*1 mаintenance of the ... ventilator and/or parte Benjamine Ex components SPENCER, its and accessories.” John
and/or Applicant. Although affirmatively Linans do not agree appeals’ with the court of holding No. AP-76244. that some of their claims are health care Court of Appeals Criminal liability claims as did the of Texas. Friends Ya- ntada, the difference not require April different outcome. The Linans did not file petition challenging for review that por- appeals’ judgment tion of court of dis-
missing part of their claims because they
were health care liability claims. There-
fore, part appeals’ court of Tex.R.App.
judgment is not before us. See (“A party
P. 53.1 who seeks to alter the appeals’ judgment must file a
petition review.”); for Northglen Brooks v.
Ass’n, (Tex.2004) (not- 141 S.W.3d although respondent chal-
lenged a portion of the trial judg- court’s
ment, the Court could not reach the issue
because the respondent did not petition point). Court review on that And
as did the unchallenged court of appeals’ Yamada,
holding in the court appeals’
unchallenged holding here requires dis-
missal of all the Linans’ claims.
Accordingly, without hearing oral argu- Tex.R.App.
ment, 59.1, P. we reverse the
court of appeals’ judgment to the extent it
affirmed the trial denying court’s order
Turtle’s motion to By response dismiss.
to the Linans’ rehearing, motion for Turtle request
waived its attorney’s fees and Accordingly,
costs. part we affirm that
the court appeals’ judgment that re-
versed the trial court’s order. We reverse
that part of the appeals’ judgment court of
that affirmed the trial court’s order and judgment
render dismissing all the Linans’ against
claims Turtle. *2 Dallas, Wattley, Appellant.
Cheryl B. Wise, D.A., Karen R. Asst. Christina D.A., O’Neill, Dallas, for State. Asst. OPINION J., MEYERS, opinion delivered the P.J., KELLER, the Court which WOMACK, JOHNSON, PRICE, COCHRAN, JJ., HERVEY, joined. Applicant, Benjamine1 Spencer, John was later that he determined died from was convicted of murder sentenced to severe skull fractures were a result of He years’ confinement. filed a motion multiple head. blows Less than two *3 trial, granted. new which was On re for hours after the victim was found in the trial, aggravated he street, was convicted rob police a received call about a BMW in bery prison. and sentenced life The parked alley. in a nearby They quickly appeal. on Spenc conviction affirmed ascertained that car belonged to the State, (Tex. v. No. er 05-88-00397-CR victim. 1989) (not 3,May designated
App.-Dallas
later, witness,
Oliver,
days
Two
Gladys
a
publication).
filed an
appli
for
went to the police station to tell what she
corpus
for writ of habeas
claiming
cation
had seen in
alley
night
that
and also to
innocent,
he is
trial coun
give
poliсe
the names
others who
assistance,
sel rendered ineffective
and
may-have
something.
seen
'She-had heard
v.
Brady Maryland,
State violated
that the police
accusing
were
another man
1194,
83,
373 U.S.
83 S.Ct.
L.Ed.2d 215
named Spencer, Van Mitchell Spencer, of
(1963),
Holohan,
Mooney
and
294 U.S.
stealing
BMW,
and she wanted to in-
(1935).
L.Ed. 791
S.Ct.
form them
Applicant,
that it was
Benja-
trial
evidentiary
The
court held an
hear- mine
Spencer,
John
whom she had seen
grant
and
we
recommended that
relief. getting out of the
Based
car.
on the infor-
We remanded the case to the trial court mation from
and
Oliver
the other wit-
additional
and
findings
conclusions. nesses,
co-defendant,
Applicant and his
receiving
After
the trial court’s
Mitchell,
Nathan Robert
were arrested the
conclusions,
and
we filed and set this case next day.
parties
submission and
ordered
Several eyewitnesses who
lived
whether Applicant properly
brief
raised a
area where the victim and his car were
claim,
free-standing
actual
innocence
Applicant’s
found
testified
at
trial.
newly
whether
evidence he relies on is
Charles Stewart
testified
he saw the
available,
newly
discovered
whether we
car,
victim get pushed
of the
out
saw the
should consider
in science
advances
pull
alley,
car
into the
and saw Applicant
technology
determining
when
whether evi-
get out of the passenger’s side of the car
newly
dence is
discovered or
avail-
get
and Mitchell
out
driver’s side.
able, and
whether
has shown
He
Applicant jump Gladys
saw
Oliver’s
and convincing
clear
evidence that no rea-
fence
go through
yard.
her back
He
juror
sonable
would have conviсted him in
testified
lighting
about the
conditions in
of the new
Relief
light
evidence.
is de-
alley,
these
a
including that
street-
nied.
light in
alley
the back
one of the
backed up
houses that
to the
BACKGROUND
alley.
lights
He also
stated
inside
22, 1987,
At around
on March
p.m.
10:45
the car came on when the
opened,
doors
received a call
a man
police
lying
and he recognized Applicant and Mitchell.
down in
they
face
the street. When
ar-
rived,
victim,
they found the
Donald
that he
Jeffrey
Merritt
testified
saw a
Young,
bleeding.
white man lying
struggling
unconscious and
He was
in the street
hospital,
taken to the
where
died.
It
breathe and with blood on his head. Mer-
Applicant's
spelled
spells
name
ments.
both
Because
himself
''Benjamin”
"Benjamine”
"Benjamine,”
in court
the spelling
docu-
that is
we will use.
him
gun, put
the head
victim in
paramedics
the scene until
stayed at
ritt
car,
him a couple
BMW
seat of the
hit
He later saw the
the back
arrived.
driving,
co-defendant
saw
times while
alley and
more
see
car.
said he could
by the
He
the car. Edwards
standing
then kicked
from
streetlight
there was
to take the car
clearly
Applicant planned
because
said
nearby.
shop.
chop
to a
BMW was found
where the
alley
that,
offered
Gladys
house. She
Oliver’s
was behind
offense,
Ra-
night
he drove
*4
stopped
saw the BMW
that she
testified
friend to church.
Williams and her
mona
Ap-
and saw
neighbor’s house
behind her
spent
evening
He said he
the rest
side of
passenger’s
get out
plicant
sister, Christie, first at her
with Ramona’s
the driver’s
Mitchell
out of
get
car and
that
park,
and then at
Ra-
house
go
Applicant
she
She said
saw
side.
park
at the
at
Applicant’s
mona saw
car
and knock on
neighbor’s yard
through one
p.m.
returning
11
when she was
around
stated
Oliver
neighbor’s door.
another
from church.
home
alley
streetlight
was a
in
that
there
of murder
jury
Applicant guilty
A
found
neigh-
in
of her
large light
a
the back
1987,
after
for a
in
his motion
new
lit
She claimed
yard.
house that
her
bor’s
granted,
separate
trial was
found
went
the front of her
when
that
she
in
aggravated robbery
guilty
him
1988.
in
house,
parked
Applicant’s
saw
car
she
co-defendant, Mitchell,
also
was
found
His
street,
15 min-
gone
but it was
about
eyewit-
based on much of the same
guilty
police
this
later. She did not tell
utes
testimony
in both of
ness
that was raised
they went
when
day
after
offense
trials.
Applicant’s
asking
but
two
questions,
door-to-door
police
went
station
days later she
WRIT OF
APPLICANT’S
claimed
them what she had seen and
tell
CORPUS
HABEAS
that she was afraid for her life.
issues in
Applicant
following
raises the
he was in
testified that
Jimmiе Cotton
corpus:
of habeas
application
his
writ
he saw
cooking
kitchen
dinner when
(1) The State failed to disclose evidence
noticed
pull
alley.
the BMW into the
He
Brady Maryland,
in violation of
v.
373
because was not the sort
the BMW
S.Ct.
10 L.Ed.2d
[83
215]
U.S.
neighborhood.
usually
car he
saw in the
(1963);
opened,
when
car doors
He said that
(2)
per-
knowingly
The State
relied
on,
get
Applicant
saw
light came
Mooney
in
jured
violation
saw
out of the
side. Cotton
passenger
Holohan,
[55
S.Ct.
U.S.
Gladys
climb the fence around
(1935);
mad at the time identify would not have able to facial took the affidavit because Hubbard car. exiting features of individuals aggravated him in for a turned series of Applicant’s argument physi- is that it was togeth- that robberies had committed cally eyewitnesses for the impossible er, said the why but he reasons he refused make a facial identification. the affidavit for sign were his concern Oliver and Cotton testified writ at the mother and he did not Hubbard’s that testimony reiterated hearing and their get penalty. want Hubbard to the death Eyewitness from trials. Stew- Applicant’s Scott the writ Ferrell also testified at art the writ hearing. died before Scott claimed that told hearing. Hubbard him that he had robbed a man outside of FINDINGS AND CONCLUSIONS BMW, building, put an took office THE OF COURT TRIAL trunk, and drove him Dallas. to west hearing, told Scott that while was driv- Aftеr the habeas the trial court Hubbard the car of ing, he noticed that the trunk of entered 300 fact and conclu- law, so he car in open, abandoned the an sions of summarized as follows: testimony expert, Brady, merit to Finding no not assistance, found “that Cotton did see knowing use ineffective BMW,” person exiting face claims, court rec- the trial testimony false to make an not able identifica- “Cotton was these be denied on that relief ommended have seen person tion of the he claimed to grounds. and that point,” Cotton evi- found The trial court worthy credible and was not witness con- Applicant at trial inculpating dence found belief. court also “that Stewart testimony by Danny Edwards sisted of the far the BMW that even was so from to the crime while confessed super it take daylight [sic] human jail he was in to make a facial identification” and abilities saw exit the who eyewitnesses possible “that was not Charles Stew- BMW; physical there was no evi- victim’s well to make enough art to see facial iden- connecting the State presented dence any persons exiting tifications the crime. The trial court Applicant to the court “that it Similarly, BMW.” found Danny concluded “that none Edwards’ Gladys to see possible was not Oliver and, when viewed testimony was credible facial enough well to make identifications State, favorable to the most BMW,” exiting the any persons hearsay.” was inadmissible Gladys Oliver not a witness credible worthy was not of belief. The court Danny Ed- The court determined “that the identification testi- determined speak he did wards’s *6 Cotton, Jimmy mony given by Charles newly directly Applicant discov- Stewart, and Gladys Oliver was not truth- testimony as wаs of ered physically that impossible ful” and “it was regarding Kelvin Hubbard’s con- Johnson Cotton, Stewart, Jimmy Charles robbery of fession to the abduction and Gladys Oliver make facial identification Jeffrey Young. The court found that Hub- the BMW person exiting of a on March bard’s confession more consistent with 1987.” testimony the facts the offense than the of that, Finally, the court Edwards, “[i]n determined given by Danny and it stated case, considering after the new- the instant unsigned that Affidavit “between consisting of the ly discovered evidence provided by Fact Kelvin Johnson and the Dr. Paul expert testimony of Michel that Edwards, on signed by Danny statement eye three witnesses could not face, their is more the Johnson statement to, they only what testified re- seen actual of the mur- consistent with the facts maining Applicant’s guilt of is the evidence more der thereforе credible.” testimony Danny of Edwards which was at habeas also in- Applicant’s evidence hearsay. Thus, best inadmissible there re- expert cludes that the now de- Applicant’s guilt.” no mains evidence forensic con- veloped field of visual science result, “Ap- that As concluded clusively that physically establishes it was plicant produc- has carried his burden of impossible purported eyewitnesses persuasion tion and writ should to make the identification that re- The court- that issue.” recommended claimed. granted grounds lief be on the of actual testimony, Regarding at the trial in
court found that
time of the
STATE’S RESPONSE
generated by
appli-
“the evidence
un-
cation
forensic visual science was
that
did
responds
Applicant
The State
free-standing
available
raise' a
actual
properly
and undiscоverable.” Based
not
“
claim; that the evidence is not
not show
‘proba-
innocence
it is
does
that
discovered;
advances in ble that
newly
and that
the verdict would be different’ as
considered,
Elizondo,
required
but
technology
should
the time crime. court’s that conclusion that Kelvin newly The State claims Johnson is discovered evi- convincing shown clear and evidence dence. argues The State this evi- juror that no have con dence reasonable was known to defense counsel be- newly fore Applicant’s victed trial. Defense counsel discovered Schlup,2 Applicant evidence. Based on had an affidavit in which Johnson stated “probably claims that constitutiоnal errors Michael Hubbard to commit- admitted ting However, resulted in the conviction of a man who is the offense. counsel also knew says -innocent.” The State Johnson recanted this state- directly raise an actual ment and given had failed 'to polygraph that, innocence claim. The State claims him to validity regard- test the of his claim even if did raise an properly Hubbard. The. State asserts claim, actual knowledge specific innocence he is not entitled to Johnson’s facts about Schlup relief It likely under Hemra3 is not crime came Applicant’s from co- defendant, because, a Schlup according Johnson, claim to the shared cell with who conclusions, Hubbard, trial court’s there and not from who Johnson - violation, Brady was no did not claimed told him about the State offense. Be- knоwingly false cause testimony, use counsel this is not discovered ineffective; therefore, credible, was not and is not it cannot be considered has not proven there was constitution as evidence claim supporting *7 al trial. argues error at his And the State actual innocence. that, even we issues consider the raised The State that argues Applicant not by to Applicant newly be discovered evi by shown and convincing clear evidence dence, he not relief is entitled to under report that Dr. and would Michel’s is true
Herrera the because evidence does not have a different at trial. caused result actually show that ishe innocent. lighting The and distance of conditions the
Second,
says
the State
that
the
was known at
time of
witnesses
the
trial,-and
present newly-
point
does not
disсovered evi-
counsel was
to
defense
able
State
out
only
dence. The
claims that
the
would have had. a diffi-
that-witnesses
Danny
identifying
affidavit
that
cult time
the
in the
from
Edwards
defendant
Thus,
alley.
not
and known
if an
expert
available
to
at
even
not
affidavit,
the
testify
time of the
was his 2002
available at the time- of the trial to
illumination,
possible
which he
said
about
problems
later
contained untrue state-
testimony
the
the expert’s report
ments. And
2002 affidavit is contra-
and
should
by
newly
dicted
his trial
not be
evi-
testimony
his
considered
discovered
2005 affidavit. The State
that
dence.
that
argues
this
The fact
the witnesses
Elizondo,
Delo,
851,
(Tex.
298,
parte
Schlup
4. Ex
v.
513 U.S.
115 S.Ct
S.W.2d
(1995).
1996).
at a certain years several at time had known known the also conditions was lighting recognize him when he to thе and was able presented trial and the car the out of victim’s get saw him them consideration. alley. agrees advances in sci- State The new only evi- argues be The State technology-should considered
ence and
expert.
report
whether evidence is dence is the
determining
when
says,
or
available. State
newly discovered
However,
since
all advances have
not
inculpa-
comparing
than
the old
Rather
given the
reliability,
weight to be
same
evidence, the
tory
with the new
case-by-
on a
must be considered
advances
simply
de-
trial court seems to
case, little weight
In
basis.
this
case
witnesses
that none
the State’s
clared
expert’s re-
given
because
should
expert
because-
are credible
on the conditions
port could
be based
says
they
what
they could
have seen
offense,
forcing
at
the time
of the State’s
rejecting
saw. After
all
many assumptions.
to make
expert
too
the court then determined
argues
The State
that since
left, Appli-
new evidence is
so
as it existed at
time of
not the same
innocent. The
cant must be
offense, it cannot be treated the same
compari-
a true
State submits
when
assumptions
DNA is. All of these
way
new evidence is
son of the old and the
overcome the
of wit-
cannot
made,
give
a rational trier of fact
enough light
who said
nesses
credence
much more
get
of the victim’s car.
see
out
eyewitnesses who were
three
twenty years ago,
crime
scene of the
objection
filed an
the trial
The State
recognized Applicant,
who knew and
conclusions,
claiming
court’s
who re-
compared
lighting
not addrеss the issue
years later
the scene sixteen
viewed
the court recommends
of laches
and in-
opinions
on incorrect
based
ground
was not properly
relief on
assumptions.
complete
application
proven by
raised
The State claims that Kelvin
evidence.
REMAND
known to
Johnson’s evidence was
defense
*8
trial;
We
the case to the
court
before
thus
remanded
Applicant’s
counsel
findings
conclusions.
The
ar-
for additional
and
discovered.
State
is
court
eyewitnesses
Specifically,
were
we asked the trial
to
that the
credible
gues
used
the
juries
three
determine what methods were
separate
and that
believed
expert
whether
methods were
Appli-
in each of
these
testimony juries
their
—
trial.
Applicant’s
tri-
at the time of
two trials and his co-defendant’s
availablе
cant’s
regard-
judge
requested
at the We also
further
al. The State notes that
testimony, including
ing Danny
Edwards’s
hearing
not at
trial and
habeas
was
plea
with
agreement
whether he
judge
credibility
not able to
made
pris-
meeting Applicant
after
testimony at trial. The State
State
eyewitness
on,
any pre-
filed
whether Edwards had
expert
failed to
Applicant’s
asserts
behalf, and
Gladys
trial motions on
into consideration that
Oliver
take
support
to
Applicant
she whether
there
very
familiar with
had sand-
family
years
claim
known
and his
Edwards’s
had
we asked the
fingerprints. Finally,
ed his
day
had even
him earlier
seen
Ap-
findings regarding
to enter
science evidence was
un-
trial court
unavailable and
claim of ineffective assistance
plicant’s
discoverable
the time of Applicant’s tri-
and the State’s claim laches.
counsel
al. The court concluded that
the State
right
challenge
waived its
to
the admissi-
remand,
response
to our
In
bility of forensic visual science
Dr.
and of
Dr.
the “illumi-
analyzed
that Michel
states
expert.
Michel as an
Additionally, because
visibility”
to
the validi-
nation
evaluate
had
expert
read the trial
eyewitness
and deter-
ty of
accounts
eyewitnesses prior
visiting
that all the
had three
mined
witnesses
scene, the court determined that the fact
distance, low levels of illumi-
constraints:
that the
stranger-
identifications were not
nation,
and time limitations. The
on-stranger
changed
not have
that witness
had the ad-
concluded
Cotton
expert’s opinion.
“adaptation
day-
ditional constraint of
viewing
levels of illumination while
light
found
no evidence
Ed-
from the
dark environment”
reflection
Applicant,
wards met
so it could not deter-
his
light in
kitchen. Dr. Michel considered mine
plea
whether Edwards made a
agree-
distance, darkness,
and motion—“the
meeting
ment after
Applicant in prison.
of us
ability
beings
as human
our The court also found no
support-
sensory organs
which. are our
Edwards’s
that Applicant
discern
eyes
things.”
He claimed that
his fingerprints
sanded
or
Ed-
eyewitness familiarity
not consider
did
pre-trial
wards had filed
Appli-
motions on
was “the
with the
because that
cant’s behalf.
memory,
recognition,
cogni-
soft science of
The court concluded that
trial counsel
fitting
tion and
what makes sense.” He
was not ineffective for
failing
attempt
said, “I
stayed away
from that be-
impeach Edwards
regarding
plea
my opinion
cause
there was no
because
agreement
strategy
and used sound trial
to believe that
could
eyeballs
basis
eliciting testimony
for not-
showing
have discerned
seeing clearly,
Spencer
Van Mitchell
had been
out
ruled
given
opinions
by the
witnesses
suspect.
as a
something over in the soft science area of
memory, cognition,
things
expectation,
The court concluded that
is-
the State’s
And,
nature.”
the wit-
this
fact that
sue of
is moot in
laches
this case.
knew Applicant
change
nesses
“does not
an
eyeball’s ability
image
to resolve
CASELAW
it back
and send
to the brain.”
applicant may
An
raise
either
agreed
the State
Both
Herrera-type
Schlup-type claim of actu
expert’s
widely
methods were not
Delo,
Schlup
al
U.S.
at the time of
known
trial and that forensic 298,
(1995);
115 S.Ct.
visual available Collins, Herrera v. 506 U.S. 113 S.Ct. nized in late 1980’s. (1993). 853, 122 203 The Herr L.Ed.2d remand, the trial era,-type On court found that is a bare innocence claim that is nеwly Michel relied on of the application solely Dr. based discovered evidence. Herrera, physiology eye Supreme to of visual In issues Court instructed identification, a application op- forensic us to consider both the new evidence and tometry a person which evaluates what trial evidence determine whether or could not see set given unquestionably could under a the new facts establish Applicants circumstances and that such visual innocence. re- applicant’s forensic are 878 Franklin, S.W.3d parte In Ex 671 higher to obtain meet a threshold
quired to (Tex.Crim.App.2002), we held that when been because,' trial has when the relief Herrerastype with a free, presented is we are the conviction constitutionally error evidence, on newly claim based discovered respect. the utmost entitled to whether evi our first consideration is claim, is tied innocence Schlwp-type In a affirmative presented constitutes ev dence error at trial. showing to of constitutional a innocence, if is idence must show that the constitu- applicant An will we move on to a determina provided in the con- probably resulted tional error prove can of whether Applicant tion actually innocent. one who was viction of no evidence that rea convincing clear and Thus, claim on the Schlup depends a here him in juror would have convicted sonable Brady assis- validity and ineffective evidence. light newly of the discovered tance claims. Franklin, 72 at 678. S.W.3d Herrera-type with a presented wereWe Elizondo, S.W.2d parte in Ex claim ANALYSIS (Tex.Crim.App.1996). held We initially raised a jury’s vеrdict job is not to review the “our Schlup-type claim that constitutional er newly whether the discover- but to decide conviction of probably rors resulted in the would have convinced ed evidence a man who is innocent. at 207. If innocence.” Id. applicant’s violation, knowing Brady a use of alleged estab- unquestionably evidence the new testimony, false and ineffective assistance innocence, compared then it must be lishes However, supports the record of counsel. inculpatory to evidence that the old trial court’s relief recommendation at trial to determine whether offered grounds. on each of these This be denied acquit ap- of fact
rational trier would us with bare innocence claim leaves on the of the new plicant comparison basеd newly evidence. Ap based on discovered testimony. Id. at 206. We stated: and old must show that the evidence he is plicant course, once any person who has newly Of is available or dis presenting newly trial finally convicted in a fair unques and that the new evidence covered we permitted wage, not be to should Only if tionably establishes his him wage, a collateral permit do not upon are called this is shown we com making on that conviction without attack new with the evidence at pare the exceedingly persuasive case that is an whether Appli order determine entirely actually innocent. It is thus convincing has shown clear and cant insist, and we continue reasonable juror that no reasonable insist, applicant that an for habeas relief have convicted him new claim innocence on a of actual based evidence. newly dis- must ‘demonstrate First, while the of fimensic science visual true, creates covered new, testing may Appli- the evidence efficacy to the of the verdict doubt as newly is cant relies on discovered or to undermine confidence sufficient Shortly available. after that it probable
verdict offense, investigators able to observe be different [on retrial].’ verdict would vantage point from the scene *10 conditions were eyewitnesses ex while the (citing Id. State rel. Holmes Court of way night the (Tex.Crim.App. they S.W.2d to the were of Appeals, 885 similar =1994)). gathered by the offense.' The evidence newly the the investigators for both State and whether evidence is discovered or available, jury. to the The presented newly defense but the-evidence distаnce, wit- lighting, of and the being issues is the tested same as it was at the identify ability Thus, nesses’ the time of offense. the science or evi- raised at trial. The heard the new, the testing method of be can but the streetlight the in the al- regarding dence must be able to be in tested the ley, light the back the of one same state as it was at the time of the houses, car, well as the offense. the evidence about far defendant’s how Applicant says that “scientific evidence away each was from the car. witness establishes the wrongfulness” of his con- separate juries Three chose to believe the However, report viction. an expert saying expert
witnesses. observed that it was too dark the car was too later, scene when many years the far away eyewitnesses the to have seen night the conditiоns from the of the of- affirmatively does not establish replicated. fense were unable to be For All it is attempt does example, been Gladys Oliver’s house had the discredit witnesses who stated that down, torn there were new and a windows they saw get out the victim’s house, new fence at a new shed Cotton’s car. built, different, lighting been had the years, growth changed tree had after 16 trial The court concluded that the way exactly and there was no to ascertain expert’s report eyewit did discredit the alley where in the the car had on the nesses, leaving only testimony the of Ap this, night of the the offense. Based on cellmate, Edwards, plicant’s support expert physically determined And, jury’s verdict. court found impossible for the witnesses to the face see testimony Edwards’s to be not credible. person exiting the сar. record, however, The not support this agree We with the State all finding. The trial court said that John can be equally. scientific advances treated son’s statement is more consistent with the While we have in sci- considered advances facts of murder is more credible determining ence when whether certain than the statement Edwards. But DNA, newly such as is discover- Johnson said the victim fell out of the available, pre- ed died, the car trunk of which is incon sented is sort with the sistent cause of death and the being preserved evidence that is capable eyewitness testimony that the victim was and tested at a date. visual later Forensic out of the car.5 Edwards said that pushed new, may way but there no science Applicant beat the victim repeatedly and forensic visual to test the ear, kicked him out оf the which is consis conditions as existed at the time tent with Stewart’s that he saw way the offense because there is no get pushed victim out the car and replicate the lighting conditions. the determination that cause of multiple We will consider in sci death was blows to the head. advances We technology when determining eyewitnesses ence also noté that reported being pushed trial court that when victim's seen the victim found out of alley, far BMW was Stewart was too testify the car. Stewart did not writ identify Applicant, from the car but hearing. court did not rule on Stewart’s *11 880 PRICE, J., concurring in car, opinion the filed a while
seeing exiting people two COCHRAN, JJ., which HERVEY and told Johnson version the crime joined. only person involved one Scott —Hubbard. opinion. This eye join I case expert’s report Court’s
Despite the attentiоn. I great drawn deal curious to a facial unable make witnesses were separately why it is emphasize write they in the recognition people of the saw this to exercise its appropriate for Court they alley, we are confident fact- duty and as the ultimate prerogative, it have able discern whether in post-conviction corpus habeas finder further weakens people, or two which one matters,1 time neces- to take whatever is Scott’s credibility of Johnson’s and carefully sary on an extensive record statements. resolve claim such as this.2 consider and not especially fitting It is that we should determined that the evidence Even if we judgment opposition rush to view new, unquestionably it not here was office, attorney’s an office district establish re- reputation that has a сurrent not in Frank- has not met threshold elucidated flexively opposing post-conviction claims lin. indeed, actively actual facil- innocence— itating investigation of such claims facially plausible.3 are least CONCLUSION extraordinary Habeas is an rem- corpus standing The not dis- alone is Any post-conviction habeas edy. grant of claim of innocence. positive Applicant’s face of the State’s corpus relief flies Franklin, Ap- at 678. Because S.W.3d finality of its compelling interest goes plicant has offered evidence in- hard-won conviction. actual Claims innocence, affirmatively proving toward finality nocence threaten State’s inter- relief is denied. because, though than est even more most trial, is remedy is a new it rare that successfully retry the State can such J., PRICE, concurring oрinion filed a granted. case if habeas relief is Texas is COCHRAN, JJ., which HERVEY and jurisdictions recog- so far one few joined. cognizable nize actual innocence as a due post-conviction habeas process claim in KEASLER, J., concurred. Believing corpus proceedings.4 post-conviction habeas 2. The to this 1.In the context of case submitted corpus, convicting "original” court is the pending Court and has been written decision factfinder, ordinarily pay great 14, and we defer- April 2010. since ence con- to that court’s of fact and supported by clusions of law when the record. Eaton, See, e.g., Forsyth S. & 3. Jennifer Leslie boundless, But deference and we is Reviewing The Dallas D.A. is Exonerator: convicting simply rubber-stamp do not Cases, Freeing Riling His Old Prisoners—and recommendations. This is the court’s Court Peers, J., 15, Wall St. Nov. faсtfinder, prerogative "ultimate" with the reject convicting court’s recommenda- Angharad Vaughan, A Garber 4. See Glenn & tions on those rare occasions when we deem Policy, Actual-Innocence Non-DNA Innocence appropriate, record, supported even when are Claims, 4, ("The Apr. 239 N.Y.L.J. disposition we think another high [including Texas] of five states courts manifestly supported by record. better freestanding adopted some form of actu- Reed, parte Ex 727-28 & n. S.W.3d claim). al innocence” (Tex.Crim.App.2008).
881 in accurate results in innocence” [his] societal interest need determination invariably trump whether, criminal trials should then be made clear and con- in legitimate State’s otherwise interest evidence, vincing both weighing the new convictions, finality always of its I old, and the jury no rational would have right recognize concluded that we аre convicted him.8 post-conviction in actual innocence claims typically We types see two of evidence proceedings. habeas But we are corpus might, actual innocence that under the right, also in to the State’s oth- deference circumstances, right qualify as “affirmative finality erwise legitimate interest of its First, evidence of if innocence.” an of- convictions, that establishing to insist fender biological leaves material such as bare claim of actual innocence should be “a behind, blood or semen and the circum- Herculean task.”5 stances show that in perpe- he acted alone we first Accordingly, recognized when offense, trating the post-conviction DNA cognizable, bare as a actual innocence testing may constitute affirmative evidеnce stand-alone claim in habeas post-conviction applicant’s of an if innocence it reveals that corpus proceedings, deliberately we de- the biological material not his. Sec- signed exceedingly rig- the standard ond, if the victim of an offense recants his Elizondo, parte orous. In we held Ex trial testimony applicant that an assaulted that, claim, an appli- succeed such him, there is no other evidence that an produce cant must evidence to demon- new (or assault even occurred least that the “unquestionably strate that he is inno- applicant perpetrator), was the and the cent”; say, reviewing that is to recantation is deemed more credible under conclude, must factoring be able to after the circumstances than the trial testimony, new, evidence in with exculpatory may then the count as recantation affirma- trial, inculpatory evidence introduced at (Indeed, tive evidence of innocence. under “by shown applicant has clear and scenario, may this second become evi- no convincing ju- evidence that reasonable occurred!) dent that no offense even ror him in light would have convicted that, Court correctly today concludes In parte new evidence.”6 Ex Frank- case, the instant is no lin, comparable there we elaborated that claim of actual innocence; “affirmative” evidence of there requires applicants innocence to produce serve, evidence that could however proves “that innocence [their] merely convincingly, upon to cast doubt the credi- raises doubt about their guilt[.]”7 bility Only applicant appli- after the State’s evidence produced “affirmative guilt. showing such evidence of cant’s Such a threshold Brown, 538, (Tex. parte against inculpatory Ex S.W.3d 545 when balanced the 'old' 205 Crim.App.2006). evidence, unquestionably ap- establishes the innocence.”); plicant’s parte Thompson, Ex 202, (Tex.Crim.App.1996). 6. 947 S.W.2d (Tex.Crim.App.2005) 153 S.W.3d (Cochran, J., (in concurring) assessing bare 7. 72 (Tex.Crim.App.2002). S.W.3d claim, convicting court innocence must deter- 678; Brown, parte 8. Id. at Ex supra, see also applicant's proffer mine whether the of new ("the applicant at 546 must make a claim "by unquestionably itself establishes that, true, establishes affirmative evidence proceeding inquire [his] innocence” before Then, hearing, of his at the whether, balancing the new evidence with the judge сredibility, assesses the witnesses' old, evidence, inculpatory no rational evidence,' 'newly examines the discovered convict). that 'new' determines whether *13 scene, in it. and one saw him leave I outweigh State’s not serve to finality say of its conviction. might willing be basis interest that, by pre- a applicant’s new evidence claim, innocence applicant’s actual evidence, no rational ponderance of it, on essen- predicated I as understand jury applicant; have convicted the would First, jailhouse tially prongs. three and, so, willing I would to reach be applicant con- who testified that snitch other federal constitutional claims he recanted.9 Sec- has since fessed subsequent in a But I might raise writ.10 ond, come informants have forward other accept convicting cannot court’s rec- perpetrator another with statements grant applicant that we ommendation that has certain to an offense admitted relief actual innocence freestanding on his remarkably similar to the characteristics claim; agree I with the has Court third, op- a forensic instant murder. And “affirmative evidence presented even that what proclaimed tometrist has now innocence,” of much ad- claim less satisfied eyewitnesses to have the State’s appropriately beyond mittedly offense is night on the seen —“Herculean” —but and, acuity. visual None burden to demonstrate clear con- the realm of human new) (assuming it is vincing jury of this evidence satis- no rational present applicant’s fies the burden would have convicted him show, evidence, convincing by clear and new evidence. At that he did not commit offense. We and set this for filed case submission best, give jury pause in decid- it would innocence is because the issue actual at eyewitness whether to credit the testi- ing sufficiently close convicting least that the strongly at trial from which it can mony granted. court recommended that relief be did applicant inferred that the commit Upon careful mature consideration view, In my the offense. it neither satis- (which time), inevitably the Court takes showing the threshold “affirmative fies rejected has that recommenda- properly innocence,” nor does it ulti- applicable tion inconsistent with the le-
mately convince me clear and convinc- remarks, gal standard. With added these go I to on to were balance join opinion. I the Court’s “old,” against the “new” evidence opted no rational would to credit eyewitness testimony anyway con- accordingly. applicant
victed the All three eyewitnesses knew the applicant; identify purporting
stranger. recognized Two of them also they knew car at
what to be his distinctive convicting 9. The court concluded that "there inadmissible-but-unobjected-to hearsay applicant's] remains no evidence of [the 802. probative Evid. value under Tex.R. guilt[,]” part, at least in because the snitch's hearsay.” was "inadmissible 11.07, art. See Tex Code Crim. Proc. (cid:127) Majority opinion, assuming Even See at-(cid:127). Delo, 4(a)(2), essentially Schlup § codifying applicant's confession to the snitch L.Ed.2d 513 U.S. 115 S.Ct. hearsay exception would not fall under the (1995), purposes own abuse-of-the- our interest, against statements Tex.R. Evid. respect subsequent writ doctrine state 803(24), or that it even hear- constitute post-conviction corpus writs of habeas non- all, 801(e)(2)(A), say appli- at Tex.R. Evid. felony capital cases. trial, hearsay objection cant did not make