delivered the opinion of the Court.
A jury fоund that M.P.A. committed sexual assault of a child based on the testimony of two witnesses who have now recanted, and sentenced M.P.A. to twenty years’ confinement after hearing false testimony by a State’s expert. The district court denied habeas relief and the court of appeals affirmed. M.P.A. asks us to reverse and hold that he is actually innocent, that the false testimony contributed to his sentence, and that his trial counsel rendered ineffective assistance.
We conclude M.P.A. is not entitled to relief on his claims of actual innocence or ineffective assistance of counsel. However, we hold false testimony by the State’s expert witness contributed to his sentence and he is therefore entitled to a new disposition (sentencing) hearing.
I. Factual and Procedural History
S.A. and A.A. accused their cousins M.P.A. and J.W.A. of sexually assaulting them. At the time of the alleged acts, S.A. was seven, A.A. was five, M.P.A. was fourteen, and J.W.A. was fifteen.
At trial, A.A. did not testify that M.P.A. had sexually assaulted him, but both S.A. and A.A. testified that M.P.A. sexually assaulted S.A. In addition, Alice Linder, a sexual assault nurse examiner who had examined S.A. and A.A. testified that they told her that M.P.A. and J.W.A. had sexually assaulted them. M.P.A. was the only defense witness and he testified that he did not sexually assault S.A. The trial court granted a defense motion for a directed verdict regarding the сount that M.P.A. had sexually assaulted A.A. The jury found that M.P.A. had sexually assaulted S.A.
At the disposition phase, the State presented two witnesses: Dr. Frederick Wil-loughby, a licensed psychologist and registered sex offender treatment provider, and Kathie Lewis, a probation officer. Wil-loughby testified regarding an “Abel Assessment” that he had administered to M.P.A. Willoughby testified that the Abel Assessment is a test that predicts which people have an interest in particular sexes and age groups. One portion of the test consists of a questionnaire. M.P.A.’s answers to this portion of the test were “socially desirable.” The portion of the Abel Assessment at issue in this case consists of a series of slides that are shown to the subject. The slides depict individuals of various аge and gender, and the subject’s sexual interest is measured by how long the subject looks at each slide. The results are computerized and sent to Atlanta, where the test is “scored.”
A.A. recanted approximately nine months after the trial and S.A. recаnted approximately twenty months after the trial. At the habeas court below, both S.A. and A.A. testified that they falsely accused their cousins because their mother, LaVon-na, told them to. J.W.A. also recanted his confession and testified at the habeas court that he did not sexually assault A A. and S.A. In addition, the evidence at the habe-as hearing showed that approximately four years after M.P.A.’s original trial, Wil-loughby entered into an agreed order with the Texas State Board of Examiners of Psychologists stating that he “misstated in his court testimony the research that had been conducted with respect to the Abel Assessment.”
M.P.A. filed the writ of habeas at issue in this case, arguing that he was actually innocent, that Willoughby’s false testimony contributed to his sеntence, and that his trial counsel rendered ineffective assistance. The habeas court found that the recantations were not credible. In so finding, it relied on J.W.A.’s confession and the testimony from all the witnesses. It also found that Willoughby’s “misstatements, if any,” did not contribute to M.P.A.’s sentence, and that M.P.A.’s trial counsel was effective. The court of appeals affirmed and M.P.A. appealed to this Court.
II. Actual Innocence
M.P.A. argues that he is entitled to relief based on the newly discovered evidence of S.A. and A.A.’s recantations. At the habeas hearing, they testified that La-Vonna told them to falsely accuse M.P.A. and J.W.A. S.A. testified that LaVonna told her this was necessary to keep La-Vonna out of jail. M.P.A. alleges that LaVonna’s motive was that these accusations would reflect badly on S.A. and A.A.’s father, Stephan, in their then-ongoing custody proceeding, and that the recantations are corroborated by the record.
In Keeter v. State, the Court of Criminal Appeals addressed a recantation оf a juvenile’s sexual assault allegations in the context of a motion for a new trial.
Such bases include, but are not limited to: evidence that the recanting witness was subject to pressure by family members or to threats from co-conspirators, evidence showing part of the recantation to be false, circumstances showing that the complainant recanted after moving in with family members of the defendant, and where an accomplice recants after being convicted.
Id. at 38 (citations omitted). The Keeter Court affirmed the trial court’s rejection of the recantation because, inter alia, the complainant recanted after moving into the residenсe of her mother, with whom the defendant had resided, and there was evidence that the defendant’s father had pressured the complainant to recant. Id. at 39.
Here, although substantial evidence corroborates the recantations, there is some evidence of pressure to recant by Stephan’s family and an investigator hired by Stephan. While we recognize that recantation of sexual assault in the context of custody litigation should be given serious consideration, there is evidence in this record to support the trial court’s rejection of the recantation testimony. S.A. first recanted when Stephan’s girlfriend told S.A. she did not like her because S.A. was a liar who put people in jail. A.A. and S.A. both testified that the investigаtor hired by Stephan did not pressure them to recant, but A.A. testified that the investigator gave him “encouragement” to recant and “kept asking” him if the sexual assault allegations were true.
In addition, J.W.A. confessed to the police that he had sexually assaulted S.A. and he subsequently pleaded true to sexually assaulting S.A. We note that J.W.A. recanted his confession and has testified that he did not understand the significance of his confession or plea. We further note that the Court of Criminal Appeals has explained that innocent defendants will sometimes plead guilty. Ex Parte Tuley,
Barina testified J.W.A. told him he and M.P.A. sexually assaulted S.A. Barina explained M.P.A. and J.W.A.’s family informed him J.W.A. would testify M.PA. did not commit the alleged assault. Therefore, Barina planned to call J.W.A. to the stand at the original trial to testify M.P.A. was innocent. However, when Barina met with J.W.A. to prepare for trial, J.W.A. implicated M.P.A. in the offense. J.W.A. said he himself “had done it and that he saw [M.P.A.] ‘do it.’ ” If J.W.A. testified M.P.A. did not commit the offense, it could amount to perjury. If J.W.A. testified M.P.A. committed the offense, it could damage M.P.A.’s defense. Barina decided not to call J.W.A. as a witness. This statement by J.W.A. is not negated by J.W.A.’s explanation of his confession to the police or his decision to plead true-neither his confession nor plea implicated M.P.A. in a sexual assault on 5.A. J.W.A. denies telling Barina he and M.P.A. sexually assaulted S.A. But the ha-beas court was entitled to believe Barina. Hence, JWA’s statement to Barina supports the habeas court’s decision.
M.P.A. cites several cases with factual similarities to the instant case. However, we defer to habeas courts’ credibility determinations and in those cases the habeas courts had credited the recantations. See Ex parte Calderon,
III. False Testimony
A. Background
As a threshold matter, we must determine whether M.P.A. may bring his false testimony claim via habeas. Defendants are ordinarily barred from raising claims on habeas that could have been raised at trial or on direct appeal. Ex parte Napper,
The State knowingly used false testimony in Fierro,
A false testimony claim is subject to harmless-error review. Chabot,
B. Admission of the Willoughby Testimony
Willoughby testified as an expert in this case. A party offering scientific expert testimony must show by clear and convincing evidence that the science is reliable. Kelly v. State,
Kelly governs the reliability determination and specifies several nonexclusive factors to guide the inquiry.
Willoughby testified regarding the Abel Assessment outside the presence of the jury. When asked about the Abel Assessment’s error rate, he stated that “[f]or classifying people who have significant sexual interest in female children under the age of fourteen, the accuracy rate is 85 percent.” This is pаrticularly significant because at the time of the alleged offense, S.A. fell into this category. In addition, in response to a question regarding the existence of literature supporting or rejecting the Abel Assessment, Willoughby stated that “[t]here is [sic] a number of articles out by Gene Abel and his colleagues. Also researchers at Brigham Young University have established the reliability of the instrument and the classification accuracy of the instrument.”
Much of this testimony was false. In 1998, the accuracy rate of the Abel Assessment, according to Abel and his colleagues, for classifying people with a significant sexual interest in female children under fourteen was only 65%, not 85%. This weighs against the reliability of the Abel Assessment.
Regarding the application of the Abel Assessment to adolescents, they found that no research other than their own had been done and that Abel’s initial study only included two adolescents. Their own research led them to conclude that data did “not support the reliability of [the Abel Assessment] for use with adolescеnts,” “that the ability of [the Abel Assessment] to discriminate adolescent offenders from nonoffenders was not significantly better than chance,” and the Abel Assessment’s “ability to screen or diagnose adolescent perpetrators reliably has not been demonstrated.”
The State argues that the following evidence supports the admission of Willough-by’s testimony:
• The statement in one of the BYU articles that “approximately 300 therapists in 86 states and two foreign countries, as well as 8 states’ judicial systems” used the assessment;
• Abel’s study of the Abel Assessment;
• Four independent studies supporting the theory underlying the Abel Assessment;
• The inability of M.P.A. and J.W.A.’s attorneys to find an expert to attack the Abel Assessment.
With the exception of Abel’s own study, the State did not present this evidence to thе trial court. Nor would this evidence have been presented to the trial court had Willoughby testified truthfully regarding the Abel Assessment’s error rate and the BYU studies’ reliability findings. Therefore, we do not consider it in our determination of whether the trial court would have found the Abel Assessment reliable absent Willoughby’s false testimony.
The State argues that we should consider the four independent studies because the State would have used them to rebut the criticisms in the BYU studies if Wil-loughby had testified truthfully about the BYU studies.
The State additionally argues that we should apply the less stringent standard from Nenno v. State to this case.
This case stands in sharp contrast to Nenno. There, an expert testified regarding future dangerousness based on his experience studying eases. Id. at 562. That expert “did not contend that he had a рarticular methodology,” Id. Here, the Abel Assessment was subject to peer review and testing of its accuracy rate. Therefore, we consider those factors. See Mendoza v. State, No. AP-75213,
In sum, had Willoughby testified truthfully, the trial court would have been faced with testimony regarding a test that had only a 65% accuracy rate as applied to this case, was subject to at least some criticism in the literature as applied to this case, and had no support from independent studies as applied to this case. The only
C. Harm Analysis
In order to obtain a new sentencing hearing, M.P.A. must prove by a preponderance of the evidence that Wil-loughby’s testimony contributed to his sentence. Ex parte Williams,
The State argues that the testimony of M.P.A.’s trial counsel, Bobby Barina, supports the habeas court’s finding that Wil-loughby’s testimony likely did not sway the jury. Barina stated in his affidavit that Willoughby’s testimony had “zero impact” on the jury. At the habeas hearing, he explained that Willoughby’s testimony wаs “boring.” He stated that it “didn’t provide any insight to anybody,” but did not remember that Willoughby likened M.P.A. to a pedophile. Barina also described Wil-loughby as “arrogant” and stated that the jury did not take “much consideration to anything Dr. Willoughby told them ... just because of the nature of Willoughby.”
Barina’s observations do not address the State’s use of Willoughby’s testimony to refer to M.P.A. as a pedophile throughout its closing argument. See Serv. Corp. Inti v. Guerra,
• “He’s been diagnosed as a pedophile by an expert. He is at a high risk to re-offend.”
• “[Y]ou’ve heard the psychologist tell you he is a pedophile. He is at a high risk to reoffend.”
• “You now know he’s been classified as a pedophile by an expert. You now know that he is interested in children,*290 interested in children, in fact, in the same age group as little [S.A.]. Think about her and think about that.”
These references to Willoughby’s testimony bolstered the State’s closing theme of protecting the community:
• “fl]f you put him on probation, we’ve already seen that just allows for victims.”
• “Our community simply cannot take that chance by releasing him back in that home. It’s a tough decision to make, but it’s a decision that’s backed up by the evidence and the testimony.”
• “How are you going to protect the public? The evidence has shown that the only way you’re going to be able to do that is by putting him away for some time. Because you’re going to have to protect other children. And with your verdict, you can at least keep him out of your community for a while.”
• “[Yjou’re also telling him, Tf I put you on probation, I’m going to walk right out this door with you.’ He could be next to you in the parking lot today and in your neighborhood tomorrow. Think about that.”
In sum, the State utilized Willoughby’s testimony throughout its closing theme of protecting the community. In addition, the State emotionally appealed to the jury to think about Willoughby’s classification of M.P.A. as a pedophile with a specific interest in S.A.’s age group. Indeed, the State’s closing argument made more express references to Willoughby’s testimony than to any other testimony in the case. Therefore, we conclude that the State’s use of Willoughby’s testimony at closing contributed to M.P.A.’s sentence.
IV. Ineffective Assistance of Counsel
Juveniles are entitled to effective assistance of counsel in adjudication proceedings. E.g., In re R.D.B.,
Courts measure reasonаbleness by prevailing professional norms, Strickland,
The question of Barina’s effectiveness is one of mixed law and fact, id. at 698,
M.P.A. argues that Barina rendered ineffective assistance at the adjudication phase because he failed to investigate or аdvance arguments that no sexual abuse occurred. However, at the time of trial, J.W.A. had confessed, which was inconsistent with an argument that no sexual assault occurred. Therefore, Barina could reasonably have believed that a strategy of affirmatively disproving the existence of a
M.P.A. specifically argues that Barina failed to interview a member of Catholic Charities who had noted that S.A. and A.A. denied abuse and showed no definitive indicators of abuse. However, the statement that the children denied abuse was not made until after trial. In addition, Barina stated that he had reviewed a report by Catholic Charities at the time of trial, which stated that there was no outcry but also discussed reasons why children typically might not volunteer information. Furthermore, pursuing this issue likely would have led the State to put on evidence that S.A. and A.A.’s behavior was consistent with abuse.
M.P.A. additionally argues that Barina failed to follow up on S.A. having to stop an interview in order to practice answering questions with LaVonna. The Iowa Department of Human Services had interviewed S.A. and A.A. at the request of Iowa and Texas police departments. A report from a police detective who was present noted that S.A. wanted to practice the questions with LaVonna. A social worker later interpreted this as S.A. wanting LaVonna to tell her what to say, which Barina viewed as an exaggeration. Barina interpreted the tape as S.A. being nervous and wanting hеr mother in order to calm down. Barina further stated that the tape referenced other sexual assaults not alleged by the State, so he did not want it admitted into evidence.
M.P.A. also asserts that Barina failed to adequately cross-examine the State’s medical expert, Dr. Green. Dr. Green had testified that the physical evidence was consistent with a possible suspicious finding. Barina testified that he thought Green’s testimony was as tentative as could have been hoped for, so there would be little benefit to aggressively cross-examining Green and allowing redirect examination to refute whatever he could have accomplished via cross-examination.
Finally, M.P.A. asserts that Barina should have obtained an expert to refute Green’s findings. The Second Circuit Court of Appeals granted relief on a similar claim in Gersten v. Senkowski,
The general premise of Gersten is inapplicable here for two reasons. First, in Gersten, the victim had accused the petitioner of “‘continuing rape and sodomy over a period of years.’ ” Id. at 608 (quoting Gersten v. Senkowski,
In sum, looking at the totality of the representation, Gersten does not apply here. Given the heavy discretion afforded trial counsel, we cannot say that M.P.A. has met his burden to show that Banna’s representation was objectively unreasonable.
Because we have determined that M.P.A. is entitled to a new disposition hearing, see Part III, supra, we do not address M.P.A.’s claim of ineffective assistance of counsel at the disposition phase.
V. Conclusion
We hold that M.P.A. has not established his right to relief on his claims of actual innocence or ineffective assistance of counsel at the adjudication phase. However, M.P.A. is entitled to a new disposition hearing because Willoughby’s false testimony contributed to his sentence. We remand this cause to the district court to grant M.P.A.’s writ of habeas corpus in accordance with this opinion.
Notes
. S.A. and A.A. are sister and brother and M.P.A. and J.W.A. are brothers. The four children are related through their fathers, who are brothers. Thus, M.P.A. and J.W.A.'s father is S.A. and A.A.’s uncle, and S.A. and A.A.'s father is M.P.A. and J.W.A.'s uncle.
. "Although quasi-criminal in nature, proceedings in juvenile court are considered civil cases; thus, this Court, rather than the Court of Criminal Appeals, is the Texas court of last resort for such matters.” In re Hall,
. Evidence corroborating the recantations includes: evidence that the allegations were made after LaVonna left Texas with S.A. and A.A. in violatiоn of a court order and having stolen money from her employer; evidence that the allegations of abuse in the present case coincided with key events in the custody dispute between S.A. and A.A.’s parents; evidence that LaVonna had made false allegations of sexual abuse of children on other occasions; testimony that LaVonna had said she would do anything to maintain custody and that she would hurt M.P.A. and J.W.A.’s family; an affidavit from LaVonna’s sister stating that LaVonna would lie about sexual abuse of children to gain an advantage in a custody proceeding; and evidence attacking the inculpatory medical evidence.
. An applicant may also present an actual innocence claim that is tiеd to a showing of constitutional error at trial. To prevail on this type of claim, “[a]n applicant must show that the constitutional error probably resulted in the conviction of one who was actually innocent.” Ex parte Spencer,
. In the context of a motion for a new trial, the Court of Criminal Appeals has noted that it is unclear whether a trial court's rejection of a recantation requires record support. Keeter v. State,
. The Texas Constitution prohibits our Court from engaging in factual sufficiency review. TEX. CONST, art. V, § 6(a) (stating that courts of apрeals' decisions are conclusive on all questions of fact). In the habeas corpus context, we are bound by the trial court’s credibility determination if there is record support for that finding. Here, the trial court determined that the recantation testimony was not credible. The trial court heard all the testimony and is best suited to make credibility determinations. See Wainwright v. Witt,
. The Court of Criminal Appeals has allowed for the possibility of a lesser threshold for the showing of harm when the State knowingly used false testimony and the defendant did not have the opportunity to discover and raise that claim at trial or on direct review. Napper,
We also note that the Court of Criminal Appeals has stated that there is a question about forfeiting a false testimony claim when an applicant made no complaint about allegedly false testimony at trial. Napper,
. Alternatively, M.P.A. could prevail by showing that, even had Willoughby's testimony been admitted, if it was truthful the jury would have handed down a lesser sentence. We do not reach this issue.
. Kelly applies to all scientific evidence, regardless of whether or not it is novel. Nenno v. State,
. M.P.A. briefed this issue under E.I. du Pont de Nemours and Co. v. Robinson, which controls the reliability inquiry in civil cases.
.See United States v. Birdsbill,
. For the same reason, we would not consider the numerous published attacks on the Abel Assessment's reliability and cases rejecting the Abel Assessment which were not raised in the trial court but are now cited by M.P.A. and amicus Innоcence Project of Texas, even if they were available at the time of trial. To do otherwise would convert a claim attacking false testimony into a general retrial of the reliability of the Abel Assessment. Indeed, the false testimony would be irrelevant under this approach.
. These studies were papers presented at a conference and are not in the record before us. See Gene Abel, The Importance of Meeting Research Standards: A Reply to Fischer and Smith’s Articles on the Abel Assessment for Sexual Interest, 12 Sexual Abuse: J. Res. & Treatment, 155, 161 (No. 2, 2000) (citing papers).
. Furthermore, the State does not specify their content or what aspect, if any, of the BYU studies they would have been responsive to. Although they were cited in an article by Abel that was published аfter M.P.A.’s trial and attacked the BYU studies, he cited the papers referred to by the State in his introduction as studies coming to a different conclusion from the BYU studies. He did not suggest the papers cited by the State were themselves critical of the BYU studies.
Moreover, the titles of at least two of the papers, A Comparison of the Penile Plethysmo-graph with The Abel Assessment for Sexual Interest on Incarcerated Military Sex Offenders, and Comparing Outcomes of Plethysmographic Assessment with The Abel Assessment in a Prison Based Sex Offender Sample, indicate they did not address the use of the Abel Assessment on adolescents.
Finally, we note that other courts found the Abel Assessment unreliable and criticized what appear to be the same studies. See Birdsbill,
. Kelly frames the reliability inquiry as addressing: (1) the validity of the underlying scientific theory; (2) the validity of the technique applying the theory; and (3) the correct application of the technique on the occasion in question.
. M.P.A. argues that we should review this determination de novo and cites Johnson v. Cain,