Ex Parte Thompson

erred in suppress, appeals the court of

reversing ruling. the trial court’s Ap-

judgment of the Thirteenth Court reversed,

peals is and the trial court’s

judgment affirmed.

WOMACK, J., concurs. Craig THOMPSON, Stephen

Ex Parte

Applicant.

No. AP-74820. Texas, Appeals Criminal

En banc. 12, 2005.

Jan.

417 fact and conclu- findings of court entered indicating applicant sions of law entitled to relief. Elizondo, 947 parte

In Ex this (Tex.Crim.App.1996), S.W.2d actual inno that bare claims of Court held proceed in a cognizable are cence parte non-capital in cases. Ex ing, even at 205. To merit of relief, the burden applicant bears newly discovered evi showing that his or dence establishes at 209. The court her innocence. Id. habeas claim must examine reviewing the light in of the evidence the new evidence presented at trial: Because, evaluating a habeas claim Udashen, Dallas, evi- Gary Appellant. newly A. discovered or available applicant to be inno- proves dence O’Neil, Atty., Christina Asst. District he con- cent of the crime for which was Dallas, Paul, Atty., Matthew State’s Aus- victed, probable our task is to assess the tin, for State. newly available evidence impact of persuasiveness of the State’s upon whole, necessarily we must case as against weigh exculpatory such evidence OPINION at trial. guilt of adduced the evidence JOHNSON, J., opinion of delivered relief, the grant at In order to Id. Court, MEYERS, PRICE, joined by no ra- reviewing court must believe that COCHRAN, WOMACK, HOLCOMB, and juror ap- have convicted the tional JJ. newly discovered plicant light for a post-conviction application

This is a Id. at 207. evidence. corpus pursuant writ of habeas filed case, court In this the habeas 1991, Tex.Code CRIM.P. Article 11.07. at received evidence jury aggravated convicted sex- weighed court the new hearing. writ The ual assault of a child (Tex. Pen.Code testimony against the evi evidence and 22.021(a)(1)(B)) punish- § and assessed deter dence adduced thirty years’ imprisonment. ment had met the burden mined that appeal. conviction was affirmed innocence, rec actual showing his State, 05-91-01200-CR, Thompson v. No. relief. grant this ommended that (Tex.App.-Dallas, October WL findings, by the This Court is not bound 1993). application this a trial conclusions or recommendations contends discovered However, court the habeas court. because actually innocent. Fol- shows that he is make determina- position in a evidentiary hearing, the trial better lowing an by an ex- case, was followed should That statement credibility1 we tions they sup change prosecutor if are on cross-exam- defer to those Bates, 640 the record. Ex ination: ported (Tex.Crim.App.1982); Ex you Q. just told this You (Tex. Turner, 545 S.W.2d truly sorry happened, for what were case, findings In this Crim.App.1977). [C.T.], you? you did to didn’t what supported by are of the habeas court Yes, A. that’s correct.

record. just up there and Q. yet you And sat sexually convicted of as- Applicant was your heart for you have no love daughter, who said saulting five-year-old his [C.T.], any to establish sort didn’t want at the time of the trial. eight years old yet you her and relationship of with presented against The evidence [C.T.], victimized wer- following: of the were the one who trial consisted you? the testimo- testimony complainant, of en’t mother, the com- ny complainant’s of the my anything to do with A. If I did have (which al- torn the state plainant’s dress they come back daughter, by applicant during tom leged was say— assault), testimony arresting of the you, I asked Mr. Q. That’s not what officer, and the police the one who vic- Thompson. You were complainant. physician who examined [C.T.], daugh- your five-year-old timized that the results physician testified at the time? ter examination were complainant’s the Fifth on that. plead A. I want to However, normal. he also stat- completely evidence of physical the lack of ed question. Answer the THE COURT: digital abuse was “consistent sexual it, repeat she THE Could WITNESS: penetration.” please? only the testimo- presented The defense one who victimized Q. You were the sisters, were also who ny applicant’s two years five she was your daughter when aunts. complainant’s just here and told you old and sat testify during the Applicant did not sorry for what you truly were trial, he did guilt/innocence phase but happened? during punishment take the stand A. Yes. During testimony about whether phase. be able to adhere to condi- applicant would respon- you’re holding her Q. yet And applicant responded probation,

tions of to have and don’t want or at fault sible attorney regard- by his defense question relationship with her as any sort the offense: ing feelings his about creat- you what happened, result of what Steve, at this you I to look Q. want ed, you created? problem you’re not whether or jury and tell them to have—I don’t— just A. I don’t want sorry happened. that this just I don’t— Yes, sorry hap- this truly A. I’m about you don’t trust Q. that because Is long as I live I will never pening and as around her? yourself happen again. let it testimony. v. live findings vits rather State, than Manzi of fact We defer to the trial court’s (Tex.Crim.App.2002). on affida- those are based even when also admitted significance. mize their She just, you A. No. I don’t want know—I her, no, whether anything having to have to do with doubts about I he was ma’am. don’t— the acts for which had committed However, that she she denied convicted. Q. happened, It’s her fault that (cid:127) any had been involved it? isn’t at the time of the custody dispute kind of No, A. no. vehemently denied She also accusations. Q. you’re going respon- So now to take into having complainant pressured the sibility happened? you what Are she had at making allegations. As going responsibility to take for what that her sus- she testified happened, Thompson? Mr. complain- the picions were aroused when Yes, yes. A. her father ant came home from visit with hearing, At the habeas various witnesses that also testified torn dress. She ongoing custody dispute described the be- complained of irritation daughter her had and his ex-wife at the time applicant tween painful and urination. She genitals, of her against him. the accusations were made that she noticed redness the com- stated Applicant and presented affidavit testi- genital area when she bathed plainant’s herself, mony complainant now 20 However, she also admitted that she her. years old. that She testified sexual subject raised the of abuse with had sexual happened, abuse never that moth- but her At the torn-dress incident. C.T. before pressured making er had her into the alle- hearing, complainant’s the habeas gations against According her father. to complainant mother admitted that the had complainant, years when she was five told her that the dress was torn on the bus old, repeatedly her mother asked her church, that she did not after but believe specific whether her father had done complainant’s explanation. Applicant things replied to her. she that her When testimony of church presented the bus anything, father had not done mother her driver, had wit- who testified she angry became and would not allow the tearing falling nessed on the bus and C.T. complainant play go anywhere to or until applicant nothing and that had her dress they had talked it. Eventually, about being to do with the dress torn. complainant pressure succumbed to the and “admitted” that had done the hearing at the habeas Applicant testified things described her mother. The com- any again and denied that he had ever had plainant also testified that afraid she was daughter. kind of sexual contact with his mother, of her presented attorney had He testified that his retained specific episodes physical evidence of jury during him to tell the advised complainant by abuse her mother over Sony that he punishment phase was years applicant’s since trial. According applicant, what he had done. that he complainant’s attorney mother testified at his had indicated would if he ad- hearing the habeas and admitted to several receive a more lenient sentence and he had against guilt punishment, the com- mitted his physical acts of abuse attorney’s advice.2 He plainant, although appeared simply she to mini- followed his (applicant’s trial question reflects a about wheth- until The record 11/01/1989 05/01/1991 08/12/1991). applicant’s attorney began The State Bar also er trial was on licensed 10/05/1992, that, "resigned practice applicant's reports counsel law the time of trial. on reports disciplinary The court of The state bar in lieu of action.” argument actively suspended appeals rejected applicant's counsel from presented of actual innocence attorney had not in- admitted that his hearing Applicant’s Fifth.” on “plead evidentiary him to at the structed application. writ Finally, presented the testimo- Corsi, attorney and li- ny Lynne performed habeas court It is clear that the had Master Social Worker who censed analysis applicant’s claim proper attorney as an assistant district worked newly dis- weighing the under abuse and ne- prosecuting cases of child ad- against the evidence covered evidence had founded the Dallas glect and who determining his trial and whether duced at Advocacy Ms. Corsi Children’s Center. him in juror convict any reasonable interviewing tech- expert testified as an light of the new evidence. recantations in child sexual- niques and are find that the court’s We opinion offered her abuse cases. She complain- by the record. The supported recantation this case complainant’s testimony explains explained the bases for her ant’s new affidavit was valid. She hearing indi- manipulated in detail at the intimidated and opinion how she was reached af- against cated that her conclusion was making the accusations into thorough transcript of the and ter a review in testimony corroborated Her father. trial, and applicant’s of the affidavit record driver’s part by the church bus complainant, a three-hour testimony of the put that was into the torn dress about the complainant, and interview with the original trial. The evidence hearing. testimony at the habeas testimony that she mother’s complainant’s ex- daughter’s original did not believe of fact findings The habeas court filed dress, chose to torn but for the planation law, recommending of and conclusions confirm her that would explanation seek an be set aside: applicant’s conviction supports the about suspicions that re- making this recommendation rest of testimony about how complainant’s has evaluated granted, be the Court lief Presented with “outcry” came about. the in con- evidence this discovered conjunction with the in this of all the junction with an assessment of the medical “completely normal” results and concluded adduced at trial evidence examination, testimony of and the sworn has newly discovered evidence that this question in complainant that the events credibility strength to cause a and all, habeas court’s happened never guilty. not verdict of juror could have that no reasonable finding by the guilty supported found finding guilt, appli- record. Without Applicant’s ground finds that The Court put posi- not have been cant would and the granted for should be relief of the tion, phase during punishment authority of set aside under conviction an offense apologize for (Tex. having Elizondo, 947 parte Ex commit, he have felt not nor would he did Applicant in that Crim.App.1996), in order to the Fifth” “plead the need to convincing evidence by clear and shown himself on the witness perjuring avoid juror convict that no reasonable newly discovered stand. light him in However, in right to counsel. defendant’s trial counsel ineffective. this rendered his applicant’s claim support to holding case it lends appeals was correct in The court of legal attorney gave questionable him prac- that his attorney’s suspension from the

that an advice. always per violation of se tice of law is not justice system court that if the criminal find that the habeas Because we —even fairly followed— its were procedures when and made find- reviewed all which inaccurate result patently reaches analysis under Ex ings proper based on person innocent to be has caused an we believe and because crime he did not imprisoned for a wrongly supported by are that those commit, an obli- judicial system has record, grant judgment we relief. The things straight. Our criminal gation to set from the cause number W88-67867-U to its justice system promises makes two District of Dallas 291st Judicial fundamentally fair trial and citizens: a aside, and is re- County is set two If either of those accurate result. charges against manded to answer met, justice not the criminal promises are him. will disrepute falls into system itself Copies opinion of this shall be sent to eventually disregarded. be Justice, Department the Texas of Criminal bridge crossed over the This Court first divi- pardons paroles institutional and addressing post-conviction claims of ac sions. years ago ten in State ex tual innocence Appeals COCHRAN, J., rel. Holmes v. Court concurring filed a in its HOLCOMB, J., It has not wavered joined. Third District.1 opinion in which an inmate permitting commitment to basic J., HERVEY, dissenting opinion filed a enacting a prove his innocence while KELLER, PJ., KEASLER, in which weed out the suitably high threshold to J., joined. potentially meritorious frivolous from COCHRAN, J., concurring filed repeated That commitment was claims. HOLCOMB, J., joined. opinion Franklin,3 which Elizondo,2 parte Ex parte Ex and Tuley,4 paHe Ex Ex Hannon5 join opinion. I the Court’s I add the Harvey.6 parte. Ex following clarify concep- comments to Court, I think tual framework as the all of these cases are convictions Almost child, ultimate decisionmaker in the habeas con- assault of a aggravated for sexual text, should use to claims of actu- evaluate are similar. At and the factual scenarios al innocence. trial, girl7 that the defen- young a testifies

dant, or other close usually stepfather I. relative, sexually molested her. The child and sim- First, a reluctant witness agree wholeheartedly frequently I with the leading questions with the “judicial process ply agrees dissent that our is not usually a divorce or limitless,” her. There is primary duty but we fail in our asked There are family dispute involved. punishing the innocent and other protecting medical of sexual intentionally generally if slam the no guilty we is, physical no evidence that defini- against one in abuse and courthouse doors who Usually fact, tively points toward molestation. wrongdoing. I believe innocent WR-74,955 1994). (Tex.Crim.App., delivered (Tex.Crim.App. 6. No. 1. 885 S.W.2d 389 8, 2004) (not designated publication). Dec. 1996). (Tex.Crim.App. 2. 947 S.W.2d 202 Elizondo, the child was the 7. In (Tex.Crim.App.2002). 3. 72 S.W.3d at 209. step-son. 947 S.W.2d (Tex.Crim.App.2002). 4. 109 S.W.3d 388 (Tex.Crim.App.2003). S.W.3d 778 time, can, from time to make a therapist parent psychologist a child or sex abuse a child’s credibility is consis- mistake and believe testifies that the child’s behavior of the event. sexually-molested child. inaccurate version tent with that of witness, “outcry” frequently There is child, for various years later the Several or other female rela- normally the mother reasons, says that recants and now tive, testifies that the child told her who that, her and defendant never abused jury the abuse.8 The convicts about fact, sexually molested she was never long to a defendant and he is sentenced is that she was anyone. position Her now prison term. allegation, that pressured making into house, said, out of the he said” cases that she wanted the defendant These are “she just along and went rely upon jury’s assessment that she was scared ultimately her, told or that she credibility opposing wit- with what others of the relative cases, any untoward sexual virtually simply it im- does not recall In such nesses. Frequently by the defendant. not to make an occa- behavior possible for say and Any other witnesses now come forward credibility parent mistake. sional the child had told them at some to resolve a sib- attempted who has ever said, original point before ling upon “he she said” quarrel based —sometimes the defendant never knows that even sometimes after —that single versions of a event molesting began sexually her. 109 the evidence at trial consisted testified testimony by at 411. The child’s mother following: "perfunctory” S.W.3d that, time, applicant stopped 10-year-old same child that his mother and about this her, having younger brother and the child’s behavior made him and his sex with videotapes changed drastically When sexually explicit and that for the worse. Id. watch abuse, boys; sexually both out- both adults molested told her mother about the child police cry testimony by step-mother immediately his and out of mother kicked officer; sexually explicit picture police. A doc- apartment called the their at school. 947 physi- note written the child the child and found "no tor examined incriminating at 209. "No other evi- findings suggestive of abuse at that time.” cal at trial.” Id. telling dence was offered or received immediately after Id. at 397. Almost abuse, the child admitted her mother of this Franklin, at trial consisted the evidence story to fabricated her to friends that she had testimony 13-year-old child's that the at 396. get applicant of her home. Id. out backyard applicant raped father’s her in her testify to that fact at “friends” did not These girlfriend were in- while her father and his original trial. par- at 672-73. The child's side. S.W.3d Harmon, step- eight-year-old applicant's In with her ents were divorced and she lived applicant daughter at that had testified trial witness) (the outcry stepfa- and her mother times,” but sexually abused her "a bunch of ther, frequently her and his but visited father day was one when her mother she focused on girlfriend. The child’s mother Id. at 673. brother were at at and she and her work day came back testified that the after child watching at television. 116 S.W.3d home house, the mother found a from her father’s applicant told her She testified that 780-81. panties laundiy. pair of blood-stained bedroom, sexually abused go to the then he period had her two Because the child had gave money. The mother testi- her her ap- blood weeks and because this earlier day, she came home that "fresh,” fied that when she suspicious. peared was her mother house, outside the locked found the brother and found a A doctor examined the child child had extra later noticed that the and she hymen “blunt rupture indicative of Again, was no money. there Id. at 781. injury and that the was consis- force trauma” bleeding medical evidence. at the time of the tent with her Harvey grant- was Because relief in Ex offense. Id. opinion, the unpublished per curiam applicant ed in an Tuley, testified that In the child not be set out specific that case need boyfriend, and that facts in live-in was her mother's upon precedent. apartment, and cannot be relied into their shortly after he moved fundamentally fair act to a family or diffi- er second molested her. divorce purport- longer trial? It is the outsider —the have resolved or are no first culties been created the physical evidence ed crime victim—who an issue. Whatever really claiming that she problem by now might produced original have been at the original all. If the trial inno- was not a victim at explained away trial now in some is required procedural all of the fashion.9 afforded cent play- and if the institutional protections, judicial system supposed How is attorney, the defense prosecutor, ers—the Only out? two hearts and minds sort this legal, up to their judge, the —lived truth this will ever know absolute moral, should the obligations, and ethical may that If scenario and even be dubious. its hands of justice system criminal wash heart, human rather the truth lies luck, say, it’s not this dilemma and “Bad result, than a Petri or DNA test do dish your problems else- our fault. Take judicial system simply declare that the we where”? unwilling or to address the incapable is is, possible, perhaps permissi- That is one original matter? Because the trial event,” ble, approach It legal approach. quite “the main appropriately, might any Supreme the United States reprise, regardless should we forbid approach But that is not the persuasiveness proof? uphold.10 Is there nev- charges explained that she had fabricated 9. In both children recanted thirteen years they thought against applicant the trial when were full- he was after because she adults, mother, grown saying that their natural father abused to her that he had unfaithful "relentlessly manipulated and threatened mother, drugs. 109 her he had used making allegations against them such into at She hated him and wanted 396. against their in order to retaliate at him out of the house. Id. 420. mother, ex-wife, marrying ap- natural his for Hannon, years recanted nine In the child plicant years before." 947 S.W.2d at 210. trial, hearing testifying at the habeas after the They any denied that abuse had ever oc- say about aunt had told her "what to her curred. alleged that the child’s mother event” so Franklin, gave the child an affidavit to get together back and natural father police years saying three after the picture.” again “out of the once (appli- step-father she been abused her had at 780-81. 116 S.W.3d friend) family approximately cant was a years out ten until she and her mother moved Collins, U.S. Herrera v. police. and she then went to the (1993), L.Ed.2d 203 the Su- S.Ct. not, however, She did recant preme open question of whether Court left her on had molested showing truly persuasive of actual inno- Thus, one Id. at 674. this Court occasion. independent could be an constitutional cence "[a]lthough applicant’s held that evi- [new] habeas relief. See Id. basis for federal important, dence it is limited to the im- 427-429, (O’Connor, J., concur- 113 S.Ct. 853 peachment did child’s] of claim that she [the ring). At least Herrera was a 6-3 decision. men,” not have sexual relations with other concurring justices did not fore- three of the despite the trial and we denied relief serving viability of actual innocence close the contrary at 678. court’s recommendation. Id. free-standing claim for federal habeas as a was, according Tiiley, trial evidence relief. judge, with material contradic- ”[r]ife to the Kennedy did not O’Connor and Justices 12-year-old tions" in which the child victim’s instead, they suggested question; reach that given by testimony testimony "conflicted with to Supreme Court would never have that the simply implau- other State’s witnesses or was any truly per- such an issue because decide jury also sible.” 109 S.W.3d at 396. The would be resolved claim of innocence suasive the evidence must have had concerns about 42, clemency. at 113 verdict; by See id. executive not instead because it could reach J., ("the (O’Connor, concurring) S.Ct. 853 officially it deadlocked. The child recanted on, pass appropri- and reason to years giving and Court has no two after her trial 424 Instead, are speedily

Court has taken. this Court has ommendation. Those cases curiam orders. disposed of per with This eye to attempted thread of the needle approach not worked so well has those a habeas making free-stand- judge few instances where the finds cognizable, claim of actual ing credible, newly recantation only supported but if it is discov- unquestionably discovered evidence estab- “unquestionably estab- ered evidence innocence, the inmate’s and lishes he rec- lishes his innocence.”11 ommends I am of granting relief. aware remarkably approach This worked only past five eight such cases trial court post- well when the finds the Franklin, years Elizondo, Tuley, Har- — trial recantation not credible and recom- Harvey. mon the sixth. This is This mends the denial of habeas relief. This litigation, is not a of and our trial floodgate routinely follows the trial court’s competent judges appear quite to be at conclusions, findings, legal sorting from the good factual and rec- out the bad. J., reserves, (Blackmun, question joined by ately federal 113 S.Ct. Ste- whether 853 Souter, JJ., (citations may convincing dissenting) courts entertain claims of ac- vens & omit- question ted). tual innocence. That difficult re- California, See also Robinson v. 370 open. guarantees 660, 1417, mains If Constitution's 667, U.S. 8 758 82 S.Ct. L.Ed.2d procedure safeguards and the clem- of fair of (1962) ("[ejven day prison one would be a ency pardon their fulfill historical mis- punishment cruel and for the 'crime' unusual sion, all”). may require it never at resolution But, cold”). having a common Justice concurrence, separate White In his Justice noted, correctly Blackmun the issue before persuasive showing that a of "actual stated Supreme &e Court Herrera was not wheth- newly-discovered innocence” based on evi- imprisonment er the execution or an inno- an dence could render inmate's execution un- unconstitutional, person question cent 429, See id. at 853 constitutional. 113 S.Ct. proven was Herrera had he ac- whether was J., (White, concurring). 2, tually Id. at 432 n. innocent. S.Ct. 853. justices These three did conclude that Herr- that, according justices, six he not And did free-standing claim of actual innocence era’s do. independent did not establish constitution- 298, Delo, Schlup v. 513 U.S. 115 S.Ct. 427, 429, id. at al claim. See 113 S.Ct. however, 851, (1995), L.Ed.2d 808 ma- First, newly-discovered evidence Herrera's jority Supreme Court seemed assume 417, only of affidavits. at consisted See id. free-standing Herrera-type, that a claim ac- Second, S.Ct. 853 . the affidavits were cognizable tual because innocence is it con- eight years over after the trial. See id. made Schlup’s type trasted that of claim with claim 417-18, Third, at 113 S.Ct. 853. the affida- coupled of actual innocence which contained vits themselves internal inconsis- claim of violation. See a constitutional id. id. at Final- tencies. See S.Ct. 853. ("[i]f ques- there were no S.Ct. 851 ly, were when the affidavits considered with tion the criminal about the fairness of presented eyewit- the evidence trial —two to fail Herrera-type claim would have unless identifications, pieces numerous of cir- ness is itself federal habeas court convinced handwritten let- cumstantial establish those new facts apologized killing the ter where Herrera hand, Schlup's the other innocence. On if pointed strongly officers—the evidence still merely Thus, were convinced that habeas court guilt. toward the inmate’s See id. those sufficient doubt about new facts raised newly-discovered affidavit evidence did not Schlup's guilt confidence in the truly persuasive to undermine of a show- meet the standard the assurance ing result of the trial without of actual innocence. Blackmun, speaking by of the that trial constitutional er- Justice on behalf was untainted ror, unequivocally: showing dissenters stated of Schlup’s three threshold innocence "[njothing contrary be more contem- could to justify would of the merits of the review decency, porary claim”). standards of or more shock- constitutional conscience, per- ing to the than to execute a 430, Elizondo, actually 11. S.W.2d at 209. who is innocent.” Id. at 947 son evidentiary hearing. him in an II. before certainly position a better judge That that continues to trouble the The issue credibility complain of a to determine the Court, however, is the standard of review n testimony prior of ant’s sworn recantation employ this Court should when re- viewing those few actual claims especially in an trial. This is given earlier that a trial court has found to be meritori- judge if heard both the true the same trial court ous and for which the recom- testimony “newly and the dis original trial relief. mends hearing. covered” habeas regardless judge But of whether the trial raising that an We have held post-conviction free-standing testifying claim of “ac- personally views the witnesses tual innocence” must meet an “extraordi- live, to the reviewing court will defer narily high” producing burden of new facts judge even findings factual “unquestionably his inno- establish” by affida when the evidence is submitted But that the cence.12 does not resolve is, finding is based vit 14—that the factual issue of who the facts decides whether new cold, hard record. It solely upon reading the in- establish indeed, extraordinary practice, would be by legal nocence what standard. Nor routinely for us to defer to a trial court’s by does it resolve the standard which this when that trial court findings except of fact convicting Court reviews the court’s factu- re complainant’s post-conviction finds a al findings legal or its conclusions in this and true. cantation credible habeas context. re- legal question, which we must context, In the normal corpus habeas novo, evi- view de is different: does this 11.071,we, under either article 11.07 or dence, light most favorable viewed the court, a reviewing generally defer to the findings trial court’s factual findings.13 trial court’s factual He is determinations, actually credibility demon- “Johnny-on-the-Spot,” especially when it person “unquestionably strate judging credibility comes to and de personally testify answering meanor witnesses who innocent” of the crime?15 Elizondo, record, they parte findings supported by 12. Ex at S.W.2d are 317, (quoting Schlup, Court”). 513 U.S. accepted by 115 S.Ct. be this should 851). State, 240, 242-44 v. 88 S.W.3d Manzi Briseno, 1, parte 13. Ex 135 S.W.3d 12-13 (giving great (Tex.Crim.App.2002) deference context, (in (Tex.Crim.App.2004) habeas "we to trial court’s factual determinations based afford almost total deference to the trial rulings "a on affidavits because trial court's judge's determination the historical facts questions purely historical fact have record, supported by especially when given traditionally deference even absent been findings those fact are based on an evaluation determinations”; credibility "the fact remains However, credibility and if demeanor. traditionally it is the role of the trial ruling supported by trial court’s is not fact, issues of historical court resolve record, may findings”) reject Court this credibility de- whether or not and demeanor Franklin, (footnote omitted); parte Ex involved”). are terminations ("[ajlthough n. 5 Court is this findings not bound of the trial court in (“if 947 S.W.2d at 209 post-conviction corpus proceedings, prove by convincing evidence to can clear and findings supported by such are considered if Court, Evans, corpus record"); the exercise of its habeas this Ex acquit ("[w]hile jurisdiction, that a him (Tex.Crim.App.1998) he is based on his discovered bound of a habeas is not relief”). judge corpus proceeding, in a habeas where entitled to explained innocence.”18 We plicant’s] consider the trial question, this we should phrase “unquestionably that the of law as well as his Elizondo court’s conclusions convincing” recommendation, means “clear and any, concerning if the establishes” is, relief, Schlup, That under the federal proof.19 but it is grant or denial of habeas judge hearing the habeas legal conclusion that district court nonetheless a that the new Court, must be convinced application final decisionmaker in habeas as the itself, does, es by unquestionably make.16 evidence applications, must tablish, is, by clear and convinc prove that First, then, legal meaning does the what applicant’s innocence.20 ing the phrase “unquestionably innocent” have? factfinder primary That is the role of the Elizondo, that we explained we bor habeas, which, judge is the Supreme phrase rowed this from system. state the federal or Texas either in Herrera Court’s discussion fact, the end of the matter. a But that is not Schlup.17 phrase short unquestionably The “new” evidence which Supreme hand rendition of the Court’s dis innocence must a cussion of the distinction between bare establishes inculpatory evi- compared of innocence be to the “old” claim of innocence and a claim trial. original offered at the error. dence coupled with one constitutional original That was believed Schlup from is: evidence pertinent sentence old evidence had found that the question no about the fair which there were “[i]f beyond a applicant’s guilt Herrera-type established ness of the criminal Elizondo, that federal reasonable doubt. Under claim would have to fail unless the and “new” is ultimate- comparison that those of “old” court is itself convinced habeas Al- of this Court.21 ap ly responsibility unquestionably [the new facts establish newly available guilt. Newly discovered or George W. Dix & Robert 16. See 43B Dawson, sup- merely impeaching that is or evidence Criminal Practice and Proce- Texas Practice: theory (2d ed.2001) (it but does not portive of defensive job dure, § of the 45.82 exonerating explanation provide wholly Appeals to resolve “all final Court of Criminal the basis of actual innocence cannot form decisionmaking in aspects [art. 11.07] id., (“[w]hile under cases”); relief § district 45.21 Elizondo. corpus] [habeas courts have a role in the Elizondo, we stated: 21.In decisionmaker”). process, it is not that of Because, evaluating a claim habeas We 17. 947 S.W.2d at 209. ex- newly discovered or available evidence plained: innocent of the proves the to be convicted, Schlup makes clear task [in ] This discussion which he was our crime for exceedingly high applies probable impact new- standard is to assess upon persuasive- ly claims of actual inno- the assessment of available evidence whole, accompanied by a claim we must that are not State's case as cence ness of the weigh exculpatory Where the evi- necessarily error at trial. such of constitutional error-free, constitutionally guilt against evidence of adduced trial has been dence greatest respect. to the conviction is entitled at trial.... that, exer- Accordingly, must be convinced that we now hold The habeas court jurisdic- postconviction [the establish the "new facts cise of our and 11.071 of the applicant’s] under article 11.07 innocence.” tion Procedure, job is not (quoting Schlup). our Id. Code of Criminal jury's to decide verdict but to review S.Ct. Schlup, U.S. at 851. newly discovered evidence whether appli- jury of convinced the would have Elizondo, 947 S.W.2d at 209. cant's innocence.... prove Consequently, applicant can complete if as a evidence must suffice 20. That Court, convincing to this applicant's clear and exoneration of the and absolute following frame- suggest I the by the find- cence? though greatly we are aided work: judge, trial one who ings particularly of a * the “old” and personally heard both First, newly hears the the trial court evidence, responsi- it is this Court’s

“new” the evidence. It assesses discovered bility legal question the ultimate to decide and the credibility of those witnesses fact of whether a rational trier of would of that evidence. It persuasiveness necessarily acquit applicant the based concerning of fact its makes evidence, comparison a of the “old” and “new” in- upon of that both assessment is, collectively. That a rational factfinder pieces evidence. dividual * the simultaneously could not believe both Second, decides trial court a “old” and “new” evidence and still reach “un- that “new” evidence whether guilty verdict. appli- questionably establishes” Only if the trial cant’s innocence. course, the burdens of Of because both is court finds that the new evidence persuasion ap- in a habeas production and and, by clear and con- both credible he must plication upon applicant,22 are evidence, evidence, vincing trial court and this Court ensure that the itself establishes capable comparing are the “old” with innocence, should the trial applicant’s produce the “new” evidence. He must court continue. adequate support record to his claim for * Third, compares the trial court relief; deny otherwise this must his with the “old” evi- “new” evidence claim.23 original dence from the or other Conceptually, how do both the trial this, the trial proceeding. doing go comparing court and this Court about might court envision the situation the “old” and “new” evidence to decide trial took all original jury place if the necessarily a At jury morning. point whether rational would in one evidence, acquit upon impact jury based State’s believed guilty its and heard newly discovered evidence of inno- returned verdict concurring corpus jurisdic- opinion on the in the exercise of its habeas 23. From the tion, Rehearing parte Tu Motion for in Ex State’s jury acquit that a him based on J., (Price, joined by ley, at 402 109 S.W.3d his discovered he entitled Cochran, J., concurring), might get the one to relief. impression that a habeas erroneous 947 S.W.2d at 206-209. produce the burden to does not have original Tuley, howev record from the trial. Peterson, 804, parte 22. See Ex 117 S.W.3d and, er, ultimately, jury involved a deadlocked curiam) (Tex.Crim.App.2003) (per & n. 60 guilty plea, ob negotiated a not a conviction (defendant proving bears double burden case, jury a verdict. tained after jeopardy by preponderance claim of evidence underlying helpful to the trial trial record was Kimes, corpus); parte on writ of habeas Ex Court) (and comparing to this court (Tex.Crim.App.1993) 872 S.W.2d had been offered at the aborted evidence that (defendant-applicant bears the burden persuade jury beyond trial which did not hearing proof at a habeas to show constitu- But, guilt. reasonable doubt of Thomas, violation); tional see also Ex case, because there was verdict in no (Tex.Crim.App.1995) parameters Tuley the usual falls outside of. ("[t]he proof burden of in a writ of habeas free-standing claim of actual corpus prove is on the inculpatory under- the "old” which preponderance of the evidence his factual al- jury's guilty pining a verdict entitled legations”). great deference. original at the trial that she The who testified punishment all of the evidence. applicant After- the child and the jury upon took a lunch break. stumbled then event, wards, very jury returned In that the flagrante that same in delicto. recantation, though impor- evi- heard all of the “new” child’s “new” and tant, in- unquestionably that the trial court does not establish dence—evidence found, that already suppose as a matter nocence. Or has fact, private and establishes found on the child’s to be credible DNA was to show powerful asked to render Absent evidence parts. innocence—and was hearing wholly-innocent the inaccurate some a second verdict after test or DNA, testimony. the child’s later morning explanation and afternoon for the rational- not suffice. only jury, acting It if that recantation would hearing believing both ly after Indeed, nullify that failure to the State’s necessarily sets of would inculpatory evidence led this court primary (because the acquit the defendant because, in Franklin even deny relief ra- evidence cannot “old” and “new” fac- to the trial court’s granting deference reconciled), tionally that the trial be failed to offer findings, applicant tual the appli- the may court conclude inno- that he was evidence unquestionably established cant has Franklin, child victim came the cent. of the crime for which his innocence that, in years later and admitted forward he was convicted. fact, sexually abused she had been n Fourth, deferentially this Court then That abuse years by step-father.24 her find the trial court’s factual reviews certainly physical account for her concerning the “new” evidence ings inculpatory ev- injury important which was findings sup that those are to ensure However, trial. the original idence at the If factual by the record. the ported testimony her “old” child did not recant record, supported are step- as well as her applicant, independently compare then we Thus, father, sexually molested her.25 had by the trial evidence as found “new” original full truth at the she told the in “old” evidence court with the have been less evidence would State’s trial court did same manner that the and the medical evidence virtu- persuasive legal step three. The ultimate nonetheless, irrelevant, a rational ally novo, we review de question, which applicant guilty found could still have jury would neces whether a rational origi- child victim’s solely upon the based based sarily acquit nal, testimony. This Court did unrecanted hearing believing both upon court’s factual the trial disagree not because “old” and “new” evidence child’s findings in Franklin —that they rationally irreconcilable. are that, credible and “new” evidence was fact, had abused step-father matter of legal could meet this Before an years ten rather with her for some standard, the “new” he must show —but of that legal significance nullifies satisfactorily rebuts or credible, unre- against the weighed when evi- primary inculpatory all of the State’s testimony. The “new” canted “old” example, trial. For from the “old” dence rationally irrecon- not “old” evidence were assault scenario suppose child sexual above, eyewitness cilable. was an out there set Franklin, at 678. Id. 72 S.W.3d at 673. sexually abused has been in the bath tub sum, the trial court and both an adult. overlapping roles important,

Court have un- determining whether an fact Second, points to the the dissent his innocence questionably established by the on cross-examination applicant, discovered evidence. based phase of during punishment State original trial is enti- jury’s verdict sorry for what had that he was said deference, it is not such great tled to but complain- he did to the and what happened judicial system is re- that the shibboleth course, occurred testimony, of ant. This to turn a deaf ear and close quired him and jury guilty had found after the and credible against truly persuasive door punish- appropriate focused on the was which, had evidence of actual are, of men the most innocent ment. Even it, would necessari- original heard surely caught on the horns stage, at that ly acquitted applicant. have inno- resolutely your maintain a dilemma — more jury punish you cence and have case, the dis-

Turning particular to this verdict and severely quarreling for with its appropriately con- adequately legitimate not taken these committing type reasonable doubt of some into account. siderations It against of sexual offense a child. jurispru “actual This Court’s innocence” undisputed in these cases that this inmate begins States Su dence United according pro has been convicted to due in Herrera. Herr preme Court’s decision cess of law and has been afforded of whether question era wrestled with the “unparalleled protections [constitutional] claim of actual innocence free-standing at against convicting the innocent” his er states newly based on discovered evidence Collins, v. 506 ror-free trial. See Herrera corpus a basis for federal habeas relief. 390, 398-400, 853, 113 122 U.S. S.Ct. ” opinion, (1993) (O’Con- “assuming arguendo an L.Ed.2d 203 and at 419-20 altogether be question Court avoided that nor, J., Many years later this concurring). in that case failed to cause the challenges presumptively guilty inmate1 persuasive showing make a of innocence. corpus his conviction on habeas on the 419-27, Herrera, 506 at 417 and at See U.S. newly (usually basis of discovered evidence (O’Connor, victim) J., concurring) S.Ct. 853 by a recantation which 113 (Court argu of for the sake “assume[s] inmate claims establishes his innocence. of actual free-standing ment” that claim Society legitimate finality interests corpus), on habeas cognizable innocence is in inmate’s error- presumptively guilty this (no. (Sealia, J., concurring) and at 427-30 conviction, free and courts should afford by case assum legal deciding error “in weight finality great these interests asserted constitu ing, arguendo, that an in free- respect evaluating this inmate’s exists”). right tional claim standing “actual innocence” on habe- that, deciding in very significant It is corpus many years after the fact. See (conviction Elizondo, persuasive made a 947 at 209 whether S.W.2d innocence, Supreme of Court showing from an error-free trial is entitled to the Herrera, necessary in it to inde- 506 U.S. at Herrera considered “greatest respect”); (O’Con- 426, applicant’s new evi- pendently at 853 evaluate 400-04 and 113 S.Ct. nor, J., at his trial. See fi- dence and the evidence concurring). legitimate These Herrera, 398, 853 506 at 113 S.Ct. nality especially important interests are U.S. Herrera, 399-400, before the “does not come See 506 U.S. at 113 S.Ct. this defendant but, (once 853 "a defendant has been afforded on the Court as one who is 'innocent' fair trial and convicted of the. offense for contrary, been convicted as one who has charged, presumption which he has been law”). process due of and, habeas, disappears,”

431 (Tex.Cr. zondo, 202, 204-05 947 S.W.2d innocence claim “must (applicant’s actual But, disregarding stare decisis previous light App.1996). be evaluated case, rejected the standard which have Elizondo principles, proceedings [the] years”) recently adopted and at had span of 10 stretched over Court Holmes, (including this 418, (considering applicant’s courts which 113 S.Ct. Court) freestanding claims proof [his] “in light new evidence evaluate should trial”) Elizondo, 421-24, 113 at and at S.Ct. See guilt of actual innocence. (same). (O’Connor, J., concurring) standard 205-07. The Holmes solely it did not leave Supreme rejected essentially Elizondo See perform the lower courts to task. sufficiency standard Virginia3 v. Jackson Herrera, at 421- 418 and U.S. mistakenly claimed was which Elizondo (O’Connor, J., concur- 113 S.Ct. like meet in cases standard to impossible ring). at 205-06 this.4 See implication in Holmes (rejecting the v. This decision Holmes Court Court’s “only when test is met “actual innocence” actual inno Appeals is the first of our renders discovered corpus to hold that cence habeas cases constitutionally in or legally case State’s free-standing claim of actual innocence (ac conviction”), and at 207 sufficient for in death cognizable corpus on state habeas further reflection knowledging upon Holmes v. Court penalty cases. See a standard “is not Virginia v. the Jackson (Tex.Cr. 389, 397-98 Appeals, 885 S.W.2d standard”). suitable significant It is that Holmes App.1994).2 heavily on Herrera where the Su relied however, standard, still Elizondo’s new preme independently itself evaluat Court claiming actu- required evidence and the applicant’s ed the new exceedingly per- to make an al innocence Herrera, 506 at his trial. See evidence estab- showing suasive 398, 113 at S.Ct. 853 . U.S. (consistent with innocence and lished his Herrera) recognized soci- Elizondo still parte in Ex Eli This Court’s decision (a in a constitu- finality interests against ety’s a child valid zondo sexual offense (which case) Eli- tionally conviction holding in to error-free Holmes extended greatest to the was “entitled parte Ex Eli zondo said penalty nondeath cases. See Holmes, Holmes, however, Judge dissenting opinion in as actu- 4.In his misread Herrera Virginia v. required that the Jackson ally holding process due Clinton claimed that federal Herrera, 417, id..; impossible for a ha- at was an burden this. See but see 506 U.S. standard claiming to (very carefully pointing actual innocence 853 out 113 S.Ct. beas sup deciding question). "any The "as- evidence sufficient to it was not because meet ” arguendo opinion beyond suming jury's in Herrera made verdict a reasonable port a therefore, holding. Legislature, support Our a ra no such also be sufficient doubt will adding may decisions in Holmes jury’s guilty alter this Court’s verdict even after tional cases since it is newly "actual innocence” evi compelling and other discovered the most Holmes, by judi- holding in Holmes was clear that the 885 S.W.2d the mix.” See dence to J., unsupported by any (Clinton, dissenting). cial constitutional fiat This is incor at 417 Supreme Court. application the United States Jackson proper decision of the rect under Elizondo, State, at 215-16 947 S.W.2d v. 23 Virginia See also See Johnson v. standard. J., (McCor (Womack, reh’g) (holding 1, dissenting on in (Tex.Cr.App.2000) 15-16 S.W.3d sand”). P.J., "mighty mick, ap dissenting) (describing proper thin Holmes erected standard); Virginia v. plication of Jackson cf. State, 307, 319, 332-33 10 S.W.3d Carmouche v. Virginia, U.S. 3. See v. Jackson (Tex.Cr (1979). .App.2000). 61 L.Ed.2d 560 99 S.Ct. Elizondo, respect”). complainant’s at that the recantation was new See important thing 209. The most about Eli- evidence that established his innocence.9 (also zondo is that consistent with Herr- weighed ap- The habeas court the habeas ) reviewing it all actual required era courts plicant’s against new evidence of innocence probable innocence claims to “assess the guilt the evidence of his at and recom- impact newly available evidence grant applicant mended that this Court upon persuasiveness of the State’s case actual claim.10 This relief on his innocence necessarily which whole” involves granted applicant relief on this Court weighing exculpatory “such evidence independently examining ap- claim without against guilt the evidence of adduced at plicant's new evidence and the evidence at Elizondo, 206; trial.” See 947 S.W.2d at trial, contrary his to Elizondo and Herr- Herrera, 398,113 see also 506 U.S. at S.Ct. era.11 (actual innocence claims “must be significant The next decision our actu- light previous pro- evaluated jurisprudence al is this Court’s case”). (also ceedings in the And consis- (another decision in Ex Harmon sex- Herrera), exactly tent with this is what case).12 against ual offense a child That Elizondo, this Court did in See Elizondo. Tuley except case like that the habeas (this weighed at 209-10 Court jury.13 But applicant was convicted discovered evidence with relief granted applicant this time the Court trial); presented at see also claim on his actual innocence without Herrera, 418-19, 1Í3 S.Ct. U.S. (this any clear indication that court .853 court) independently or the habeas exam- actu- significant The next decision our ined new evidence and the evi- jurisprudence al innocence is this Court’s trial, contrary dence his (a parte Tuley decision in Ex sexual of- Tuley. Herrera and case).5 against Tuley, a child In fense The current view on its evolu- Court’s complainant testified at trial that the habe- tionary continuum of its “actual innocence” applicant sexually assaulted her several jurisprudence seems to be freestand- applicant times.6 The habeas was convict- claims are like ing actual innocence habeas beyond of the offense a reasonable ed (in other habeas claims which (based on a guilty plea doubt while his findings that defers to the habeas court’s on guilt/innocence).7 deadlocked supports) the record and that this Court’s later, Many years recant- complainant only simply role is to determine whether testimony.8 applicant ed her trial claiming supports the habeas record the habeas corpus application filed a habeas (Tex.Cr. Tuley, (Hervey, Tuley, S.W.3d at 424-34 parte 5. 109 S.W.3d 388 10. See See Ex J., dissenting reh’g). App.2002). on J., (Hervey, Tuley, 109 S.W.3d at See 411-12 Tuley, (Hervey, at 409-10 11. See 109 S.W.3d dissenting reh’g). on J., dissenting reh’g). on 407-08, Tuley, 7. See 109 S.W.3d at 410-11 Harmon, J., (Hervey, dissenting reh’g). 116 S.W.3d 778 on 12. See Ex (Tex.Cr .App.2002). J., Tuley, (Hervey, 8. See 109 S.W.3d at 419 dissenting reh’g). on Harmon, (Hervey, S.W.3d at 779 13. See J., dissenting reh’g). on J., Tuley, (Hervey, 109 S.W.3d at 419 See dissenting reh'g). on (i.e., ap- jury’s) verdict factfinder’s recantation finding that the victim’s court’s view, however, trial, usually based ignores error-free plicant’s This is credible. complain- of Elizondo of the jurisprudential foundation than the more (i.e., in Herr- Supreme Court’s decision factfinders These twelve ing witness.17 era) inconsistent with plainly and it is at presented evidence live all of the heard 206, actually at what during error-free applicant’s says: testify. the victim they also observed which

Because, claim evaluating a habeas this, factfinders all of these twelve After available evi newly discovered or beyond a reason- convicted inno applicant to be proves dence error-free trial which doubt at this able con the crime for which he was cent of indi- the most reliable many consider to be victed, probable impact necessarily weigh been State’s case dence reasonable to verdict would be different [on must based on verdict and that it is insist, should duced at trial.... do not Of covered doubt sufficient to undermine confidence actually attack ... exceedingly course, any ^[16] “demonstrate that the finally convicted that an against the evidence of on that conviction without as to the not permit our innocent. upon be a claim ^[14] as a permitted wage, insist, him to persuasive person task is to assess efficacy such persuasiveness whole, of actual if It and we continue wage, probable true, is thus for habeas exculpatory newly who has once of the verdict case that he is we a collateral creates a ^[15] fair trial available guilt ad retrial].” that the entirely making and we of the relief must evi dis ing 506 U.S. forms beas much, the final afforded court’s cator of the the former is even less rehable ter the latter. See era, original and there is determination applicant’s guilt/innocence antee that the habeas determination event”); Elizondo, all for an error-free an treating insignificant (O’Connor, J., 506 U.S. claims, if not findings many years after fact is trial is “a decisive and analysis, at 403-04 by this Court Elizondo claims like other applicant’s guilt. See Herrera, the Court shows good reason to believe more, made at his error-free any non-event. But see there concurring). more reliable and at guilty conviction and deference 506 U.S. error-free 113 S.Ct. 853 really is entitled to the many years no is no at 202. portentous than that respect This find- 113 S.Ct. trial into Herrera, than the than the the fact. trans- Herr- guar- to as 403, (the ha- af- only of time dimin- (passage 113 853 S.Ct. only current that its The Court’s view adju- criminal reliability the of later ishes reviewing in Elizondo claims is to role dications). sup- determine whether habeas record “actual inno- disputes one that our No finding court’s ports the habeas jurisprudence is corpus cence” ignores recantation is credible victim’s imprisonment prevent well-intended to supports that the record also the other fact is the error-free trial Emphasis supplied. 17.This Elizondo entitled, greatest respect. See to the states is Emphasis supplied. Elizondo, S.W.2d at 209. 947 very different our usual role in 16. This is from cases. other habeas people. good always,

of innocent But intentions ‘The last I time was on the witness ”?). enough.18 are not Our current actual inno- stand I didn’t tell the truth’ in- corpus jurisprudence cence habeas case, In this applying plain holding (which consistent with Herrera Holmes independently weighing Elizondo follow) and Elizondo claimed to as well as new evidence “against the evidence of requiring our decision Elizondo that all trial,”19 guilt adduced at this Court should by, courts evaluate actual innocence claims conclude that has not met his least, very at the comparing weighing and burden of establishing his against new evidence the evidence ap- innocence.20 The record reflects that Herrera, trial. See 506 U.S. at plicant aggravated convicted sexual (evaluating S.Ct. 853 actual applicant’s part assault of child 1991 based in on light previ- innocence claim “in the complainant’s testimony trial that ap- case, proceedings ous in [the] which have plicant during committed this 'offense her years”). stretched over a of 10 span applicant. Many years visitation with la- proceeding, ter this habeas the com- this, By longer requiring no courts to do plainant trial testimony recanted her our current actual innocence habeas cor shortly meeting after with members of pus jurisprudence ignores the most reli applicant’s family. (the tri guilt applicant’s able indicator of al), no affords consideration whatsoever to The record from society’s legitimate finality interests and is however, complainant’s reflects- that contrary to Elizondo’s claim that an error- that, immediately mother testified follow- greatest free conviction is entitled to the ing applicant, the visitation with the com- respect. at 209. See S.W.2d plainant complained night night “all jurisprudence This well-intentioned it genitals that her were sore and that hurt jail out possible “get evolved free into complainant’s when she urinated.” The pressure card” for child molesters who that, also mother testified when she bathed testimony their victims to recant their complainant, genital she noticed “her persuade and habeas courts to believe irritated, sore-looking.” area was all She any these recantations without consider five-year-old also testified that com- ation of the evidence at trial. See Elizon plainant “strange characteris- exhibited do, J., (Womack, at 215-16 masturbating fondling tics” such (an dissenting reh’g) is now herself: encouraged pursue “allowed Q. doing? was she What get them to recant” and witnesses objects place could be than the evidence A. between “[w]hat weaker She witness, blankets, recanting legs toys, of a whose like different said, As Winston Churchill "the road to This makes clear that an exceed- 18. discussion paved good hell is intentions.” with ingly high applies assess- standard to the of actual that are ment of claims innocence See 947 S.W.2d at 206. 19. accompanied by not a claim of constitution- trial has been al error at trial. Where the may grant court Before habeas error-free, constitutionally a conviction is freestanding relief on a actual greatest respect. to The habeas entitled claim, Elizondo, 209, requires 947 S.W.2d at that the “new court must be convinced that that the habeas court must be convinced appli- [the facts establish "unques- has met his burden to tionably establish” his innocence: innocence.” cant’s] Fifth on that. plead I she A. want appear it to me things and would masturbating. was question. Answer COURT]: [THE them Q. She would rub between it, repeat she Could WITNESS]: [THE legs? please?

A. Yes. victimized the one who Q. You were years five she was your daughter that when doing was Q. Anything else she told the just sat here and you old unusual? was sorry for what truly jury you were herself. Fondling A. happened? you recall? Q. Anything else A. Yes. cry in the middle of the

A. She appli- reason, examination just cry independent for no An no night for why trial record reveals I understand cant’s reason. And didn’t of un- the Elizondo standard has not met doing it. she innocence of establishing his questionably when visitation was still Q. This was previously he has offense for which going [applicant]? on with beyond a reasonable doubt. convicted been A. Yes. I, therefore, respectfully dissent. at the was recanted None this evidence hearing. writ

Applicant punishment testified at trial. He admitted that

phase of his 1991 probation “exposing

he had received police had told the genitals”and

his he exposed

that he had himself on numerous importantly, applicant occasions. More Texas STATE guilt spe- for this offense and admitted his v. cifically stated: MECHLER, Appellee. Matthew Reid just you Q. You told this truly sorry happened, were for what 0075-04. No. you complainant], did to didn’t [the

what of Texas. Appeals Court of Criminal you? Yes, A. that’s correct. Jan. just

Q. yet you up And sat there you your have no love in heart for

said complainant], didn’t want to estab-

[the her and any relationship

lish sort you [the the one who victimized

yet were you?

complainant], weren’t my do with anything

A. If I did have

daughter, they would come back

say— you, [appli- I

Q. That’s not what asked You the one who victimized were

cant]. your five-year-old complainant],

[the at the time?

daughter sent notes remorse, accept or no expressing every sin- evidence does not rebut for jury’s responsibility and what- verdict inculpatory evidence from the gle bit of pain harm and to conduct caused ever Specifically, trial. the new evi- original mercy. for Neither others and ask the trial negate dence does not but neither paths peril, these is without her seeing of the child’s mother about necessarily particularly potent position is daughter’s unusual bath time behavior af- guilt.26 innocence or proof of either factual a visit five-year-old ter the returned from “fondling child applicant. however, with The was bottom, is not At the issue bath; genital appeared her herself’ evidence has whether the discovered “irritated, sore-looking,”; and she original every jot and tittle of the rebutted objects legs ap- her and placing between is wheth- inculpatory evidence. The issue masturbating. sexual peared be Such “new” er, the “old” and the believing both case, might, in one be attribut- evidence, behavior fact could rec- a rational trier of contact, but it inappropriate able to sexual and still reach ver- oncile that evidence simply per- indicative of a I that this might agree also be Because guilty. dict of fectly exploring body strong normal child her own such a case has made innocence, judge sensuality in a child- which the trial discovering and his actual believed, rationally irreconcil- way. Surely we are not so naive as to and which is like child, inculpatory original every five-year-old conclude that able with female, majority opinion. body join I explores or who his own male State, the defen- perjury. And if Leday account of the v. 723-24 See Leday, opportunity lost (Tex.Crim.App.1998). testify, this Court dant does not noted: give in- defendant to the sentencer for the pro- testify pun- only [at whether to the defendant can The decision formation that voluntary phase] is made less every ishment even case This would exclude vide. defen- trilemma in which the the cruel two that is relevant to some information placed. defendant testifies dant is If the system objectives of crimi- important truthfully guilt, waiv- admits De Garmo prevent penalty will punishment: nal testifies un- er results. If the defendant crimes, committing from other this offender guilt, conse- truthfully and denies possibility recognition of the of reha- exposure punishment for quences are bilitating the individual defendant. and, aggravated perjury of more immediate omitted). (citation Id. punishment on consequence, an increased HERVEY, J., all dissenting opinion filed a when one considers that the KEASLER, KELLER, PJ., convicting in which protections against of its J., joined. paramount innocent is the event deter- mining, and is the most reliable indicator respectfully I dissent because of, guilt/innocence. a defendant’s See juris evolving Court’s “actual innocence” Herrera, 419-20, 506 U.S. at 401 and with and has prudence is irreconcilable (O’Connor, J., concurring). 113 S.Ct. 853 of this eviscerated most Court’s decision not enhance and passage of time does (Tex. Ex reliability of crimi- may even diminish the Cr.App.1996). Herrera, adjudications. nal See 506 U.S. date, To most “actual innocence” cases 113 S.Ct. 853. This Court’s evolv- inmate, have involved an such as the one has ing jurisprudence “actual innocence” here, guilty beyond found who been

Case Details

Case Name: Ex Parte Thompson

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 12, 2005

Citation: 153 S.W.3d 416

Docket Number: AP-74820

Court Abbreviation: Tex. Crim. App.