Ex Parte Tuley

Wesley Ex Parte Ronald

TULEY, Applicant.

No. 74364.

Court of Appeals Criminal of Texas. 18,

Dec. 2002.

Opinion on Denial of Rehearing

July Levine, Dal- Bright,

Miсhael James Lee Austin, las, Hampton, Appellant. Keith for Dallas, Coats, DA, Laura Anne Asst. Austin, Paul, Atty., Matthew State’s State.

OPINION J., PRICE, opinion delivered Court, MEYERS, JOHNSON, in which COCHRAN, JJ., joined. HOLCOMB and applicant’s jury After in his question guilt deadlocked on assault, aggravated trial for ap sexual lightly conviction should not be overturned plicant pleaded guilty to the charge. and that the burden on the who later, Years in the case has had proceedings error-free is exceed allegation fully recanted her explaining ingly heavy to take into account society’s why how and she fabricated charges and the State’s in finality. interest Eli applicant. applicant zondo, pm- 947 at granted S.W.2d 208. To be post-conviction sued claim, relief under article relief on a bare innocence appli- 11.07. doing analysis After an under Ex cant must show that the new evidence un- Elizondo, (Tex.Crim. parte 947 S.W.2d 202 questionably establishes his innocence. App.1996), convicting court recom- interpreted Id. at 208-09. We this to mended granting relief. We filed and set mean that prove by must the case to determine appli- whether the convincing clear and evidence that no rea- guilty plea cant’s precludes his actual juror inno- sonable would have convicted the cence claim under Elizondo. We conclude in light of the new evidence. Id. that it does not. at To determine whether a habeas proof, has reached this level of

I. Analysis convicting court weighs the evidence of applicant’s guilt against the new evi- There are two of actual in types dence of innocence. Id. at 207. may nocence claims that be in raised a collateral attack on a conviction. A effect, bare haveWe never what if discussed claim, innocence Herrera-type1 or claim any, guilty plea a analy- would have on this a ap “involves substantive claim in which sis. question This is the we turn to today. plicant asserts his of bare claim innocence nothing explicit There Elizondo or solely based on newly discovered evi prohibits the cases on which it relies that Franklin, parte dence.” Ex 72 S.W.3d analysis jury or limits the or bench 671, (Tex.Crim.App.2002) 675 (citing trials. Elizondo instructs the convicting Delo, 298, 314, Schlup v. 513 U.S. 115 “weigh court to the evidence in favor 851, (1995); S.Ct. 130 L.Ed.2d 808 Elizon prisoner against the guilt.” evidencieof his do, 208). 947 S.W.2d at The other actual Ibid. claim, claim, innocence Schlup-type a we Elizondo, In job we said that our was to explained procedural “is a claim in which newly “decide whether the discovered evi- applicant’s claim of innocence does not jury would have convinced the dence provide relief, a basis for but is tied to a applicant’s innocence.” Ibid. That was showing of constitutional error at trial.” case, the context of that a jury which Ibid, 314, (citing Schlup, 513 115 U.S. had guilt. decided Elizondo’s But we said 851). S.Ct. a bare innocence claim is not an attack on Elizondo, jury’s we held that a bare verdict. Id. at 209. ‘What claim cognizable applica applicant] innocence in an wants is a trial new based оn Elizondo, corpus. tion for writ of habeas newly discovered evidence which he claims proves S.W.2d at 205. Incarceration of an policy his innocence.” Ibid. The Elizondo, person pro innocent offends federal due our supporting holding cess, therefore a bare punishment person innocence claim the of an innocent vio- raises a challenge process, constitutional to the lates federal due is the same for conviction. Ibid. But applicant regardless we also said that a of whether his case Collins, 390, 853, (1993). 1. See Herrera v. 506 U.S. S.Ct. 122 L.Ed.2d 203 jury Chapter 103 the Civil Practices judge was heard or or whether procedures to pleaded not ibid. sets out guilty guilty. he See Remedies Code persons wrongfully impris- compensate Convicting inno- reviewing courts bare names 103.001 claimants oned. Section great respect claims give cence should eligible compensation. Before who are jury’s guilt. Convicting verdict of provided compensation the statute give great respect courts should also pleaded only for claimants who knowing, voluntary, intelligent pleas charge the criminal that led to guilty to But guilty. we should not foreclose relief imprisonment. legislature amended pleaded guilty because defendant when statute, and it now states: policy granting behind relief on a bare (a) person compensation A is entitled innocence claim is the same. if: legislature The has enacted two statutes (1) person the has served in whole or contemplate being a defendant’s able in part prison in under the sentence relief a claim of to seek on actual inno- state; of this laws a guilty plea: cence after Code of Criminal (2) person: the 64.03(b), Procedure article and Texas Civil (A) full on pardon Practices and Remedies section has received a Code basis crime 103.001. the of innocence for the sentenced; person which for the Newly-enacted Chapter 64 of the Code or procedures of Criminal Procedure sets out (B) granted has on the been relief for convicted defendants to forensic obtain of the basis actual innocence of 64.03(b) testing. DNA Article that: states person for crime which was sen- person pleaded A convicted who guilty tenced. or nolo in the may contendere case sub- 103.001(a). § Prac. Rem.Code Tex. Civ. & mit a chapter, motion under this and the provi- under Compensation is available convicting prohibited find- court is granted for claimants who have sion been ing identity was not an in the issue on the basis of an actual innocence relief solely plea. case on the basis of claim, regardless of how claimant 64.03(b). Tex.Code Crim. Proc. art. De- charges. to the pleaded who pleaded guilty fendants or nolo con- main arguments The makes three State may testing tendere obtain forensic DNA (1) the applicant’s our conclusion: if they requirements Chapter meet the of (2) subject review; collateral plea is not (3) public policy by finality; is servеd and Chapter provides 64 for DNA forensic en- relief to the granting testing provide but does not for vehicle courage perjury. and reward obtaining testing relief if affirma- reveals applicant’s is argues plea evidence of innocence. The for The tive vehicle State subject after test that con- to collateral review. Habeas obtaining relief results not argues, traditionally governed it corpus, stitute affirmative evidence innocence noncapital equitable principles, 11.07 article for felonies may preclude his be- capital leg- 11.071 murder. The this case article conduct has entitled relief. Here the State ing islature not limited actual innocence judicial testing guilty plea confes- claims based on forensic DNA claims But we do pleaded prevent not collateral review. guilty defendants who sion those went to trial. Neither should we. not make distinction between pleaded guilty who have Elizondo, and those who that the conviction is valid. See pleaded not guilty for other claims at 207. S.W.2d applications. relief raised habeas Moreover, if an actual innocence claim nothing were more than a challenge to the We address cognizable claims in habeas evidence, sufficiency of the then no claim proceedings regardless plea of actual innocence—whether the convic- unpersuaded case. We are that equitable trial, trial, jury tion was based on a bench principles prevent should per- an innocent guilty plea cognizable be on a —would son from obtaining simply the relief be- Easter, corpus. parte writ habeas Ex pleaded cause he guilty. There is nothing 721 (Tex.Crim.App.1981) S.W.2d equitable about permitting innocent (attack sufficiency of the evidence at person prison to remain in pro- when he may trial proceed- be raised duces new evidence that unquestionably ings). shows that he did not commit the offense for which he is incarcerated. significant State finds hung jury trial resulted in a purpose of criminal proceed finding appli never made a on the ings separate is to guilty from the State, guilt. cant’s According to the Herrera, 398, innocent. 506 U.S. at 113 crux of the analysis Elizondo and its Nobles, (citing S.Ct. 853 United v. States if progeny is the new evidence is such that 225, 230, 2160, 422 U.S. 95 S.Ct. 45 it undermines jury’s confidence the find (1975)). L.Ed.2d 141 From time to time ing guilt, jury’s of then the verdict was something goes awry process in the by infirm. Were we to follow the State’s convicted, which a defendant is for exam conclusion, argument to its natural a de ple, when a complainant makes false fendant could raise a claim bare innocence charges. The error judi occurs within the only if guilt by a been determined system though happened cial through no jury. policy supporting But the the relief fault of convicting parties. the court or the granted in Elizondo was that federal due appropriate judicial It is for the system to process per is violated when an innocent through correct the error corpus. habeas Elizondo, son is incarceratеd. 947 S.W.2d at 209. applies That with no policy less says The State that guilty plea a waives force when the by conviction is obtained a any contention regarding sufficiency the of bench trial or guilty plea. true, the evidence. This is but the State’s The trial permit- existence of a record assertion that a claim of actual innocence ting an analysis Elizondo is not sufficient is nothing more than a challenge to the ignore guilty plea, according reason to a to sufficiency of the evidence is not true. convicting the A is not State. court free to applicant An claiming actual in ignore guilty plea a reviewing when a col- nocence claiming is not that the “Rather, evidence attack. charged lateral the court at trial was insufficient support the deciding such a claim should make a conviction. On the contrary, the success case-by-case the relia- determination about ful applicant by shows convincing clear and bility newly of the un- discovered evidence that, despite guilt the evidence of der the Id. at 207 (quot- circumstances.” supports conviction, Herrera, 443, the no ing reasonable 506 113 at U.S. S.Ct. juror J., applicant (Blackmun, could have found the guilty L.Ed.2d at in light of the new dissenting)). may evidence. The burden in- The circumstances presume is on the because we applicant pleaded guilty. clude that an A of the result a findings cause the conviction was of the extensive of the reading plea. guilty convicting court this case shows that fully convicting capable courts are con- Finally, argues State significance guilty plea of a

sidering finality. We public policy is served that circumstance weighing and knowing, in based on agree. Convictions the newly discovered evidence. voluntary pleas guilty telligent, and the appli- next argues The State highest level ought to be afforded the argument encourages cant’s rewards Supreme quoted in respect. Court As a perjury. entered false United v. Timmreck: States plea compounded a this with false finality Every concept inroad on judicial confession. The State claims that integrity undermines confidence allowing to obtain relief will and, by increasing of our procedures; plead innocent encourage defendants work, judicial inevitably the volume of lighter guilty get sentence then delays impairs orderly adminis- collaterally attack conviction when the great- justice. impact tration of sentence becomes too difficult bear. grounds setting est when new aside ignores pursuing This realities of approved guilty pleas are because the bare innocence claim under article 11.07. majority vast of criminal convictions re- A defendant would have to assume Moreover, pleas. sult from such affirmatively new evidence shows his unfair procedures may concern that appear innocence will from nowhere. If a in the conviction of an resulted application challenge amounts to a only rarely innocent defendаnt raised evidence, sufficiency ap- plea. by guilty a to set a petition aside plicant not the relief he will obtain seeks. Easter, See 615 e.g., S.W.2d at 721. Timmreck, 780, 784, 441 99 S.Ct. U.S. (1979) 2085, guilty plea perfect. not 60 684 process (quoting The is L.Ed.2d Unit- Smith, 521, pleas parties But the to ed 440 F.2d 528-529 guilty allow avoid States v. (7th Cir.1971) (Stevens, J., the litigation. dissenting)). uncertainties of The deci- plead guilty, Though sion to we have seen in Timmreck was on an inter- as based case, rules, may pretation underly- by be influenced factors that of the federal the nothing ing to do is the in Texas. The principle defendant’s same guilt. inability disprove Supreme The noted that a federal rule to State’s Court case, counsel, inability present ‘exceptional not cir- to afford violation “does bail, inability family obligations, remedy afford for the to cumstances where need work, corpus to writ of is need return to other afforded ” may apparent.’ a true in our habe- considerations influence defendant’s same is plead Cognizable to trial.2 as claims on ha- guilty go proceedings. choice to or Be- considerations, ing “jurisdictional these limited to aware of we will beas are claims actual or defects and constitutional preclude not innocence claims be- fundamental guilty, prudent. person people may plead guilty plea that a is Or a Innocent for vari- pressure accept may re- person be under some may reasons. An want ous innocent do, something not sponsibility for he did in advantage take discounted sentence in of a else, protect whom he loves order to someone bargain, gamble plea rather than on a far or fears. greater sentence if a verdict is re- mistaken 688, Timbona, person may Or a not know he v. 222 F.3d 718 turned. what United States (Kleinfeld, J., (9th Cir.2000) dissenting) admitting attorney's accept his advice is 394 Graves, 103,

claims.” Ex parte 70 plea S.W.3d suggests that his admissions 109 (Tex.Crim.App.2002). open court anything were but the truth.

We are not dealing with a statutory or Brady, 757-58, 397 U.S. at 90 S.Ct. 1463. case; here, rule violation in this appli- If we have reason to think that an appli- presents cant a valid claim of actual inno- plea reliable, cant’s was accurate and we cence based on evidence that was unavail- would conclude that the claim would not pleaded able at the time he guilty. support relief for actual innocence. But when a habeas supports record a finding States, In Brady 742, v. United 397 U.S. that new evidence unquestionably estab- 1463, 90 S.Ct. (1970), 25 L.Ed.2d 747 innocence, lished an applicant’s it is diffi- Supreme United States Court noted that a cult to prior conclude that a guilty plea rule that made pleading guilty attractive to was accurate or holdings reliable. The defendants because it allowed them to Brady and require Timmreck do not avoid penalty the death did not render the ignore we convincing clear and evidence of pleas involuntary when the Court later actual innocence. held that the statute was unconstitutional. 757,

Id. at 90 S.Ct. 1463. The Court-found Delo, Schlup State also cites v. 513 significant nothing in the record 298, 321, 851, U.S. 115 S.Ct. 130 L.Ed.2d indicated that the conviction was inaccu- (1995), proposition rate or unreliable. Ibid. interest in releasing innocent defendants prisoners does not extend guilt whose

In cases in Supreme which the Court plain. conceded or The case cited for this has held there is no collateral review after proposition in Schlup finality discussed guilty plea, it has specifically noted the trial, relation to claims of error not absence of findings plea that the was inac- claims, actual innocence which the Court curate or unreliable. explicitly permits in Schlup. See Kuhl This say plea that guilty convic- Wilson, 436, 452, mann v. U.S. tions hold no hazards for the innocent or (1986). S.Ct. 91 L.Ed.2d 364 And that the methods of taking guilty pleas though guilt by concedes his presently employed in this country are pleading guilty, when evidence un- new necessarily valid all respects. This innocence, questionably established a con- mode of foolproof conviction is no more clusion that applicant guilty the was than full trials to the court or to the offense anything plain. but jury. Accordingly, great pre- we take results, cautions unsound and we The allowing ap- State that claims this so, should continue to do plicant whether con- to obtain relief would allow by plea by viction is or trial.... applicant But our to seek if relief he can show view is to contrary the and is based on actual innocence and an excuse for the expectations our satisfy guilty plea. courts will As the cases the State cites pleas show, themselves that of guilty are vol- claims of actual innocence are rare untarily and intelligently by made com- granted and the cases in which relief is are petent adequate defendants with advice even Schlup, more rare. See 513 U.S. at (and of counsel and that there is nothing to 321 n. 115 S.Ct. 851 cases cited therein). question the accuracy reliability of are confident that the con- We the defendants’ admissions that they victing courts of Texas can tell the differ- committed the crimes with which they ence between a claim meritorious of actual us, are charged. In the case before accompanied by compelling innocence new nothing in impeaches Brady’s the record accompanied evidence and a bogus claim the that he learned that allegations Appli- applicant alleged innocence. bare consistently applications, file not in his case had may cants but it does convicting allegations mean that courts will recom- her since before his recanted recantation, granting ap- mend relief. the the support trial. To from the com- plicant submitted affidavits convicting not think that the We also do complainant’s the best plainant, from appli- courts will be flooded with countless the were allegations at the time friend Applicants permitted cations. have been made, A.S., complainant’s boy- the file in courts to bare innocence claims the allegations the were friend at the time handed sinсe Elizondo was State made, B.G. ago. applica- six The flood years down tions Nor have we has materialized. applicant gave reasons for The several holding seen evidence that Elizondo’s en- the pleading guilty to offense. He was couraged fam- inmates their friends and his retained keep unable to make bail ily to crimes harass victims of to encour- applicant The for the first trial. counsel age to was them recant. Since Elizondo unable afford to continue with re- to down, appli- in a handed few cases when a trial. The tained counsel for second presented compel- cants credible and have spent already had ten months ling new evidence of that met innocence jail his first and would have awaiting trial standard, the people Elizondo innocent during to continue his incarceration punishment. released The been The was addicted second trial. justice system justice. criminal has done plea. time he his drugs the entered judge explained in her convicting The

II. Application findings of the trial recollection convicting now We review plea proceedings support appli- court’s grant recommendation to relief. guilty plea claim that his was not cant’s The facts according to habeas record judge being accurate. The remembered show was tried on the surprised applicant pleaded guilty charge aggravated July sexual assault especially light of the evidence that had jury conveyed hope The that it was presented during the trial result- been lessly jurors deadlocked. Ten had voted through hung jury. going ed After acquit, applicant. and two convict plea proceedings, judge assumed applicant pleaded charge guilty affecting appli- facts that there were before the trial could mis court declare a plead of which she guilty cant’s decision trial. was unaware. convicting accepted guilty court the reasons Taking into consideration plea adjudication, and deferred the placing by applicant pleading guilty given the applicant community supervision for ten her the trial and and own recollection of later, years. years than the More two convicting judge the proceedings, plea applicant’s court the convicting revoked applicant in given by the the found reasons him community supervision and sentenced more credi- the habeas were proceedings ten-year the remainder of his term to the court than the assertions made ble the De- the division of Texas institutional plea. at the time of the partment of Criminal Justice. later, Approximately ap- convicting judge The next considered years two the affirmatively that plicant application filed this for writ of the new evidence ap- The the innocence. The corpus habeas under article 11.07. showed plicant’s affidavit, newly discovered in- According complain- to her the plan cludes affidavits and that the ant did not the fabrication. testimony Her asked complainant applicant mother her whether the allegations recanted her al- anything has ever done to her.- She immediately allega- most after told making the her that had applicant sexually mother the during tion and that the time between the trial, explained, assaulted her. At the she trial, allegation complainant the and the the allegations she wove sexual assault consistently her friends —denied the —to that actually into events had occurred. She truth allegation. This is corroborat- pretended cry said she when she found by ed from affidavits A.S. and B.G. applicant out the community received su- In her affidavit and at the testimony pervision. recant officially She decided to evidentiary explained hearing, A.S. months several after she received letters that days complain- two to three after the the explaining applicant B.G. that allegations, complainant ant made her the gone prison. had allegations told her that the were true. trial, convicting The court the recalled trial, complainant Before the confided to exceptional “the due to nature the testi- A.S. that she was worried that testimo- her mony during adduced before it the trial.” ny would not testifying, be believed. After explained, The court “Rife with material complainant the thought told A.S. that she contradictions, in- this Court observed her testimony gone well that she and upon testimony stance instance that ei- thought she had been convincing. testimony given ther conflicted with by B.G.’s affidavit notes that he heard other which State’s witnesses or was sim- complain- allegations the from the gave ply implausible.” The court exam- ant’s mother. He said that when he talked implausible ples of inconsistent and testi- complainant allegations, to the about the mony. they she told him that true were not example, complainant In one the testi- that she the charges fabricated because that she had in her diary, fied described she hated him and wanted home, kept which she at her some of the approachéd, leave. As the trial B.G. tried against events formed the accusation complainant

to convince the she applicant. requested Defense counsel stop should lying charges. about the The complainant produce diary, complainant angry became B.G. and convicting and the court ordered her to do being disloyal. accused him of complainant following day. so the day her mother came to court next affidavits, complainant’s In the she ex- diary without the that their stating home plains why charge she fabricated the burglarized the-night before had been applicant. explained She only thing diary. that the taken was the mother, abuse of her mother, instance, drug by use and her In another there was conflict- testimony ing mother’s claims about a blood-stained shirt unfaithful, personal disagreements complain- be- said to have been found tween the applicant, among herself and testified that ant’s аunt. other reasons led her to the fabricate she had left the shirt at the scene of an charges. explanations complainant’s Her whom in about attack Oklahoma. The she the told about fabrication and when aunt that the shirt un- testified she found complainant’s are consistent with the of in affidavits A.S. der the bed Dallas. She and the B.G. also testified that she offered shirt to

397 J., HERVEY, dissenting opinion a not ac- filed who said he could investigator an KEASLER, KELLER, P.J., and in which cept it. J., joined. Also, com- who examined the the doctor unwilling

plainant explained that she was Having respectfully dissent. failed express opinion (constitutional a definitive error oth- establish “[n]o she said there were findings, erwise) but original in with his connection at physical findings suggestive of abuse he plea and conviction at which time guilty this time.” the awesome constitutional was afforded accused of to those protections guaranteed court, the weighing convicting The after crimes, extremely applicant bears trial, applicant’s the the evidence from right his establishing of heavy burden reasons guilty plea, the stated after years he corpus relief five guilty, newly discov- pleading the guilt. would voluntarily confessed his Ap- ered found “the evidence of evidence met this applicant has not bur- hold plicant’s by so far the guilt outweighed is den. be Applicant’s evidence of innocence as to found, the entirely Having so one-sided.” Unnecessarily Holding Is I. Court’s new convicting court concluded that the Broad unquestionably evidence established aggra- actual innocence of the free-standing presents a claim Applicant complainant. vated sexual assault of the our decision in of actual innocence under the re- granting court recommended Elizondo, 202, 206-09 parte Ex 947 S.W.2d applicant. lief sought by the Elizondo, we (Tex.Cr.App.1996). ex- actual inno- plained evaluating our task supports that the finding The record claims: cence recantation this case is more credible testimony than at affidavits trial. The Because, in habeas claim evaluating a B.G., complainant, of and the and A.S. newly or available evi- discovered testimony hearing of A.S. the habeas to be proves dence inno- complainant’s testimony at contradict the he was cent of the crime for which con- trial and of constitute affirmative evidence victed, probable task assess the our is to are con- applicant's innocence. We evidence impact newly of available convincing vinced clear evidence upon persuasiveness State’s jury no rational would convict whole, necessarily as a we must case light Re- new evidence. weigh exculpatory such lief granted. at trial. guilt the evidence adduced Department Director of the Texas Elizondo, (emphasis at 206 S.W.2d See Justice, of Criminal Institutional Division very supplied). We reaffirmed this stan to the to return the ordered in Ex in our more recent decision dard that he custody convicting (Tex. court so Franklin, parte S.W.3d may charges against him. answer Cr.App.2002). newly discover- Applicant contends

WOMACK, J., dissented. innocence, establishes his so ed evidence J., to take back his HERVEY, opinion, should be allowed dissenting filed he KEASLER, argues, KELLER, P.J., guilt. The State admission which allowing appli- J., joined, among things, in Part II other of which the adminis- J., disrupt WOMACK, joined. cant to do justice corpus analysis. of heart of the very tration future habeas Elizondo by encouraging guilty-pleading cases de- a Absent record with which conduct to to collaterally pleas fendants attack their weighing of evidence exculpatory this long as [they] provide “so can some evi- against the evidence habeas guilt, of a [they actually dence show that in- are] simply applicant provide very cannot provide having nocent an for excuse which is at the of the substance heart that, pled guilty.” The State claims since Thus, Applicant inquiry. Elizondo as many pleas, convictions result guilty from asserted, previously it is that had certain clog the this could courts with meritless only Applicant’s plea there existed collo- actual innocence claims guilty-plead- from case, quy Applicant in the instant ing defendants. The claims that State also be before not now this Court. apply guilty- Elizondo cannot even n n n n n n pleading defendants because it would be impossible requirement to fulfill Elizondo’s Applicant recognizes the concerns weigh an newly discovered might regarding Court “against guilt evidence of ad- evidence ramifications of granting Applicant’s at trial” duced since there no trial. both past writ on this court’s and future Elizondo, 947 See S.W.2d at 206. jurisprudence. habeas If writ this (sic) will Texas' granted, court’s face Applicant responds that Court can this specter of endless corpus grounds habeas him in writs on grant relief to opinion limited to the actual innocence from those defendants “exceptional set of presented guilty pleas? circumstances” this case. who chose to enter “exceptional set By of circumstances” to this is “No.” necessarily answer nature, which refers is the existence of a very its the instant presents case applicant's record from that re- 1997 trial only what can be as the characterized in a hung jury. Applicant sulted asserts exceptional most set of circumstances— distinguishes that this his from most case namely, the existence of a full trial tran- involving other cases from convictions conjunction plea. script in with a guilty guilty pleas. Applicant asserts: Applicant previously, As has detailed outset, Applicant writ,

At the counsel for will Applicant’s process and the. admittedly acknowledge that he seeks to through which the habeas court ana- parameters confine the of this Court’s prior lyzed making recom- its to the inquiry unique circumstances of mendation, simply does not deviate the instant case. for The reason Coun- standard in Eli- from the articulated desire to if simple sel’s do so is Thus, case, Applicant’s zondo. as an —for (i.e., inquiry put Court’s generally prece- will if anomaly, hold little a pled habeas has Can who a upon support dential value which to avail him- guilty jury waived a still ‍‌‌‌‌‌​‌​‌​​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌‌‌​‌​‌‌‌‌‌​‌‍may claim that relief under be Elizondo self the relief afforded under Elizon- on a guilty plea maintained alone. do?), inquiry the answer to the must (Emphasis Original). be always “No.” The reason therefore, parties, agree Both readily is most apparent answer decision, such broad as the one the Court portions the above cited Franklin and here, permits makes a ha- apparently Simply put, Elizondo. newly corpus beas to raise an Elizondo “weighing” court’s discover- guilty plea claim ad- exculpatory ed the evi- “on alone” could guilt jus- dence of adduced is at the impact at trial versely administration

399 sand”); “mighty thin can rests on habeas The Court dure” tice in future cases. cf. Collins, 390, 113 S.Ct. 506 U.S. case Herrera v. dispose particular this and should (free- (1993) 859-62, 853, 122 L.Ed.2d 203 limiting its de- by exercising restraint and “have innocence standing claims actual “exceptional to the set of circum- cision ground for held to state a “namely, never been presented by stances” this case corpus part be- habeas relief’ transcript a in federal full trial existence guilt guarantee no cause “there is conjunction [applicant’s] guilty plea.” be determination would or innocence Applicant’s Remedy II. Is Executive corpus than it was exact” on habeas more

Clemency trial). at decide, however, on pleads guilty that Elizondo who stands applicant An applicant guilty valid plain. legally should not be extended to an A a different rests a valid in the criminal legally significant whose conviction event plea is a State, plea later 896 voluntary guilty years and v. process. See McGlothlin J., 183, applicant (Tex.Cr.App.) (Meyers, claims was a lie and wants 190 S.W.2d 882, denied, claim 116 evaluating take back. cert. 516 U.S. dissenting), innocence, (1995). recognize 219, It “is of actual we have to 133 L.Ed.2d 150 S.Ct. freely voluntarily con- guilt and of factual so rehable an admission that, to the guilt aggravat- intelligent, fessed his offense of voluntary where ed assault. The habeas court and of factual quite validly sexual removes the issue York, recognize parties also case.” v. New guilt from the Menna 2, 61, 241, a 46 voluntary guilt presents admission of 96 242 n. S.Ct. 423 U.S. (1975) significant obtaining original); obstacle (emphasis L.Ed.2d 195 Henderson, corpus society’s 411 disregarding relief Tollett v. generally, see 1602, finality 258, valid concerns. States 235 See United 93 S.Ct. 36 L.Ed.2d U.S. Timmreck, 780, 2085, States, (1973); v. 441 U.S. 99 S.Ct. 397 U.S. Brady v. United 2087-88, (1979). (1970); 1463, Applicant 742, 60 L.Ed.2d 634 747 90 S.Ct. 25 L.Ed.2d claims, however, 790, Carolina, that it make no 90 should v. North 397 U.S. Parker (1970); he in prison 1458, difference whether “arrived 25 L.Ed.2d 785 S.Ct. 759, Richardson, through guilty plea” his own false because v. 397 U.S. McMann (1970). judi- “overriding remedial goal” 25 L.Ed.2d 763 S.Ct. ciary should now be this self- to release an treating Important reasons exist for perjurer from prison. admitted falsely pled who claims to have applicant, terms, however, differently applicant who

By very its Elizondo is from an guilty, is convicted pleads guilty limited to cases where an has not and then case pled this guilty not and is convicted after after a trial. he character- having contro- made what extremely trial. Elizondo admits he subject guilty plea” for which decision and it still izes as a “false versial of de- bargained-for benefit applicant, debate whether an received reasonable accepted adjudication. Applicant guilty, permitted pleads who should be ferred and later vio- bargain actual benefits of free-standing to raise a claim of adjudication in an resulting Frank- lated the law corpus. innocence on habeas See (Womack, J., lin, sexual as- guilt aggravated at of his S.W.3d 678-79 Elizondo, Applicant claims that 215- now concurring); sault offense. 947 S.W.2d (Elizondo’s (Womack, J., to take back is innocent he wishes dissenting) he plea.” “revolutionary proce- guilty his “false unwarranted 400 compromises

This conduct integrity knowledges very “is at the heart of the judicial process. Notwithstanding analysis.” Franklin, Elizondo See 72 applicant’s making 677; Elizondo, reasons for what he at S.W.3d 947 S.W.2d at claims was the difficult decision falsely

plead guilty, that, the fact remains if appli B. Record Court Does Not Before believed,

cant is now to be he still commit “Unquestionably Establish” ted perjury by falsely pleading guilty. See Innocence State, (Tex. 713, Leday v. 983 S.W.2d 732 (McCormick, P.J., Cr.App.1998) dissent Elizondo, we held that a habeas cor- (Constitution ing) guarantee does not us pus applicant has the burden to “unques- choices). the freedom from making difficult tionably establish” factual innocence. See circumstances, Under these I would hold Elizondo, 947 at point S.W.2d 209. At this applicant has exhausted his remedies in judicial process, enough it is not for through judicial process and that his (or applicant an to raise some doubt even a remedy is to seek clemency. doubt) executive guilt. reasonable about his See id. Code, See Texas Administrative Title (an exceedingly high applies standard (West 2002) Section (procedures 143.2 for the assessment of actual innocence claims obtaining pardons innocence); for corpus). Applicant’s habeas “new” evi- cf. Herrera, (executive 113 S.Ct. at 866-69 dence of innocence essentially boils down clemency “is the remedy historic for pre- (attached to the affidavits applicant’s venting justice miscarriages judi- of where corpus application) of three wit- process exhausted”). cial has been who, nesses remaining after silent with applicant’s

information of “innocence” for Applicant III. Not Entitled To Habeas years, five have now come to say forward Corpus Relief Under Elizondo complainant that the falsely appli- accused cant of raping her. Applicant asserts that though even he compromised has judicial process Applicant boyfriend was the of the com- his false guilty plea, judicial process plainant’s complainant mother. The as- would be compromised even more by the serts an affidavit that “everything [she] continued incarceration per- of an innocent testified to applicant’s [at trial was 1997] Applicant son. claims that he has “un- false.” The also asserts questionably his establish[ed]” innocence affidavit that 1996 she made an Elizondo, under Elizondo. See 947 outcry statement accusing her mother S.W.2d at 209. applicant of raping her. The complainant

also asserts in the affidavit falsely that she Insufficient Record raping accused of her because physically abusive to her The habeas record does not include the mother and it “seemed like a good way to reporter’s applicant’s record from 1997 tri- get [applicant] out of house.” [their] though al even appears from our review of the habeas court’s findings that Yet we have no evidence from the com- habeas court reviewed plainant’s that record mak- confirming complain- mother ing its recommendations to this (applicant’s Court. ant’s stated motive abuse mother) adequate Without an record this Court is falsely accusing applicant prevented from weighing applicant’s excul- raping significant her. It also patory complainant’s the evidence of outcry statement to guilt adduced at trial which ac- her mother was not overcome. This 1996 pursue line why trial counsel declined outcry presumably statement unrecanted trial, at 1997 trial that applicant’s applicant’s questioning was admitted such has determined that inno- Legislature have established Moreover, statement is rehable evidence outcry since the habeas record cence.1 38.072, guilt. Article Texas Code of See trial coun- silent on whether is Also, any Criminal Procedure. as with applicant, conveyed this information to sel witness, recanting impossible it is to know applicant’s know evi- cannot whether we certainty complain- with which any of the “innocence” is “new.” of dence Elizondo, ant’s are statements true. See applicant’s argu- “new” evidence While (Womack, J., 216 n. 1 dis- 947 S.W.2d at applicant’s some doubt about ably raises (pointing out the of the senting) weakness “unquestionably it does not estab- guilt, testimony recanting of a witness whose Elizondo, innocence. lish” his See always the I was on testimony “last time therefore, Applicant, is not at 209. S.W.2d truth”). I the witness stand didn’t tell the corpus to habeas relief. entitled complainant’s boyfriend The former also respectfully I dissent. filed in an affidavit which he asserts the told him that she in 1996 WOMACK, J., joined II. Part falsely applicant. former accused The PRICE, J., opinion concurring filed this in boyfriend also asserts affidavit that the denial of the Motion for State’s conveyed applicant’s he this information to COCHRAN, J., in which Rehearing, during tri- lawyer applicant’s retained joined. al applicant’s but that “for some reason” lawyer him did not ask about it when majority’s I with the conclusion agree boyfriend applicant’s former testified at applicant unquestionably has portion 1997 trial. This of the former compliance proven his innocence boyfriend’s Elizondo, affidavit asserts: to and is entitled parte Ex I trial, sought. separately

I write re- [applicant’s] contin- relief attended and this con- spond arguments ued talk made try complainant] [the out sitting clusion. going ahead with it. After through though, some trial de- matter; First, procedural there is a say something. cided that I should Dur- application. should dismiss Court breaks, ing [applicant’s] one of told applicant fact that the was released on The had told attorney complainant] [the what opinion an after this Court issued bond attorney me. told he want- The me that the State’s granting pending relief ed if testify, me to that he would see change Rehearing Motion for does not [Applicant’s] attorney put I still could. applica- at the time the status applicant’s stand, me but for reason he on the some granted. or relief was tion was filed when me about com- never asked what relief, this granted At the time Court plainant] had told me. filing The time of custody. however, granted, time when relief is are Applicant, produced has not and the purposes in time for applicant’s trial counsel the relevant moments considering is un- corroborating any explaining whether this subject boyfriend on the record tion the former The habeas reflects that urged as a applicant’s counsel innocence was not ba- also raised an ineffective assistance of According assistance of to the court’s find- ineffective claim. sis however, ings, ques- claim. trial counsel’s failure to counsel der restraint purposes place for the of a writ The respond to the application filed under allegations Article 11.07. factual and legal claims was in court, convicting which the State did. Independent

I. Examination denial, general Besides a the State had

of the Record say in response application. little to to the said, pro- State “While the evidence argues required State that we are by Applicant vided certainly raises the independent to conduct an examination of innocent, possibility Applicant may be the 1997 trial record because Elizondo re- Ap- State troubled the fact that First, quires it. argument comes too plicant plead guilty signed chose to rehearing late a motion for after written judicial admitting confession sexually opinion. If there were items that the assaulting complainant] when she was review, State wanted this Court to it could years twelve old.” requested have the convicting court to in- record, clude them in the and if the con- I disagree that this Court’s failure to victing court denied request, its the State review the trial original record from on could requested that we order the submission was incorrect. We have re record from that court. The State seems peatedly held that although this has Court repeating arguments to be by made the power the ultimate to decide matters of original dissent on submission. These ar- in corpus fact habeas proceedings, general considered, guments rejected, by were but ly if the trial findings court’s of fact are majority. the Nothing new is raised. supported record, by the they habeas By way accepted explanation by for should be this Court. its failure to See Ex (Tex. 886, request рarte Brandley, that the 781 record be forwarded or to S.W.2d 892 Adams, Crim.App.1989); make any arguments disagreeing parte with Ex the 768 281, trial findings original (Tex.Crim.App.1989). court’s on S.W.2d submis- sion, cases, says the State habeas specifically that we is the habeas record that controls, parties asked the although may address what effect the trial record be the relevant the guilty plea judge. legiti- had on his habeas No actual result, policy presented innocence claim. mate has As a the did reason been State persuade arguments not include about the me we should treat Elizon- record. any practitioner differently. But do claims should know that the Appeals Court of Criminal is the The findings State has not identified Any application habeas court. pursu- filed erroneous, that it claims during are ant to Texas Code Criminal Procedure .of argument, repeatedly oral the State said Article 11.07 is returnable to this Court. that it did not contest findings hearings We do not hold and take testimo- trial court and that the facts of this case ny; convicting performs court these compelling. are functions and makes findings of fact and conclusions of in proceedings law. The As for the suggestion State’s this merely appeal Court are not cutting opinion Court was corners its on submission, the convicting litigants original court. And the the better course for practice rarely get parties filing who before this Court for rehearing motion is to their arguments. answering persuasive arguments to redo After stick to on mer- review, presented the legal question may disagree Parties its. the result step case; our next is to review the trial court’s in a certain they do so re- should spectfully, recommendation. however. per- contrary is not to the suggestion The Evidence Newly Discovered

II. suasive. made that has also been suggestion The ap- along with presented

the evidence Unquestionably III. Evidence newly not discovered. plication is Applicant’s Established rehearing in its motion for claims State Innocence the evidence is clear whether that it is not that, assertion, note once this important It Contrary new. to the State’s by appli- argument weighed was not raised again, this considered and Court addressing original just submission. State plea, guilty State cant’s make this ample opportunity to also presented, has had of law but question convicting in the court argument whether determining es- unquestionably produced Court.1 evidence 74,- Tuley, No. innocence. tablished his lose, must merits the Even on the State 13-14, (Tex.Crim.App. 364, slip op. at some The fact that there was however. 2002). Dec. applicant’s trial at the time of the impeach that could have been used the use of the term I am troubled that her affi- complainant, does not mean It is true that guilty plea.” “perjurious testimony her trial is not recanting davit his today claim contradicts applicant’s the affirmatively evidence that demon- new plea. It is guilty judicial confession strates the innocence. however, true, complainant’s that the also affidаvit contradicts the testimony at trial available at There was some evidence applica- the along with that was submitted that the the time of trial that indicated extent that the tion. To the allegations. complainant lied about false, testimony complainant’s plea was that she complainant explained herself adds little also. This characterization was boyfriend told her that she had lied in this case. the discussion of issues to Also, boyfriend testi- allegations. presence jury of the fied outside the though that even The State contends complainant told him that she had lied in this case has now sworn allegations. This evidence at- about the did not commit under oath complainant’s credibility; tacked offense, to applicant is not entitled not affirmative evidence of innocence. . sexual assault aggravated relief from his purportedly commit- because he applicant presents Now the the com- conviction guilty. Apparently perjury pleading ted plainant’s affidavit that no sexual assault guilty aggra- not be may is: he logic occurred. This is affirmative evi- ever assault, guilty he is And, sexual but supported it is vated dence of innocence. prison aggra- him in for perjury, keep so affidavit and the affida- boyfriend’s logic. This is curious sexual assault. testimony complainant’s best vated vit and at- justice system Normally our criminal of innocence. friend. This is new evidence appeared application, it be- response Applicant’s writ to the certainly form. It is say accurate to you expect How accept your can me to there already was some evidence admitted plea guilty? This very is a serious in original the trial support that would a potential offense and it a carries life finding that allegations indictment if you sentence should violate the terms were true. of-your community service. How can

It is also true judge that the trial asked you expect accept me to a guilty plea to magic question: you “Are pleading degree aggravated first offense of guilty because in you guilty are fact and you say sexual assault of a child if you for no other reason?” and re- guilty, you are not plead but want to “Yes, sponded: ma'am.” Does this make besides, guilty anyway? And I heard him perjurer? a A self-admitted liar? the same evidence that jury heard and I fully persuaded am not that the

Suppose Tuley Mr. given been a evidence is support sufficient to a con- Now, response dose of truth serum. to beyond viction a reasonable doubt. I magic question, he responds: accept your guilty plea refuse to and we Honor, Your I do not believe that I am will set this case for another trial. fact, I guilty. know that I am not then, Tuley, likely say: Mr. is to However, guilty. present jury is jurors deadlocked. Some of those may Judge, you whose side are on? Are believe I guilty, am not but my just plead others side? I want to guilty. obviously that, differ. A jury different could I didn’t do it. I know but I also conceivably and, guilty find me prosecution sentence know that has a child me in prison. to life That a very says is who that did. I have Furthermore, serious risk to me. drug problem jury likely do a and a is to made that me, and, promises have been frankly, ry I look hold in fact the plea guilty, a when Nobody going to believe induced dishonest. Now, a and let me recommend promised do me a favor has prosecutor me. years de- plead guilty get my plea. ten exchange for the sentence certain I want to good This is a deal. ferred. fear from the deceptive denial stems my way. take it. Don’t stand plea accept not trial court will that the truthfully”). is answered question if the reason- judge might But an honorable trial so, Legislature would this not ably respond: Were explicitly a statute that not have enacted But, if I cannot take you’re guilty, not felony with a charged a defendant permits I am your guilty plea. worried trial plea if the guilty withdraw his something he pleading guilty this man just plea agreement. guilty wrong, judge of. That is refuses to follow injustice that kind of an If a I can’t allow Proc. art. 26.13. See Tex.Code Crim. my place take court. solely be pleading guilty defendant were reason, for no other guilty cause he is Tuley’s might honest reaction well be: Mr. irrelevant to his any plea bargain would be like my “Don’t be friend. With friends decision, irrelevant Instead, and thus it would be Mr. you, who needs enemies?” to follow it. yank judge him that the trial refuses Tuley’s lawyer probably off to the corner and after a certain whis- amply justice system is Our criminal forth, Tuley Mr. pering back and will see plea guilty protected by requiring that appropriate- light respond He will now voluntarily en- freely, intelligently, be ly magic question: you plead- to the “Are some evidence and that there exist tered guilty are and for ing guilty because plea. Alford, 400 U.S. support right no other reason?” with the answer: “An individual accused of 91 S.Ct. 160. “Yes, ma'am.” and un- may voluntarily, knowingly, crime system encourages plea bargains Our imposition consent to the derstandingly freely, intelligently, that are and voluntari if prison unwilling even he is sentence ly Alford, made. North v. See Carolina in the participation admit his unable to 25, 31-32, 160, 400 91 27 U.S. S.Ct. 37, at the crime.” Id. constituting acts (1970). L.Ed.2d 162 Over 90% of all crimi logic support nor law 160 . Neither S.Ct. plea nal are through convictions obtained law, that, as a matter conclusion Surely not so naive as to bargains. we are ipso facto pleads guilty who defendant every believe that each and one of these that he perjury if he later asserts commits guilty simply be pleading defendants is is, fact, proves his actually in innocent and cause he knows his heart that he is important especially This is innocence. and he wants to throw himself guilty as sin when, here, purported victim of the as the mercy, divinely on the court’s oblivious that, truth, the offense later testifies any punishment might that he receive. any offense at defendant did not commit single long ago recognized that the We justice system seeks to criminal all. Our reason that a defendant important most deny a justice It is not justice. do pleads guilty is because he has advanta when defendant relief guilty-plea-ing plеa the State which he geous bargain with that the defendant his accuser later swears minimizes his risks. See Cruz v. believes (Tex.Crim. judge the trial believes innocent and State, is 821-22 S.W.2d is credible and consistent that recantation that defendants “com App.1975) (noting the other evidence. inqui an Art. 26.13 ... monly deny during I am also by suggestion troubled the complainant’s mother testified that ap- the applicant’s that the family might have been plicant seeing other women during in putting pressure involved on the com- relationship. their complain- Now that the plainant to recant allegations. her In the ant says applicant that the sexually never proof, absence of and in a country where her, any persuasive assaulted force this the principle that one is innocent until might have had before no longer exists. proven guilty land, is still the law of the Second, there aré large discrepancies in unsupported speculations are inappropri- the record about how long complain- ate. ant, mother, together and aunt were surprises It question me that some-still police before the arrived to interview the applicant whether the produced has evi- complainant. dence that unquestionably establishes his me, To the most compelling evidence in innocence. Even without the recantation this case is that the people really two who complainant, the State’s case did happened know agreed what that it many. not convince convicting court happen did not and that there is no inde- persuaded was not by the State’s evidence pendent affirmative evidence that a crimi- guilt. spin placed Whatever is on the nal offense even occurred. The trial cold record today, the fact remains that judge who observed the trial found that judge trial who heard the evidence at produced new evidence that the trial and reviewed the evidence in the unquestionably proves his innocence. proceedings ap- concluded that the Nothing the record contradicts those plicant had unquestionably established his findings. Also, innocence. it is not as if case jurors trial was close. Ten of twelve This case is not so much about what the acquit applicant, voted to even without said, as it is about the trial complainant’s sworn recantation. This honorable, judge’s findings. qualified, evidence, compelling that no reasonable and experienced judge presided trial who jury hearing this new evidence con- over the trial and who reviewed vict. presented support application, evidence, after all the weighing

The evidence that is claimed to be the found that unquestion- new evidence (1) damning most the fact that the inti- ably established the innocence. mate relations between the findings supported by These are the habe- complainant’s stopped mother at the record, as the record which we are same complainant alleged time the that the concerned in this cаse and all Elizondo applicant began her; sexually assaulting example cases. This case is a classic of (2) the fact that the testi- why findings we defer to the trial court’s fied that she did not have time to fabricate of in fact habeas cases. the story details of her because she did not plan to accuse the until her original As the Court said on submis- mother asked her whether he had abused sion, convicting “We are confident that the her. courts of Texas can tell the difference be-

First, there are plenty why of reasons tween a meritorious claim of actual inno- intimate relations between two consenting accompanied by cence compelling new evi- may change stop adults altogether. dence a bogus accompanied by claim suggestions There are some in allegations the record bare of Applicants innocence. why this may may applications, have occurred. The file it does not mean that language the flatly contravenes granting will recommend convicting courts that, evaluating case, in 74,364, requires which op. at 12. Tuley, slip No. relief.” (as opposed to oth- claims actual innocence judges in trial I still have faith the claims), record the trial er kinds of habeas the dif- ability and their to discern Texas to statements Contrary be consulted. meritorious claims and ference between the rehearing, concurring opinion on the bogus ones. petitioner always on the habeas burden is comments, majori- I join these With support to produce a record sufficient ty denying of the Court State’s not do so on Petitioner did his claim. Rehearing. Motion for submission, application his and so original concurring denied. The should have been KELLER, P.J., dissenting filed a the failure to for opinion blames State opinion. be forwarded to request the record (1) questions in this case are: on shifting This is an unfounded this Court. case, this submission of this did original habeas, and violates not of the burden on (2) Elizondo,1 ap- follow should Court Elizondo, but also traditional habeas only relief under Elizondo ? plicant get corpus principles. question The answer to the first is “no.” us, and we But record is now before law, Elizondo ‍‌‌‌‌‌​‌​‌​​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌‌‌​‌​‌‌‌‌‌​‌‍is the or at least it was until exculpatory evidence weigh the can now provides this case. Elizondo the frame- at trial order against the evidence evaluating work for actual innocence supports if record the habe- determine submission, original claims on habeas. On Unlike as court’s recommendation. plainly the Court did not follow Elizondo. I opinion rehearing, dissenting other on requires weigh this Elizondo Court qualifies as think that exculpatory evidence the evidence Moreover, credibility “newly discovered.” trial, guilt adduced at in order to deter- fact-finder, and in up are to the decisions supports mine if the record the habeas court believed the this the habeas case court’s recommendation.2 That is what that, if it is as- new evidence. believe itself, did in Elizondo and has Court apply to convic- that Elizondo-can sumed Franklin,3 parte done then in since Ex plea, record resting upon guilty tions which, incidentally, denied relief after we support the habeas court’s is sufficient the habeas court recommended that relief circum- recommendation. Under these de- granted. be Court’s infelicitous us, stances, is before now that record in order sertion of Elizondo standard “yes” question answer the second inexplica- relief grant is both relief. grant applicant unnecessary. ble and I respectfully dissent. disturbing aspect concurring A opinion rehearing, signalling further HERVEY, J., opinion dissenting filed a Elizondo, abandonment of is its statement of the State’s Motion to the denial unnecessary to a that the trial record is KEASLER, J., joined. in which Rehearing, innocence claims. determination of actual legally convicted Applicant ex- still stands “policy” that no reason The conclusion assault of a child based aggravated sexual “differently” Elizondo claims ists to treat Elizondo, (Tex. (Tex.Crim.App.2002). parte 671 1. Ex 202 3. 72 S.W.3d 947 S.W.2d Crim.App.1996). Id. at 206. 2.

408 knowing voluntary guilty plea. requires ap a Elizondo (Tex.Cr.App.2002).1

on establish”, plea plicant seeking “unquestionably Rather than to set aside this his well-developed corpus. under law that habeas cor- innocence on habeas See Elizon do, pus applicants routinely 947 at 209. This is a heavier use to set aside S.W.2d guilty pleas, applicant claimed this habe- burden than the State’s burden at trial to proceeding prove guilt beyond pri- as is entitled to he habeas reasonable doubt corpus actually marily applicant’s relief he “inno- because error-free because con- greatest respect” cent” of this offense. viction “is entitled to the corpus proceeding. this habeas See id. original grant On submission this Court corpus ed habeas relief on his The habeas court decided that setting “actual innocence” claim without submission, original met this burden. On voluntary guilty plea. aside his After our agreed appli- this Court and decided that submission, opinion original on the habeas unquestionably cant’s “new” evidence es- granted applicant appar court a bond that his innocence. This Court based tablished ently was not law. authorized Since solely its decision on habeas court’s streets, applicant is on argu back then indepen- findings conducting without ably illegal there is no “restraint” and this appli- dent the record examination of Court should consider whether to dismiss trial requiring cant’s 1997 and without applicant’s corpus application part this record be made a of the habeas prior opinions. withdraw parte its See Ex record.

Eureste, 214, (Tex.Cr.App. 725 S.W.2d 216 The habeas record reflects that the ha- 1986). judge judge pre- beas was the who same however, would, reconsider the Court’s sided over 1997 trial. The ha- opinion rehearing deny habeas cor- beas record also reflects that the habeas pus Applicant relief. was tried before a to and are based on findings court’s refer jury aggravated for the sexual assault of a рortions appli- selected of the record from jury child offense was While cant’s 1997 trial. The habeas record also deadlocked on the issue of findings reflects that the habeas court’s applicant pled guilt/innocence, guilty to the personal are based on its “recollection offense and he received a bargained-for guilt [at the evidence of his Applicant’s 10-years adjudication. benefit of deferred severely was deficient.” These trial] 1999, committing In after another criminal findings state: offense, applicant’s guilt aggravat- Applicant’s determining [new] .In ed sexual assault of child offense greater is of credi- significantly evidence adjudicated 10-year and he received a Appli- bility than evidence offered prison sentence. trial, necessarily had to cant’s this Court 2002, exculpa- imprisoned applicant engage “weighing” filed such a present guilt. evidence of corpus proceeding tory this habeas process recalling days two what he claimed was “new” evidence While provided four-and-a-half testimony establishes his innocence under our deci- Elizondo, normally require an parte years ago sion in Ex S.W.2d 2002); Tuley, (Hervey, original rejected op. at 1. This Court on submission but see 399-400 J., apply apply dissenting) (permitting the claim that should not Elizondo Elizondo parte guilty-pleading compromises guilty-pleading Ex Tu defendants defendants. See ley, op. (Tex.Cr.App. integrity judicial process). at 395 December

409 corpus proceeding is habeas transcripts, sented this exhaustive review of the decision on pro- After the Court’s not the case in the instant not “new.” such is time, submission, was of the habeas record ceeding. Despite passage original the cases, recol- record of reporter’s the Court finds its supplemented with it on proceedings lection of the before trial. applicant’s 1997 1-3, July 1997 has not diminished over this

the interval. The Court attributes I. INDEPENDENT EXAMINATION exceptional clarity of recollection to the APPLI- THE RECORD FROM OF testimony nature of the adduced before TRIAL 1997 CANT’S during the trial. clearly re in Elizondo Our decision Appli- reviewing proceedings of independently exam quires this Court purposes Applicant’s cant’s trial for of trial. applicant’s ine the record its hearing, this Court has reaffirmed Elizondo, at see also 947 S.W.2d See Appli- that the evidence of recollection Franklin, 671, 677 Ex 72 S.W.3d parte severely deficient. Of guilt cant’s clear- (Tex.Cr.App.2002). Elizondo states though for perhaps greater significance ly: writ, purpose Applicant’s of this Because, evaluating a habeas claim majority of specifically Court recalls available evi- newly discovered or presented highly at trial was evidence inno- proves to be dence implausible Having at best. reviewed he con- cent of the crime for which was trial, proceedings Applicant’s at this victed, probable our task is to assess the Applicant’s Court finds that character- newly evidence impact of the available against ization thе evidence him at upon persuasiveness of the State’s accurate, fairly trial is characterizes whole, necessarily case as a we must (Citation the tenor of this evidence. To weigh exculpatory such Applicant’s Corpus Application Habeas guilt adduced at trial. the evidence Omitted). 206; Elizondo, at see also 947 S.W.2d rehearing, In motion for the State Franklin, 72 S.W.3d claims, among things, other that this Court opinion original on submis- granted corpus should not have The Court’s independently independently examining unnecessary relief without sion found it applicant’s 1997 trial applicant’s record of 1997 trial. The State examine the record of apparently by shifting duty exclusively that an this independent claims examination Tuley, parte the record from 1997 trial to the habeas court. See Ex (“the op. convicting weighs court shows that the “new” evidence at 390 against the presented corpus proceed- applicant’s guilt evidence of the this habeas innocence”).2 The ing unquestionably ap- establish new evidence of Court’s does original supports submission plicant’s aggravated opinion innocence of the sexu- page proposition with a citation al assault of a child offense. State the “habeas pre- which states that also claims that the evidence Elizondo trial, so, tion of the record from 2. Even this Court should review the rec- applicant's 1997 trial to determine original ord from opinion on submission the Court’s supports the habeas whether the record supports a find- state that the "record could findings which is court’s recollections and [complainant’s] ing recantation we in other that come what do habeas cases testimony at trial." more credible than before this Court. It is also difficult to under- Tuley, op. See at 397. how, independent stand without an examina- court, as factfinder” evi- weigh many various factors of which face most dence guilt against of at trial the new guilty-pleading Tuley, op. defendants. See Elizondo, evidence of innocence. See 947 at 395. The court habeas found: at 207. S.W.2d However, notwithstanding But this reads Elizondo with blinders on acceptance Applicant’s plea Court’s of on ignores significant parts other of this 8, 1997, July Appli- the Court believes requiring decision compare this Court to cant's assertion that plea his was en- guilt the evidence of at trial against the solely purpose tered for the of extricat- new presented evidence of innocence on ing himself from the situation he found Elizondo, corpus. See 947 S.W.2d in, himself and as such was not indica- (this weigh newly at 206 Court must any guilt. tive of credible admission of against discovered evidence of innocence Applicant’s prolonged Given incarcera- (this guilt) the evidence of and at .207 . tion, incarceration, specter of further job newly Court’s is to “decide whether the Applicant longer the fact that could no discovered evidence would have convinced counsel, private Applicant’s retain innocence”) jury of at assertion he was addicted to narcot- (applicant corpus entitled to habeas during period, ics the Court finds if “applicant prove by relief can clear and Applicant has made an affir- such Court, convincing evidence to this in the showing dispel pre- mative as to corpus jurisdiction, exercise of its habeas sumption regularity im- veracity jury that a acquit him based on his plied guilt open to recitals of court. evidence”).3 newly discovered If it was Furthermore, this Court recommends original the intent of this Court on submis- light Applicant’s evidence of only convicting sion to decide innocence, actual as this Court will now independently court should examine the detail, Applicant’s plea should be guilt compare evidence of at trial and dispositive Appli- of the determination of innocence, against the new evidence of cant’s claim. then this sub sig- Court overruled silentio however, findings, responsive These are portions nificant of Elizondo. to the claim on only original State’s sub II. APPLICANT’S CLAIMED PERJU- perjurious mission that claimed PLEA RIOUS GUILTY plea precludes him guilty from even rais opinion an original ing The Court’s submis- Elizondo claim. While these find accepted permit findings ings may sion the habeas court’s to raise Eli- claim, applicant’s voluntary guilty plea they zondo do not address how (which lie) weight assign applicant’s judi much now claims was guilt not “indicative of credible admission of cial admission of the Elizondo plea by analysis.4 analysis deter guilt” because the was influenced Elizondo Weighing compared guilt 3. the new of innocence to the "evidence of adduced at trial”). guilt the evidence of under Elizondo credibility and demeanor de does not involve rehearing, motion its State as- State, generally terminations. See v. Guzman serts: 85, (Tex.Cr.App.1997); 955 S.W.2d 87-89 Eli zondo, (habeas corpus 947 S.W.2d applicant's plea guilty should be convincing must show clear and springboard for the more than a mere juror credibility would have evidence that no reasonable Court’s assessment of the is, though light new evidence. That even convicted him in of the new evidence

4H mining a juror by whether rational would ac cant must convincing show clear and quit guilty-pleading based on a cor habeas juror evidence that a reasonable pus applicant’s new evidence must take acquit him newly based his discovered into account that juror this rational would evidence). And, appropriate it is also also applicant consider that juror note that a reasonable could consider voluntarily admitted guilt. his See Elizon applicant liar. admitted See id. do, 947 at S.W.2d 209. This should be an important part of analysis the Elizondo III. RECORD OF APPLICANT’S 1997 applicant’s since an voluntary admission of TRIAL guilt normally and “quite validly removes applicant’s The evidence from 1997 trial the issue of factual guilt from the case.” applicant complain- showed and the York, 61, See Menna v. New 423 U.S. 96 ant’s mother had a relationship. sexual 241, 2, (1975) 242 n. S.Ct. 46 195 L.Ed.2d Applicant in complainant’s moved with the in (emphasis original); McGlothlin v. (the family сomplainant, complainant’s State, 188, 896 (Tex.Cr.App.) S.W.2d 190 mother, complainant’s and the younger sis- denied, (MeyersJ., dissenting), cert. ter) in complainant March 1995 when the 219, U.S. 116 S.Ct. 138 L.Ed.2d 150 years-old. was twelve complainant’s The (1995). Neither the habeas court nor this mother testified that the sexual relation- original Court on weighed ap- submission ship applicant between her and the “pretty plicant’s judicial guilt admission of and the stopped” much appli- within a month after other evidence “adduced at trial” cant in complainant’s moved with the fami- Elizondo, the new required by evidence as ly. complainant’s The mother also testi- 947 S.W.2d at 206. applicant spent fied that much of his time Assuming, therefore, ap- that Elizondo complainant alone with the and that plies to a guilty-pleading corpus complainant’s drastically changed behavior applicant, appropriate that, it is to note for the worse within about a month after conducting the Elizondo weighing analysis, applicant in with family. moved juror a reasonable would not have to ac- complainant applicant testified that cept applicant’s excuses pleading for began sexually molest her about a guilty. A juror reasonable could deter- month after moved with the mine that guilty plea is a credi- complainant’s family. ble guilt admission of since is not unrea- also sexually testified mo- sonable to infer that could have regular lested her on a basis until 10-years decided that his adjudica- deferred September arrest pretty good tion was a 1996 when the com- deal for someone sexually plainant who year-old years-old. specifically molested a 12 was 13 girl on She regular a year basis and-a-half. described three incidents in appli- See which Elizondo, (habeas her, 947 S.W.2d at appli- cant molested with each incident in- may Court light believe that the of plea voluntariness evidence but also in his of he, applicant’s guilty plea guilty judicial has been im- confession

peached, purge fact, that belief does not committed the crime? While it should burden, guilty plea weighing analy- impossible showing by from the Court's not be an necessary analysis convincing sis. A constituent of that clear and that no rea- applicant’s plea guilty judicial is the juror sonable would have convicted a a[sic] words, In appli- person, person’s plea confession. other has the in the face of that confession, convincing guilty judicial cant shown clear evi- be an should juror extraordinarily dence that no reasonable would have difficult one to sustain. light only convicted (Emphasis Original). him in of not the new (the night penetration you feeling abandoned How were volving house incident, the hotel? during the incident a camping Oklahoma, trip Well, at a lake in and the last I I upset, was because complainant’s thought [appli- at the home that still believed that incident —or girls, shortly seeing ar- a lot so cant] occurred before rest).5 me a to the packed bag and went hotel [the and I called and told hеr aunt] he was “in testifying Other than that complainant]. [the about pled applicant when he guilty” guilty, fact Q. you upset? Were testify not at his 1997trial. He never- did A. Yes. theory a presented theless defensive that Q. was reaction [the aunt’s] What com- complainant’s mother and the leaving complainant] with your [ap- [the complain- aunt plainant’s encouraged plicant]? falsely sexually accuse ant to said if A. She he— complainant because molesting object hearsay, I’d [APPLICANT]: gone. mother wanted Honor. Your support theory, applicant of this relied on [THE COURT]: Sustained. September moth- that in 1996 the Q. happy about [the Was it? aunt] giving applicant er went to a hotel after said, tell me but was Don’t what she she noon by ultimatum to be out of the house (cid:127)happy? day thought mother the next because the A. No. seeing girls.” “was a lot of The Q. speak- did do next after What unhappy spoke with aunt was when she ing to [the aunt]? the mother the hotel and learned that complainant mom, had left with my the mother A. called and we told my We go complainant’s] the aunt applicant. [the mother and made mom to knock on window, get a arrangements grandmother for the because she had habit do- that, just window, away applicant. ing go your on knock findings Applicant’s specific court tions To Record Of 1997 Trial 5. The habeas made no regarding complain- Omitted). the last incident at the testifying put that she After court recollected house, ant’s home. she clothes back and left the then testi- "vast inconsistencies in the [1997 trial] recalled that first she went to bathroom regarding mony a blood stained shirt” in blood” where she “washed off the from her with the at the lake connection incident (Citations and then To face dried it. Rec- Oklahoma. The habeas court found Omitted). Applicant's Trial ord Of .1997 complainant’s description of the first incident old "this Asked how she was when was "dubious veraci- at the abandoned house had happening,” complainant] [the stated ty.” The habeas court stated: Ahead,” complain- [the Told to "Go "Ten.” veracity dubious was [the Of further com- just thinking then stated that "I—I was ant] plainant’s] testimony of the first assault. [appli- at—at about how mad I was am—I Alleged to have occurred in an abandoned cant], my letting someone like mom for located, longer [the could be house that no (Citations come To into our lives.” bed, complainant] testified that there was Omitted). Applicant's Record Of 1997 Trial bed, bedposts, a stand and a with recalls, Applicant as As this Court (Citations change which to behind. screen out, already points estab- State had Applicant’s Of Trial Omit- To Record years complainant] was 12 [the lished ted). volunteering "[applicant] After Applicant when in with' them. old moved on,” complainant] did [the have condom (Citation her, Applicant's Brief Omit- Habeas [applicant] "raped” testified (Cita- ted). then cut her face with a box cutter. go washing and ask her to with her. A. So Yes. mom, I told “Go knock on the window Q. question your No mind about complainant] go and ask to washing [the that? you, bring and then her to the A. Yes. house.” Q. there ever a time when [the Was your Were sister concerned complainant] speaking the hotel complainant’s] well-being? room that [the mother] would A. Yes. present? been picked up The aunt the complainant police With the officers when we grandmother’s

from the and took her to stepped outside. complainant the hotel. The then told them Q. only That would have been the sexually molesting been time? police her. The mother called the who A. Uh-huh. at shortly arrived the hotel thereafter and began to girl interview the outside the Q. hear, you heard, So whatever she presence of her mother and aunt. The complainant] whatever saying? [the was mother testified that was A. Yes. at the hotel “not even five minutes” before Q. saying complain- [the Without what police. the mother called the said, mind, you, your did ant] have Q. long How complainant] was at [the on, good idea of—of—of if what went you the hotel before police all called the anything, at all? anyone? A. Did I an—I did before she A. Not even five minutes. even told me or— Q. Not even five minutes. Q. spoke After she for the hour and-a- complainant] How did get [the to the half, you you you did feel like had a —did hotel? good going idea as to what was on?

A. picked up [The aunt] from [the A. Yes. grandmother’s]. Q. you say yes? Did aunt, however, testified A. Yes. complainant was at the approximate- hotel

ly an hour and-a-half before the mother Q. you Did feel like there were details called police. left out? Q. Okay. you Prior to [the mother] A. complainant] As far as what [the police], calling you speak [the with [the told us? complainant] approximately an hour Q. Correct. and-a-half; is that correct? A. Yes.

A. That’s what I would estimate. I Q. it sketchy Was it—-was what she positive. couldn’t be said, complete or was it a story from Q. you You looking weren’t don’t— start to finish? your watch? No, A. it was brief stuff. A. No. Q. Brief stuff?

Q. you you But good know it was a — longer your phone bit than say conversa- A. Like it she was embarrassed to tion? in front of [the mother]. No, said, I testimony no at first “No.” I complainant provided A. and—and said, long

on how she at the hotel before “No.” was mother called police. goes, you sure?” And she “Are he? Q. [applicant] okay, But wasn’t was thought again. I And then And her, “Yes,” [Complainant], couple days after I told didn’t—I because Prospect, your anymore. picture incident at house on I—and the didn’t care Do stay gone. went at a hotel. was family long [the mother] you remember that? share with her all Q. you Did want to A. Yes. had done details of—of what he you? Q. early morning you finally And

told, you do recall? A. No. (Nods head.)

A. Q. Why? you Did tell going [the mother] she was A. I was—I was afraid lots of details? aunt] at me. to be mad No, I—some what told them afraid that Q. Why would be she that, know, did it. And that he at you? be mad I— there was—was details at all. no A. I don’t know.

Q. you say What did to them? she loved him Q. you Did think that Well, my A. I—I to mother talked more? grandmother’s] house on [the A. Yes. phone,6 says telling and she was —she police] that Q. [the Did someone call finally figured me all the stuff she that day? [applicant]. he was us- out about That [The mother] A. did. drugs her ing money her for that? Q. after happened And what letting guys rаpe other her. and talked to police The came over A. Honor, going I’m [APPLICANT]: Your me, [the and to mother] and to [the object non-responsive. to this as aunt]. COURT]: [THE Overruled. to talk Q. you get a chance Did Q. you [applicant] Did tell that was her police alone— having you? sex with A. Yes. I wasn’t A. I didn’t come with it. out of what Q. tell details —and them [appli- And “Has planning says, to. she happened? had—what had touching you?” been cant] head.) (Nods A. minute thought I it for a

And it, at the know, police officer to arrive I not do The first thinking, you better mother, aunt, that because, know, you might will hotel testified he —he upset” “very complainant were again, kill me. then at that And—but much, complainant crying. He time, was I so and that the point myself hated “they excited” were I—I care. testified didn’t “something happened.” died Q. care if lived or Did complainant]? Q. [the How about anymore? actually happening Not—-not that she did A. about it later testified outcry the hotel. she was at got not make until we until the hotel. Q. at all? You didn't talk to her complainant] A. was [The was—she she would be with—as felt she would crying. She had her head lowered. She be with another female officer. wasn’t Em- saying anything anyone. herself, by having And her in a room You barrassed. could tell she emo- was that would allow her to be more free to tionally upset also. discuss that she did things not want her Q. mother to Was she know about. withdrawn? Q. practice that common Is when deal- Very

A. much withdrawn. ing sexually with a child that has been This officer also testified that the com- abused? plainant happened told him “what had Yes, A. ma'am. up point” to a but because “of the Q. About how long did Officer Waller nature of the situation” he called (Waller) complainant]? [the talk to female questioned officer who complainant alone for “quite awhile.” Well, time, A. give you can’t but it male officer who first arrived at the scene quite awhile. they also testified that went from the hotel room, they When came out of the

to the mother’s home where he arrested complainant]? how was [the applicant based on information Well, complainant] [the did not complainant provided to the female officer. come out of the room. Officer Waller— A.... spoke Waller came out of the room and her, At point, I asked com- me, [the and wasn’t until we left the plainant], if she would feel more com- complainant] motel left speaking fortable with a female officer. room. said,

And yes. she Q. you Did Officer tell Waller what Q. And so what did you do? complainant] [the had told her? time, Yes, A. At that I called for A. Officer ma'am.

Waller, female, who is a to come to the Q. information, Based on that what did location and assist with the questioning you do next? complainant] happened. [the on what information, A. Based on that we went Q. Why Officer Waller? location, over to the offense which was complainant’s] [the A. I—it and her mother’s actually Waller, wasn’t Officer home, just I and—to locate our officer, asked for a arrestee. We female and she went to is the that location аnd knocked on the one that responded. was—that door and— Q. happened point What at that when Q. went to you? Who the location with she arrived? officer, my A. cover Officer A. She came to the location. Once she Officer— McClain. arrived, I stepped out of the room with complainant’s

[the mother] [the Q. complainant] go Did [the there? and let aunt] Officer Waller talk with A. I don’t I believe so. believe that complainant] in the alone room Waller, along she was taken with Officer happened. about what had mother, I with her believe [the Q. Why you did aunt], want her to be alone to Advocacy the child—Children’s with Officer Waller? Center to be interviewed them. Well, A. obviously, Q. she didn’t feel you you as And said that went —based had, comfortable with being me around as on the information that you you Q. a one-on-one duplex to do what —or the And have it be conver- went to triplex? sation? Yes, might try

A. to A. because there be some suspect To to locate things say that she doesn’t want to make an arrest. around mother. her Q. happened you got what And when Q. you to her demeanor triplex? What was when did act? went into the room? How she door, A. the front I knocked on and the Withdrawn, scared, very answered the door. And he was A. suspect upset. immediately placed appear under arrest. crying. She was She did to me talk, like ready she was because she (Waller) officer police The female testi- on. going of what was tired complainant gave fied that the state- Q. it in? keeping Tired of This ment at the hotel. female officer described the circumstances under which A. Yeah. complainant provided this statement Q. to children or adults you When talk general techniques uses to she abused, sexually what who have been reliability types

insure the of these you ask of them? type of do questions statements. they A. I old are. And ask them how Q. you dispatched there Why were out know, you do many you how — [to the hotel]? brothers, sisters and— dispatched,

A. I ele- wasn’t another Q. make them comfort- you try And call, they ment received a but called for able at first? complain- female element because the A. Yes. upset. The ant was real officer didn’t Q. start to talk you actually When him, respond feel she would so he like abuse, ‍‌‌‌‌‌​‌​‌​​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌‌‌​‌​‌‌‌‌‌​‌‍you ap- how do about the sexual to come wanted a female and talk her. proach that? do ar- And what did when they A. I know what sex ask them do rived there? is, mean, as because, I talk to children originally the officer who I talked to sometimes, five, young and want as call, got explained he to me the And make know what sex is. they sure I talked with situation. And her mother them, to tell might I have sometimes room, and in the then I talked first alone you know. complainant] to the room alone. [the Q. complainant] know what Did [the Q. speak with Why you did her alone? sex was? there, Well, got A. I tell when could Yes, A. did. she she upset crying. because was she was you Q. give to details Was she able me, a lot of times to their mother And about what was? sex or, know, you whoever’s—whoever Yes, A. she did. with, рacify me that they’re seems her, with she Q. you spoke was When They stay baby that “I’m a them. you details about sex with give able know, state,” you get and wanted to boyfriend? [applicant], mother’s] [the get her of there and alone and out her A. Yes. just up to her kind open kind of open-ended Q. you ask my experi- own life Would relate to her some happened next? questions as what make her feel comfortable with such ence and up. happened? Then what open me can so she A. Yes. Q. interviewing After her —I’m—did you speak an opportunity with Q. leading questions? Versus Officer Waller? A. Yes. Yes, I A. did.

Q. why? And Why you do that? Q. if it you prior Do recall was to or A. story. Because it’s her It happened you complainant]? after interviewed [the to her. hap- She needs to tell me what prior A. It was to. pened. I can’t happened. tell her what Q. Q. The information that complain- [the And was she able to do that? gave you interview, during your ant] A. Yes. consistent what Officer Waller Q. Was she you just able to tell you? told incident, one or were there more? Yes, A. it was. A. There were more. Q. you you’re Did also—when inter- Q. There were more. child, viewing type questions what A. I asked her —she told me about the you do generally ask? incident, initial the one that we were Open-ended questions, pretty A. where called on. I asked hap- her if it had person much allow the we’ll to tell me before, pened said, to her yes. and she happened, what not— her, And I asked when? And she told Q. why And do do that? me— A. your premise Because whole Objection, hearsay, [APPLICANT]: I— person not to lead the on. Let Honor, them tell Your what complainant] told you in their hap- own words as to what her. pened. [THE COURT]: Sustained. And did do that with [the com-

Q. Was she give you able to details of plainant]? other incidents? Yes, A. I did. A. Yes.

Q. Did she seem frightened? Applicant’s defensive theory that mother and the aunt encouraged the com- A. Yes. plainant falsely accuse because Q. Of what? gone figured mother wanted him [applicant]. Of prominently closing jury ar- An investigator with City of Dallas guments. Child Abuse Unit testified that he inter- does [the mother] What do? She leaves viewed the at a ad- children’s [complainant] and younger daugh- [the vocacy center that day later and that the ter], we’re not real clear [the on whether complainant provided detailed information not, younger in daughter] was there or that was consistent with the information [applicant]. the house with There’s no the complainant provided Waller. problem they talking, until start and Q. complainant] eventually [the Was plan. [the hatches the You want to aunt] you able to happened tell what had figure a toway get [applicant] out of this her? house? Yes,

A. she was. says they phone She had five calls. give Was she able to details? couple First one a of minutes and the Yes, she was. second one’s five minutes. The third complainant] up made it minutes. fourth one’s five because [The one’s five The five min- like [applicant] any- minutes. And the fifth one’s her mom didn’t and the sixth five minutes. utes one’s more? minutes, couple a three They call that, gentlemen, Ladies and to believe if minutes, They’re on the four minutes. argument, you listen Defense’s mom later, minutes phone. An hour and 15 got for an hour together and sister and- they they pick up complainant] and [the it, and about and then a-half talked they’re grandmother] why [the don’t tell complain- with spent [the five minutes up night in picking her the middle to tell her all these details. ant] To like anything that. So where’s plant mind an be—-to abandoned you where hour and 15 minutes? I’ll tell house, ride trip, a bike and an camping phone hatching They’re it is. happened in home while event to—plan doing your homework. That you’re Honor, Your [THE PROSECUTION]: That knocks jump over table. object. That’s not evi- going I’m things All five minutes. down. those dence. only they good are so And not are — COURT]: Overruled. [THE child, going to manipulating she’s do Now, up do Pick what else we know? this for them. But that —she’s consis- 5:15, complainant] get to the hotel [the basically story tent. Her consistent they says 5:30. [The mother] about time again. time and and time min- complainant] for five [the talked to with complainant] goes alone Offi- [The they police]. call [the [The utes and her all she tells these cer Waller says, “We talked an hour and aunt] little Then she intimate details. tells half, police].” and then called [the Then she comes Detective Johnson. talked they That hour and a—and-a-balf prosecutor. And and talks to the back aunt], [the mother] [the

was when then she tells nine to ten months deduction, talked with it’s a reasonable later. there, complainant] they got [the before And, it’s the same. gentlemen, ladies gets there complainant] [the and then detail story. It’s the same basic One they talk about five minutes. We’re way pulled pants all down. who they even clear there because who’s a little A little—little details are differ- com- really Then [the can’t remember. ent, story is the same. but basic there, plainant] [the tells us aunt] house, the camping. About [the “I borrowed says, [the mother] but minutes Every time. five After there.” [the aunt] car and wasn’t aunt’s] mom, in the she—and mom’s not room impor- there? That wasn’t Who’s it on her help her. has to do own She they figured when that out. tant years old. at 13 prosecution responded to the defen- 1997 trial record from fabricated theory sive pled guilty further reflects that by commenting accusations adjudi- deferred story exchange 10-years complainant] told the same basic while the was deadlocked gave jury to cation each time she a statement applicant’s guilt/innocence.7 police. the issue presented support of his habeas Applicant trial is silent on how 7. The 1997 record jurors guilty. from one split applicant pled application an affidavit jury vote was when job. then from her I also determining applicant freely getting After that fired voluntarily pled guilty hearing to physically knew that he was abusive applicant’s her, he “in slap couple assertion that was fact I him her a as had seen accepted guilty,” times, the trial court I bruises on her. also saw mistrial, plea, guilty declared a and dis- that She had also told me she believed charged jury. time, he had At the given her a disease. just good way get it seemed like THE IV. “NEW” EVIDENCE him out of our house. adjudication After his deferred had been complainant testify appli- The did criminal committing revoked for another cant’s 1997 trial mistreated that prison, offense and went to he complainant the mother. The also ex- corpus application. Ap- filed this habeas arrest, why, plained soon after plicant proceeding claims that he (Graham) boyfriend ap- told her she discovered all this “new” evidence estab- did plicant not molest her —because she lishing pris- his after he went to innocence “was humiliated and couldn’t let him on. know.” Complainant’s A. The Affidavit Q. you anybody Did tell that —that it Applicant an submitted affidavit from happen? didn’t complainant in sup- as “new” evidence A. Yes. port application of his affidavit Q. Who? complainant. complainant from the The stated this affidavit that “everything” I boy my A. told—I told the that was testified she to at trial was “false” and that boyfriend at the time. applicant “never in any assaulted [her] Q. Why boy you did tell didn’t way complainant whatsoever.” also happen? stated affidavit she wanted A. Because I was humiliated and applicant gone he because mistreated the know, him and— couldn’t let mother and him accusing of molesting way her “seemed like good get [appli- Q. your Did he know friend also? cant] out of Among [the] house.”8 other mean, Amelia, IA. he kind of. knew things, complainant’s affidavit states: Q. everybody You—did want I my [appli- told mother that happened you? know what had had sexually cant] assaulted me. I A. I this, anybody didn’t want to know. plan

didn’t until do the moment that she asked me whether he had done just go away? Did want it to anything to me. I it because I did want- (Nods head.). [applicant] my ed my out of life and Complain- B. getting mom’s life. blamed him for The Affidavit Of Starr) (Amelia drugs, her involved with and for her ant’s Best Friend jury split who stated that cant’s 10-2 in 1997 trial. The also stat- acquittal. nothing favor of There is in the ed in her that: affidavit indicating 1997 trial record my While mother refuses to discuss what pled guilty. knew this when he happened, I believe she knows the truth aunt, (aunt’s Applicant my now. did not "new" evi- also believe submit name), dence from mother either the or the aunt also knows the truth. recanting any testimony appli- of their 420

Applicant everyone upset. also as evi- her that —that submitted “new” support ap- like, know, corpus dence his habeas she was “I but I have to And plication the complain- an affidavit from you tell the truth.” (Starr) only ant’s best friend who was the “Well, like, you And I was what do testify witness to live at habeas hear- mean?” states, ing.9 among Starr’s affidavit other happen. told that it didn’t And she me told things, complainant that the after her said mom and her aunt had She that her complainant arrest that the had as, far discussing things guess, as I been against applicant the charges fabricated relation- [applicant] her mother’s complainant applicant. because the hated ship, they I don’t And went know. affidavit also states the com- Starr’s her, complаinant] you and asked [the plainant outcry made the statement to her know, ever [applicant] if had bothered “they gath- mother and aunt were when all so, that. anything her or like And ered at a hotel.” guess, opportunity took she because me complainant] [The told that she [ap- in the unhappy she was house with up [appli- made this because she hated guess. plicant] there. To use that cant], physically as he was abusive she ahead she said that —so went And complainant] [the mother]. [The stated ' said, raped had her and yes, that he just [applicant] out of that she wanted basically— that was complainant] [The house. stated mother and [the aunt] that she told you surprised? Q. you Were —were they all [applicant’s] abuse when were lying? A. Yeah—that she was gathered complainant] hotel. [The Q. Yes. questioned [the told me that her mother] [applicant] about whether had done ever A. Yes. her, anything to at which time told she in her affidavit Starr also stated them had. he Starr September complainant told consistently por- Starr testified with this her. molesting been hearing tion of affidavit at the habeas her complainant] September [the she and she also testified that was sur- mo- had been [applicant] told me prised complainant lied to learn that did complainant] her. lesting [The

when the accused of what occurred. tell me details her. molesting had told She also told that she me did com- What —what—what days a few earlier. this as well mother plainant] you? tell hearing, the habeas happen. told me that it didn’t Starr testified at She however, know, not true and she said I told that this was Basically that — Honor, no testimony pages we have [APPLICANT]: Your This covers reporter's evi- record. All the other "new” until— further witnesses presented was in the form of dence Okay. This is want COURT]: all [THE reporter’s record the ha- affidavits. today? to do hearing beas also that the rest of the indicates Yes, Honor. Your [APPLICANT]: hearing later was scheduled for a 1st, February Your The rest scheduled hearing appears No further date. Honor. been held. your may call next COURT]: [THE You witness. Q.

her “mother’s the one you who told So it agreed [her].”10 what said at the time? Q. Ms. Starr— A. Yes.

A. Yes. Q. complainant] —did Q. [the ever tell quite But it’s different than what you [applicant] raped you’re saying had fact now?

her? Yeah, A. I didn’t—I if I don’t know A. Yes. what, but, didn’t catch it or yeah, it’s Q. my When did she do different. mother told that? me. It’s— sorry, A. I’m you didn’t—can re- I[sic] (Emphasis Supplied).

peat question? It significant is also that Starr testified Q. complainant] Did you [the ever tell hearing the habeas thought she she raped? that she had been would have told “the truth” at applicant’s complainant]? No, A. Did [the she applicant’s trial had attorneys con- didn’t. tacted her during or before trial. Q. Okay. you Did up come and make Q. anyone you Did contact from— in July affidavit year? this —last [applicant’s] attorneys during the from—

A. Yes. trial or before the trial? Q. youDo recall it? signing A. No.

A. Yes. Q. Okay. you Do think that if someone Honor, [THE Your PROSECUTION]: had, an investigator, say, you let’s Imay approach? would have told them the truth? [THE Yes. COURT]: so, I just A. think because of the fact [COURT sorry, that, I’m know, REPORTER]: you I—I younger. And you repeat could what you just said. to have an opportunity come to me look, know, say, you around I don’t [THE I PROSECUTION]: asked her to this— think anticipated either of us it read to be paragraph number two affi- [of her And, big such a deal. of course —of davit]. course, it just was. But it didn’t A. Okay. September 1986[sic], —I asking questions, authorities me so complainant] [appli- [sic] me that, know, all I you knew was I could— molesting cant] been her. [The and, keep promise know, I could complainant] details, did not tell any me that was that. So had authority come just that it had occurred. She also told me, I think it would have been a bit me that she had told her mother this as scarier, and so think it would have well. probably scared me into telling the Q. Did that happen? truth. no, A. Actually, my the one —mother’s Complain- C. The Affidavit Of who told me. (Graham) Boyfriend ant’s Former Did write this affidavit? it, Did write —I signed Applicant read also submitted as “new” evi- yes. support dence in corpus of his habeas analysis determining setting Elizondo have to consider that Starr’s affidavit juror whether a acquit rational would based out "new” evidence is not com- "new" pletely evidence must also take truthful Starr’s own admission. Elizondo, into account that juror this rational See 947 S.W.2d at 209.

application an from com- Graham on stand. Graham testified affidavit (Graham). applicant’s attorney plainant’s boyfriend approached former that he complainant His that him during affidavit states trial and told that the com- him applicant’s days appli- told after arrest that she plainant told Graham two after arrest, falsely applicant molesting had accused that she had cant’s fabricated her. Graham’s affidavit states: against applicant. The trial accusations 1996, applicant could not court decided that September [ap- sometime after arrested, present jury that without

plicant] told [the mother] was setting and [applicant] recalling me that had been arrested raping complainant]. requirements.” I was “foundational [the really when this shocked she told me Q. a And did conversation you this, I complainant] and called after [the complainant] September on with [the happened. and asked her to tell me what 1996? that complainant] [The told me she had likely. Most A. lied hated [appli- about it because she Q. days some couple it after Was cant] and wanted him to leave. She told [appli- there occurred out and events anyone lying me not to tell that was was arrested? cant] [sic], only I and that was the one who Yes. A. knew truth. arrest; Q. days his Two after —after he Graham’s affidavit also states that your understanding?

kept this himself he information to until Yes. A. it applicant’s decided to share with attor- Q. Now, you were the courtroom ney applicant’s break in during a yesterday; is that true?1 trial. Graham’s affidavit further states A. Yes. him attorney put on the testimony Q. you And did hear some at applicant’s stand 1997 trial “but for complainant’s] from mother? [the he asked [Graham] some reason never complainant] had told Yes, [the about what I did. A. affidavit states:

[Graham].” Graham’s Q. she is? youDo know who trial, I [applicant’s] attended contin- A. Yes. complainant] ued to talk out try [the Q. her name? What’s sitting After going ahead with it. mother]. A. [Names through though, I some of the trial de- yesterday Q. There was a break Dur-, something. I say cided that should yester- Monday, guess no, was — breaks, ing [applicant’s] one I told I had a conversa- you and day—where complainant] what had told attorney [the hall; that right? out in the tion attorney me. The told me he want- A. Yes. testify, me he would if ed see something Q. you And told me about [Applicant’s] attorney put I still could. you with [the conversation had stand, on he me but for some reason Septem- complainant] approximately never me what com- asked 1996; right? is that ber 16th of plainant] told me. right. That’s A. 1997 trial record this con- Q. never had And This reflects a different scenario. record before;, right? is that versation that, during hearing outside the reflects jury’s presence, applicant’s attorney put Right. this, fact, happen called told him it didn’t my As a matter of had—had conversation; humiliated, is that there—

attention to this because she so therefore, going I’m true? there’s where I’m— object for those reasons. A. Yes. respond? COURT]: Y’all want to

[THE Q. you And what do was understand Honor, actually Your [APPLICANT]: [applicant] the reason that been ar- part saying he’s is consistent of what rested? complainant] to. [the with what testified inconsistencies that deal There is some A. me that mother] had—had told [The aspect anybody. with of don’t tell had been [applicant] raping arrested for this, about I made very Be secretive and complainant] for a year [the and-a-half. that I up. [applicant], it And hate that’s Q. you call complainant] Did on [the I up. the reason made that September 16th of to and talk her? Yes, I did. A. So, part part there is of what the State — correct, to objecting is is but I don’t Q. a phone This is conversation? you’re going segregate know how to A. Correct. this, parts those out of overrule Q. you complainant] And did ask [the and stuff say hearsay statement that the this? about out, stays prior but the inconsistencies Yes, I did. A. come in. Q. Exactly what you did ask her? Honor, I [THE PROSECUTION]: Your on, A. I asked her what going was they’ve proper don’t feel laid the happened. for her to tell me what had predicate prior for it to be a inconsistent [the complainant’s] What re- They never statement. went over sponse to that? complainant] [the whether she did up, said that She she it made said, “No, didn’t never I say didn’t —she only it, doing reason she was be- say any things,” they of those because she hated [applicant] cause that she present proper questions didn’t to wanted him out of her life. lay predicate for her to then be her, impeached. They “Did never asked not to anyone?” tell him tell Well, All I right. [THE COURT]: my think it’s within discretion allow Well, I can—I can call [APPLICANT]: testify, him to and think can I cer- her complainant] [the her and ask —call tainly any- cross-examine him on mean, way that. I that’s the cure thing that’s relevant. problem, says see what she it. I [THE make PROSECUTION]: Can point, At [THE PROSECUTION]: this objection record, one Your Hon- object, hearsay. is still it or? Well, if [THE COURT]: it’s offered COURT]: Yes. [THE complainant, impeach the then it’s ... [THE PROSECUTION]: truth, hearsay. so it’s not offered for addition, they for im- can’t be used hasn’t peachment complainant] PROSECUTION]: But she [THE because testified, im- anything yet she on the said inconsistent to be when she admitted through my peached stand that she questioning with. Well, trial jury to the at his 1997 right. All at this evidence

[THE COURT]: require- requirements” point your setting set foundational the “foundational ments. the State is correct. do. id. attempt think which he made no See in the To well, the extent We we’re [APPLICANT]: would— “new,” cumu- complainant’s affidavit ready. set affida- lative of the evidence out Applicant did not recall was avail- vits and Graham which Starr requirements” to set the “foundational able at the time of his impeaching testimony. Graham’s her with (defendant, trial seeking trial. id. new See complain- recall the Specifically, he did not evidence, must newly based on discovered previously ant and ask whether she show that new evidence is admissible allega- told Graham that she fabricated the cumulative). merely is not because hated against applicant tions she gone. and him See Tex. applicant wanted V. THE CLAIMED “INCONSISTENT 613(a) impeach- for (requirements

R.Evid. AND IMPLAUSIBLE” TESTIMO- prior inconsistent state- ing witness with 1997 NY FROM APPLICANT’S ment). Instead, appli- the record from TRIAL applicant put cant’s 1997 trial reflects that jury the and on the stand before Graham Applicant, the habeas court and this unsuccessfully attempted to use Graham’s original all that Court on submission claim testimony complainant to the impeach testimony applicant’s much from of the re- “setting” without these “foundational implausible.” 1997 trial is “inconsistent and quirements.” op. at Tuley, slip (agreeing See 16-17 Applicant No “New” Ev- of the D. Presents the court’s characterization habeas “in- idence trial as testimony at 1997 implausible”). and consistent any evi- Applicant does not have “new” regard: in this findings court made several appli- present. dence to The substance of oth- “new” set out the affida- ... this Court cite to Though cant’s evidence could testimony Starr complainant, questionable vits and Graham er of instances record, the mo- cata- complainant only is that the fabricated the it would serve to essentially charges against capture, lestation because logue, and not But, gone. him hated him wanted testimony she of of- nature unreliable hearing the habeas re- Applicant’s guilt.... the record from fered have could discovered flects re- recalling ... this In evidence by the time of his 1997 testimony Starr’s record, finds viewing the trial the Court State, 74 trial. See Keeter v. S.W.3d of Applicant’s guilt that the evidence (defendant, (Tex.Cr.App.2002) seek- 36-37 evidence outweighed so far newly trial on discovered ing new based to be almost Applicant’s innocence as show, evidence, among things, other must this reaching entirely one-sided. new was unknown or conclusion, upon the Court relies trial unavailable at time of and that contradictory manifestly unreliable and the new evidencе was failure discover support of at trial in testimony offered And, diligence). not due lack of Applicant’s guilt. 1997 trial reflects record Testimony A. Dr. Persaud’s testimony was known that Graham’s exam- physician who trial Dr. was applicant at time of Persaud af- about two weeks ined opportunity present A. ter the last claim of molestation at the Yes. court,

complainant’s home. The habeas Q. And was that? when submission, original this Court on con- says years. A. It significant Dr. sidered Persaud tes- Q. at And how old she the time at applicant’s tified trial that there your exam? physical findings suggestive were “[n]o four A. Thirteen and months. Tuley, slip. at this time.” op. abuse See at Q. Did the—did effect 17. The habeas court found: hymen? complainant’s] Finally, this the testimony Court recalls A. Yes. examining physician, Dr. Persaud. jury Can to the describe what Though unwilling express a definitive during your saw exam with [the as to her findings statement whether complainant]? way, were conclusive either Dr. Persaud testify did to the fact that she noted “No description That had written physical findings suggestive of abuse estrogenized hymen. folded redundant (Citation time.” To Record From No are tears scars seen. made Omitted). Applicant’s 1997 Trial elevated, bumpy tissue, note of some but interpretation I didn’t give an of what examination independent An of the rec- thought that was. trial, however, ord indicates that the findings Q. habeas court’s you you Can what describe mean do not mention other significant testimony hymen estrogen- estro —that her was Dr. provided. that Persaud Dr. Persaud ized? testified that approx- also of the 85% hymen A. The was thickened and fold- 1,000

imately sexual abuse examinations ed. If lot of it’s estrogen, there’s a performed Dr. Persaud “came out to be thickened and folded. normal.” Dr. Persaud testified that it Q. you any You stated that did not see not have been unusual for someone tears or scars? young complainant, as as the who had A. Yes. been molested numerous times for one Q. you Does that mean to that there years, and-a-half no physical to show evi- any was not sexual abuse? dence of sexual abuse. Dr. Persaud testi- A. No. findings fied not did mean “that Q. explain? you please Can there not sexual abuse.” finding A. Common for children who Q. you please jury Can tell the what sexually have abused. been It’s a nor- history given? was that was mal exam. A. There was a disclosure about two Q. do mean? you What ago of alleged weeks sexual abuse. The happened many incident times over the A. They they typically are normal af- — past years. one and-a-half The child has typically ter sexual abuse. We don’t see allegedly sexual described the abuse signs Mostly of trauma. because our penetration. that involved part part exams are in done because —in Q. you history Once con- our after the received exams are done disclosure event, cerning complainant], did also after —after last so we any- when don’t fresh begun determine she see blood or tears or menstruate, thing. Healing typically, and is that contained in so—our exams records? are your dоne so much later. There ‍‌‌‌‌‌​‌​‌​​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌‌‌​‌​‌‌‌‌‌​‌‍—the thousand, distensible, Q. per- ac- of those what that area have And tissues centage approxi- out to normal commodating properties. The amount came be mately? penetration generally, variable. is So are normal. exams percent. A. 85 age. She menstruating The child is why stated you you Is that earlier — her. year had a and-a-half before I saw have a that it’s more common to normal are dis- So her —her tissues even more exam? hymen particular tensible. A. Yes. angle very difficult to evaluate cross-examination, Dr. Persaud testi- On has there’s trauma and it once been major findings in her exam. fied the two healed, and thick- folding because Only one of these was mentioned in the hymen doesn’t allow ness of findings. habeas court’s separate might out been a what Now, four Q. Okay. page bitty altogether. tear healed little exam, and it big says there’s a block Now, just other looks like folds. Scar “Impression from the exam.” hard tissue is tissue is to evaluate. Scar says, physical findings sug- And it “No thicker, supposed maybe paler. to be time,” period. abuse at this gestive of estrogenized hymen But the is thicker And, genital exam not “Normal does hard paler so—so trauma becomes abuse;”11 is that correct? rule out distinguish patient age. in a of this A. Yes. Only only really bad and which — entirety, Dr. Viewed in its Persaud’s deep easily are seen very lacerations testimony “questionable” “implau- Also, trauma the closer after a event. contrary, Dr. Persaud’s sible.” On event,

you are to the trauma the easier testimony complain- how the demonstrates just happened it it or is to see because sexually ant could have been abused as she heal, it’s it’s taken time to but once showing any physical claimed without healed, really it’s hard. Elizondo, 947 signs of abuse. See sexual Q. So, a if example, there been (habeas corpus applicant S.W.2d at complainant’s] hymen [the trauma to a convincingly and show that clearly must you expect to be when she was would him). jury acquit years it able to see when she was 13 Bloody B. The Shirt four months? May go

A. or not. either may Could appli- complainant’s aunt testified at trau- way depending how severe the bloody trial that found a cant’s 1997 she as well. ma was and well she healed how complainant’s in a under the bed shirt box was, Q. yes, you say, But can’t she arrest.. after no, wasn’t? she Q. you searching for? What were A. No. anything Any A. clues what was— Persaud, help us find out what was Q. many how sexual that would Dr. go it on or how could you going going of children abuse exams have done on— on. years? over the last several Q. anything? find

A. a And did About thousand. testimony that the habeas court this em- Dr. Persaud’s 11. The habeas court did not mention testimony findings. phasized portion rely of Dr. Persaud's cite to its did on and though just portion it after the even came Well, like we had Yes, there was—it was complain- a under A. [the A. shirt the creek with the— go downhill to in a box. ant’s] bed passing through. was where the water Q. was the condition of And what Q. go? had to Who shirt? Well, going all down there. we were a

A. Therе was—it was under bunch sister], mom, Q. ,[your younger Your clothes, bloody. it And it was and was yourself applicant? like, in, like, wadded a ball and was had, like, plastic bag weeds and A. Yes. stuff like it had been in the bushes or Q. Okay.

something. there. A. And we all were down We Q. And did do with that for—down there for about stayed what there so, and we head- maybe shirt? an hour or then up. get my I trying ed back was A. We took it and showed it to [the my my on. And mom and clothes back and called the detective and mother] way already up. sister were on their asked him if it could be used in evidence. just [applicant] sitting And was there complainant] And we asked about it. attempt go, to—to and I making any Q. And was she able to—without tell- every possi- avoid chance trying was said, ing me what she was she able to I had to with him. ble to where be alone give you explanation why an as to hill, up I my way And started to—the bloody? shirt was my and I felt this hand on foot. And he A. Yes. going. me I was And asked where him just my eyes looked at rolled testified at hill go up and tried to back as fast as 1997 trial during camp- incident I could and— ing trip at a lake in Oklahoma. The com- plainant recalled that after the assault she happened? And then what wipe legs used her shirt to blood off of her fast, pulled A. He me down real and he because she was menstruating. She testi- trunks, just wearing swim and was bloody fied she left the shirt at the suit, just my bathing and —it’s wearing in scene the assault but later saw it of, top a tank kind and he— like plastic in the trunk bag of the aunt’s car. Q. you? did he do to What Q. you go camping trips Would to- in put penis my He his A. started —

gether? again, and—but this time it—it vagina very long at all that —because wasn’t A. Yes. leg I kicked him on the inside of his Q. you you Do recall a time that went go. that’s when he let And he—as soon to Oklahoma? off, just pushed laying as I him I was (Nods head.) A. already way made his there and he had Q. —to Turner Falls? in up. my And I—and—and I was back time, just I period at that and since had (Nods head.) A. swimming, wearing I wasn’t left Q. you period? on your And were I any pads anything. And was—I (Nods head.) A. and so I my legs, had blood all over that, I had Q. my dur- let mom see so you happened Can tell me what couldn’t and, like, top I my take off tank ing trip? there, Q. Tampon up, just you it and I left it Took the out before cleaned all car. in the water? got and then went back to the A. Yes. Q. top tank you Did ever see again? Now, Q. top on the tank that you with, up wiped you the blood did have a A. Yes. bathing top? suit on the tank underneath Q. you again? see it Where did A. Yes. A. time I can remember see- The next Q. top? color was the tank If What car in the ing aunt’s] it was you remember. trunk. polka A. It was white and blue dots. Q. was it in? What Q. you wiped Then after the blood off plastic bag. A. A you polka your legs, left the dot halter complainant later on cross- testified top; is that correct? bloody examination that she left the shirt A. Yes. of the assault in Oklahoma but the scene Q. you’ve again you And seen it since it in trunk of the that she later saw your aunt’s saw it car? car and later the trunk of the aunt’s it again A. Yes—no—well—I saw after did mother’s car. She testified she that. places bloody not move the short to these Q. After what? up it ended and she did not know how it in A. After saw her trunk. under her bed. Oh, Q. you’ve you it it seen since saw Q. being You talked about one incident in the trunk? house, so this at the—the abandoned A. Yes. applicant] put you testify other time penis your vagina Q. Okay. you at the lake also? did see it then? his Where it in my saw mother’s trunk. A. Yes. Q. Okay. only And are those the two it in Q. just put Did he once? it you’ve times seen since? A. Yes. A. Yes. Q. And took it out? Q. surprise you it if that tank Would A. Yes. your top were underneath bed? Q. That was it? surprise me? A. Would A. Yes. Q. Yes. Now, your testified were on A. Yes.

period at this time? your it in Q. put You didn’t under bed A. Yes. box, you? a did menstrua- Q. your That means had No, up get I to pick A. didn’t even that correct? cycle; tion to the—even to the house. moved it in Q. You left Oklahoma? A. Yes. A. Yes. Tampon didn’t have a or Kotex You anything like that? opinion original on submis- This Court’s there, bloody shirt evidence but I took sion considered the I did before went conflict- “questionable” in because “there was got it off when I the water —before shirt ing testimony about a blood-stained in got the water. detective, the the detective complain- offered to by to have been found the said it, stating “he accept to op. at This Court then declined Tuley, ant’s aunt.” couldn’t.”(R.R. 10412). IV, original submission stated: on instance, conflict- In another there was applicant’s from 1997 trial is The record a shirt ing testimony about blood-stained and does not not “rife with contradictions” by complain- found said to have been in the testi- contain “vast inconsistencies complainant aunt. The testified ant’s al- a stained shirt mony regarding blood had at the scene of that she left the shirt by aunt].” have been found leged [the complain- in The attack Oklahoma. complainant consistently testified The ant’s aunt testified she found bloody she left the shirt at the scene of complainant’s in shirt under bed and that she did not assault Oklahoma of- Dallas. She also testified that she under her up know how the shirt ended investigator shirt to an who fered the aunt did not contradict the com- bed. The accept said he could not it. plainant’s testimony that she left Id. bloody shirt at the scene of the assault findings court made that the complainant did not Oklahoma and the example bloody shirt evidence was another testimony contradict aunt’s that she “implausible” testimony “rife mate- bloody complain- found shirt under the rial contradictions.” ant’s bed. The record from contradictions, merely mystery

Rife with this a material 1997 trial demonstrates upon bloody up instance shh’t ended under Court observed instance how the addition, testimony complainant’s that either conflicted with the bed. de- testimony given by spite any conflicting other State’s wit- evidence on how the nesses, up complain- simply implausible. bloody or which was shirt ended under the bed, By way example, juror this can recall could deter- Court ant’s a reasonable testimony the vast in the significant inconsistencies mine that it is more regarding alleged truthfully a blood complainant stained shirt testified shirt, Elizondo, fact, by bloody to have been found As exists. See [the aunt]. (habeas complainant], corpus [the testified to at 209 S.W.2d wipe thаt a quantity clearly convincingly shh’t was used to of must show him). legs blood left on her after jury acquit an assault alleged to have occurred at a lake in Missing Diary C. (Citation Reporter’s Rec- Oklahoma. Omitted). 1997 trial Applicant’s

ord Of 1997 Trial The record trial Despite complainant’s] testimony reflects that court ordered [the diary. The top complainant produce that she left the tank at the scene of assault, day testified that she returned court the next [the aunt] bur- found this blood soaked shirt under and claimed that her house been (Citation complainant’s] glarized during only thing which the taken bed Dallas. The trial Reporter’s Applicant’s diary. Record was the court decided Of Omitted). missing diary then about the mother] 1997 Trial this evidence [The presented jury. to testified that when this evidence was could be the bloody shirt applicant’s to the who testified that she offered the 12. This citation record from actually a the aunt's 1997 trial is citation to a detective who said that he could to (and testimony, and it was the aunt not the accept it. court) by the mother as recollected habeas right. go burglary, only All Let’s on —in the and was the item [THE COURT]: burglary night. record. taken in the that the (Emphasis Supplied). began morning, As we this the State opinion original This Court’s on submis- yesterday after- notified the Court that that complain- sion also stated as fact the recall, noon, you as will I ordered [the applicant’s ant testified at 1997 trial that complainant] produce to diary her diary her described “some of the events - today. during the Court Sometime the that formed the accusations the apparently hours of evening night, last applicant.” Tuley, op. See at 396. This diary police report the was stolen and a opinion original submission also Court’s by According was filed to [the mother]. diary evidence as missing considered the police report, only thing that was im- example of the “inconsistent diary. taken from the residence was' the applicant’s 1997 plausible testimony” from Back chambers the Defense asked the trial. See id. develop that as Court to be able as fact that The habeas court also stated I’m testimony jury, from of the complainant testified that, going y’all to let do but with these some of the 1997 trial that “she recorded think you restrictions: can ask— in a that diary she events she testified you’ve got whichever witness —whoever court also kept in her home.” The habeas get you want to it in make through, diary as missing considered the minds, up your our own but I think the evidence supportive finding of its “that complainant] entitled to ask: “Was [the severely defi- [applicant’s] guilt of bring ordered the Court to the dia- exemplify the serving cient” and as “to ry?” nearly mendacity permeated overall that corpus Applicant claimed his. habeas testimony at trial.” every witnesses [sic] application missing diary “was findings state: habeas court’s perhaps egregious the most incident of the the evi- Applicant’s While recitation In opening trial.” his remarks to ha- recollection Court’s dence refreshed the beas court at the hearing, appli- pieces of to certain greater detail as lawyer cant’s stated that the distinctly recalls testimony, this Court testified at 1997 trial she testimony specific aspects some kept diary “containing written record- particular, the Court re- vividly. ings of the assaults.” testimony complain- [the calls ant] some of the that she recorded Finally we ask that [APPLICANT]: will diary to in a events she testified your complain- recall Order to [the (R.R. 148). IV, kept in her home. she kept testifying after that —she had ant] complainant’s] testi- Subsequent [the diary containing impressions this, fying requested counsel defense me, impressions, not —excuse not her (Citation diary produced. be containing recordings but written 1997 Trial Applicant’s To Record Of day the assaults. And the next Omitted). [the After Court ordered complainant] ap- and her mother [the bring complainant] and her mother peared story diary with a that the them the next diary to court with been taken— mother day, complainant] and her I remember that well. [THE COURT]: at which appeared diary, without they that their right. All time informed Court

[APPLICANT]: Q. put your finger right You burglarized previous the could home had been it; right? that evening, only and that the item taken (Citation diary. the To Record Of was A. Yes. Omitted).

Applicant’s 1997 Trial While if home and Q. you you Do think went determinative far this event is it, you’d find it? looked for finding this Court’s that the evidence of A. Yes. deficient, severely it does serve guilt was Q. you you things And that wrote said exemplify mendacity the overall that there; is that correct? permeated nearly every witnesses [sic] A. Yes. testimony at trial. Q. happened what at school About like (Emphasis Supplied). or like that? stuff appropriate initially It to note that the Everyday A. life. applicant’s record from 1997 trial indicates Q. Everyday life? complainant that the never testified that A. Yes. diary her described “some of the events it, to have

that formed the accusations We’d like [APPLICANT]: applicant.” actually She testified before Your Honor. “just jury diary that her state[d][her] Ah right. [THE COURT]:

feelings, nothing specific anything.” or [Naming complainant], you need to

Q. you things Did write about bring try diary tonight to find that you’ve the incidents that testified to in us are it to court tomorrow. None of your diary? all reading interested in the details of life, Yes, your personal anything but that re- just A. I—I—it—all it said—it to, anything you lated to testified my feelings, nothing specific states [applicant’s] entitled to see. anything. complainant’s mother later testified And, in the hearing later outside trial jury applicant’s at before jury’s presence trial resulting court only thing was the taken diary that the ordering bring diary her to to court court’s during burglary. The habeas day, complainant the next testified however, that the findings, do not mention things diary “every- she in her wrote about applicant’s fami- mother also testified day life.” ly lived and that she and knew where she Q. [Complainant], today you earlier complainant planned spend diary talked about had a night they a friend when discovered your grandmother’s house. findings court’s burglary. The habeas A. Yes. pro- also do not mention that the mother Q. diary your grand- Is that still at testimony that thеre vided uncontradicted mother’s house? physical burglary. evidence of a actually A. I’m not sure if it’s there complainant’s permitted mother was not right now. had about testify “any concerns” she you know where it is? Do she applicant’s knowing brother where no, now, I don’t. lived.13 right not—not No— prior tri- hearing pretrial on the The record from admissibility of extraneous offenses indicates al. harassing been brother had mother], Q. In Q. [applicant’s] what room? does the [The family you presently? know where live complainant’s] A. bedroom. [the Yes, they A. do. Q. up And was else messed anything brother, Chase, Q. younger Does his the room? you

know where live? way up, A. The blinds were all the and Yes, A. he does. the window was cracked about that far (indicating). Q. jail, [applicant] Since has been any Q. anything misplaced? concerns about Chase Was else knowing where lived? A. There was book in—it’s room Honor, I would anymore. Your that we do not use It’s like a [APPLICANT]: object room now. And there was a storage to the relevance. floor, there’s a shelf book on because I withdraw [THE PROSECUTION]: just top, laying and it was on the question, Your Honor. it on the laying floor and wasn’t floor jury to be I’d ask the [APPLICANT]: before. disregard question instructed to Q. any any Were there other marks on made. might answer that have been other windows? Well, there was no an- [THE COURT]: Yes, A. in the kitchen on the outside. y’all disregard I’ll swer. ask question. Q. was there? What Q. last you get time did home What sorry. A. I’m evening night? —last Q. were there on the win- What marks 6:80, quarter A. to seven. dow? you got

Q. you go did when “Where somebody try- A. It looked like was home? open, ing trying pry the window — it, [police] officer looked at too. He my A. went to mom’s. We said— Q. your And mom lives? object I’ll to the hear- [APPLICANT]: triplex.

A. next door in the same Right say, Your Honor. you left happened And what after Sustained. COURT]: [THE your mom’s? just por- not get totality our selected went to the house to We missing diary spend tions of the ready go we could

stuff so staying applicant’s 1997 trial indicate that this evi- night with a Mend instead of there, “implausible.” A reasonable daughter noticed that the dence is my that members of juror window and—it could determine away chair was from the family might highly have been the window. them. mother has seen right. All Let’s hear about ties at I have—the COURT]: [THE Neighbors not sure know what that number I’m do this. of the mother have him means. seen him do this. Well, goes [THE PROSECUTION]: How is that relevant COURT]: [THE [applicant’s] has been the fact that brother [applicant’s] guilt? harassing complainant] in this case point, be- At this PROSECUTION]: [THE [applicant] jail. been in since has frightened side the fact that the child Specifically how? [THE COURT]: him, goes of mind. If the to her state He has been driv- [THE PROSECUTION]: may opened, it become relevant. door’s screaming profani- ing by their home and contempt. in they you Y’all could hold diary to obtain the and that also—I motivated jail in or I could fine put you to do I could might something have even had understand that? diary. explain why you; you This do missing taken dur- only diary would have been INDIVIDUALS]: [UNIDENTIFIED home. burglary complainant’s a ing unison.) (Nod in heads These inferences are even more reason- felony a There’s also COURT]: [THE light appli- in of other еvidence at able you retaliation that could charge called trial court found cant’s 1997 trial with a tampering with or charged be necessary to admonish some “unidenti- witness; trying to intimidate a witness or individuals,” apparently who were on fied all you do understand? list, applicant’s witness not to harass the INDIVIDUALS]: [UNIDENTIFIED the trial. habeas court’s during victim unison.) (Nod in heads not ei- findings do mention this evidence I And don’t think COURT]: [THE ther. any I won’t. don’t want to hear All to right. It’s come [THE COURT]: y’all I going more of this on. don’t want my improper attention that there’s some com- [the to even so much as look happening hallway behavior out in the plainant]; you do understand me? there, applies you. to It and this INDIVIDUALS]: [UNIDENTIFIED you. It apply apply doesn’t doesn’t to (Nod unison.) heads now, I’m you, going you right but to tell right. All back out [THE COURT]: Go going stop. it’s hallway. in the reported It [the to me that when Honor, I Your don’t be- [APPLICANT]: complainant] testifying, this case was people going lieve of these are to be you looking that some of were in the wit- today. used Could we release these window, my back sent bailiff out and leave nesses to leave the courthouse you there and he admonished all building? anymore. do that reported And then it was to me that Fine with me. [THE COURT]: there was some going conversation matter. One other [APPLICANT]: about, “Let’s stare at her. Let’s make they to be back time do need What uncomfortable,” her feel things tomorrow afternoon. that effect. morning. Tomorrow [APPLICANT]: now, you I’m telling right there’s a cou- You the oth- [THE COURT]: instructed ple problems y’all going are tomorrow; er witness not to wear shorts run into. is that correct? all, Let me tell first of this is first- told him that. [APPLICANT]: We degree felony trial. This serious busi- Francis, [Applicant] facing prison. right. ness. life All Mr. [THE COURT]: y’all Do that? isn’t fun and are not free to leave Dallas. Where know This Dallas, you go time. I don’t care.14 games support corpus applica- apparently was the Mr. Francis This same tion states: who was a friend of the and who set in motion the chain of events that ulti- complainant] and After the trial mately recanting complainant really angry resulted in the up. I was at what had broke appli- "everything” happened, to at tell she testified and that she still refused to trial, year boyfriend’s About a after the cant’s 1997 trial. The affidavit in truth. perhaps is the complainant up if made do not mention what most

Even missing and the story burglary appli- about the unrecanted evidence of damning and diary, juror could also deter- reasonable 1997 trial.15 guilt presented cant’s at his so mine did because shows that the This unrecanted evidence did not want to share the secrets of she relationship between sexual diary and not because she was afraid “pretty mother much complainant’s the prove diary that the contents of her would stopped” a month after within appli- her a liar or would show somehow in. unreeanted evidence also moved This Applicant cant’s has not clear- innocence. applicant spent that a lot of time shows ly missing that the convincingly shown complainant alone with the over the next diary implausible еvidence is or was so year and-a-half. “egregious such an incident of the trial” complainant significant It juror appli- acquit that a reasonable support appli- stated in her affidavit cant based on his “new” evidence. See Elizondo, corpus application that she 947 at 209. cant’s habeas S.W.2d “until plan applicant16 not to accuse did AP- VI. CONCLUSION REGARDING the mother asked the the moment” that PLICANT’S EVIDENCE” “NEW applicant was abus- complainant whether AND “ACTUAL INNOCENCE” her.17 other unrecanted testimo- ing Since In conclusion the evidence trial is that the ny from presented support applica- of his habeas police when the com- mother called tion is not “new” and the evidence from statement, outcry then plainant made her “implausible.” applicant’s 1997 trial is not complainant less given this would have applicant's Much of case of innocence boils trial) (than applicant claimed at time what down to a and sometimes less selective the molestations to fabricate the details of reading testimony than accurate of the' question police began before the from his 1997 trial. complainant. unrecanted More trial addition, from indicates applicant's corpus habeas de- told the same basic application findings complainant and the habeas court’s 1, 2000, Francis, truth, friend, [applicant’s] I made Tim contacted and on November telling what I had done. affidavit me and asked if I was still in touch complainant]. He me if I could [the asked evi- learned of this 15. We would not have [applicant]. I wrote [the talk to her supple- not been dence had the habeas record complainant] a letter while she was in applicant’s 1997 with the record from mented rehab, [drug] [appli- mentioned that trial. prison. We had been sent to started cant] other, writing each and when she came com- on whether the 16. This is silent affidavit later, two we back to Dallas a month or outcry plainant statement made this talked more about what she had done. else under at the hotel or somewhere mother complainant’s support ap- The affidavit in Howev- completely different circumstances. plicant’s corpus application states: er, testimony applicant’s 1997 since the 2000, April of [the Sometime in March or outcry complainant made trial that boyfriend] he men- wrote me a letter. In it unrecanted, . then we statement at the hotel is [applicant] tioned that had been sent to scenario is what must assume that the hotel prison. boyfriend’s] When I received complainant’s refers to. affidavit letter, undergoing Clinic I was Shoreline drug being why the mother might addiction. After treatment for 17. One also wonder ques- May asking the released in I returned to Dallas. would be after that a decided to tell the tion. A few months to conduct of its burden police officers relieve Court story to two different tailed analysis which this Court It the Elizondo her two different times. questioned who do and bar it would the bench accomplished of an assurеd would take somewhat its controversial decision Also, when it made important, and most liar to do this. See, e.g., Elizon Ap- by a 5-4 vote. applicant pled guilty. Elizondo is the fact that J., (Womack, do, at 215-16 947 S.W.2d unquestionably established plicant has best, rehearing).18 dissenting on his innocence. At he has shown probably guilty. he is concurring opinion mischaracterizes submis- dissenting opinions original concurring opinion to the denial of (“the rehearing stating appli- opinion”) sug- sion and on as rehearing concurring aggravated indepen- “may guilty cant not be gests that this Court would have assault, guilty perjury, he is of dently appli- examined the record from sexual but sexu- keep prison aggravated him in for required by cant’s 1997 trial as Elizondo so However, neither of these dis- part had the made this trial record a al assault.” State But, this. moving senting opinions suggest state or even of the habeas record. as the dissenting opinion original on submis- party corpus challenging on habeas his The State) (and conviction, apply not applicant sion that Elizondo should not the stated corpus appli- making guilty-pleading this trial rec- to a bears burden highly sig- a part guilty-plea ord a of the habeas record. It is cant because a is process in the criminal applicant’s burden to overcome his convic- nificant event of factual quite validly tion which Elizondo states “is entitled to removes issue Elizondo, Contrary to the con- greatest respect.” guilt See from the case. characterization, this curring opinion’s at 209. S.W.2d applicant “guilty ag- states that the is requiring And Elizondo’s mandate assault, keep him in gravated sexual so weigh Court to the new evidence of inno sexual assault.”19 prison aggravated guilt cence evidence of does ap- downplaying significance not making credibility weight By involve by plicant’s voluntary guilty plea, the Court suggested determinations as the con ap- curring opinion. might easy guilty-pleading And one makes it for this while voluntary guilty plea agree plicant the State could have done a to excuse (which true), job applicant much than it now claims was not showing better did of probably guilty, granting corpus him habeas relief based this does judges joined majority votes to judges 18. It should be that one of the who noted (Holland, J.) grant rehearing granted). joined majority who which is not the 5-4 opinion original on submission in Elizondo grant rehearing also voted to in that case "to concurring opinion speculates also on 19. The revolutionary reconsider the and unwarrant- person might plead guilty. why an innocent procedure ed has created." might sympathetic [Elizondo] de- one be to these While J., Elizondo, (Womack, that, fendants, 947 S.W.2d at 216 general See be stated as a it must dissenting rehearing, joined by rule, on McCor- system justice to func- for our criminal mick, P.J., Holland, JJ.). tion, and Keller and The guilty-pleading held defendant must be original majority opinion on submission in unchallenged voluntary guilty plea to his Elizondo, therefore, And, of law plea has force aside. our law unless that is set shaky Judge eye dis- five votes since Womаck’s a blind on such defendants. does not turn rehearing only senting opinion well-developed body of law which on mustered We have a State, guilty Reynolds their four votes. See v. 4 S.W.3d these defendants to have allows now, putting back (Tex.Cr.App.1999)(explaining prec- pleas Until them set aside. option. was not an edential value of a close decision when one of on the streets upon presentation of “old” evidence that a rational factfinder could consider (which applicant only discovered after he guilty plea determining false selected, prison) went to and a inaccurate telling whether he is now the truth. and misleading presentation of evidence words, other a rational factfinder would compro- seriously his trial.20 This determine whether integrity judicial process. mises the of the now, lying says when he that he didn’t do If guilty-pleading applicant such a can it, lying or whether he was earlier when he truly persuasive make a showing of inno- said that he did do it. This dissenting cence, then he can either seek executive opinion also offers reasons to several ex- clemency or he can seek to set aside his plain why applicant’s plea might guilty be plea guilty corpus on habeas this Court. guilt. a rehable indicator of Thus, still like the one here options justice. has obtain concurring opinion disagrees also with the dissent’s recitation record dissenting opinion rehearing as- labeling “spin placed facts it as ... on the sumes Elizondo’s application guilty- to a today.”21 cold record This is an odd state- pleading applicant, discussing appli- how majority ment to make since even now a guilty plea weighed cant’s should be in the independently to exam- Elizondo Elizon- Court declines analysis. satisfying mandate, do’s recognize required by we would have to ine this record as Elizondo.22 been, Applicant testimony prisoner urges grounds 20. mischaracterized the that could have not, by omitting significant por- peti of Dr. Persaud but were raised in his first habeas Johnson, tion); testimony. Etheridge F.Supp.2d Applicant tions of her also v. 49 mis- dism'd, 963, (S.D.Tex.1999), actually occurred at his 209 F.3d 718 characterized what 973 denied, 945, (5th Cir.2000), trial vis-a-vis Graham. Graham in fact took cert. 531 U.S. 121 344, (2000) (habeas presence jury 276 the stand outside the to S.Ct. 148 L.Ed.2d testify complainant's petitioner procedurally asserting recantation barred from applicant's Applicant soon after arrest. ne- actual innocence and ineffective assistance of glected significant to theories other than mention other evidence' counsel claims based on court) pro- F.Supp.2d from his trial. So even in this habeas those raised state and 49 (habeas ceeding corpus applicant applicant it cannot be said that at 979-80 failed to being forthcoming present- completely truthful and to offer new evidence of innocence not only this Court. ed at but "alternative infer- trial offered attempted ences” which he to draw from the trial). presented at Interestingly, concurring opinion 21. em applicant’s "spin” creating a new de braces 22.Instead, concurring opinion theory states fensive with old evidence that he had opportunity present plenty why an to at his trial. That that there "are of reasons inti- consenting theory complainant that the all mate relations between two defensive (without stop altogether.” may change or This herself the mother’s and the aunt’s adults trial) falsely ap- help originally claimed at ac does not mention the other evidence as began spend applicant molesting plicant ‍‌‌‌‌‌​‌​‌​​​​​‌‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌‌‌​‌​‌‌‌‌‌​‌‍also to a lot of time cused her because the course, (and complainant. Of applicant alone with the not the mother as trial) might why this originally claimed at wanted there are innocent reasons Writ, however, But, requires gone. also that we The Great should not occur. Elizondo weigh permit corpus appli be this evidence and the inferences abused habeas retry guilt supports against applicant’s years cant later to a case with old evi theory "new” evidence. What inferences would the dence but under a different than presented original evidence that unsuccessful one he at his reader draw from Johnson, 191, relationship Emery had a with the mother trial. v. 139 F.3d sexual Cf. 969, (5th Cir.), denied, with stopped 195 U.S. soon after he moved in cert. 119 418, (1998) (second family began spend a lot S.Ct. at which time he L.Ed.2d 339 And, petition complainant. is abuse of the writ if the of time alone with the give appli- Also, Court does not speaks If com- Because the the record for itself. the “greatest conviction cant’s error-free paring guilt against the evidence of it is ap- respect” Elizondo states determining evidence in whether which new entitled, dissent to the denial unquestionably respectfully his plicant has established placing “spin” equates rehearing. innocence record, requires that then Elizondo point of It is clear that distinctive view. or it

applicant’s “new” evidence is new he had

is cumulative of the evidence that present It is opportunity at trial.

equally independently clear from examin-

ing “implausible” the trial record that the

evidence from 1997 trial was HAMPTON, Jr., Appellant, Walter actually implausible not so and the concur- v. ring opinion does not show otherwise.23 of Texas. STATE to, What this case boils down and what Court, overpersuade is that seems No. 362-02. applicant’s jury split 10-2 in favor of Texas, Appeals of Criminal Court acquittal. together This En Banc. apparently per- “new” evidence is what has un- suades the Court July questionably established his innocence.

By denying rehearing granting

applicant relief this Court has dictated an

unfortunate formula for the future: plea that

guilty consigned is later into forced,

oblivion versus a recantation false questionable, equals freedom. That places

should not be the burden this Court justice system.24

on the criminal require hearing inaccurate factual how does us to evaluate to correct Elizondo opinion original applicant's voluntary in its on submis- those inferences statements guilt. type pro- admission of This is the sion. requires. cess that This does not Elizondo concurring opinion suggests that this 24. The necessarily only involve for search inno- dissenting overly opinion is critical of the explanations negate guilt cent evidence of court and shows no faith in the trial habеas support complainant’s of the recantation. judges the difference of Texas "to discern bogus ones.” concurring opinion between meritorious claims and 23. The does not mention Persaud, contrary, testimony bloody the record reflects that of Dr. shirt On the conscientiously (though errone- missing diary which habeas court evidence or claim. lawyer per- ously) evaluated claimed "was Elizondo constructively opinion’s are haps egregious the trial” This criticisms the most incident of Court for not figured prominently respectfully leveled this and which in the Court’s opinion original Perhaps doing what it said it would do in submission. this Elizondo probably guilty independent permitting is because an examination of the integrity judicial compromise the indicates that this incident was not as record making mis- egregious originally process by a series of material as we were led to believe. courts. very grant representations to this state’s The Court at the least should re- 1. The notes his evidentiary Court at the fore the District State’s motion: Court, and hearing, filed a brief in this application Though Applicant’s has writ Court, until argued it has waited before this (18) approximately eighteen been on file for point. Rehearing urge this to its Motion for months, made so much the State has never though significance is perhaps greater Of hinting Appli- single even as a mention State assisted the trial newly the fact discovered. cant’s evidence was not Thus, Findings. preparing its though to court in the State filed an answer tempts punish people to specific for the enough not have money pay my law- they crimes that have committed. But yer conducting a second trial. I am here, pun- instead of the maxim “make the worried that I might go jail have to crime,” ishment fit the the argument is just to be to an appointed entitled law- that we should “make the crime fit the yer for job. a second trial. I have a I punishment already has been as- my job would lose if I go jail had to A person sessed.” who has committed waiting for months for a second trial. perjury may perjury, be convicted for but frankly, I am out money Quite he should not be convicted of aggravated just out of I time. want to go home. sexual assault per- because he committed very State has made a attractive jury- years offer of ten adjudication. deferred refuse, This is an offer I cannot given Moreover, I think it hypocrisy is colossal the obvious risks I face if I continue to exclaim, shocked, “we are positively my maintain innocence upon and insist shocked,” person that a pleaded who has So, second trial. though even in- am guilty pursuant negotiated plea to a bar- nocent of this charge, plead want to gain would never do so unless he were guilty because I am making fully in- truly guilty and believed guilty. himself formed, free, voluntary and rational are we kidding? Who It true that Mr. choice among the Tuley alternative courses of sign did and swear to a stipula- form action available to me. tion that “the following facts [tracking the indictment allegations] are true and cor- The trial judge, hearing this unusual re- rect and constitute the sponse, likely say something along the He, course, case.” design did not of: lines

Case Details

Case Name: Ex Parte Tuley

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 2, 2003

Citation: 109 S.W.3d 388

Docket Number: 74364

Court Abbreviation: Tex. Crim. App.