*1 self-defense, issue in this case was
given the close match between the volun- teered statements and the evidence offered them, I agree rebut with the court of
appeals, and would hold that the trial court in excluding proffered
erred evi- dence.15
I respectfully dissent. Anthony
Ex Parte Mark ZAPATA, Applicant.
No. AP-75784. Court of Appeals Criminal of Texas.
Oct. Orr,
Cynthia Antonio, Appellant. San Paul, Austin, Attorney, Matthew State’s for the State.
OPINION
PER CURIAM.
Pursuant
provisions
Article
11.07 of the Texas Code of Criminal Proce-
dure, the clerk of the trial court transmit-
application
ted
this Court this
for writ
of habeas
Ex
corpus.
parte Young, 418
(Tex.Crim.App.1967). Ap-
S.W.2d
plicant
charged
sexually
assault-
ing
each
daughters.
of his three
assessing
15. It should be
only
noted
when evidence is
sider the
the wit-
impression,
op-
admitted to rebut a false
credibility.
Daggett,
ness's
See
187 S.W.3d at
entitled,
posing party
upon request,
to a
limiting
directing
instruction
to con-
*2
had sex with
inappropriately
them
aggravated
to one count of
pleaded
ac-
had
testified
They
them.
of a child and
sentenced
sexual assault
sexually abusing them
of
Applicant
cused
On the
years’ imprisonment.
to fifteen
at him for
angry
want-
because
were
to
day
sentencing Applicant
of
moved with-
and that
their mother
ing to divorce
by the
plea,
his
which was denied
draw
during interviews with
misled
had been
Applicant
trial court
also filed a motion for
prosecu-
and
investigators
sexual assault
trial,
which was heard and denied.
new
had
daughter, who
Applicant’s third
tors.
the Fourth
of
appeal
On direct
Court
against
her accusations
earlier recanted
Appellate Rule
Appeals held that under
testify
the
for
planned
had
Applicant,
25.2(b)(3)
jurisdiction
it lacked
to consider
However,
hearing.
at the habeas
State
Zapata
claims.
Applicant’s
the merits of
her
a motion to exclude
Applicant filed
State,
An-
(Tex.App.-San
v.
Having
[Brittny]
found
to
protections
be
the nature of the constitutional
Applicant
(including
the court finds that
has satis
guilty plea
that his
waived
trial)
fied
required by Tuley.
his burden as
jury
complete
a
under-
right to
and
(Tex.
parte Tuley,
Ex
388
S.W.3d
he was
standing
charge
to which
such,
Crim.App.2002). As
it is the rec
v.
pleading guilty.
generally
See
Gardner
ap
ommendation of this court that this
State,
(Tex.Cr.App.2005).
This (but jury). from the trial court not a corpus relief the basis that his bation applicant’s guilty plea involuntary. convicting accepted was The court of a guilty plea, preparation ordered the Applicant charged eight-count in an (PSI), report pre-sentence investigation aggravated indictment with sexual assault sentencing on Au- for and set matter (Melissa, daughters April of his three appli- sentencing, gust 2002. Prior to Brittny) each of described detail whom for probation officer cant met with to different people at different times how fondling the children to PSI and admitted applicant sexually girls abused them. them. penetrating but denied described numerous acts of fondling and hear- penetration by at the habeas applicant. Applicant There was also testified sexually to physical supported ing pleading evidence that these al- after (Melissa) girls met Brittny, he legations. assaulting The oldest child had a going (chlamydia) them that sexually explained transmitted disease to they said.”1 “gaping” hymen prison and a not “com- to “as a result what which is this, began Very after information monly seen in children that been soon haven’t course, so, of exactly going prison, entirely 1. The record clear on know I was Applicant when this occurred. testified on what was a little bit about let them know hearing: cross-examination at the habeas the dark going were in on because spoke You to all three of it. about pleading guilty So, them at the time after young same right. these All told sexually assaulting Brittny, correct? girls of what said that as a result sir. going prison? right. All And what did tell them? According records that I was A. Yes. questions A. I had answered some of their shown, yes. my They didn’t had about case. (Melissa present able to that he be thought that two of “percolating” sentencing hear- at his allega- to a recanted their Brittny) had seeking de- applicant. time against sexual abuse the same ing tions of while (Melton) convicting in the prosecutors One of the from adjudication ferred hearing that convicting case testified also told the court.4 only began “percolating” information admis- fondling up he made court that obtain de- applicant’s attempt “basically after officer probation sions to failed. The adjudication probation ferred convicting together [the a circus put (Guzman) prosecutor adjudication.” give deferred [him] court] girls “may be he first heard you some- Let me ask COURT]: [THE story” just the sen- changing their before *4 to you talked Zapata. When thing, Mr. hearing. tencing officer, you give them did probation his attempted to withdraw Applicant you did with about what this version 8, 2002, sentenc- guilty August at his plea your daughter? guilty He claimed that his ing hearing.2 Yes, ma’am, I did. [APPLICANT]: involuntary because he misunder- plea was I that is because— the reason did And it related to the term “discretion” as stood convicting permit court’s discretion to just make all Did COURT]: [THE plea. him to withdraw his to up you talked activity sex when this that he had an claimed that he believed the PSI officer? right plea prior his absolute withdraw ma’am, I did. [APPLICANT]: that sentencing.3 Applicant also claimed You did. Uh-huh. involuntary COURT]: he guilty plea [THE his because in Mr. again, clear to me that Applicant’s it became motion to withdraw his vocabulary, get what Zapata’s he didn't plea alleged that: thought that "discretionary” meant. He actually 1. The Defendant is innocent of being case he prior sentenced charge against him. upon any plea based withdraw his could waiver 2. The Defendant believed that the thought changed that he circumstances by jury beginning of trial at the bring your he attention. should process jury making initial was limited to a guilt/innocence. Mr. Za- determinations of prosecutors in the case testified 4.One jury pata believed that a would decide his had never that she ultimate sentence. procedure: a heard of such explained Applicant’s counsel to the con- any provi- Do know of victing applicant’s sentencing court at hear- Texas law in the State of under the sion ing: plea a can enter into wherein a defendant State, jury, apply bargain with the waive a I discussed COUNSEL]: [APPLICANT’S Judge adjudication from the for deferred explained with him how I had to him the punishment? assess plea bargaining. And I didn’t and have nature of No. really got And I do A. [PROSECUTOR]: know how he that idea. idea, [applicant’s counsel] hear got Did ever where he now know implied client that beginning any remarks to his before he make he asked me if—In the procedure was about that kind of plea, he asked me about this entered case? if he was unfold his process, and he had asked me counsel], [applicant’s from And plea A. No. withdraw his if circumstances able to mind, dealing with him in my experience in changed changed and I and he his been, thorough discretionary with courthouse has him that was told pa- goes plea over the his clients when that was the end of the the Court. And plea for the perwork preparing them thought and inquiry, and I he understood that. sentencing. began to discuss that and for And later on when we give you I Brittny’s [APPLICANT]: will reason based on Melissa’s and written for that. July recantations dated 2002.5 These recantations were attached as exhibits to Oh, hardly I can [THE COURT]: wait applicant’s motion for new trial. At the to hear it. Let me hear it. motion hearing, applicant for new trial re- Honor, Your [APPLICANT]: reason quested that he be allowed withdraw his I up made that is because I felt that if I guilty plea mainly previ- for the reasons said those things, that the Court would ously given 8, 2002, August sentenc- see leniency coming for me forward ing hearing. The convicting court denied and agreeing saying to things [sic] —and applicant’s motion Septem- for new trial in the State I saying that was ber 2002. doing. That if I would come forth to the living primarily have been say, Honor, Court Your I did these applicant’s appli- mother. In March things it, and I punished want to be for corpus application cant filed a habeas thought that I my could have doctor involuntary guilty which reasserted up come here talk things about plea claim and also asserted an “ac- you— have talked to him about and let tual innocence” claim based on recanta- basically put together a circus *5 tions from Attached girls. all three give Your Honor to me adjudi- deferred applicant’s corpus application habeas plain simple, cation. Just and a circus 29, 2002, July Melissa’s and Brittny’s writ- that put together because I never ten recantations that also were attached to thought my that kids—I would ever talk applicant’s Appli- motion for new trial. my kids again. talking my After cant’s corpus application included Honor, kids the last days, Your it is by Brittny more two written recantations very important that somebody do some- 20, 2004, 15, dated March October and thing for them. You could send me to 2005, April’s recantations two written jail today, but I separated want them 15, dated and March October least, from their mother at Your Honor. provide any more Melissa did not Applicant did not reference any written And, there is some written recantations. any recantations from as a her has recanted indication that Melissa withdrawing basis for plea at the 29, 2002, July recantation.6 sentencing hearing. The convicting court April at the habeas Brittny testified applicant’s request denied to withdraw his molest hearing applicant that did not guilty plea years. and sentenced him to 15 they falsely that ac- They them. testified
Applicant filed a written motion for new them because applicant molesting cused trial involuntary they plans which reasserted to divorce angry were about his guilty plea claim and which asserted a them that did They mother. testified “actually innocent,” prior claim that he was not remember much about their convicting findings applicant 5. The court’s state filed a that It should be noted that prevent testifying applicant's motion to Melissa from sup- motion for new trial was based, part, the State at the habeas ported with from all three of "affidavits during "inappropriate on Melissa’s conduct” alleged stating allegations victims that the hearing, calling appli- the habeas such as against [applicant] sexual assault were abso- hallway liars in the outside cant’s "witnesses lutely support The false.” record does not record, the courtroom.” The habeas howev- finding only "alleged” two of the er, exactly why Melissa did does not reveal (Melissa Brittny) victims filed affidavits. testify hearing. not like, your questions me A. He asked professionals statements various dad did some stuff your said that allegations against their sisters investigated them, and did them or had sex with pres- prosecutors and that Because said you? happen that agreeing sured them into just you, and would April happened example, them. For testi- molested like, yes. fied: WRIT COUN- [APPLICANT’S him? you agree Q. Why did you telling Do remember me SEL]: pressured. And he I felt kind of to a Ms. today, you on—here talked come get dad promised my would Jackson? family be to- my home and that A. That talked to Ms. Jackson? gether again. Q. Yes. that a truthful answer? Is Q. Was ma’am. touched in a bad your true that dad Q. You to tell me about want way that he shouldn’t? happen? did that where No, ma’am. happened I remember a little that it applicant’s prosecutors involved had an in- Elementary. at Baskin We any they engaged case denied terview. They testified that this unethical conduct. Q. Okay. And do remember what procedures they used to interview during told her that interview? suggestive and were de- children really. I just Not remember They to ascertain truth. signed room we went into. promise did not *6 Q. Okay. you you Do remember if told go jail. children that would your you her that dad had sex or with (Guz- example, prosecutor the lead For you way touched in a he should not? man) the “normal course of testified about No, A. ma’am. aggravated an sexual assault preparing Q. you You don’t remember or did not he followed in this case. case” which tell her? All Q. right. What was [STATE]: A. I don’t remember. speaking those your purpose Q. Okay. you to a Did ever talk law- girls? yer for the State of Texas? works preparing of A. In the normal course that be a DA? Would like sexual assault case aggravated an Q. Yes. initially to speak I’ll to the children ma’am. a they or not do have determine whether Q. Who was that? contained in all the recollection of what’s A. Mr. Ed Guzman. and information and documen- So, to me. provided that’s been tation Q. Okay. you And did tell Mr. what I’ll do that. your dad had Guzman about whether you you way or touched in a sex with in that first conference Essentially, should not? might I a second or them and then have any Guzman I did not tell Mr. case third, long on how depending he would only agreed that. with what up trial comes goes on and when ask. make sure their verify information and know, and, you you? recollection is consistent Q. And did he ask what going penetrated that I think a either her or her. it’s case fondled location, up give hold to trial. able to me time of She was day, surrounding circumstances. On Now, Q. right. your All it practice was porno- one occasion he showed her a speak complain- with these then graphic magazine proceeded ants separately? pen- ahead and fondle her later go A. Yes. give etrated her. She was able to me why And was that? very very detail that clear and cen- if Obviously, you talk to the three of particular incidents. It tered around them together, good danger there is a general, my was not a dad touched me say cross contamination. One girl may It sometime down the road. something, girl the other may decide specific. maybe they saying way it a presented way that’s better than (Arambula) criticized expert medical or, know, just have said makes used to interview procedures some of the things messy. every- You to keep need suggest on the children.8 He seemed body contained them and have tell the single improper direct examination that story way, their them relate own child ser- leading question by protective happened what remember to them (Jackson), to one of the investigator vices specifically their words without own interview, could during children an initial of, any know, said, sort like cross the children said everything have tainted any contamination with other kind of that. clarified this after Arambula witness. cross-examination. you attempt proceed Did in that Arambula, Dr. the chil- manner in this case? years 11 and 12 dren in this case were A. Yes.[7] interviewed. Is old when (Melton) prosecutor correct? gills case testified that she believed the Yes, ma’am. right. I think that’s during were truthful her interviews with suggesting that one Q. Okay. Are primarily specific them de- *7 Jackson to one poor question by Joanne they provided. example, tails For memory of of the children reformed [April] provide And did to their interview prior all three children you you what to be a with believed Dr. Kellogg? with complete, girl as can from a that get No, I had a say just I that. didn’t age, of the form view facts that the basis particular concern about that flag red of the indictment? examination. aspect particular of that Again, similarly She did. to Britt- [appli- ny, Q. Okay. question she into detail on Her specific went was— question to multiple [applicant] general occasions had cant’s writ counsel’s] where April expressed that an incident 8. Arambula some doubt Guzman also testified about a medical examina- had been abused because during during a docket call in the courtroom hymen was intact. He tion revealed that her necessary applicant's which he found it to tell genuinely surprised to learn that it is seemed girls brother leave the alone because the to hymen com- "that the can be not uncommon upsetting brother was them in the back of the and, (sic) penetration pletely when entact courtroom. fact, pregnancy have occurred as a result penetration." that those If that in one them in interviews. leading question whether true, you? problematic can taint entire —can taint is that interview that interviews, is a all of these that Well, Dr. Arambula I believe that response. suggest- general You are not single he found a transcript said in one ing poor question that one from Joanne question seemed question where interviews, tainted the subse- Jackson not That does precede answer. interviews, quent Brittny, April in the if the entire me sense that bother Melissa, you? are if the chil- leading were interview it apparent It’s not in the notes that every being dren fed answers were possi- it could—that would do that. It’s certainly bother that question, if she talked with her other ble two one child question If one me. was with afterward, sisters but I don’t know. ahead, is that’s step my guess jumped And isn’t correct looked the faith of going impact when probably relating at all three Having- interviews general. their interviews in gave medicals of the all three I know transcripts, read Ms. Jackson’s in regards distinct different details my and Ed Guzman’s interviews to what occurred them? much children were interviews more extensive a lot more and covered they A. The manner said which had a detail that ground and lot more another, things were different from one inter- appeared Jackson’s never Ms. some but there were similarities. And views. their evolved over time—the stories of became,
experiences guess, more ex- So, tell- know material panded. by anything me not tainted Ms. ing was typical And isn’t of children them, did with because she nev- Jackson typically outcry will and then the bulk of we covered er covered what divulge in that kind of a manner where the kids. more they become comfortable? Isn’t presented you suggested that the reason that (Potterf) psychiatrist of a the two Court or three interviews “any of did not have appropriate to begin getting chlamydia” led Pot- antibodies for information? be- Because as children terf to conclude never come more comfortable that a March chlamydia. This based on they begin actually now safe tell the someone performed by blood test full breadth abuse as it occurred testify at the else, not called to who was to them? hearing. The medical wit- State’s case, can They happen yes, in either *8 in (Kellogg), ness who examined happen things it can some authentic. 2000, did Potterf s tes- February not rebut
Melton testified that not believe she did “any of timony applicant did not have that her interviews with the children were Instead, for chlamydia.” the antibodies anything by tainted that “Jackson did with that she has Kellogg provided testimony them.” across professional “come another never involved
Q. pediatric WRIT COUN- individual someone [APPLICANT’S test that accepts You heard Dr. indi- abuse who a blood Arambula’s child SEL]: chlamydia.”9 there antibodies of suggested cation that looks for answers Center, professor University Kellogg pediatrics at the of Texas Health Science Now, Q. Okay. Q. Dr. Kel- you area that keep current with? —an logg, you just can explain talk Yes, to, A. I try yes. do. I —let’s chlamydia. you explain about Can what it, fact, Q. Is you an area that speak is, chlamydia what it does in body on throughout country? and then how one should test for it or I do. your can test for it to knowledge? Q. In your experience, all of you A. Okay. Chlamydia sexually is a ever come across professional another transmitted disease is bacteria. pediatric individual or someone involved itAnd lives inside of cells. And that’s a in child abuse accepts who a blood test unusual, little bit because most bacteria that looks for of chlamydia? antibodies attach cell, would to the outside of a but No, I haven’t. this one is inside the cell why which is Q. Okay. Why an antibody won’t test it, you when test for actually have to chlamydia? work for get the live cell and submit it to a test- body in the Antibodies formed ing technique. foreign when a organism bacteria or So, types what of tests could sticks on the outside of cell. That use to chlamydia find out if was there? has to happen. Because to make anti- culture, A. Chlamydia there are also bodies, the body recognize has to some- amplification nucleic acid tests. And thing foreign. This doesn’t belong what those do is look for the actual my body, I need make antibodies to DNA of chlamydia. There are those it. tests that are also possible. These are all In swabs. the female talking we’re ‡ n n about swabbing genital or swabbing before, A. As I chlamydia mentioned penis inside the in a male. Sometimes cell, lives inside of the so the formation some of these tests can be done from antibody expected of an not be an urine. mean, maybe result. it occurs to a you’re Can a test as talking about extent, small reliable— but it’s not a be done from blood? that’s anticipated response not an I’m not being aware it—of that chlamydia. done or that being accepted as a test. Kellogg provided more testimony haven’t seen that. cross-examination that exper- she also has And, Dr. Kellogg, your based on tise in infectious diseases and that she was. particular position in the scientific com- not “of any expert aware child abuse in the munity specifically in the area of country that chlamydia uses antibodies in abuse, child sexual is this an area that any way, shape or form to investigate child you keep current with? sexual abuse.” Kellogg testified that she Is this— disagreed testimony. with Potterf s sa, years-old, and she is the Medical Director of chlamydia the Alamo 12was Advocacy Children’s Center and the Medical "gaping" hymen. Kellogg Director of the Sexual Assault Nurse Examin- having Melissa denied sexual contact with *9 Program ers at the Christus Santa Rosa. She anyone applicant. Applicant’s than 8,500 approximately suspected has examined mother testified that Melissa confided to her Kellogg child victims of sexual abuse. testi- chlamydia that she "contacted" from another fied when she examined the in boy years-old. when she was 12 February it was discovered that Melis- A. Yes. COUN- WRIT [APPLICANT’S trying I really That’s what was SEL]: findings those you talk about Q. Can to take I rose to ask get at. When they mean? and what dire, my question concerned you on voir findings. three *10 actually just wearing away but in the tissue issues for that child terms of disclo- there. in going through sure and terms of process entire as is involved once the Q. “chronic”, you say you When mean reported? child sexual abuse is repeated over the of time? course Yes, A. Yeah. That’s what I A. it mean. does raise issues. Q. Okay. kind of issues? What all, A. First of children that are sexual- Now, Q. you have been made aware ly by family abused members are more [Brittny] supposedly opera- had an concerned about the effect of their dis- tion of dealing some kind at birth They on other people. closure are more an enlarged labia minora? may about their mother worried how I’ve been yes. made aware of family respond may members Q. Okay. Is this scar that can, turn, in respond, and that effect assuming operation oc- they say, they how much are [sic] what observed— curred and left some sort of scarring, is say going willing they and how are to in observed that same scar say it. type position or even a different Q. by parent Do kids who are abused position in the organ? female sexual necessarily stop loving that parent? It’s in a different position A. No. About a of our third children female sexual organ. still that person. love Q. observed, And the scar that you impact they does that And how you? what would indicate to or in they disclose what manner dis- Well, location the scar and close? the shape mostly of the scar is consis- it does. past tent penetration penetrating — you say What would make —can trauma. any correlation childrens’ feel- between Kellogg also atypi- testified that it is not ings regard their abuser and the when, cal for children to recant especially propensity of children to recant their here, they as are living with the abuser’s original allegations? mother children are made to feel A. Yes. guilty “for the consequences of their dis- Q. Okay. Go ahead. Kellogg closures.” testified that children’s change recantations did not her hap- If children feel bad about what regard conclusions “in to the medical find- disclosed, they are pened they after ings history.” and the they If likely more to recant. sense them, they Okay. Let’s on to their mother does not believe move
the medical and talk recant. If finding likely a little bit are more for the dynamics responsible about of child sexual made to feel disclosure, abuse, of their particularly consequences when involves fam- back ily members. a child to recant or take by likely When is abused are more parent, any special does raise what said. (Grandma Red) Applicant’s years prison. mother Grandma Red also testi- fied at the habeas that the legal get be- financing efforts to that she is upset came emotional and when told she prison. out them that had been sentenced to 15
805 that be recommending applicant to Q. Okay. atypical for children In Is relief, convicting con- the court granted recant? his “actu- applicant that established cluded It’s no. atypical, not innocence,” convicting on the based al Q. Hypothetically if children speaking, having complaining “the wit- court found in the who been care someone 11 The con- [Brittny] to be credible.” ness them, supporting who was at least ver- following the find- victing court also made bally, steps and taking through them why applicant ing apparently explain to investiga- reporting of child abuse he guilty something that plead would custody tion then them into gave not do:12 did well, an individual related — his be- Applicant perpetrator, who was the mother during hearing. He as half this offered might that raise red as far as flags some explanation that he admitted an recanting issues? this that he committed probation officer it would. leniency in an from gain offense effort to way in if any surprise you Would it lawyer court. stated his [applicant’s] taking mother is one lawyer’s experience, him that in his told care of that these children a recantation grant willing the courts were more were occur? respon- leniency when a defendant took (R.R. 2 sibility p. for his actions. vol. surprise It not would me. 43). Additionally, that Applicant stated that, mind, And your would in that a plea thinking he entered his that occurred, recantation mean that sexual buy gather him more time to would abuse did not occur? (R.R. prove innocence. his No, it would not mean that. 45).[13] p.2 He further stated that vol. Q. Okay. Particularly, you, let me ask be he believed that would allowed in relation to these that findings Id. plea. withdraw girls’ reviewed all three of these Sexually reports, That Applicant’s if I to tell Admission He here Brittny (i.e., guilty plea) court that of those two children have Assaulted statements, recanted their would support finding The record does not change your conclusions that dis- we’ve applicant’s guilty plea was involun- findings cussed in regard to medical tary. supports findings The record history? and the pleaded guilty part as of a strate- No, it get probation not. gy when Brittny Tuley, findings explain generally parte S.W.3d 11.The do not how 12. See Ex 109 “complaining can be a when her witness” (Tex.Cr.App.2002). she was that all, which, sexually at in the was not assaulted portion The cited of the record does analysis applicant’s final and under factual portion re- support this. of the record This theory hearing, what we must the habeas applicant actually testified that one flects accept grant applicant order pleaded of the reasons he corpus on his "actual innocence” claim. relief harshly he feared a would sentence him It would be difficult to conclude went to if he trial. unquestionably has established innocence the evidence if established fact, were, Brittny and the other sexu- ally assaulted. *12 failed, attempted if “one plea to withdraw his would convict does believe” the new pursuing strategy or dual evidence.14 issue is while a new of whether a reason juror able light recant. would convict of the new pressuring the This does evidence, when considered evi with the applicant’s guilty plea not render involun- guilt supports dence of the convic tary. Brown, 545; tion. See 205 S.W.3d at Ex Applicant’s “Actual Innocence” (Tex. Elizondo, parte 947 S.W.2d 206 Brown, parte In Ex 205 S.W.3d 545 Cr.App.1996). This is from different (Tex.Cr.App.2006), this Court reiterated making an “actual innocence” determina heavy required the burden for a convicted tion solely turn on whether “one be does person post-conviction, establish a bare lieve” the “ac new evidence. This Court’s claim of actual innocence. tual jurisprudence innocence” an requires Establishing a bare claim of actual inno- probable impact assessment of the of the is a cence Herculean task. We have upon persuasiveness new evidence of “any stated that has person who once (not the State’s a whole a case as whether finally been in a fair convicted trial juror reasonable would convict if “one does permitted wage, should not be and we evidence). And, believe” the new See id. permit wage, not him do collateral Court, court, the convicting not on that making attack conviction without (“our supposed to this call. make See id. exceedingly persuasive an case that he is probable task is to impact assess the actually innocent.” [Footnote omitted]. newly upon available the persua evidence Thus, to succeed in an actual innocence whole”) siveness of the State’s case aas applicant “by claim the must show clear (“our and at is to job” “decide whether convincing despite evidence newly have discovered evidence would supports the evidence of guilt applicant’s convinced inno [a] conviction, juror no reasonable could cence”). have found the applicant light application Under a of this proper new evidence.” omit- [Footnote Court’s jurisprudence, “actual innocence” This must showing ted]. overcome the applicant it is clear that has unmistakably valid,
presumption that the conviction is unquestionably established his inno- unquestionably ap- and must establish juror cence. A out reasonable could sort plicant’s [Footnote innocence. omitted]. by conflicting the various statements made misapplication It is a of this Court’s principals (including in this case those jurisprudence himself) “actual innocence” to decide by applicant made and still convict that no reasonable juror ap- would convict applicant. juror also A reasonable could if as plicant convicting “one reject Brittny [such applicant’s evidence that Brittny’s does and April’s court] believe him caught chlamydia could not from explana- recantations and their father’s based on has Kellogg’s she tions, coupled the medical evidence professional never “come across another But, testimony.” Dr. pediatric Arambula’s someone individual involved juror accepts is not child issue whether reasonable abuse who blood test jurispru- be- 14. This Court's “actual innocence” "actual innocence” determination would believed, evidence, applicant an dence does not state that sus- new if come whether the with new tains his Herculean task that, proves This "actual inno- innocence. Court's believed, unquestionably if estab- cence” was never intended jurisprudence preclude any his This would lish innocence. completely ignore guilt. the evidence of guilt consideration of the evidence of as the to convict great lengths chlamydia.” A rea- went looks for antibodies of innocent.15 though he was even find, juror could based on sonable testimony, scarring Kellogg’s case, has not carried In this “chronic Brittny’s genital area due to inno- proving Herculean task penetration” and too recent to be due juror could still because a reasonable cence a birth any surgery at birth to correct overwhelming him based on the convict *13 A also find juror defect. reasonable could light in of applicant’s guilt even of evidence is not credible Brittny’s recantation the other so- recantation and Brittny’s why about Kellogg’s based on evidence.16 would “exculpatory” called on, as even relief based (e.g., ap- grant applicant children recant in cases like this it, the “circus that was put has applicant hearing plicant’s admission in case.17 together” put girls going that he told the that he was them). Also, ap- because of under prison respectfully dissent. theory factual at the habeas hear- plicant’s ing, acquit applicant a reason- order believe, despite juror
able
would have to
overwhelming
to the con-
evidence
trary,
no sexual abuse of
prosecution
occurred at all and that
recently recog-
Applicant’s
imperfect
claim
initial
205-06. This Court has
that an
legal
of
children tainted the
proper application
interview of one
of a
nized that
subsequent
children’s
in their
in-
sufficiency
requires
statements
consideration
standard
professionals
terviews with other
trained to
evidence and that this standard is
of all the
investigate claims of child sexual abuse is not
"barely distinguishable” from a factual suffi-
Brown,
persuasive. See
Clement
for
case, appellant pled
In the present
shoplifting about
worth
Paul,
Austin,
$158.00
Attorney,
Matthew
State’s
Wal-Mart,
pled “true”
goods from
and she
for state.
making
paragraphs,
enhancement
two
jail felony.3
the offense a state
She elect-
punishment,
ed to
assess her
twenty
and it sentenced her to
months’
CONCURRING STATEMENT
raised one claim
imprisonment. Appellant
appeal:
The trial court erred
allow-
COCHRAN, J., filed a statement
appellant’s
ing the State to cross-examine
concurring
petition,
the refusal of the
unadjudicated
mother about an
theft.4
MEYERS, JOHNSON,
did not address the
appeals
The court of
HOLCOMB, JJ., joined.
complaint
appellant
of that
merits
concur
the Court’s refusal of discre-
object
at the time her mother
failed
tionary
appellant’s
review based on
failure
testified.5
comply
appellate pro-
the rules of
review,
petition
discretionary
In her
for
Degrate
cedure and
v. State.1 From time
time,
appellant properly poses
various members of this
issue:
Court
motions,
31.03(e)(4)(D).
§
plea,
post-trial
such as a
motion
Tex. Penal Code
3.
trial).
for new
State,
06-06-00185-CR,
Bradley
2007
v.
No.
1986).
(Tex.Crim.App.
1.