Lead Opinion
OPINION
delivered the opinion of the Court, joined by
This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex.Code CRIM. P. Article 11.07. In 1991, a jury convicted applicant of aggravated sexual assault of a child (Tex. Pen.Code § 22.021(a)(1)(B)) and assessed punishment at thirty years’ imprisonment. The conviction was affirmed on appeal. Thompson v. State, No. 05-91-01200-CR,
In Ex parte Elizondo,
Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, our task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State’s case as a whole, we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial.
Id. at 206. In order to grant relief, the reviewing court must believe that no rational juror would have convicted the applicant in light of the newly discovered evidence. Id. at 207.
In this case, the habeas court received evidence and testimony at the writ hearing. The court weighed the new evidence and testimony against the evidence adduced at applicant’s trial, determined that applicant had met the burden of showing his actual innocence, and recommended that this Court grant relief. This Court is not bound by the findings, conclusions or recommendations of a trial court. However, because the habeas court is in a better position to make determina
Applicant was convicted of sexually assaulting his five-year-old daughter, who was eight years old at the time of the trial. The evidence presented against applicant at trial consisted of the following: the testimony of the complainant, the testimony of the complainant’s mother, the complainant’s torn dress (which the state alleged was tom by applicant during the assault), the testimony of the arresting police officer, and the testimony of the physician who examined the complainant.
The physician testified that the results of the complainant’s examination were completely normal. However, he also stated that the lack of physical evidence of sexual abuse was “consistent with digital penetration.”
The defense presented only the testimony of applicant’s two sisters, who were also the complainant’s aunts.
Applicant did not testify during the guilt/innocence phase of trial, but he did take the stand during the punishment phase. During testimony about whether applicant would be able to adhere to conditions of probation, applicant responded to a question by his defense attorney regarding his feelings about the offense:
Q. Steve, I want you to look at this jury and tell them whether or not you’re sorry that this happened.
A. Yes, I’m truly sorry about this happening and as long as I live I will never let it happen again.
That statement was followed by an exchange with the prosecutor on cross-examination:
Q. You just told this jury that you were truly sorry for what happened, what you did to [C.T.], didn’t you?
A. Yes, that’s correct.
Q. And yet you just sat up there and said you have no love in your heart for [C.T.], didn’t want to establish any sort of relationship with her and yet you were the one who victimized [C.T.], weren’t you?
A. If I did have anything to do with my daughter, they would come back and say—
Q. That’s not what I asked you, Mr. Thompson. You were the one who victimized [C.T.], your five-year-old daughter at the time?
A. I want to plead the Fifth on that. THE COURT: Answer the question.
THE WITNESS: Could she repeat it, please?
Q. You were the one who victimized your daughter when she was five years old and you just sat here and told the jury that you were truly sorry for what happened?
A. Yes.
Q. And yet you’re holding her responsible or at fault and don’t want to have any sort of relationship with her as a result of what happened, what you created, a problem you created?
A. I just don’t want to have — I don’t— I just don’t—
Q. Is that because you don’t trust yourself around her?
A. No. I just, you know — I don’t want to have anything to do with her, no, ma’am. I don’t—
Q. It’s her fault that this happened, isn’t it?
A. No, no.
Q. So now you’re going to take responsibility for what happened? Are you going to take responsibility for what happened, Mr. Thompson?
A. Yes, yes.
At the habeas hearing, various witnesses described the ongoing custody dispute between applicant and his ex-wife at the time the accusations were made against him. Applicant presented the affidavit and testimony of the complainant herself, now 20 years old. She testified that the sexual abuse never happened, but that her mother had pressured her into making the allegations against her father. According to the complainant, when she was five years old, her mother repeatedly asked her whether her father had done specific things to her. When she replied that her father had not done anything, her mother became angry and would not allow the complainant to play or go anywhere until they had talked about it. Eventually, the complainant succumbed to the pressure and “admitted” that applicant had done the things described by her mother. The complainant also testified that she was afraid of her mother, and applicant presented evidence of specific episodes of physical abuse of complainant by her mother over the years since applicant’s trial.
The complainant’s mother testified at the habeas hearing and admitted to several acts of physical abuse against the complainant, although she appeared to minimize their significance. She also admitted to having doubts about whether applicant had committed the acts for which he was convicted. However, she denied that she and applicant had been involved in • any kind of custody dispute at the time of the accusations. She also vehemently denied having pressured the complainant into making the allegations. As she had at applicant’s trial, she testified that her suspicions were aroused when the complainant came home from a visit with her father with a torn dress. She also testified that her daughter had complained of irritation of her genitals, and painful urination. She stated that she noticed redness in the complainant’s genital area when she bathed her. However, she also admitted that she had raised the subject of sexual abuse with C.T. before the torn-dress incident. At the habeas hearing, the complainant’s mother admitted that the complainant had told her that the dress was torn on the bus after church, but that she did not believe the complainant’s explanation. Applicant presented the testimony of the church bus driver, who testified that she had witnessed C.T. falling on the bus and tearing her dress and that applicant had nothing to do with the dress being torn.
Applicant testified at the habeas hearing and again denied that he had ever had any kind of sexual contact with his daughter. He testified that his retained attorney had advised him to tell the jury during the punishment phase that he was Sony for what he had done. According to applicant, his attorney had indicated that he would receive a more lenient sentence if he admitted his guilt at punishment, and he had simply followed his attorney’s advice.
Finally, applicant presented the testimony of Lynne Corsi, an attorney and licensed Master Social Worker who had worked as an assistant district attorney prosecuting cases of child abuse and neglect and who had founded the Dallas Children’s Advocacy Center. Ms. Corsi testified as an expert on interviewing techniques and recantations in child sexual-abuse cases. She offered her opinion that the complainant’s recantation in this case was valid. She explained the bases for her opinion in detail at the hearing and indicated that her conclusion was reached after a thorough review of the transcript and record of applicant’s trial, the affidavit and testimony of the complainant, a three-hour interview with the complainant, and the testimony at the habeas hearing.
The habeas court filed findings of fact and conclusions of law, recommending that applicant’s conviction be set aside:
In making this recommendation that relief be granted, the Court has evaluated this newly discovered evidence in conjunction with an assessment of all the evidence adduced at trial and concluded that this newly discovered evidence has the credibility and strength to cause a verdict of not guilty.
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The Court finds that Applicant’s ground for relief should be granted and the conviction set aside under authority of Ex parte Elizondo,947 S.W.2d 202 (Tex.Crim.App.1996), in that Applicant has shown by clear and convincing evidence that no reasonable juror would convict him in light of the newly discovered evidence of actual innocence presented at the evidentiary hearing on Applicant’s writ application.
It is clear that the habeas court performed the proper analysis of applicant’s claim under Elizondo, weighing the newly discovered evidence against the evidence adduced at his trial and determining whether any reasonable juror would convict him in light of the new evidence.
We find that the court’s findings are supported by the record. The complainant’s new affidavit and testimony explains how she was intimidated and manipulated into making the accusations against her father. Her testimony is corroborated in part by the church bus driver’s testimony about the torn dress that was put into evidence at applicant’s original trial. The complainant’s mother’s testimony that she did not believe her daughter’s original explanation for the torn dress, but chose to seek an explanation that would confirm her suspicions about applicant supports the complainant’s testimony about how rest of the “outcry” came about. Presented with this evidence, in conjunction with the “completely normal” results of the medical examination, and the sworn testimony of the complainant that the events in question never happened at all, the habeas court’s finding that no reasonable juror could have found applicant guilty is supported by the record. Without the finding of guilt, applicant would not have been put in the position, during the punishment phase of the trial, of having to apologize for an offense he did not commit, nor would he have felt the need to “plead the Fifth” in order to avoid perjuring himself on the witness stand.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice, institutional and pardons and paroles divisions.
COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.
Notes
. We defer to the trial court’s findings of fact even when those findings are based on affidavits rather than live testimony. Manzi v. State,
. The record reflects a question about whether applicant’s trial attorney was licensed to practice law at the time of applicant's trial. The state bar reports that applicant’s trial counsel was actively suspended from 11/01/1989 until 05/01/1991 (applicant’s trial began on 08/12/1991). The State Bar also reports that, on 10/05/1992, counsel "resigned in lieu of disciplinary action.” The court of appeals rejected applicant's argument that
Concurrence Opinion
filed a concurring opinion in which HOLCOMB, J., joined.
I join the Court’s opinion. I add the following comments to clarify the conceptual framework I think this Court, as the ultimate decisionmaker in the habeas context, should use to evaluate claims of actual innocence.
I.
First, I agree wholeheartedly with the dissent that our “judicial process is not limitless,” but we fail in our primary duty of protecting the innocent and punishing the guilty if we intentionally slam the courthouse doors against one who is, in fact, innocent of wrongdoing. I believe that if the criminal justice system — even when its procedures were fairly followed— reaches a patently inaccurate result which has caused an innocent person to be wrongly imprisoned for a crime he did not commit, the judicial system has an obligation to set things straight. Our criminal justice system makes two promises to its citizens: a fundamentally fair trial and an accurate result. If either of those two promises are not met, the criminal justice system itself falls into disrepute and will eventually be disregarded.
This Court first crossed over the bridge of addressing post-conviction claims of actual innocence ten years ago in State ex rel. Holmes v. Court of Appeals for the Third District.
Almost all of these cases are convictions for aggravated sexual assault of a child, and the factual scenarios are similar. At trial, a young girl
These are “she said, he said” cases that ultimately rely upon the jury’s assessment of the relative credibility of opposing witnesses. In such cases, it is virtually impossible for the jury not to make an occasional credibility mistake. Any parent who has ever attempted to resolve a sibling quarrel based upon “he said, she said” versions of a single event knows that even a parent can, from time to time, make a credibility mistake and believe a child’s inaccurate version of the event.
Several years later the child, for various reasons, recants and now says that the defendant never abused her and that, in fact, she was never sexually molested by anyone. Her position now is that she was pressured into making the allegation, that she wanted the defendant out of the house, that she was scared and just went along with what others told her, or that she simply does not recall any untoward sexual behavior by the defendant. Frequently other witnesses now come forward and say that the child had told them at some point — sometimes before the original trial, sometimes after — that the defendant never
How is the judicial system supposed to sort this out? Only two hearts and minds will ever know the absolute truth in this scenario and even that may be dubious. If the truth lies in the human heart, rather than a Petri dish or DNA test result, do we simply declare that the judicial system is incapable or unwilling to address the matter? Because the original trial is, quite appropriately, “the main event,” should we forbid any reprise, regardless of the persuasiveness of proof? Is there never a second act to a fundamentally fair first trial? It is the outsider — the purported crime victim — who has created the problem by now claiming that she really was not a victim at all. If the original trial afforded all of the required procedural protections, and if the institutional players — the prosecutor, the defense attorney, the judge, the jury — lived up to their legal, moral, and ethical obligations, should the criminal justice system wash its hands of this dilemma and say, “Bad luck, it’s not our fault. Take your problems elsewhere”?
That is one possible, perhaps permissible, legal approach. It is an approach that the United States Supreme Court might uphold.
This approach has worked remarkably well when the trial court finds the post-trial recantation not credible and recommends the denial of habeas relief. This Court routinely follows the trial court’s factual findings, legal conclusions, and recommendation. Those cases are speedily disposed of with per curiam orders. This approach has not worked so well in those few instances where the trial judge finds that the recantation is credible, the newly discovered evidence unquestionably establishes the inmate’s innocence, and he recommends granting relief. I am aware of only five such cases in the past eight years — Elizondo, Franklin, Tuley, Harmon and Harvey. This is the sixth. This is not a floodgate of litigation, and our trial judges appear to be quite competent at sorting out the good from the bad.
The issue that continues to trouble the Court, however, is the standard of review that this ■ Court should employ when reviewing those few actual innocence claims that a trial court has found to be meritorious and for which the trial court recommends relief.
We have held that an applicant raising a post-conviction free-standing claim of “actual innocence” must meet an “extraordinarily high” burden of producing new facts that “unquestionably establish” his innocence.
In the normal habeas corpus context, under either article 11.07 or 11.071, we, as a reviewing court, generally defer to the trial court’s factual findings.
The legal question, which we must review de novo, is different: does this evidence, viewed in the light most favorable to the trial court’s factual findings and credibility determinations, actually demonstrate that the person is “unquestionably innocent” of the crime?
First, then, what legal meaning does the phrase “unquestionably innocent” have? In Elizondo, we explained that we borrowed this phrase from the Supreme Court’s discussion in Herrera and Schlup.
But that is not the end of the matter. The “new” evidence which unquestionably establishes the applicant’s innocence must be compared to the “old” inculpatory evidence that was offered at the original trial. That evidence was believed by the original jury which had found that the old evidence established the applicant’s guilt beyond a reasonable doubt. Under Elizondo, that comparison of “old” and “new” is ultimately the responsibility of this Court.
Of course, because both the burdens of production and persuasion in a habeas application are upon the applicant,
Conceptually, how do both the trial court and this Court go about comparing the “old” and “new” evidence to decide whether a rational jury would necessarily acquit the applicant based upon the impact of the newly discovered evidence of innocence? I suggest the following framework:
* First, the trial court hears the newly discovered evidence. It assesses the credibility of those witnesses and the persuasiveness of that evidence. It makes findings of fact concerning its assessment of that evidence, both individual pieces and collectively.
* Second, the trial court decides whether that “new” evidence “unquestionably establishes” the applicant’s innocence. Only if the trial court finds that the new evidence is both credible and, by clear and convincing evidence, that evidence, by itself unquestionably establishes the applicant’s innocence, should the trial court continue.
* Third, the trial court compares the “new” evidence with the “old” evidence from the original trial or other proceeding. In doing this, the trial court might envision the situation as if the original jury trial took place all in one morning. At that point the jury believed the State’s evidence, returned its guilty verdict and heardall of the punishment evidence. The jury then took a lunch break. After-wards, that very same jury returned and heard all of the “new” evidence — evidence that the trial court has already found, as a matter of fact, to be credible and establishes innocence — and was asked to render a second verdict after hearing the morning and afternoon testimony. It is only if that jury, acting rationally after hearing and believing both sets of evidence, would necessarily acquit the defendant (because the “old” and “new” evidence cannot rationally be reconciled), that the trial court may conclude that the applicant has unquestionably established his innocence of the crime for which he was convicted.
⅝ Fourth, this Court then deferentially reviews the trial court’s factual findings concerning the “new” evidence to ensure that those findings are supported by the record. If the factual findings are supported by the record, we then independently compare the “new” evidence as found by the trial court with the “old” evidence in the same manner that the trial court did in step three. The ultimate legal question, which we review de novo, is whether a rational jury would necessarily acquit the applicant based upon hearing and believing both the “old” and “new” evidence because they are rationally irreconcilable.
Before an applicant could meet this legal standard, he must show that the “new” evidence satisfactorily rebuts or nullifies all of the State’s primary inculpatory evidence from the “old” trial. For example, suppose in the child sexual assault scenario set out above, there was an eyewitness who testified at the original trial that she stumbled upon the child and the applicant in flagrante delicto. In that event, the child’s “new” recantation, though important, does not unquestionably establish innocence. Or suppose that applicant’s DNA was found on the child’s private parts. Absent powerful evidence to show an inaccurate test or some wholly-innocent explanation for the DNA, the child’s later recantation would not suffice.
Indeed, that failure to nullify the State’s primary inculpatory evidence led this court to deny relief in Franklin because, even granting deference to the trial court’s factual findings, the applicant failed to offer evidence that he was unquestionably innocent. In Franklin, the child victim came forward years later and admitted that, in fact, she had been sexually abused for years by her step-father.
Turning to this particular case, the dissent appropriately notes that applicant’s habeas evidence does not rebut every single bit of inculpatory evidence from the original trial. Specifically, the new evidence does not negate the trial testimony of the child’s mother about seeing her daughter’s unusual bath time behavior after the five-year-old returned from a visit with applicant. The child was “fondling herself’ in the bath; her genital appeared “irritated, sore-looking,”; and she was placing objects between her legs and appeared to be masturbating. Such sexual behavior might, in one case, be attributable to inappropriate sexual contact, but it might also simply be indicative of a perfectly normal child exploring her own body and discovering her sensuality in a childlike way. Surely we are not so naive as to conclude that every five-year-old child, male or female, who explores his own body in the bath tub has been sexually abused by an adult.
Second, the dissent points to the fact that applicant, on cross-examination by the State during the punishment phase of the trial, said that he was sorry for what had happened and what he did to the complainant. This testimony, of course, occurred after the jury had found him guilty and was focused on the appropriate punishment. Even the most innocent of men are, at that stage, surely caught on the horns of a dilemma — resolutely maintain your innocence and have the jury punish you more severely for quarreling with its verdict and expressing no remorse, or accept the jury’s verdict and responsibility for whatever conduct caused harm and pain to others and ask for mercy. Neither of these paths is without peril, but neither position is necessarily particularly potent proof of either factual innocence or guilt.
At bottom, however, the issue is not whether the newly discovered evidence has rebutted every jot and tittle of the original inculpatory evidence. The issue is whether, believing both the “old” and the “new” evidence, a rational trier of fact could reconcile that evidence and still reach a verdict of guilty. Because I agree that this applicant has made such a strong case of his actual innocence, which the trial judge believed, and which is rationally irreconcilable with the original inculpatory evidence, I join the majority opinion.
filed a dissenting opinion
I respectfully dissent because this Court’s evolving “actual innocence” jurisprudence is irreconcilable with and has eviscerated most of this Court’s decision in Ex parte Elizondo,
To date, most “actual innocence” cases have involved an inmate, such as the one here, who has been found guilty beyond a reasonable doubt of committing some type of sexual offense against a child. It is undisputed in these cases that this inmate has been convicted according to due process of law and has been afforded the “unparalleled [constitutional] protections against convicting the innocent” at his error-free trial. See Herrera v. Collins,
Society has legitimate finality interests in this presumptively guilty inmate’s error-free conviction, and courts should afford these finality interests great weight and respect in evaluating this inmate’s freestanding “actual innocence” claim on habe-as corpus many years after the fact. See Elizondo,
This Court’s “actual innocence” jurisprudence begins with the United States Supreme Court’s decision in Herrera. Herrera wrestled with the question of whether a free-standing claim of actual innocence based on newly discovered evidence states a basis for federal habeas corpus relief. In an “assuming arguendo ” opinion, the Court avoided that question altogether because the applicant in that case failed to make a persuasive showing of innocence. See Herrera,
It is very significant that, in deciding whether the applicant made a persuasive showing of innocence, the Supreme Court in Herrera considered it necessary to independently evaluate applicant’s new evidence and the evidence at his trial. See Herrera,
This Court’s decision in Holmes v. Court of Appeals is the first of our actual innocence habeas corpus cases to hold that a free-standing claim of actual innocence is cognizable on state habeas corpus in death penalty cases. See Holmes v. Court of Appeals,
This Court’s decision in Ex parte Elizondo (a sexual offense against a child case) extended the holding in Holmes to nondeath penalty cases. See Ex parte Elizondo,
Elizondo’s new standard, however, still required a habeas applicant claiming actual innocence to make an exceedingly persuasive showing that unquestionably established his innocence and (consistent with Herrera) Elizondo still recognized society’s valid finality interests in a constitutionally error-free conviction (which Eli-zondo said was “entitled to the greatest
The next significant decision in our actual innocence jurisprudence is this Court’s decision in Ex parte Tuley (a sexual offense against a child case).
The next significant decision in our actual innocence jurisprudence is this Court’s decision in Ex parte Harmon (another sexual offense against a child case).
The Court’s current view on its evolutionary continuum of its “actual innocence” jurisprudence seems to be that freestanding actual innocence habeas claims are like other habeas claims (in which this Court defers to the habeas court’s findings that the record supports) and that this Court’s only role is simply to determine whether the habeas record supports the habeas
Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, our [14 ] task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State’s case as a whole, we [15 ] must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial....
Of course, any person who has once been finally convicted in a fair trial should not be permitted to wage, and we do not permit him to wage, a collateral attack on that conviction without making an exceedingly persuasive case that he is actually innocent. It is thus entirely reasonable to insist, and we continue to insist, that an applicant for habeas relief based on a claim of actual innocence must “demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different [on retrial].” ... [16 ]
The Court’s current view that its only role in reviewing Elizondo claims is to determine whether the habeas record supports the habeas court’s finding that the victim’s recantation is credible ignores the fact that the record also supports the other factfinder’s (i.e., the jury’s) verdict in applicant’s error-free trial, usually based on more than the testimony of the complaining witness.
No one disputes that our “actual innocence” habeas corpus jurisprudence is well-intended to prevent the imprisonment
By no longer requiring courts to do this, our current actual innocence habeas corpus jurisprudence ignores the most reliable indicator of guilt (the applicant’s trial), affords no consideration whatsoever to society’s legitimate finality interests and is contrary to Elizondo’s claim that an error-free conviction is entitled to the greatest respect. See Elizondo,
In this case, applying the plain holding of Elizondo by independently weighing the new evidence “against the evidence of guilt adduced at trial,”
The record from applicant’s 1991 trial, however, reflects- that the complainant’s mother testified that, immediately following the visitation with applicant, the complainant complained “all night that night that her genitals were sore and that it hurt when she urinated.” The complainant’s mother also testified that, when she bathed the complainant, she noticed “her genital area was all irritated, sore-looking.” She also testified that the five-year-old complainant exhibited “strange characteristics” such as masturbating and fondling herself:
Q. What was she doing?
A. She would place objects between her legs like toys, blankets, differentthings and it would appear to me she was masturbating.
Q. She would rub them between her legs?
A. Yes.
Q. Anything else she was doing that was unusual?
A. Fondling herself.
Q. Anything else you recall?
A. She would cry in the middle of the night for no reason, just cry for no reason. And I didn’t understand why she was doing it.
Q. This was when visitation was still going on with [applicant]?
A. Yes.
None of this evidence was recanted at the writ hearing.
Applicant testified at the punishment phase of his 1991 trial. He admitted that he had received probation for “exposing his genitals”and that he had told the police that he had exposed himself on numerous occasions. More importantly, applicant admitted his guilt for this offense and specifically stated:
Q. You just told this jury that you were truly sorry for what happened, what you did to [the complainant], didn’t you?
A. Yes, that’s correct.
Q. And yet you just sat up there and said you have no love in your heart for [the complainant], didn’t want to establish any sort of relationship with her and yet you were the one who victimized [the complainant], weren’t you?
A. If I did have anything to do with my daughter, they would come back and say—
Q. That’s not what I asked you, [applicant]. You were the one who victimized [the complainant], your five-year-old daughter at the time?
A. I want to plead the Fifth on that. [THE COURT]: Answer the question. [THE WITNESS]: Could she repeat it, please?
Q. You were the one who victimized your daughter when she was five years old and you just sat here and told the jury that you were truly sorry for what happened?
A. Yes.
An independent examination of applicant’s trial record reveals that applicant has not met the Elizondo standard of unquestionably establishing his innocence of the offense for which he has previously been convicted beyond a reasonable doubt. I, therefore, respectfully dissent.
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. No. WR-74,955 (Tex.Crim.App., delivered Dec. 8, 2004) (not designated for publication).
. In Elizondo, the child was the applicant’s step-son.
. In Elizondo, the evidence at trial consisted of the following: "perfunctory” testimony by the 10-year-old child that his mother and applicant made him and his younger brother watch sexually explicit videotapes and that both adults sexually molested both boys; outcry testimony by his step-mother and a police officer; and a sexually explicit picture and note written by the child at school.
In Franklin, the evidence at trial consisted of the 13-year-old child's testimony that the applicant raped her in her father’s backyard while her father and his girlfriend were inside.
In Tuley, the child testified that applicant was her mother's live-in boyfriend, and that shortly after he moved into their apartment, applicant began sexually molesting her.
In Harmon, applicant's eight-year-old stepdaughter testified at trial that applicant had sexually abused her "a bunch of times,” but she focused on one day when her mother was at work and she and her brother were at home watching television.
Because relief in Ex parte Harvey was granted in an unpublished per curiam opinion, the specific facts in that case need not be set out and cannot be relied upon as precedent.
. In Elizondo, both children recanted thirteen years after the trial when they were full-grown adults, saying that their natural father "relentlessly manipulated and threatened them into making such allegations against applicant in order to retaliate against their natural mother, his ex-wife, for marrying applicant years before."
In Franklin, the child gave an affidavit to police three years after the trial, saying that she had been abused by her step-father (applicant was a family friend) for approximately ten years until she and her mother moved out and she then went to the police.
In Tiiley, the trial evidence was, according to the judge, ”[r]ife with material contradictions" in which the 12-year-old child victim’s testimony "conflicted with testimony given by other State’s witnesses or was simply implausible.”
In Hannon, the child recanted nine years after the trial, testifying at the habeas hearing that her aunt had told her "what to say about the alleged event” so that the child’s mother and natural father would get back together again once applicant was “out of the picture.”
. In Herrera v. Collins,
Justices O’Connor and Kennedy did not reach that question; instead, they suggested that the Supreme Court would never have to decide such an issue because any truly persuasive claim of innocence would be resolved by executive clemency. See id. at 42,
These three justices did conclude that Herrera’s free-standing claim of actual innocence did not establish an independent constitutional claim. See id. at 427, 429,
Justice Blackmun, speaking on behalf of the three dissenters stated unequivocally: "[njothing could be more contrary to contemporary standards of decency, or more shocking to the conscience, than to execute a person who is actually innocent.” Id. at 430,
In Schlup v. Delo,
. Elizondo,
. Ex parte Elizondo,
. Ex parte Briseno,
. Manzi v. State,
. Elizondo,
. See 43B George W. Dix & Robert Dawson, Texas Practice: Criminal Practice and Procedure, § 45.82 (2d ed.2001) (it is the job of the Court of Criminal Appeals to resolve “all final aspects of decisionmaking in [art. 11.07] cases”); id., § 45.21 (“[w]hile the district courts have a role in the [habeas corpus] process, it is not that of decisionmaker”).
. Elizondo,
This discussion [in Schlup ] makes clear that an exceedingly high standard applies to the assessment of claims of actual innocence that are not accompanied by a claim of constitutional error at trial. Where the trial has been constitutionally error-free, a conviction is entitled to the greatest respect. The habeas court must be convinced that the "new facts unquestionably establish [the applicant’s] innocence.”
Id. (quoting Schlup).
. Schlup,
. Elizondo,
. That evidence must suffice as a complete and absolute exoneration of the applicant's guilt. Newly discovered or newly available evidence that is merely impeaching or supportive of a defensive theory but does not provide a wholly exonerating explanation of actual innocence cannot form the basis of relief under Elizondo.
.In Elizondo, we stated:
Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, our task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial....
Accordingly, we now hold that, in the exercise of our postconviction habeas jurisdiction under article 11.07 and 11.071 of the Code of Criminal Procedure, our job is not to review the jury's verdict but to decide whether the newly discovered evidence would have convinced the jury of applicant's innocence....
Consequently, if applicant can prove by clear and convincing evidence to this Court,in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on his newly discovered evidence, he is entitled to relief.
. See Ex parte Peterson,
. From the concurring opinion on the State’s Motion for Rehearing in Ex parte Tuley,
. Franklin,
. Id. at 678.
. See Leday v. State,
The decision whether to testify [at the punishment phase] is made even less voluntary by the cruel trilemma in which the defendant is placed. If the defendant testifies truthfully and admits guilt, De Garmo waiver results. If the defendant testifies untruthfully and denies guilt, the consequences are exposure to punishment for aggravated perjury and, of more immediate consequence, an increased punishment on account of the perjury. And if the defendant does not testify, the opportunity is lost for the defendant to give the sentencer information that only the defendant can provide. This would exclude in every case some information that is relevant to two important objectives of the system of criminal punishment: a penalty that will prevent this offender from committing other crimes, and a recognition of the possibility of rehabilitating the individual defendant.
Id. (citation omitted).
. See Herrera,
. Holmes, however, misread Herrera as actually holding that federal due process required this. See id..; but see Herrera,
. See Jackson v. Virginia,
.In his dissenting opinion in Holmes, Judge Clinton claimed that the Jackson v. Virginia standard was an impossible burden for a ha-beas applicant claiming actual innocence to meet because "any evidence sufficient to support a jury's verdict beyond a reasonable doubt will also be sufficient to support a rational jury’s guilty verdict even after adding the most compelling newly discovered evidence to the mix.” See Holmes,
. See Ex parte Tuley,
. See Tuley,
. See Tuley,
. See Tuley,
. See Tuley,
. See Tuley,
. See Tuley,
. See Ex parte Harmon,
. See Harmon,
. Emphasis supplied.
. Emphasis supplied.
. This is very different from our usual role in other habeas cases.
.This is the error-free trial that Elizondo states is entitled, to the greatest respect. See Elizondo,
. Before a habeas court may grant habeas relief on a freestanding actual innocence claim, Elizondo,
. As Winston Churchill said, "the road to hell is paved with good intentions.”
. See Elizondo,