d convincing intermediate and evidence (If (Tex.Cr.App.1977) judge’s the habeas proof which falls between the standard record, findings supported are of fact ordinary “preponderance civil Court.”). “they accepted this should be “beyond and standard our usual dence” Adams, also, parte Ex 768 S.W.2d See in criminal cases. reasonable doubt” standard Moore, parte (Tex.Cr.App.1989). In Ex (Tex. Addington, v. 588 S.W.2d State (1939), we Tex.Crim. 126 S.W.2d 1979). is de- Clear and stated: degree fined “as that measure ruling judge the trial ... Where of the trier of produce will the mind .in depends upon the existence or non-exis- to the truth or conviction as fact a firm belief testimony pro of a certain fact and tence established.” allegations sought be and the evi- and is introduced thereon con review that we must It is this Ibid. duty of conflicting it becomes the dence is determine all of the issue, and judge to determine the trial met his burden. that his appears to this court unless pre- original State trial the support in the evi- finding was without teacher Robert’s four witnesses. sented dence, an error he had committed and that explicit sexually note finding thereon, testified judgment we would in his and Robert’s drawing. police A officer and findings thereon. Glenn interfere outcry state- Robert’s stepmother related State, S.W. Tex.Crim. alleged assault. concerning the sexual ments [Emphasis added.] he and his finally, Robert testified And Id., at 28. 126 S.W.2d aggravated ongoing victims were brother case deter- judge in the instant The and by their mother sexual assault 1) following: mined the the re- evidence is newly discovered made statements to-wit: his brother. testimony of Robert hearing, cent through writ from 1990 Robert aggravated alleged testified efficacy of the Both as to the a doubt created that Rob- never occurred assault in sexual confidence to undermine sufficient verdict se- perjured and testimony was ert’s trial differ- that verdict would the verdict through considerations, appli- cured the intimidation of and on Robert Based these by seeking his brother their cant relief based on a claim of inno- father. cence should have to “demonstrate that considering When all of this evidence in evidence, true, creates a light agree of the new I with the efficacy doubt as to the of the verdict suffi- majority that no reasonable would have in cient to undermine confidence the verdict applicant. probable and that it is that the verdict would comments, join majority With I these Holmes, rel. be different.” State ex opinion. made, showing If S.W.2d at 398. this give habeas court must a forum WHITE, Judge, dissenting. opportunity present and an evidence. Ibid. Because the district court held a hear- majority they by states “are convinced innocence, ing applicant’s claim of it needs clear and evidence that no ration- only proof to be determined what burden of jury al [applicant] would convict him in satisfy relief. to obtain habeas of the new evidence.” Because I believe the majority incorrectly applicant’s case, evaluates majority In the instant revisits innocence, post-conviction claim of I dissent place the discussion of Herrera that took in grant to their applicant. decision to relief so, doing majority Holmes. chooses proof proposed to resuscitate the burden of applicant’s process An right pursue due in in Justice Blackmun his dissent Herr- freestanding a claim of discovered evi era, rejected by majority which was a innocence, dence of which meets the thresh members of the in Herrera and Court “truly persuasive” old standard for a demon majority of the members of this Court stration of innocence under the standards set Holmes, and breathe new life into here. out in Ap State ex rel. Holmes v. Court of cause, majority In the instant elevates peals, (Tex.Cr.App.1994), 885 S.W.2d 389 in a position being itself to the the thirteenth non-capital felony post-conviction case at the juror, overseeing applicant’s post-conviction stage necessarily extraordinarily demands an claim of innocence to determine whether the high showing of innocence. First and most newly discovered evidence convinces them of important, primary the criminal trial is the majority ig- innocence. The event determining guilt A innocence. precedent nores both the of this Court given criminal many rights defendant is principle of stare decisis to achieve the person ensure an innocent will not be con they result desired. Many rights victed. and resources have been concentrated at that time to decide This Court should adhere to the standard Collins, Holmes, or innocence. See Herrera v. set down State ex rel. wherein 390, 401-03, 853, 861, very high U.S. 113 S.Ct. this Court discussed the need for a (1993). post-conviction proof L.Ed.2d A burden of for a claim of factual inno- cence, already relying been accorded on Hen'era that such a claim “ protections provided by required truly persuasive the various the Con ‘a demonstration ” stitution which seek to ensure that the inno of actual innocence.’ 885 S.W.2d at 398. cent will not agreed high be convicted. And he has been this that a doubt, guilty beyond proof necessary found reasonable burden of because an jury. Thus, appli constitutionally this conviction otherwise valid legally guilty person, easily cant is a not an inno should not be set aside. This Court cent one. See at that an individual “must show that concluded (O’Con L.Ed.2d based on the nor, J., Second, concurring). before the that con- a state has entire record him, strong punishing guilty of fact could find interest victed no rational trier Therefore, finality judgments. guilt beyond of its it is a reasonable doubt” for only truly extraordinary relief. Id. at 399. It case should the individual to obtain post-conviction merit claim of the rare ease which should be able to review on proper high meet this so as to accord innocence. burden justice is in respect system through there “clear and evidence” to already “unquestionably for applicant which a habeas has trav- the record to establish” applicant doing granted rights and is innocent.1 In eled been numerous de- them so, majority evidence that was signed protect to the innocent from convic- the overlooks presented opinion, majori- the apply burden of at trial. its tion. We should the same any non-capital “complete a lack of ty to cases as we established states there was capital inculpatory evidence in the direct for cases because the considerations other states, majority underlying in the criminal or circumstantial.” The confidence authority, think” respect finality judgments the citation of that “we due without hearing new evi- apply non-capital setting. jury applicant’s in the must also another Therefore, applicant. Essentially, post-conviction acquit in dence would obtain relief innocent, non-capital majority is felony applicant a the thinks individual should be wholly subjec- required that based on the has chosen substitute show jury judgment judgment the and the entire record tive prece- him, applicant. no Instead of before the that convicted ration- who convicted decisis, dent, authority, majori- proof beyond stare the al trier fact could find a unsupported judgment ty gives us an call This should have been the reasonable doubt. they applicant in think is innocent. standard set for to meet the Instead, majority opts a instant case. the problems There are two with the method lower standard. majority judgment. by which the reaches this First, majority’s concluding in there majority the facts of the errs The then reviews at trial. inculpatory in no other to determine whether was instant case order extensively hearing his constitutional majority Schlup v. tion of the merits of 1. The relies on Delo, by bringing 130 L.Ed.2d him within the “narrow class 115 S.Ct. claims (1995), setting implicate down the threshold stan- cases” which a fundamental miscar- 313-16, dard to claim discov- riage Schlup, review justice. 513 U.S. at However, ered evidence of innocence. at 130 L.Ed 2d at 827-828. distinguishable Schlup the instant cause. is from applicant pursuing a of "bare Where an claim cause, applicant contends that he In the instant present newly attempts to innocence" against key witness him is innocent because alleges prove his that he will inno- Robert, trial, his trial at his son recanted testimo- cence, to con- does attach the evidence a but not hearing. ny Applicant’s other son at the writ trial, the that occurred at stitutional violation hearing deny at writ Richard also testified seeking "only the new applicant is a review of Applicant occurred. does the offenses hope will that the evidence any aside his due violation from constitutional form of a post-conviction relief warrant infringed upon process rights which have been Muskat, 75 TEX. of his conviction." vacation deprived incarcerated and because he been L.REV., position is advanced at 133. This liberty he for a crime which claims that of his by applicant The lack of instant cause. “bare not commit. This is a claim of inno- did what distin- at trial is constitutional violation Muskat, J. Substantive Justice cence.” Michael applicant in guishes applicant’s case from the the Aftermath of Herrera and State Interests in Schlup. Finding Adequate for the Process Collins: evaluation these of review for standards Through Innocence Claims Resolution Bare innocence are not same two distinct claims of Remedies, 75 TEXX.REV. State Postconviction person system. the federal When a (1996). at 133 innocent,” "actually as claims that he or she hand, Schlup, a claim of other involved closely Schlup, the standard did in innocence,” showing of inno- “actual wherein by most states when approximates that used procedural prevent- bypass bar cence used hearing new trial based on a motion for ing claim. constitutional consideration Muskat, TEX.L.REV.,at evidence. TEX.L.REV., Muskat, N.8, Schlup, at 133. In pursues person a convicted 177-178. When innocence, ..., procedural, rather his "claim innocence,” of “bare or her claim are claims than substantive. His constitutional cause, by the standard set instant did innocence, but on his on his rather based not higher. hear such claims Court in Herrera to counsel, of his contention that the ineffectiveness Muskat, TEX.L.REV.,at 178-179. ..., prose- withholding of evidence and the majority’s lower the standard decision to cution, ..., protec- panoply denied him full muddle, if in Holmes will down this Court set by the Con- to criminal defendants tions offered obliterate, substantive distinc- completely Schlup, 115 S.Ct. 513 U.S. stitution.” and a innocence” between a claim of "bare tion Schlup offered his L.Ed.2d at 827. claim of "actual innocence.” post-convic- to obtain claim innocence trial, innocent, inappropri- At the State introduced an cant could be does invalidate not. drawing original jury’s ate note and of a sexual nature done verdict. stepmother Robert at school. Robert’s adopted this Court a burden of testified that Robert told her that the sexual sufficiency proof based on the review of information he relied on to write and draw Virginia, Jackson v. 443 U.S. S.Ct. the note came from and his natural (1979). Therefore, 61 L.Ed.2d 560 like police spoke mother. The officer who reviewing sufficiency appellate court of Robert about sexual abuse which he and this Court should have re- his brother suffered at the hands of newly viewed the discovered evidence and and their natural mother also testified at presented at trial to decide evidence schoolteacher, trial. Robert’s in to addition all that no whether based on of evidence stepmother interviewing police and the proof beyond rational trier of fact could find officer, also testified at trial. This is defi- Virginia In a reasonable doubt. Jackson nitely complete than a lack more of circum- emphasized appel- that inculpatory stantial or direct evidence. sufficiency late of the evidence review Second, majority’s depart decision to appellate mean the court should ask does not from the standard set the Court in Herr- itself believes the evidence estab- whether adopted era and this Court Holmes beyond guilt lished a reasonable doubt. Un- evaluating a claim of innocence casts doubt fortunately, today, majority to chooses upon their decision. Under the Holmes decisis, precedent cast aside and stare so standard this Court should determine wheth- may type undertake the of review newly er based on the discovered evidence Virginia. decried Jackson v. evidence, any and the trial rational trier of Because a rational trier of fact could fact guilt could find a reasonable testimony presented choose to believe the State, compare doubt. See and Chambers v. testimony presented at trial rather than the (Tex.Cr.App.1991); 805 S.W.2d hearing, I have concluded the writ would (Tex.Cr. State, Villalon v. 791 S.W.2d 130 not met his burden to be enti- has

App.1990). legal This is a determination. tled to relief on his claim of innocence. Be- Applicant required should have been to majority opposite cause the reaches an con- newly show that based on the discovered clusion, I dissent. hearing, evidence offered at his writ Robert’s testimony recantation his trial and Rich- McCORMICK, P.J., KELLER, J., join testimony hearing ard’s at the writ that the this dissent. occur, offenses did not and based on Justice, WOMACK, dissenting on State’s jury entire record before the that convicted Rehearing. Motion for him, proof no rational trier of fact find could (cid:127) majority extended this case a bare guilt beyond a reasonable doubt. Appeals, Holmes v. Third District Court of conclusion, majority’s Unlike (Tex.Cr.App.1994), non- 885 S.W.2d support appli- dence at trial was sufficient to cases, proof, capital lowered burden primarily of cant’s conviction and consisted get apparently allowed a testimony. Robert’s get if he can relief from sentence simply conflicts with that evidence. required to recant. None of this is witness we, court, reviewing pre- as the Since very These are bad precedents cited. jury resolve all hypothetical sume a policies as well. verdict, a rational conflicts favor of its with, decided on begin Holmes was To of fact could find trier saying habeas very shaky ground. beyond a reasonable doubt based newly- a claim of corpus is available for testimony That another at trial. Robert’s capital innocence in a majority factfinder, court or the Herrera v. purported to follow juror, Holmes thirteenth believes position in its Collins, 113 S.Ct. years 506 U.S. testimony from Robert almost eleven (1993). holdings appli- L.Ed.2d 203 trial and thinks the date of the after (1) every step require conceivable case Federal is not were: cost, taken, pos- available a claim of at whatever eliminate person.’ absence of a sibility convicting innocence an innocent 197, 208, constitutionally-required proce- York, violation v. New Patterson (1977). require simply To new be- 2319, 2326, dures. To 53 L.Ed.2d 281 might acquit cause a the new paralyze our all but conclude otherwise would clearly produce evidence would more criminal law.” system for enforcement result, passage reliable since the of time rehearing I reconsider the grant vote adjudi- reliability diminishes the of criminal revolutionary procedure and unwarranted (2) 30-day Texas’s limit move for cations. this case created. new trial on discovered evidence does (3) deny process. due Executive clemen- McCORMICK, P.J., KELLER and and cy remedy for is the traditional “fail safe” HOLLAND, JJ., join this dissent. (4) late evidence of innocence. Even it argument were assumed the sake truly persuasive demonstration actual would render an execution uncon- innocence corpus stitutional so federal habeas lie, fell far short of

would Herrera’s evidence extraordinarily showing high threshold (Herrera’s required.

was two witnesses who said that Herrera’s parte Lee Ex James Carl DAVIS. dead,

brother, committing now had admitted crime.) No. 72247. mighty on erect thin sand which to This Texas, Appeals of of Criminal (not process holding of Holmes due En Banc. Clause) the Cruel Unusual Punishment and of an by the execution would be violated Dec. 1996. defendant, that state habeas innocent Rehearing Denied March corpus permit pres- will he to defendant to evidence of innocence. ent holdings in support

And is no at all for the it process is violated

this case that due defendant, that an innocent

confinement of

post-conviction is available to fact, the defendant

correct errors clear claim no more than prove and that recanting might be suffi-

dence of witness

cient.1 denied, a

If convicted defen- rehearing (if pro- every case due criminal

dant to limit it problem, no reason

cess there is confinement), will

felonies or sentences encouraged pursue

now be allowed and get to recant. If he does them

witnesses so, And all relitigate ease forever. he can supposed to on be based

this is corpus was the Court said that habeas

where because, process “‘Due does available I didn’t the witness stand last time I of a "The than the evidence could be weaker 1. What witness, always, testimony tell the truth”? recanting whose

Case Details

Case Name: Ex Parte Elizondo

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 18, 1997

Citation: 947 S.W.2d 202

Docket Number: 72235

Court Abbreviation: Tex. Crim. App.