Ex Parte Franklin, 72 S.W.3d 671

Ex Parte Franklin

72 S.W.3d 671

Tex. Crim. App.

2002

Check Treatment

*1 FRANKLIN, Ex Parte Brian Edward

Applicant.

No. 74041. Texas, Appeals Criminal

En Banc.

plied was not correctly evaluated. The judge’s habeas conclusion was stated as follows: shown, [Applicant] through has and [the evidence], superimposed over inculpatory the weak evidence at his tri- al, create doubt the efficacy as to in jury’s verdict at his trial and would Davis, Houston, probably change Neal Dick Deguerin, the verdict on retrial. Appellant. Fact, District of Findings Court’s Conclu- Law, Mallín, DA, Court, sions of

Charles M. and Order of Asst. Fort Worth, added). of (emphasis State. Conclusions Law 15

Instead, stated, that the proper test “by applicant shown clear and OPINION convincing evidence that no ju- J., MEYERS, opinion delivered the of ror would have him convicted of KELLER, P.J., the Court in which the new evidence.” parte Ex PRICE, KEASLER, HERVEY, 202, 209 (Tex.Crim.App.1996) S.W.2d COCHRAN, HOLCOMB, joined. and J.J. added). (emphasis Accordingly, in an un- published curiam per opinion on Septem- post-conviction This is a application for a ber we held writ application this writ of forwarded to this in abeyance and ordered the trial court to 11.07, Court pursuant to Article V.A.C.C.P. applicant’s in light reconsider applicant convicted proper We a supple- test. also ordered aggravated of sexual assault a child affidavits, containing any mental transcript years under age. fourteen Tex Penal transcription court 22.021(a)(l)(B)(i), reporter’s § (a)(l)(B)(iii), Code (a)(2)(B). any notes from punishment interrogatories hearings His was assessed at held, along life with the trial imprisonment. The court’s revised Secоnd Court of State, findings fact and Appeals affirmed. conclusions of law. Franklin No. transcript The (Tex.App.-Fort 2-95-084-CR Worth directed the order is Oct. refd) (not us, together pet. designated for before with the trial court’s publication). law, findings of fact and conclusions proceed we can now to decide the issue applicant filed a with finality. application for writ of habeas corpus claiming discovered evidence I. shows him actually to be innocent of the 18,1994, B.R., cоmplainant, On crime for which he was convicted. The report made a to a teacher school that hearing court conducted a which it raped by applicant. The testimony heard regarding the new evi- teacher called Child Protective Services. presented by dence applicant. When the subsequently charged transcript initial hearing ar- aggravated indicted for sexual assault of rived, we determined that while the trial child. upon court’s were findings based the cor- confidence, rect February level of clear and convinc- trial commenced ing, the that one ap- standard level At trial B.R. testified eve- 1994,1 that blunt force raped Lamb admitted ning March of nation an indication that house.2 trauma is not itself backyard her in the her father’s time, you raped old. At the B.R. was thirteen someone has been *3 family thing Applicant was a friend of the find same after could for the father. B.R. testified sexual intercourse engaged often visited B.R.’s girlfriend were was removed that her father his first time. exam Since assault, during rape. She did inside the house time of from the exact girlfriend about not her father tell was collected. forensic evidence to the after she returned experience Patton, serologist a forensic Constance prior Applicant house. testified Examin- County Medical with the Tarrant assault, she had the time of the sexual witness. er’s called as defense Office was anyone. never had sexuаl relations with clothing gets that blood on She testified G.G., mother, also as a B.R.’s was called the older the stain darker color that the witness. She testified fol- state’s red, bright that if a stain is is an indica- B.R. visit- lowing day after returned from has not been tor that the blood during spring break her father long explained of time. She very period March, pair found a she blood-stained hours, eight six to a blood stain within laundry in the that B.R. underwear clothing on start to turn dark going brought home. She stated that B.R. had color. red to a brownish period prior day her two weeks She she found the stained underwear. testify at the trial. did Applicant brighter that the stain red noticed was applicant guilty aggra- The found than that the color of menstrual blood. a child and as- vated sexual assault of underwear, however, pro- The was life punishment imprisonment. at sessed at trial duced because G.G. had bleached County Dis- May of 1998 Tarrant longer them and could no differentiate that Attorney’s applicant’s Office notifiеd trict pair pairs from other of B.R.’s underwear. an trial counsel that it had received affida- Lamb, the Dr. Jan doctor who examined police vit in which B.R. stated from 20, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1994, B.R. her out- following sexually been assaulted she had cry, told her that she testified B.R. from the when she step-father her time raped by applicant in March of been that her was six old until time addition, she stated that away step- from her mother moved her was a examination indicated that there information, receiving this father.3 After hymen in a rupture certain area present application for a applicant filed the trauma and that indicative blunt force writ of habeas injury on B.R. would be con- observed based on at the time of the bleeding sistent with her blood, stated, district court conducted Such The offense. she witnesses were hearing which several ruptur- red in color from bright first called testify. Applicant opposed to the darker called ing capillaries Salinas, prosecutor appli- the lead Rose color of menstrual blood. On eross-exami- abuse, alleged period of which started before 3.The exact date of the offense at trial. never determined B.R. and continued after- assaulted wards, years. approximately ten lasted for Although parents were she 2. B.R.’s divorced. mother, given father was lived with her rights. court-ordered visitation trial, to testify.4 cant’s stated at She was also as a called witness. prosecuted applicаnt, the time she she felt produced He and a receipts phone various B.R. was credible witness. But if to provide bill alibi the time found she had out B.R. had lied to her period during which it was believed that trial, during opin- she testified that her Although the offense occurred. available credibility ion as to B.R.’s would have time, at the none of these documents were Moreover, changed. never would have introduced trial. been able offer the medical evidence testify. B.R. called Statе against was introduced trial- the statement She stated that aside from cant. On cross-examination she testified *4 in- engaged that she never sexual had the fact there was another perpe- before, tercourse else which everything prevented trator would have not her from trial during applicant’s she testified was trying case the and that she would have true. reason that She testified that the still prosecuted the case without the medi- she anyone did not tell about the sexual testimony. cal by When asked the trial by step-father, abuse she her suffered judge court she would have J.G., she of him. was that was afraid She moved to dismiss the case once she found explained that she was unable tell Ms. stated, out B.R. had lied to her she “[H]ad Salinas, Lamb, Dr. or counselors she in trial and this child had commit- was fact being by abused J.G. due perjury ted I and found out about it after always accompany he would almost fact, I am I saying might what have her to meetings. He even was moved tо dismiss the And very case. I’m room conduct- day on which Dr. Lamb serious very about fact that that’s a ed the assault examination. More- sexual strong possibility that it hap- would have over, couple during she testified pened.” accompany her to times that did not J.G. Applicant also called Dr. Jan Lamb as appointments, would insist that she he its She that if witness. testified she had during the happened tell him had what known B.R. sexually was also assault- he found meetings. angry He was when by step-father, ed her she would not have reported out that the sexual as- B.R. testify been able to at trial as to which by sault he was afraid applicant because incident caused B.R. to have had blunt find out about his own people would force hymen. trauma to her On cross- cross-examination, actions. B.R. On stat- when examination asked if the knowledge ed that with also contact J.G. had caused that B.R. did not disclose the abuse her occasions, her to on a but bleed few not as step-father changed opinion of B.R.’s much -bled following as she the assault she credibility explained stated “no.” She applicant. that it unusual for children who are Initially victims of judge sexual abuse not discuss their conclud habeas addition, shown, through sexual abuse. ed that applicant also ex- “has plained that children who have been clear convincing [the sexu- ally victimized easily are much more re- superimposed discovered evidence] due to they victimized the fact thаt over inculpatory at his weak emotional, trial, very poor psychological efficacy create a doubt as to the physical boundaries. jury’s and would verdict his trial hearing, working At the time of the Attorney’s habeas Salinas trict office but as an longer County attorney private practice. with the Tarrant Dis- is as of an innocent on retrial.” incarceration probably change verdict Fact, Conclu- Process Findings District Court’s a violation of the Due much Court, Law, аnd Order sions of of an innocent as is the execution Clause of Law 15. We ordered Conclusions of actual thereby making claims person; to reconsider court post- by this Court cognizable innocence expounded in Elizondo. light of the test corpus proceedings conviction the trial court supplemental its assessed is death punishment whether the “Applicant concluded that Franklin Id. or confinement. shown that no reasonable would have con- are Claims аctual new him in evidence.” victed Herrera-type claims categorized either Supplemental and Revised District Court’s Collins, Herrera v. claims. Schlup-type Conclusions of Law and Order 122 L.Ed.2d 113 S.Ct. U.S. Court, 6.5 Conclusions Law Delo, (1993); Schlup (1995); 130 L.Ed.2d 808

II. *5 Elizondo, at 208. A Herrerar 947 S.W.2d In ex. State rel. Holmes Third claim in type claim involves a substantive 389, 397 Appeals, Court 885 S.W.2d of claim of asserts his bare accepted the (Tex.Crim.App.1994), solely on discover innocence based proposition that the execution of an inno 314, 115 Schlup, ed 513 U.S. at a cent constitute violation of would Elizondo, 851; 5.Ct. See also 947 S.W.2d Due Process Clause of Fourteenth claim, A the other Schlup-type at 208. Amendment to the United States Constitu post- hand, a in Accordingly, procedural tion. we held that is a claim which application conviction for a writ of habeas provide does claim of innocence cant’s corpus was an for a appropriate vehicle relief, showing tied a a bаsis for but is convicted defendant sentenced to death to Schlup, of error at trial. constitutional claim Id. at assert a of actual innocence. 115 851.6 The two 513 U.S. S.Ct. Approximately 398. two later require applicants claims meet different presented Elizondo we were with issue relief. obtain habeas burdens a of whether claim of actual innocence was Schlup, petitioner asserted a by cognizable this Court in post-convic by claiming that claim of actual innocence corpus proceeding tion habeas when the of deprived error constitutional punishment assessed is not death but con critical that would estab- Elizondo, finement. 947 S.W.2d at 204. 301, 115 Id. at lished his innocence. that the basis for entertain We concluded addressing merits of 851. Before ing post-conviction application for writ claim, the dis- Schlup’s Supreme Court of claim of actual innocence habeas distinguishing importance of capital cases in that the cussed peculiar is not Friendly, Henry Although by generally 6. Is Innocence not bound See findings of court Attack on Criminal Irrelevant? Collateral findings corpus proceedings, are such (1970) (argu- Judgments, U. Chi. 142 L.Rev. supported by the record. Ex considered if subject should be that "convictions (Tex. Morrow, parte 952 S.W.2d only sup- prisoner when the collateral attack Crim.App.1997). We in the case find cogni- plements plea with a his constitutional although applied properly the trial court innoсence”). claim of zable Elizondo, holding it failed to the narrow greater purpose. account its take into between the type claim asserted even tolerable” his conviction was the if Schlup type product versus the of claim of a fair Schlup, asserted trial. For petitioner Herrera, Herrera. evidence must establish sufficient doubt guilt about his petitioner justify based his claim of actual conclusion that his execution would be a miscar- innocencе on discovered evidence justice riage of unless his conviction was that showed that his brother committed product of a fair trial. the crime for which he was convicted.

Herrera, 315-16, S.Ct. 853. Schlup, 513 U.S. at 115 S.Ct. 851 (citations omitted). Court expounded upon The the difference The Court concluded between ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the two situations: situation, a Schlup-type the peti tioner must show that the constitutional

Sehlup’s claim thus differs at least error “probably resulted” in the conviction important ways two presented from thаt actually one who was Id. at innocent. First, in Herrera. claim in- Schlup’s 326-27, 115 S.Ct. Court articu nocence does not provide itself lated the meaning probably resulted as Instead, claim basis relief. petitioner “The follows: must show that it relief depends critically validity on the likely is more than that no Brady his Strickland claims. him in have convicted Schlup’s claim of innocence is thus “not the new evidence.” Id. at 115 S.Ct. claim, itself constitutional but instead a 851; see also 947 S. W.2d at 209. gateway through which a habeas peti- claim, however, For a Herrera-type pass tioner must to have his otherwise bare would fail unless barred constitutional claim considered *6 the court was convinced that the new facts the on merits.” “unquestionably establish” in importantly, More assump- court’s Schlup, nocence. 513 U.S. at tions about validity proceed- the of the elaborate, S.Ct. 851. The Court failed to ings that in resulted a conviction are however, toas the in level confidence fundamentally different in Schlup’s case by phrase voked the “unques use of the Herrera, in than Herrera’s. In petition- tionably establish.” er’s was evaluated on the assump- In applicant presented Elizondo this tion that the that trial resulted in his Herrera-type Appli- Court awith claim. conviction had been error free. In such cant a claim of actual innocence raised case, when a petitioner has been “tried testimony based the upon recantation a jury peers, before of his with the full given by of a crime for one victims panoply of protections that our Constitu- which applicant was convicted. We deter- defendants,” tion affords criminal it is by mined the set standard this “ appropriate apply to an ‘extraordinari- Holmes, in which was decided to prior ” high’ ly standard of review. Schlup, made “theoretically impossible” it

for any gain to relief. applicant Elizondo, 947 S.W.2d 205. In Holmes Consequently, Schlup’s evidence of in- we “in held that be entitled сarry nocence need less of a burden. relief on a claim of factual the innocence (on assumption Herrera that peti- applicant must on the show based was, tioner’s claim in principle, legally newly discovered evidence and entire founded), well him, evidence of innocence record before convicted would have to be strong enough no rational trier of proof fact could find “constitutionally guilt make his execution in- beyond а reasonable doubt.” such, describing proof burden of in applicant's As we turned to S.W.2d he does not proceeding where guidance the stan- collateral Schlup modified rationality of a factfinder’s ver- claims. attack the applied Herrera-type dard to be dict, we formulation described “unquestionably estab- cited We determined dissent thing Blackmun his language meaning lish” the same Justice he explained Herrera convincing.” as “clear and where proves рroduce cants must S.W.2d at 209. merely not raises their innocence and guilt: doubt about their r—i I-HI—I case, applicant In the does not the burden of government ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bears attacking any procedural raise claims guilt beyond a proving the defendant’s constitutionality proceedings. his doubt, govern- but once reasonable Instead, he claim in Herrera-type asserts so, proving the burden of ment done argues he discovered evi- must shift to the convicted dence, B.R.’s admission that sexu- she wаs inqui- The actual-innocence defendant. ally by her entitles step-father, assaulted from re- distinguishable is therefore ry him cites to habeas relief. sufficiency view the test set forth Elizondo. is not question whether where actually is innocent but defendant Elizondo we held government has met its asserting a claim must Herrera-type show proving burden of the de- constitutional beyond reasonable guilt fendant’s would have convicted him to chal- doubt. defendant seeks When in light of the lenge determination after he has Today Id. we take opportunity ex- sentenced, validly convicted and it plain type required of evidence that is fair to him place on the burden this Court order to succeed on a proving just raising his innocence Tierrero-type Although explic- claim. guilt. doubt about itly stated clear that holding, *7 443, (Blackmun, requires applicants present- Elizondo that 506 at 113 853 S.Ct. (citations omitted). J., Finally, Herrera-type dissenting) claims offer evidence goes affirmatively proving discussing that towards on which we grounds when Elizondo, applicant’s innocence. In relief we applicant Elizondo ex- afforded only plained: explained, “Robert’s recantation not testimony implicated voids trial Because, in a evaluating habeas claim evi- applicant, but constitutes newly that discovered evidence or avail- affirmative innocence. are applicant’s dence of We proves applicant able evidencе be convincing evidence convinced and of the crime for which he innocent was convict him rational would convicted, prob- task is to our assess light of the new evidence.” impact able available evi- added). at 210 It (emphasis S.W.2d upon persuasiveness dence holding our in Elizondo apparent whole, a State’s case as we must neces- freeing as a meant to act mechanism weigh sarily exculpatory such evidence innocent, not for out-оf- as vehicle against guilt at evidence of adduced time motions for new trial. trial. added). addition, In A that results from (emphasis

Id. at conviction discussing constitutionally standard for error-free trial entitled when suitable greatest respect. Id. at 209. Ac- Applicant’s upon writ is based the theo- cordingly, an applicant we hold when ry espoused Herrera as such he a Herrera-type asserts claim based on must establish his innocence of the crime evidence, newly discovеred the evidence by convincing clear and evidence presented must constitute affirmative evi- be merely guilty that he would found not dence innocence.7 Once by subsequent jury. While there is no provides such it is question appropriate case the appropriate proceed then awith deter- principles comity finality “must mination whether the applicant can yield the imperative correcting prove by clear and fundamentally unjust incarcеration,” Engle that no would have con- Isaac, 135, v. 456 U.S. 102 S.Ct. him light victed (1981), 71 L.Ed.2d 783 we find cant not presented with such a Applicant’s case. claim is denied. any fails to present new evidence aside from the fact that B.R. WOMACK, J., concurring filed a alleges now sexually she was also as opinion. step-father. saulted her B.R. does not recant her testimony. Rather she JOHNSON, J., dissented. continues to allege applicant sexually WOMACK, J., concurring filed a assaulted her. affidavit makes opinion. separаte this assertion on two occasions. states, rely Today again purports first the Court She “When I was 13 old Collins, I Herrera 506 U.S. sexually abused another (1993), and when L.Ed.2d 203 au- [J.G.] found out about he was thority I legitimacy presenting mad at me and said must have wanted it I claim newly-discovered because didn’t him it. Every tell about few get through months mad at Herrera clear- corpus. [J.G.] me so states, it again.” ly about proposition addition she “I stands for the opposite had sexual any hardly cry intercourse with one knows laugh one else but [J.G.] the time before perversion this Court’s of it. I sexually when was I assaulted and was (1) holdings of that case were: 13 years Finally, old.” the habeas Federal habeas is not available hearing she testified that she had been for a of newly discovered evidence sexually by applicant. assaulted absence of a viola- *8 proce- tion constitutionally-required of

Although applicant’s is impor- evidence tant, require simply dures. To a new trial it is limited to the impeachment of acquit might clаim because B.R.’s did not have sexual clearly pro- evidence relations with other It new would certainly men. result, question general, calls into duce a more reliable since the veracity only collaterally but of time reli- passage only affects her accusation diminishes the (2) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍against applicant. adjudications. This standing ability of criminal alone, however, dispositive day it is not 30 ap- Texas’s limit move for new plicant’s of innocence. on evidence doеs discovered accounts, trustworthy 7. In addition to worthy eyewitness witness recanta- critical and tions, examples may physical Schlup, other of such evidence U.S. at evidence. See 324, exculpatory include scientific trust- 115 S.Ct. 851. taken, (3) step be every conceivable deny process. due Executive cost, possibili to eliminate the clemency is traditional “fail safe” whatever convicting person.’ ty of an innocent remedy for late evidence of innocence. (4) York, 197, if it sake New Even were assumed Patterson v. (1977). persuasive To truly that a 53 L.Ed.2d argument para of actual innocence would would ah but demonstration conclude otherwise so an unconstitutional for enforcement lyze system render execution our * lie, corpus that federal habeas criminal law.” fell far Herrera’s evidence short step smah takes another As Court showing high threshold extraordinarily only I can paralysis, the path down (Herrera’s required. evi- that would be respectfully concur. who said that dence was two witnesses brother, dead, now had admit- Herrera’s crime.) committing

ted mighty

This is thin sand holding process ... that due

erect

(not the Cruel and Unusual Punishment

Clause) would be violated the execu- defendant, an tion of innocent SIGFORD, Appellant, Wayne Walter permit corpus state habeas will he defendant no evidence of And it is innocence. Texas, Appellee. STATE holdings

support at ah for No. 09-00-503-CR. violated process case due is defendant, confinement innocent Texas, Appeаls Beaumont. fact, available to correct errors of Oct. 2001. Submitted prove defendant must his claim no more than clear evi- Decided Nov. dence, and that the of a recant- Discretionary Review Refused sufficient. might witness be holdings] of these convict- [Because (if every

ed defendant in criminal case process problem, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍due there is to limit it to felonies to sen-

reason confinement), al-

tences of will now be encouraged pursue the wit-

lowed If he get them to recant.

nesses so, rehtigate his forev-

does he can case supposed And ah this is be based

er. *9 Herrera, said that where the Court because, not available “ require process ‘Due does (Tex. rehearing). al of parte * Ex 947 S.W.2d J., (Womack, dissenting to deni Cr.App.1997)