Wade, Alex Melvin, WR-65,555-20

Wade, Alex Melvin

WR-65,555-20

Tex.

Dec 14, 2015

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Case Information

*1 Dr. Alex Melvin Wade, Jr. Paralegal Specialist Mark W. Stiles 3060 FM 3514 Beaumont, Texas 77705-7638

RECEIVED IN COURT OF CRIMINAL APPEALS

DEC 14 2015

Abel Acosta, Clerk

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-65,555-20

IN RE: ALEX MELVIN WADE, JR., Relator

ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 1222385-D IN THE 185TH DISTRICT COURT FROM HARRIS COUNTY

TO THE HONORABLE JUSTICE OF SAID COURT:

APPLICANT'S RESPONSE TO COURT'S ORDER OF NOVEMBER 4TH, 2015

MAY IT PLEASE THE COURT:

This Honorable Court issued its Order in the above entitled captioned cause on November 4th, 2015. It is clear the Order commanded two(2) circumstances be made clear, submit proof of the date of receipt by the State showing 180 days has not yet eslasped, or stating that Relator has not filed an application for writ of habeas corpus in Harris County.

The State of Texas, Harris County, Texas District Attorney on November 5th, 2015 answered this Court questions in its State's Original Answer and its Proposed Findings of fact, and conclusions of Law and Order transmitted to this Court from the Office of Chris Daniel, Clerk, Harris County, Texas transmitted on November 11th, 2015. State's filing makes clear this Relator/Applicant filed on February 24th, 2014 the original writ of habeas corpus and on March 26th, 2015 Relator/Applicant filed an amended writ of habeas corpus. The State acknowledge

*2 receipt of the writ of habeas corpus received on February 24th, 2014 and the amended writ of habeas corpus on March 26th, 2014. That in mind, it is clear the 180 days has elasped since receipt of the writ of habeas corpus by the State through the Office of Devon Anderson, District Attorney, 1201 Franklin Statee, 6th Fl., Houston, Texas 77002.

However, the State's proposed finding of fact, and Conclusion of Law & Order has caused the record, the habeas corpus record be incomplete when forwarded to this Court.

State has caused to be deleted from the record, its Motion Designating Issues filed on March 11th, 2014, submitted by Andrew Smith, Assistant District Attorney and the Proposed Order Designating Issue signed the Honorable Susan Brown, Presiding in the '185th District Court, Harris County, Texas. State's Motion Requesting Designation of Issue as follows:

Whether the applicant is actually innocent in the primary case;

Before continuing, the Honorable Meyer, Judge writing for this Court in Ex parte Elizondo, 947 S.W.2d 202, stated we accept the proposition that the "execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and announced that this Court would entertain postconviction applications for writ of habeas corpus alleging actual innocent as an independent ground for relief. Applicant has brought before the 185th District Court, Harris County, Texas this type application.

Whether the applicant received ineffective assistance of counsel in the primary case;

The applicant writ of habeas corpus raises the substantive claim that is

*3 presented is differ in at least two important ways from the claim presented in Herrera v. Collins, 506 U.S. 390, 398(1993). First, Schlup v. Delo, 513 U.S. 298(1995) claim of innocence does not by itself provide a basis for relief. In stead, as indicated by the State's Motion Requesting Designation of Issue , the claims of applicant depends critically on the validity of his Strickland v. Washington, and Brady v. Maryland, 373 U.S. 83(1963) claims. Schlup's claim of innocence is thus "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits," at 208. The State's proposed Finding of Fact, and Conclusions of Law and Order have manipulated the habeas corpus record to avoid Applicant review by this Court of the claims and evidence presented between the 19 months this matter has been pending before the 185th District Court, Harris County, Texas. 3. Whether the evidence was insufficient to convict the applicant in the primary case;

This Applicant is being deprived of an evidentiary hearing to show the evidence, show him to be innocent of the crime of attempted theft.

Applicant has presented the Clerk's Record, 00004 showing the State used an invalid complaint to indict Applicant. Applicant presented in pleading presented to the lower Court evidence, supporting his actual innocence claim and that there is no "complainant"as alleged in the indictment. CR-00002, see Applicant evidence, testimony of State's Chief Witness, Eitan Price, (CR-00328 Lns. 13-24) Where the the Applicant's trial attorney failed to seek dismissal of the charge brought by indictment because the State failed to meet it burden.

*4 The state contend in the indictment (CR-00002) the complainant to be Western World Insurance Group, that did not happen. However, Applicant's trial Attorney Lawrence Cerf, attempted to lead the witness to say that it did file a complaint against Defendant but the same back fired. Counsel's failure to move to dismiss the indictment and seek a directed verdict of not guilty is ineffective assistance of counsel and violates Defendant's Sixth Amendment to effective assistance of counsel. 4. Whether the State committed a Brady violation in the primary case;

In light of Ex parte Richardson, 70 S.W.3d 865(Tex.Crim.App. 2002), the Opinion issued by the Honorable Cochan, Judge, that Court said, to prevail upon a post-conviction writ of habeas corpus, applicant bears the burden of providing by a preponderence of the evidence, the facts that would entitled him to relief. Applicant's habeas record manipulated to cause evidence presented to the lower court not reviewed by this court, is nothing less than a blanant violation of due process.

Applicant presented in the habeas corpus record in the lower court, the state had an affirmative duty under Brady v. Maryland, to disclose material evidence that would have impeached the testimony of Michael Coulter, Capital One, N.A.,'S Bank manager, the actual copy of the deposit slip issued by the Capital One, N.A., Bank manager, Michael Coulter and a copy of the contract entered between Capital One. N.A.,'s Bank manager, Michael Coulter, showing that the testimony provided to the jury was in fact prejuried testimony. The Applicant Exhibit's Presented to the lower court, Exhibit "Z," "Z-1," &; "Z-2" Z-1 showing a deposted was credited to the account operated by Applicant.

Whether the State allowed perjuried evidence and false testimony in the primary case.

Judge Meyer, went on to write, "In Holmes, we held that in order to be entoitled to relief on a claim of actual innocence the applicant must show that based on newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt; beyond reasonable doubt." 885 S.W. 2d at 398.

Judge Cochany writing in Ex parte Richardson, ft. note 22, "A habeas applicant demonstrates that he is entiled to relief for Brady violation by "showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. at 435; Ex parte Adams, 768 S.W.2d 290. "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434.

In White, Judge's dissenting opinion, he writes Based on these considerations, an applicant seeking relief based on a claim of innocence should have to "demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict and that it is probable that the verdict sufficient to undermine confidence in the verdict would be different." State ex rel. Holmes, 885 S.W.2d at 398. If this showing is made, the habeas court must give the applicant a forum and the opportunity to present evidence. Ibid. Because the District court held a hearing on Applicant's claim of innocence, it needs only to be determined what burden of proof applicant must satisfy to obtain relief. Id. at 213

Applicant/Relator Alex Melvin Wade, Jr., submitted newly discovered evidence andrelevant evidence of his actual innocence. Further, Alex Melvin Wade, Jr., directed the Court to the Clerk's Record CR-00004, the invalid complaint used by the State to indictment Applicant for the offense of attempted theft. The complaint is clear, the complainant in that complaint 1116862, is Josephine Credena of San Jacinto Area Credit Union, that indictment was dismissed against Applicant when reindicted in this cause of action. The indictment in this cause CR-00002, is clear it is Western World Insurance Company that filed the complaint, Eitan Price, provided testimony under cross examination that Western World Insurance Company did not file a complaint. State's Chief Witness Eitan Price's testimony is consistent with the record, there is no complainant. See, CR-00328 Lns. 13-24

Applicant/Relator Alex Melvin Wade, Jr., deprived of an "evidentiary hearing," allowing him the opportunity to show his actual innocence claim will deny Applicant/Relator his due process of law. In light of Ex parte Elizondo, 947 S.W.2d 202, 217(Tex.Crim.App. 1996)(En Banc) and Ex Parte Richardson, 70 S.W.3d 865(Tex.Crim.App. 2002), Applicant/Relator is entitled to an evidentiary hearing, respectively.

CONCLUSION

For the foregoing reasons, Applicant/Relator Alex Melvin Wade, Jr., prays this Honorable Court issue mandamus compelling the lower Court issue an order commanding, response to the designated issue, evidentiary hearing and findings of fact, and conclusion of law be held within 188 days for issfence of the mandamus.

3036 FM 3514 Beaumont, Texas 77705-7638

CERTIFICATE OF SERVICE

I, Dr. Alex Melvin Wade, Jr., pro se, herein hereby certify a true and correct copy of the foregoing instrument has this day of December 2015 been served upon the Office of Chris Daniel, Clerk, Harris County, Texas 1201 Franklin Street, 3rd Fl., Houston, Texas and unpon the Office of Devon Anderson, Dis trict Attorney, Harris County, Texas 1201 Franklin Street, 6th Fl., Houston, Texas 77002 postage prepaid.

The UNIVERSITY OF TEXAS AT BALLAS, Petitioner, v.

Abraham Nee N'RER, Respondent, No. 96-1316. Supreme Court of Texas. June 20, 1997.

Former employee brought action against state university, alleging, breach of contract, race discrimination, and violations of $t 1982$ . The 192nd Judicial District Court, Dallas County, Merrill Hartman, J., dismissed action on ground that university was immune from suit. Employee appealed. The Dallas Court of Appeals, 596 S.W.2d 649, Wright, J., held that university was immune from suit on $t 1980$ claim but not on breach of contract.

2007 WANF discrimination claims. University applied for writ of error. The Supreme Court held that state university was immune from breach of employment contract action by former employee.

Application granted; Court of Appeals' judgment modified.

Colleges and Universities $⇋$ State university was immune from breach of employment contract action by former employee.

James B. Pinson, Dan Morales, Austin, for Petitioner.

Shawn M. Frazin, Alan B. Rich, Dallas, for Respondent.

OPPINION

PER CUBLAM. Abraham Ntreb, an undergraduate at the University of Texas at Dallas, was found guilty of plagiarism in a University disciplinary proceeding and expelled. Ntreb sued the University for breach of contract and for discrimination (Ntre) is a Glausan national) in violation of state and federal statutes.

The district court dismissed the suit on the grounds that the University, a state agency, was immune from suit on all Ntreb's claims. The court of appeals held that the University is immune from suit on Ntreb's federal statutory claim but not on his breach of contract and state statutory claims. 986 S.W.2d 649. The University appeals only from the re- mand of Ntreb's contract claim. The University's assertion of immunity is supported by our decision today in Federal Sign o. Texas Southern University, - S.W.2d (Tex.1997). For the same reasons explained there, without bearing oral argument, we grant the University's application for writ of error and modify the court of appeals' judgment to affirm dismissal of Ntreb's claim for breach of contract. Tex.R.Arv.P. 170.

2

Ex parte Joe Rew ELIZONDO, Applicant.

No. 72235. Court of Criminal Appeals of Texas, Ex Bacc.

Dec. 18, 1996. Dissenting Opinion on Denial of Reheating of Judge Womach June 18, 1997.

Defendant was convicted in the Criminal District Court, Jefferson County, Larry Girt, J., of aggravated sexual assault of his stepson, and he appealed. The Court of Appeals, 697 S.W.2d 65, affirmed. Subsequently, defendant petitioned for habeas corpus relief on ground of newly discovered evidence. The Court of Criminal Appeals, Mayers, J., held that: (1) overruling Ex parte Binder, 660 S.W.2d 103 and Ex parte May, 717 S.W.2d 84, due process clause of Federal Constitution forbids incarceration, as well as execution, of innocent person; (2) in reviewing habeas claim of actual innocence based on newly discovered evidence, job of Court of

EX PARTE ELIZONDO

Cous 147 S.W.2d 322 (Tex.Cr.App. 1994) Criminal Appeals is to decide whether newly discovered evidence would have convinced jury of applicant's innocence; (3) in such cases, applicant must show that new facts unquestionably establish applicant's innocence; and (4) stepson's recantation warranted habeas relief.

Ordered accordingly. Baird, J., filed concurring opinion. White, J., filed dissenting opinion in which McCormick, P.J., and Keller, J., joined.

Mansfield, J., dissented. Womack, J., filed dissenting opinion in denial of rehearing, in which McCormick, P.J., and Keller and Holland, JJ., joined.

Constitutional Law (c) 772(1, 2)

Habeas Corpus (c) 462 Due process clause of Federal Constitution forbids not just execution, but also incarceration of innocent person and, thus, claims of actual innocence are cognizable by Court of Criminal Appeals in postconviction habeas corpus proceedings whether punishment assessed is death or confissement; in either case, such claims raise issues of federal constitutional magnitude; overruling Ex parte Binder, 650 S.W.2d 103; Ex parte May, 717 S.W.2d 84. U.S.C.A. Cons.Amend. 14. 2. Criminal Law (c) 1144.13(2,1), 1159.2(9), 1159.4(1)

When Court of Criminal Appeals conducts legal sufficiency-of-evidence review, it does not weigh evidence tending to establish guilt against evidence tending to establish innocence, nor does it assess credibility of witnesses on each side but, rather, it vases evidence in manner favorable to verdict of guilty. 3. Criminal Law (c) 1144.13(6)

When conducting legal sufficiency-of-evidence review, Court of Criminal Appeals, in practice, assumes that jury weighed lightly exculpatory evidence and disbelieved entirely exculpatory witnesses, and court makes that assumption no matter how powerful exculpatory evidence may seem or how-credible defense witnesses may appear; if inculpatory evidence standing alone is enough for rational people to believe in guilt of defendant, Court of Criminal Appeals simply does not care how much credible evidence is on other side.

Criminal Law (c) 1159.2(9)

One of most significant differences between "factual" and "legal" or "constitutional" sufficiency of evidence standards is that the latter does not permit weighing of inculpatory against exculpatory evidence.

5. Habeas Corpus (c) 494

Court of Criminal Appeals must necessarily weigh exculpatory evidence against evidence of guilt addicted at trial when evaluating habeas claim that newly discovered or X available evidence proves applicant to be innocent of crime for which he was convicted, as court's task in evaluating such claim is to assess probable impact of newly available evidence upon persuasiveness of state's case as whole.

6. Habeas Corpus (c) 462, 494

Person finally convicted in fair trial is not permitted to wage collateral attack on that conviction without making exceedingly persuasive case that he is actually innocent and, thus, applicant for habeas relief based on claim of actual innocence must demonstrate that newly discovered evidence, if true, as whole.

7. Habeas Corpus (c) 494

In order for confidence in verdict to be 'abdermined by newly discovered evidence, as required for habeas relief based on claim of actual innocence, it is not necessary that new evidence render state's case legally or constitutionally insufficient for conviction.

8. Habeas Corpus (c) 494

Job of Court of Criminal Appeals, in exercise of its postconviction habeas jurisdiction, is not to review jury's verdict, but to decide whether newly discovered evidence would have convinced jury of applicant's im-

204

Tes.

91 SOUTH WESTERN REPORTER, 24 SERIES

9. Habeas Corpus 00494

In order to grant habeas relief on claim that newly discovered evidence would have convinced jury of applicant's innocence, court must be convinced that new facts "unquestionably establish" applicant's innocence; "unquestionably establish" means to establish by "clear and convincing" evidence.

See publication Words and Phrases for other judicial constructions and definitions.

10. Habeas Corpus 00494

Defendant convicted of aggravated sexual assault based solely upon testimony of his staryon, who was one of alleged victims, was entitled to habeas relief based on stayson's recastation; both stayson and his younger brother, who were currently grown men, claimed that testimony given by stayson at trial was false, and that their natural father had retentionly manipulated and threatened them into making such allegations against defendant in order to retaliate against their natural mother for marrying defendant, and record supported finding that recastation was more credible than trial testimony U.S.C.A. Const.Amend. 14.

Douglas Barlow, Beaumont, for appellant Paul McWilliams, Rodney Conerty, Asst. Dist. Attys., Beaumont, Charles M. Mallin, Asst. Dist. Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.

Before the court on bans.

OPINION

MEYERS Judge.

In State as rol Holmes o Court of Appeals, 865 S.W.2d 395, 397 (Tex.Crim.App. 1994), we accepted the proposition that the "execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and announced that this Court would begin to entertain postconviction applications for the writ of habeas corpus alleging actual innocence as an independent ground for relief. The instant cause comes to us on one such application.

In 1994, applicant was convicted in a jury trial of aggravated sexual assault. His punishment was assessed at confinement in the penitentiary for life and a fine of $10,000.00. The Ninth Court of Appeals affirmed. Eliminulo o State, 697 S.W.2d 45 (Tex.App. 1994), we accepted the proposition that the "execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and announced that this Court would be to be innocently high level of reliability in the mechanisms leading to a death sentence, Beck o Alishomo, 447 U.S. 655, 637-38, 109 S.Ct. 2989, 2989-90, 65 L.Ed.2d 392 (1989), it is reasonably clear that the basis for entertaining postconviction habeas claims of actual innocence is not peculiar to capital cases. As the Supreme Court observed in Herrera o Collins, upon which we based our holding in Holmes. Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. 1

109 U.S. 290, 398, 113 S.Ct. 853, 659, 122 L.Ed.2d 203, 215 (1993). Thus Herrera's claim that a more exacting standard should be applied in his case because he was confined under a sentence of death was express- by rejected by the Court. Petitioner asserts that this case is different because he has been sentenced to

111 At the threshold, we must decide whether the Due Process Clause of the United States Constitution forbids, not just the execution, but the incarceration as well of an innocent person. We need not pause long to answer this question. Although it is sometimes said that Due Process requires an especially high level of reliability in the mechanisms leading to a death sentence, Beck o Alishomo, 447 U.S. 655, 637-38, 109 S.Ct. 2989, 2989-90, 65 L.Ed.2d 392 (1989), it is reasonably clear that the basis for entertaining postconviction habeas claims of actual innocence is not peculiar to capital cases. As the Supreme Court observed in Herrera o Collins, upon which we based our holding in Holmes. Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. 1

109 U.S. 290, 398, 113 S.Ct. 853, 659, 122 L.Ed.2d at 219-20.

These remarks represent the views of at least five justices, including Justice O'Connor who, although she filed a concurring opinion which she was joined by Justice Kennedy, also joined the opinion of the Court. Likewise, the dissenters seem to recognize no significant difference between cases in which the death penalty has been assessed and cases in which an actually innocent person has been merely incarcerated.

Whether petitioner is viewed as challenging simply his death sentence or also his continued detention, he still is challenging the State's right to punish him... (The legitimacy of punishment is inextricably entwined with guilt.)

Herrero, 506 U.S. at 430-34, 113 S.Ct. at 878, 122 L.Ed.2d at 238 (Blackman, J., dissenting).

We think it clear from these excerpts that the incarceration of an innocent person is as much a violation of the Due Process Clause as in the execution of such a person. It follows that claims of actual innocence are cognizable by this Court in a postconviction habeas corpus proceeding whether the punishment assessed is death or confinement. In either case, such claims raise issues of federal constitutional magnitude. Ex parts 1 Brevo. 702 S.W.2d 189, 193 (Tex.Crim.App.1982) habeas corpus will lie to review jurisdictional and constitutional effects in a judgment of conviction. To the extent that Ex parts Binder, 660 S.W.2d 163 (Tex.Crim.App.1983) and Ex parts May, 717 S.W.2d 84 (Tex.Crim.App.1986) are to the contrary, we expressly overrule them.

In Holmes, we held that "in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational tree of fact could find proof of guilt beyond reasonable doubt." 860 S.W.2d at 298. However, no application of the standard was actually made in that case because no petition for the writ of habeas corpus was pending before this Court at that time. In the present content therefore, a more complete explanation of this Court's role and, of the criteria we use to assess the merits of an actual innocence claim is indicated.

At the outset, we perceive an anomaly in our Holmes opinion, which describes the ultimate criterion for relief under the actual innocence test as if our task were to decide whether the evidence of guilt could support a conviction in light of the newly discovered evidence of innocence. Such characterization is misleading because, if habeas corpus relief is to be conditioned upon a finding that no rational tree could nonclef the certificate of the same. It becomes theoretically impossible for any habeas applicant to sustain for harebo because extirpatory evidence can never out-

In Holmes, we held that "in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational tree of fact could find proof of guilt beyond reasonable doubt." 860 S.W.2d at 298. In practice, this means we assume that the jury weighed lightly the exculpatory evidence and disbelieved entirely the exculpatory witnesses. We make this assumption no matter how powerful the exculpatory evidence may seem to us or how credible the defense witnesses may appear. If the inculpatory evidence standing alone is enough for rational people to believe in the guilt of the

STILES

*10

defendant, we simply do not care how much credible evidence is on the other side.' [4] Of course, we have lately come to hold that the courts of appeals do have authority to conduct factual sufficiency reviews on direct appeal, and we have indicated that we also have such authority, in capital cases in which excupatory evidence may be weighed against inculpatory evidence. Classic v. State, 802 S.W.2d 136, 130 &; 136 (The Cirm.Apg.1996). But this kind of evidentiary review is quite different from that in which the evidence is examined to determine whether, viewing it in a light most favorable to the verdict, any rational trier of fact could have found the defendant guilty beyond reasonable doubt. Indeed, one of the most significant differences between the so-called "factual" and the so-called "legal" or "constitutional" sufficiency-of-the-evidence standards is that the latter does not permit a weighing of inculpatory against excupatory evidence. [5] Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, for task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, we must necessarily weigh such excupatory evidence against the evidence of guilt adduced at trial. The Jackson v. Virginia standard of evidentiary sufficiency is simply not appropriate to this purpose. 1. The Supreme Court has recently stated that Jackson is not appropriate for assessing claims of actual innocence based on new evidence and coupled with a claim of constitutional error at trial. In Schiop v. Delb, 513 U.S. 398, 330-31, 115 S.Ct. 851, 868-69, 130 L.Bd.3d 397 (1986), the Court differentiated between the Jacki- tem standard and the standard set forth in Shar. ve v. Carver, 477 U.S. 478, 106 S.Ct. 2459, 91 L.Bd.3d 397 (1986), which governs the miscarriage of justice inquiry applicable to a petitioner who has been answered to death and raises actual innocence as an exception to a showing of cause and prejudice in a successive wrt. Under Carver, a petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schiop, 513 U.S. at 327,115 S.Ct. at 867,130 L.Bd.3d at 834 . The Court explained

Though the Carter standard requires a substantial showing, it is by no means equivalent

Shine

[6, 7] Of course, any person who has once been finally convicted in a fair trial should not be permitted to wage, and we do not permit him to wage, a collateral attack on that conviction without making an exceedingly persuasive case that he is actually innocent. This is thus entirely reasonable to insist, and we continue to insist, that an applicant for habeas relief based on a claim of actual innocence must "demonstrate that the newly discovered evidence, if there, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different (on recriail.) Holmes, 865 S.W.2d at 398. But it is not reasonable to hold, and we reject the implication of Holmes, that confidence in a verdict is undermined only when newly discovered evidence renders the State's case legally or constitutionally insufficient for conviction.

In Holmes, we took this unusual expression of the standard directly from Justice Byron White's perfunctory concurring opinion in Hervern v. Collins' Holmes, 885 S.W.2d at 289-90. In that case, Herrera sought to reverse his death sentence because some witnesses came forward years later to implicate his brother. Most justices of the Supreme Court, including Justice White, refused to hold that Herrera's claim of actual innocence was independently cognizable in a federal habeas corpus proceeding. Indeed, they specifically declined to decide that ques- to the Jackson standard. . First, under Jackson, the assessment of the credibility of the witnesses is generally beyond the scope of review. In contrast, under the [Carrier standard] the newly presented evidence may indeed call into question the credibility of the witnesses presented at trial. . . (Further.) [under Jacki- ten, the question whether the trier of fact has power to make a finding of guilt requires a binary response; either the trier of fact has power as a matter of law or it does not. . . Thus, though under Jackson, the mere existence of sufficient evidence to comin' would be determinerive of petitioner's claim, that is not true under Carrier. Schiop, 513 U.S. at 330-31, 115 S.Ct. at 868-69, 130 L.Bd.3d at 838 (emphasis added). Justice O'Connor also expressed the view in a separate opinion that Jackson "would be ill-suited as a burden of proof." Id. at 335, 115 S.Ct. at 870 , 130 L.Bd.3d at 840 (O'Connor, concurring).

But the three justices who would have granted Herrera partial relief did address the question. Writing for these justices, Justice Blackmun argued: The government bears the burden of proving the defendant's guilt beyond a reasonable doubt, but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is actually innocent but whether the government has met its constitutional burden of proving the defendant's guilt beyond a reasonable doubt. (When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.) Hervern, 506 U.S. at 440, 113 S.Ct. at 868, 122 L.Bd.3d at 244 (Blackmun, J., dissenting) (citations omitted). [8] On reflection, we now acknowledge that Jackson is not a suitable standard for tion because the facts plainly showed Herrera to be guilty of the crime under any standard. The Court simply reasoned that, even if it were unconstitutional to execute an innocent person, it would not be unconstitutional to execute Herrera since he was not innocent.

In subscribing to this view, Justice White, writing only for himself and without elaboration, surmised that a habeas petitioner, even under the most generous standard, would at least be "required to show that no rational juror could have convicted him in light of the newly discovered evidence. Clearly, what Justice White meant by this is that, to sustain a claim of actual innocence, a habeas petitioner should, at a minimum, be able to persuade the court that the new evidence raises a reasonable doubt about his guilt. According to Justice White, Herrera had not even approached this minimum level of persuasion, so it was not necessary to consider what further level of persuasion would have been required for him to prevail on the merits. But the three justices who would have granted Herrera partial relief did address the question. Writing for these justices, Justice Blackmun argued: The government bears the burden of proving the defendant's guilt beyond a reasonable doubt, but once the government has done so, the burden of proving innocence must shift to the convicted defendant. The actual-innocence inquiry is therefore distinguishable from review for sufficiency of the evidence, where the question is not whether the defendant is actually innocent but whether the government has met its constitutional burden of proving the defenpart's guilt beyond a reasonable doubt. (When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.) Hervern, 506 U.S. at 440, 113 S.Ct. at 868, 122 L.Bd.3d at 244 (Blackmun, J., dissenting) (citations omitted). [9] On reflection, we now acknowledge that Jackson is not a suitable standard for

*11 In Schilup v. Delo, 519 U.S. 296, 118 S.Ct. 881, 130 L.Ed.2d 808 (1985), the petitioner railed a claim of actual innocence in an effort to bring himself within the "narrive class of cases" implicating fundamental miscarriage of justice as an exception to a showing of cause and prejudice for failure to raise the claim in an earlier writ. The Court took pains to distinguish between Schilup's claim and the claim presented by the petitioner in Herrera. Schilup's claim of innocence did not. alone provide a basis for relief, but was tied to a showing of constitutional error at trial. Herrera's claim of actual innocence had nothing to do with the proceedings leading to his conviction; he simply claimed that execution of an innocent man would violate the Eighth Amendment. The Court expounded upon the differences between the two situations, emphasizing the greater burden that must be borne in order to prevail in a naked claim of actual innocence:

Schilup's claim thus differs in at least two important ways from that presented in Herrera. First, Schilup's claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his Sirський and Brudy claims. Schilup's claim of innocence is thus "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the mortis." Herrera, 506 U.S. at 14041, 119 S.Ct. 853 (at 8621, 122 L.Ed.2d 369; see also Schilup v. Delo.) 11 F.3d (198), at 740 (08th Cir. 1990).

More importantly, a court's assumptions about the validity of the proceedings that resulted in conviction are fundamentally different in Schilup's case than in Herrera's. In Herrera, petitioner's claim was evaluated on the assumption that the trial that resulted in his conviction had been error-free. In such a case, when a petitioner has been "tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants," 508 U.S. at 14181, 113 S.Ct. 853 (at 8701, 122 L.Ed.2d 355, it is appropriate to apply an "extraordinarily high" standard of review. Id., at 14261, 113 S.Ct. 853

*12

Robert's testimony was, as might be expected, perfunctory. But it did clearly state that Robert and his younger brother were both made to view sexually explicit videotapes by their natural mother and by applicant, her husband. The children were also, according to the testimony adduced at trial, made to perform felicits or applicant, to have oral natural contact with their mother's breasts, and to have anal intercourse both with their mother and with applicant. They were too and eight years old, respectively, at the time these events allegedly occurred. It is now more than thirteen years later, and the children are grown men. Both now claim that the testimony given by Robert at trial was false. They say that their natural father veientlessly municipalized and threatened 1950 ' 000 ' making such allegations against applicant in order to retaliate against their natural mother, his ex-wife, for marrying applicant years before. Of course, we cannot know beyond all doubt whether this allegation is true. Their father, who is still alive and able to testify, denies it. But their claim is not implausible on its face, and particularly given the complete lack of any other insolubatory evidence in the case, direct or circumstantial, 'we think that another jury hearing the evidence, including the newly discovered mature recantation of Robert's juvenile testimony, would view the new evidence as the more credible and would acquit applicant. The habeas court, which had the opportunity to view the witnesses, concluded that Robert had testified falsely at trial. The record supports a finding that the recantation in this case is more credible than the trial testimony was. Robert's recantation not only voids his trial testimony which implicated applicant, but constitutes affirmative evidence of applicant's innocence. We are convinced by clear and convincing evidence that no rational jury would convict him in light of the new evidence. Accordingly, applicant is entitled to relief. The Director of the Texas Department of Criminal Justice, Institutional Division is, therefore, ordered to return applicant to the custody of the county from which he was received so that he may answer the charges against him. "WHITE. 1. receives the right to file a written

29 H 7 O

McCORMICK, P.J., and WHITE. $^{a}$ MANSFIELD, and KELLER, JJ., dissent to this opinion.

BAIRD, Judge, concurring. In State vs rel. Holmes v. Court of Appeals, 945 S.W.2d 389 (Tex.Cr.App.1994), we held habeas corpus is an appropriate vehicle, in capital cases, to assert claims of factual innocence based on newly discovered evidence. Id. 886 S.W.2d at 388. Today, the majority extends our holding in Holmes to non-capital cases. Additionally, the majority alters the Holmes standard and adopts the standard announced by the Supreme Court in Sohing v. Delo, 515 U.S. 298, 115 S.Cs. 881, 100 L.Ed.2d 808 (1995). Because the standard in Holmes was derived from Herrero v. Collins, 506 U.S. 390, 428-29, 113 S.Ct. 863, 875, 122 L.Ed.2d 203 (1993)/White, J., concurring). I have no problem, at this time, altering our standard to follow the Supreme Court's evolution of "actual innocence" jurisprudence. Consequently, I join the majority opinion.

I write separately to explain why I believe applicant has shown "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Arch. 947 S.W.2d at 289 , is entitled to habeas relief.

A. The Trial

Applicant was charged with the aggravated sexual assault of his ten-year-old stepson, Robert. At trial the State presented only four witnesses: Robert, his school teacher, his stepmother and a policeman. The testimony indicated that Robert's parents were divorced. Both later re-courted and Robert lived with his father and stepmother. He visited his mother and applicant on alternating weekends. According to Robert, on these weekend visits his mother, applicant, Robert and his brother watched "dirty movies" and Robert and his brother engaged in oral sex with their mother and applicant. Robert testified that sometimes friends of his mother and applicant would participate. These matters were discovered after Rob. opinion.

30 EX PARTE ELLENDED

CIV. $0^{7} S W .2 d 322$ (Tec.Cs. 624-1994). ert's teacher obtained a sexually explicit note written by Robert as well as a sexually explicit drawing. Based on this testimony applicant was convicted of aggravated sexual assault and sentenced to confinement for life and fined $$ 10, 000, 00$ .

B. The Habeas Application

In his writ application, applicant contended Robert's testimony was false and that there exists newly discovered evidence of innocence. The application was supported by affidavits wherein Robert and his brother stated that neither their mother nor applicant ever sexually assaulted them. Rather, their natural father forced them to make the earlier charges against their mother and applicant through threats of physical violence. The brothers stated Robert perjured himself at applicant's trial and that applicant is innocent.

C. The Habeas Hearing

At the writ hearing, Robert and his brother testified they never engaged in sexual acts with their mother or applicant. When Robert's teacher discovered the drawing and note, she notified Robert's stepmother. After discussing the note and drawing with Robert, Robert's father notified the police and ordered both boys to state they had engaged in sexual acts with their mother and applicant. Robert's father threatened to spank the boys every day for the rest of their lives if they did not make these statements. ^[1] The boys were afraid of their father, who forced them to repeat their statements over and over into a tape recorder until he was satisfied. Robert's father was angry with his ex-wife and often promised to get back at her "one way or another." The brothers testified they did not realize their mother and applicant were in prison until Robert was fifteen or sixteen years old and found a letter, written by their mother, addressed to their father. On his seventeenth birthday, Robert left his father's home. Thereafter, Robert informed the Pecnis Board that he lied when testifying at his mother's trial and that his mother was innocent. The brothers have maintained that

Robert's brother notified that their natural fa-
Robert's brother notified that their natural fa-
The testinoncy by [Robert] was a
The the Court, the 1890 through the time of the evidentiary hearing in this cause creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that verdict would be different in a new trial.
... [This newly discovered evidence, to-wit: the statements made by [Robert] from 1890 through the time of the evidentiary hearing in this cause creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that verdict would be different in a new trial.
... [The testimony by [Robert] is uncontroverted. The Court therefore finds by clear and convincing evidence that [Robert] testified falsely in August, 1994, at the time of the trial of this cause, and it was primarily upon the false testimony of [Robert] that applicant was convicted in this cause. 8. The Court finds that if a jury were to consider the entire record of testimony and evidence before the original jury that rendered the verdict in this cause, and the newly discovered evidence ... no rational trier of fact could find proof of guilt beyond a reasonable doubt.
The Court further finds that the newly discovered evidence ... was necessary by unknown to applicant at the time of trial ... the "failure" to discover such evidence was not due to a want of

*13

diligence on the part of applicant and not merely cumulative, corroborative, collateral, or impeaching (The testimony will probably bring about a different result on another trial of this cause. Based upon these findings, the habeas Judge concluded applicant was entitled to relief and recommended that this Court grant the relief requested by applicant.

II. Due Deference

We are not found by the "findings, conclusions or recommendations of a trial court in reaching a decision on a postconviction application for writ of habeas corpus." Ex parte Notes, 640 S.W.2d 894, 896 (Tex.Cr.App. 1962). However, in babede hearings, the judge is the last finder who determines the credibility of the witnesses and we defer to those findings if they are supported by the record. Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Cr.App.1977) (If the habeas judge's findings of fact are supported by the record, "they should be accepted by this Court.") See also, Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Cr.App.1969). In Ex parte Moore, 136 Tex.Crim. 427, 125 S.W.2d 27 (1959), we stated: . Where the ruling of the trial judge depends upon the existence or non-existence of a certain fact and testimony pro and con is introduced thereon and the evidence is conflicting it becomes the duty of the trial judge to determine the issue, and unless it appears to this court that his finding was without support in the evidence, and that he had committed an error in his judgment thereon, we would not interfere with his findings thereon. Glenn v. Stutz, 89 Tex.Crim. 13, 229 S.W. 521. [Emphasis added.]

Id., 126 S.W.2d at 28.

The habeas judge in the instant case determined the following: 1) the newly discovered evidence, to-wit: the statements made by Robert from 1899 through the writ hearing, created a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that verdict would be differ- ent in a new trial; 2) that the newly discovered evidence is uncontroverted and that Robert testified falsely at applicant's trial and applicant was convicted primarily upon this false testimony; and, 3) the newly discovered evidence was unknown to applicant at the time of his trial and his failure to discover it was not due to a want of due diligence. These factual determinations are supported by the record and, therefore, should be accepted by this Court, Turner, supra, and applicant is entitled to relief.

III. The Burden of Proof

Even if we refused to accept the habeas Judge's findings of fact, applicant is nevertheless entitled to relief. Under Schlu9, supra, applicant must show "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Axis, 947 S.W.2d at 289. Clear and convincing evidence is an intermediate standard of proof which falls between the ordinary civil "preponderance of the evidence" standard and our usual "beyond a reasonable doubt" standard in criminal cases. Zeus v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). Clear and convincing evidence is defined "as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Ibid. It is in this light that we must review all of the evidence to determine if applicant met his burden.

In applicant's original trial the State presented only four witnesses. Robert's teacher testified to finding the sexually explicit note and drawing. A public officer and Robert's stepmother related Robert's outcry statements concerning the alleged sexual assault. And finally, Robert testified he and his brother were ongoing victims of aggravated sexual assault by their mother and applicant.

The newly discovered evidence is the recent testimony of Robert and his brother. Both testified that the alleged aggravated sexual assault never occurred and that Robert's trial testimony was perjured and se- cured through the intimidation of Robert and his brother by their father.

When considering all of this evidence in light of the new evidence, I agree with the majority that no reasonable juror would have convicted applicant.

With these comments, I join the majority opinion.

WHITE, Judge, dissenting.

The majority states they "are convinced by clear and convincing evidence that no rational jury would convict him [applicant] in light of the new evidence." Because I believe the majority incorrectly evaluates applicant's post-conviction claim of innocence, I dissent to their decision to grant relief to applicant.

An applicant's due process right to pursue a freestanding claim of newly discovered evidence of innocence, which meets the threshold standard for a "truly persuasive" demonstration of innocence under the standards set out in State ex rel. Holmes's Court of Appeals, 865 S.W.2d 589 (Tex.Cr.App.1994), in a non-capital felony case at the post-conviction stage necessarily demands an extraordinarily high showing of innocence. First and most important, the criminal trial is the temporary event for determining guilt or innocence. A criminal defended in given many rights to ensure an innocent person will not be concerned. Many rights and resources have been concentrated at that time to decide guilt or innocence. See Herrera v. Collins, 596 U.S. 290, 401-08, 119 S.Ct. 803, 801, 129 I.P.2d 908, 917 (1968). A post-conviction habeas applicant has already been accorded the various protections provided by the Constitution which seek to ensure that the innocent will not be convicted. And he has been found guilty beyond a reasonable doubt, in this case, by a lory. Thus, the habeas applicant is a nearly guilty person, not an innocent one. See Herrera, 596 U.S. at 410-20 115 S.Ct. at 801, 129 I.Ed.6d at 904 (OTConnor, J. concurring). Second, a state has a strong interest in punishing the guilty and in the finality of its judgments. Therefore, it is only the truly extraordinary case that should merit review on a post-conviction claim of innocence.

THE PART

Based on these considerations, an applicant seeking relief based on a claim of innocence should have to "demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict, and that it is probable that the verdict would be different." State ex rel. Holmes, 885 S.W.2d at 206. If this showing is made, the habeas court must give the applicant a forum and an opportunity to present evidence. Ibid. Because the district court held a hearing on applicant's claim of innocence, it needs only to be determined what burden of proof applicant must satisfy to obtain habeas relief.

In the instant case, the majority revisits the discussion of Herrera that took place in Holmes. In doing so, the majority chooses to resuscitate the burden of proof proposed by Justice Blackman in his dissent in Herrera, which was rejected by a majority of the members of the Court in Herrera and by a majority of the members of this Court in Holmes, and breathe new life into it here. In the instant cause, the majority elevates itself to the position of being the thirteenth juror, overseeing applicant's post-conviction claim of innocence to determine whether the newly discovered evidence convinces them of an applicant's innocence. "The majority ignores both the precedent of this Court and the principle of stare demás to achieve the result they desired."

This Court should adhere to the standard set down in State ex rel. Holmes, wherein this Court discussed the need for a very high burden of proof for a claim of factual innocence, relying on Herrera that such a claim required "a truly persuasive demonstration of actual innocence." 885 S.W.2d at 398. In Holmes, this Court agreed that a high burden of proof was necessary because an otherwise constitutionally valid conviction should not be easily set aside. This Court concluded that an individual "must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt" for the individual to obtain relief. Id. at 399. It is only the rare case which should be able to meet this high burden so as to accord proper

*14

respect to our system of justice through which a habeas applicant has already traveled and been granted numerous rights designed to protect the innocent from conviction. We should apply the same burden of proof to non-capital cases as we established for capital cases because the considerations underlying confidence in the criminal trial and the respect due to finality of judgments must also apply in the non-capital setting. Therefore, to obtain post-conviction relief in a non-capital felony an individual should be required to show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof beyond a reasonable doubt. This should have been the standard set for applicant to meet in the instant case. Instead, the majority opts for a lower standard.

The majority then reviews the facts of the instant case in order to determine whether I. The majority relies extensively on Schilay v. (eds. 513 U.S. 298, 115 S.Ci. 851, 130 L.Ed. 28 808 (1995), in setting down the threshold standard to review applicant's claim of newly discovered evidence of his innocent. However, Schilay is distinguishable from the instant cases. In the instant cases, applicant contends that he is innocent because the key witness against him at trial, his son Robert, recaured his trial testimony at the writ hearing. Applicant's other son Richard also testified at the writ hearing to deny the offenses occurred. Applicant does not claim any constitutional violation aside from his day process rights which have been infringed upon because he has been incarcerated and deprived of his liberty for a crime which he claims that he did not commit. This is a claim of "bare innocent." Michael J. Muskat, Substantive Justice and State Interests in the Aftermath of Horrors v. Collins: Finding an Adequate Process for the Resolution of Bate Irresonance Claims Through State Postconviction Remedies. 75 TEX.L.REV. 131, at 133 (1996).

Schilay, on the other hand, involved a claim of "actual innocence," wherein a showing of innocence is used to bypass a procedural bar preventing consideration of a constitutional claim. Muskat, 75 TEX.L.REV., N.S. at 135. In Schilay, his "claim of innocence, ... is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his constitution that the ineffectiveness of his counsel, ... and the withholding of evidence by the application. ... derived him the full penalty of propositions offered to criminal defendants by the Constitution." Schilay, 513 U.S. at 314, 115 S.Ci. at 846, 130 L.Ed. 24 at 837. Schilay offered his claim of innocence only to obtain a post-convict- there is "clear and convincing evidence" in the record to "unquestionably establish" for them that applicant is innocent. ^[1] In doing so, the majority overlooks evidence that was presented at trial. In its opinion, the majority states there was a "complete lack of any other inculpatory evidence in the case, direct or circumstantial." The majority states, without citation of authority, that "we think" another jury hearing applicant's new evidence would would appiicant. Essentially, the majority thinks applicant is innocent, and has chosen to substitute that wholly subjective judgment for the judgment of the jury who convicted applicant. (Instead of precedent, authority, and stare doctor, the majority gives us an unsupported judgment call that they think applicant is innocent.)

There are two problems with the method by which the majority reaches this judgment. First, the majority's errs in concluding there was no other inculpatory evidence at trial. tion hearing of the merits of his constitutional claims by bringing him within the "narrow class of cases" which implicate a fundamental miscarriage of justice. Schilay, 513 U.S. at 313-16, 115 S.Ci. at 846-61, 130 L.Ed. 24 at 837-839.

Where an applicant pursuing a claim of "bare innocence," attempts to present newly discovered evidence that he alleges will prove his innocence, but does not attach the evidence to a constitutional violation that occurred at trial, the applicant is seeking "only a review of the notevidence, with the hope that the evidence will warrant post-conviction relief in the form of a vacation of his conviction." Muskat, 75 TEX. L.REV., at 133. This is the position advanced by applicant in the instant cases. The lack of a constitutional violation at trial is what distinguishes applicant's case from the applicant in Schilay.

The standards of review for evaluation these two distinct claims of innocence are not the same in the federal system. When a convicted person claims that he or she is "actually innocent," as the applicant did in Schilay, the standard closely appropriaten that used by most states when hearing a mission for new trial based on newly discovered evidence. Muskat, 75 TEX.L.REV., at 177-178. When a convicted person pursuits his or her claim of "bare innocence," an applicant did in the instant cases, the standard set by the Court in Horrors to hear such claims is higher. Muskat, 75 TEX.L.REV., at 178-179.

The majority's decision to lower the standard set down by this Court in Holmes will muddle, if not completely obliterate, the substantive distinction between a claim of "bare innocence" and a claim of "actual innocence."

EXP. T 7

EX PARTIE ELIZONDO Ctr. 24 WIT S.W.2d 202 (Tes.Cr.App. 1996) At trial, the State introduced an inappropriate note and drawing of a sexual nature done by Robert at school. Robert's stepmother testified that Robert told her that the sexual information he relied on to write and draw the note came from applicant and his natural mother. The police officer who spoke with Robert about the sexual abuse which he and his brother suffered at the hands of applicant and their natural mother also testified at trial. Robert's schoolteacher, in addition to his stepmother and the interviewing police officer, also testified at trial. This is definitely more than a complete lack of circumstantial or direct inculpatory evidence.

Second, the majority's decision to depart from the standard set by the Court in Horrers and adopted by this Court in Holmes for evaluating a claim of innocence casts doubt upon their decision. Under the Holmes standard this Court should determine whether based on the newly discovered evidence and the trial evidence, any rational trier of fact could find guilt beyond a reasonable doubt. See and compare Chambers v. State, 805 S.W.2d 459, 481 (Tes.Cr.App.1991); and Viliation v. State, 785 S.W.2d 180 (Tes.Cr. App.1990). This is a legal determination.

Applicant should have been required to show that based on the newly discovered evidence offered at his writ hearing, Robert's recantation of his trial testimony and Richard's testimony at his writ hearing that the offenses did not come, and based on the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.

Unlike the majority's conclusion, the evidence at trial was sufficient to support applicant's conviction and consisted primarily of Robert's testimony. The newly discovered evidence simply conflicts with that evidence. Since we, as the reviewing court, must presume a hypothetical fury would resolve all conflicts in favor of its verdict, a rational trier of fact could find proof of applicant's guilt beyond a reasonable doubt based on Robert's testimony at trial. That another factfinder, the habeas court or the majority in its position as thirteenth juror, believes testimony from Robert almost eleven years after the date of the trial and thinks appli- cant could be innocent, does not invalidate the original jury's verdict.

In Holmes, this Court adopted a burden of proof based on the sufficiency review of Jackson v. Virginia, 443 U.S. 307, 96 S.Ct. 2781, 61 L.Ed. 24 585 (1979). Therefore, like an appellate court reviewing sufficiency of the evidence, this Court should have reviewed the newly discovered evidence and the evidence presented at trial to decide whether based on all of that evidence no rational trier of fact could find proof beyond a reasonable doubt. In Jackson v. Virginia, the Supreme Court emphasized that appellate review of the sufficiency of the evidence does not mean the appellate court should ask itself whether believes the evidence established guilt beyond a reasonable doubt. Unfortunately, today, the majority chooses to cast aside precedent and stare doctor, so that it may undertake the type of review devoted in Jackson v. Virginia.

Because a rational trier of fact could choose to believe the testimony presented at trial rather than the testimony presented at the writ hearing, I would have concluded applicant has not met his burden to be entitled to relief on his claim of innocence. Bev. cases the majority reaches an opposite conclusion, I dissent.

McCORMICK, P.J., and KELLER, J., join this dissent.

WOMACK, Justice, dissenting on State's Motion for Rehearing.

In this case a bare majority extended Holmes v. Third District Court of Appeals, 865 S.W.2d 389 (Tes.Cr.App.1994), to noncapital cases, lowered the burden of proof, and apparently allowed a petitioner to get relief from his sentence if he can get a witness to recant. None of this is required for the precedents cited. These are very bad policies as well.

To begin with, Holmes was decided on very shaky ground. In saying that habeas corpus is available for a claim of newlydiscovered evidence of innocence in a capital case, Holmes purported to follow Horrors v. Collins, 606 U.S. 390, 113 S.Ct. 858, 122 L.Ed. 28 203 (1993). The holdings of that

*15

case were: (1) Federal habeas corpus is not available for a claim of newly discovered evidence of innocence in the absence of a violation of constitutionally-required procedures. To require a new trial simply because a jury might acquit in light of the new evidence would not clearly produce a more reliable result, since the passage of time only diminishes the reliability of criminal adjudications. (2) Texas's 80 -day limit to move for new trial on newly discovered evidence does not deny due process. (3) Executive clemen. cy is the traditional "tail safe" remedy for late evidence of innocence. (4) Even if it were assumed for the sake of argument that a truly persuasive demonstration of actual innocence would render an execution unconstitutional so that federal habeas corpus would lie, Herrera's evidence fell far short of the extraordinarily high threshold showing that would be required. (Herrera's evidence was two witnesses who said that Herrera's insidien...now dead, had admitted committing the crime.)

This is mighty this: sand on which to erect the holding of Holmes that due process (not the Cruel and Unusual Punishment Clause) would be violated by the execution of an innocent defendant, and that state habeas corpus will lie to permit a defendant to present newly discovered evidence of innocence. And it is no support at all for the holdings in this case that due process is violated by the confinement of an innocent defendant, that post-conviction habeas corpus is available to correct errors of fact, that the defendant must prove his claim by no more than clear and convincing evidence, and that the evidence of a recanting witness might be sufficient. ^[1]

If rehearsing is denied, a convicted defendant in every criminal case (if it a due process problem, there is no reason to limit it to felonies or to sentences of confinement), will now be allowed and encouraged to pursue the witnesses and get them to recant. If he does so, he can reiltigate his case forever. And all this is supposed to be based on Herrera, where the Court said that habeas corpus was not available because, "Dice process does

What could be weaker than the evidence of a recanting witness, whose testimony is always, not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.' Puttesum v. New York, 452 U.S. 197, 268, 97 S.Ct. 2319, 2328, 53 L.Ed. 24281 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law."

I vote to grant rehearsing to reconsider the revolutionary and unwarranted procedure that this case has created.

McCORMICK, P.J., and RELLER and HOLLAND, JJ., join this dissent.

Ex parte James Carl Lee DAVIS. No. 72247. Court of Criminal Appeals of Texas, Es Banc.

Dec. 18, 1996. Bebearing Denied March 19, 1997. Petitioner sought habeas corpus relief from conviction and death sentence, challenging Code of Criminal Procedure provision which imposed restrictions on subsequent applications for habeas corpus. The Court of Criminal Appeals, Overstreet, J., held that: (1) statute did not violate separation of powers clause; (2) rights to habeas corpus relief were not unconstitutionally suspended; (3) statute was not ex post facto law; (4) statute was not unconstitutional retroactive law; (5) statute did not violate equal protection; (6) statute did not violate due process; (7) petitioner received effective assistance of counsel; and (8) statute did not violate open courts provision.

Application dismissed; stay of execution vacated. The last time I was on the witness stand I didn't tell the truth"?

Ex parte James Carl Lee DAVIS. No. 72247. Court of Criminal Appeals of Texas, Es Banc.

Application dismissed; stay of execution vacated. The last time I was on the witness stand I didn't tell the truth"?

Constitutional Law $σ = 199$

Habeas Corpus $σ = 205$ Statute which imposed restrictions on subsequent applications for habeas corpus did not operate as ex post facto law; it did not punish as crime act previously committed which was innocent when done, change punishment and inflict greater punishment than law attached to criminal offense when committed, or deprives person charged with crime of any defense available when offense was committed. Vernon's Ann.Texas Const. Art. 1, § 16; Vernon's Ann.Texas C.C.P. art. 11.071.

6. Constitutional Law $σ = 197$

Under Texas or United States constitutional analysis, "ex post facto law" punishes as crime an act previously committed which was innocent when done; changes punishment and inflicts greater punishment than law attached to criminal offense when committed; or deprives person charged with crime of any defense available at time art was committed. U.S.C.A. Const. Art. 1, § 9, cf. 3; Vernon's Ann.Texas Const. Art. 1, § 16; Vernon's Ann.Texas C.C.P. art. 11.071. See publication Words and Phrases for other judicial constructions and definitions.

7. Constitutional Law $σ = 191$

Habeas Corpus $σ = 205$ Code of Criminal Procedure provision which provided that court may not consider subsequent applications for writ of habeas corpus unless application contains sufficient specific facts to establish certain things was not unconstitutional retroactive law, as provision was procedural. - Vernon's Ann.Texas Const. Art. 1, § 16; Vernon's Ann.Texas C.C.P. art. 11.071.

8. Constitutional Law $σ = 250.5$

Habeas Corpus $σ = 205$ Code of Criminal Procedure provision which provided that court may not consider subsequent applications for writ of habeas corpus unless application contains sufficient specific facts to establish certain things did not violate equal protection clauses, despite argument that one provision was being ap-

*16

*17 (70 S.W. 3d 866) In his application for a writ of habeas corpus, applicant alleges twenty points of ( 70 S.W. 3d 867) constitutional error in his conviction, his capital murder under Texas Penal Code, Seldona 10.02.601) and 18.03.605). This Court ordered points 13, 14, 15, and 17 files and set for submission. 1 Bectscre we agree that the credibility of the State's only eyewitness, Anita Hanson, was a crucial issue in applicant's trial, we conclude that the State had an affirmative constitutional duty under Brady v. Maryland 2 to disclose material, asiliques that impetched her testimony. We further find that applicant has satisfied his burden of phrimal, by a preponderance of the evidence, the facts that enable him to habeas relief. Therefore, we 3 fend habeas relief.

In our published opinion on applicant's direct appeal from his capital murder conviction, 3 this Court described the key evidence at trial. We briefly reicite that evidence here.

A grand jury indicted applicant and three co-defendants (Michael) Stearnes, Lambert Wilson, and Rodney Childress) for the September 10, 1987-sapital murders of Napoleon Ellison, Quinnie Smith, and Vixien Webb. 4 Mr . Ellison allegedly worked for applicant, dealing cocaine that applicant smuggled into Lubbock; 5 dis. Smith and Ms. Webb were members of Ellison's household. The co-defendants were also separately, applicant 4860 trial first.

Anita Hanson, who claimed longtime association with applicant, was the State's star witness. Ms. Hanson provided crucial eyewitness testimony regarding applicant's ( 70 S.W. 3d 868) participation in the murders. She testified to attending a September 1 th party with applicant and Lambert Wilson at a mutual friend's home in Lubbock. While there, tafé overheard applicant 165 Mr . Wilson that he planned to kill Webb and Ellison, it and that Wilson applied to participate in the killing if applicant paid him to do so.

Ms. Hanson testified that Wilson and Michael Stearnes picked her up in a car at a Lubbock park around 12:30 a.m. on September 10, 1987. They drove to Ellison's residence, Wilson, the driver, parked the car about two blocks away. Wilson, and Mr. Stearnes left Hanson in the car and walked quickly toepoll the residence. Wilson carried an UW machine gun, and Stearnes carried a shotgun. Hanson testified that she believed Wilson and Stearnes intended only to fightten Ellison.

Hanson waited in the car for approximately twelth. Tonsules before deciding to walk to Ellison's residence herself. She heard "a loud boom" when she reached Ellison's druseway, and she ran inside the house. There she saw applicant, Wilson, Stearnes, Mr. Childress, and Napoleon Ellison. Ellison was clumped in a chair with his head down, and there was blood on him. Hanson testified that applicant carried a pistol, Childress had a shotgun, and Wilson still carried an Usi. Applicant and Wilson both were rubber gloves. Mr. Childress said Hanson that applicant had forced him to kill Webb. Ellison then raised his head and asked Hanson to help him. Hanson asked applicant, who appeared to be in charge, whether she could telephone $#$ chapter, but he said no. Applicant then took the Usi from Wilson, handed it to Hanson, and ordered him to shoot Ellison. Hanson testified that applicant threatened to kill her if she did not. Hanson complied, firing three shots into Ellison. Applicant then instructed Wilson to remove some "drugs" from a cabinet beneath the kitchen sink, and Wilson did so. Shortly thereafter, Hanson left the residence with Wilson and Stearnes. ? (70 S.W. 3d 868) Webb, Smith, and Ellison were found dead in the Ellison residence on the afternoon of September 10. A forensic pathologist testified that all of the victims died of multiple gunshot

TDC2005 © 2015 Mathow Beniter &; Company, Inc., a member of the Lifebuck Group. All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Mathow Beniter Master Agreement. wounds. A search of the residence revealed two plastic bags of marijuana, two shotgun shells, several nine-millimeter shell casings, and some pholography of applicant. A Department of Public Safety firearms examiner testified that all of the nine-millimeter shell casing came from the same weapon and that the weapon could have been an Usi machine gun. An anonymous telephone call brought Hanson's possible knowledge of the murders to the attention of the District Attorney's Office. Police detective/accidiered Hanson, and an September 10, 1987 she gave her first of six sworn statements regarding 869 murders. The District Attorney's Office placed Hanson under "protective custody" as a material religious beginning shortly after her first statement. By October 15, 1987 Hanson had identified herself as a participant, having sworn that she fired three bullets from an Usi machine gun into Napoleon ( 869) Nonetheless, Hanson remained unindicted and in protective custody in various locations around Subotica for approximately a year, until she testified at applicant's trial in late September 1988. A wealthy spatial composed of two Lubbock police officers per shift 8 watched over Hanson twenty-four hours a day. After she testified at applicant's trial, Hanson received a $$ 4, 000$ relocation allowance from the District Attorney's Office.

Applicant stood trial in the Tibol District Court of Lubbock County in late September and early October of 1988. 9 A jury found him guilty as a party 10 , to the capital murder of three individuals during a single criminal transaction and answered all punishment questions affirmatively. The trial judge sentenced applicant to death. Direct appeal of Big Court was automatic under Article 37.071(3)(h). 11 We affirmed the trial court's judgement and segalition. 12

Applicant's co-defendants fared significantly better. Michael Stearnes was acquitted 13 in 1990 after a bench trial in which his defense counsel fated, pigeached Anita Hanson's credibility, confronting her with her prior inconsistent sworn statements and adding her admission, to having tied under oath. During Lambert Wilson's subsequent jury trial, 486 Hanson admitted that she had not ( 70 S.W. 3d 870) always told the truth while testfying in Midwinter Stearnes' trial. The jury in Mr. Wilson's trial deliberated for merely two hours before returning the "not guilty" verdict. 14 Rodney Childress never stood trial for the murders. On the State's midlent day trial court dismissed the indictment against Mr. Childress, finding that the evidence was insufficient to sustain a conviction, even though Hanson had named Childress as Visier Webb's actual kitiel. 15

Applicant filed his present application for a written habeas corpus. After a fifteen-day habeas hearing, the trial court entered extensive factual findings that are supported by the habeas record transmitted to this Court.

To prevail upon a post-conviction writ of habrsel corpus, applicant bears the burden of proving, by a preponderance of the evidence, the facts that would enable him to relief. 16 Where, as here, the applicant claims that the prosecution suppressed glucupatory evidence and thereby violated his right to that process, 17 applicant must satisfy a threedemergent test. 18 Applicant must first show that the State 18 failed to disclose evidence, regardless of the prosecution's good or bad faith. 20 He must then show that the whithed evidence is favorable to applicant. 21 Finally, the applicant must show that the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. 22 As in any habeas proceeding, the applicant must prove the constitutional violation and his entitlement to habeas relief by a preponderance of the evidence. (70 S.W. 3d 871) III. Applicant complains that the District Attomey fated, to disclose the existence of a diary held by Tanya Goldston, formerly a police officer with the Lubbock Police Department, which would have provided

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the defense team with powerful impeachment evidence against the State's only eyewitness, Anita Hanson. Applicant further contends that, with the credibility of the State's star witness thus compromised, there is a reasonable probability that the jury would not have convicted applicant. Officer Goldston, who did not testify at applicant's capital murder trial, served on Hanson's security detail and maintained a diary or log of the time and spent guarding Hanson. At the habeas hearing, Officer Goldston identified a copy of her original diary and testified that in late April or early May of 1988, she gave the diary to then-Aussland Chief of Police, Michael Huffman, at Huffman's request. Assistant Chief Huffman 23 identified a memorandum regarding Goldston's diary that he prepared and sent to the District Attorney, along with the dary-on May 10, 1989. Although applicant's trial did not begin until September 6, 1988, some three months later, members of the prosecution team testified at the habeas hearing that they had not seen the diary, nor were they aware that it existed. 24 The dary was found in applicant's file at the District Attorney's Office, however, at some point after applicant's conviction. Based on this and other testimony, the habeas judge found that Officer Goldston's dary was not discussed to applicant's defense team. Although we are not bound to follow the habeas judge's findings of fact, 25 we find that the record amounts his findings. Accordingly, we find that applicant has met the first of the three required facts for habeas relief.

Applicant must also show that the dary consiliated excupatory evidence. 26 After identifying her diary and affirming the truth of its contents, Officer Goldston testified that the State's star witness was not a truthful person and that she, Goldston, kept the log to protect herself from any false accusations or complaints Hanson might make about her, an Henson had made such complaints about other officers who guarded her. 27 Goldston's diary identified fellow officers on the security detail (70 S.W.3d 872) and described her interactions with Hanson, as well as information other officers conveyed to her. Applicant's habeas counsel called five of the officers that Goldston's dary had identified as members of the protective detail and elicited each officer's opinion regarding Hanson's truthfulness.

Without exception, each officer testified that Hanson was not a truthful person. 28 Under Bagley, excupatory evidence includes inaplacemant evidence. 29 The five testimony of six law enforcement officers who had extensive personal contact with Hanson and were therefore in a position to form an opinion regarding her credibility was extremely powerful impeachment evidence. We find that the diary and the testimony it led to were favorable to applicant. Lastly, applicant must show that the evidence is audietia, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Applicant's habeas hearing spanned fifteen full days and illcluded testimony from forty-five witnesses. Among his many factual findings regarding applicant's claim, the habeas trial judge 30 determined that "there [was] no question but that by the time of applicant's trial Anita Hanson's credibility was a major issue in the case." 31 The habeas trial judge heard extensive testimony regarding Anita Hanson's credibility (or less thened), the State's knowledge of her credibility problems, the circumstances of her year secreted away in protective custody, and whether Hanson had agreed to testify against applicant in return for the District Attorney's explicit or implicit expense not to prosecute her for killing Napoleon Ellis. Anita Hanson's eyewitness testimony clearly was chycial to the State's capital murder case against applicant. Her account placed applicant at the murder scene at the time of the killings and assigned primary responsibility for the murders to applicant, whom Hanson claimed was in charge and ordered Hanson to shoot Ellison. She was the only eyewitness who notified to the actual killings and applicant's participation. The State's other witnessed established only that (i) inpatient possessed a motive to commit the murders and intended to act on that motive, and (ii) (70 S.W.3d 872) two witnesses had observed him firing a machine gun, 32 some prior date. 32 It was upon her testimony $15 C O 2023$ © 2015 Matthew Bender &; Company, Inc., a member of the L. B. St. John St. Louis, All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Matthew Bender Nation Agreement. that the jury convicted applicant of capital murder and sentenced him to death. Applicant's co-defendants, however, who were tried separately, were either acquitted or their inducements were dismissed as, over time, Anita Hanson's credibility was falsely impeached by her over-increasing number of self-admitted perjuctous statements, her story unravied entirely in subsequent trials. We find that applicant has demonstrated a reasonable probability that, had the Goldston dary been timely disclosed and the six law enforcement officers testified, Anita Hanson's credibility would have not only been impeached, but severely undermined. 32 Because her testimony was critical to the State's case, we agree with the habeas judge who concluded: "I find as a matter of law that the evidence would, in all likelihood, create the probability sufficient to undermine the confidence in the outcome of the proceeding." Accordingly, we grant relief on applicant's fourteenth constitutional claim and set aside the conviction. Applicant is remanded to the custody of the L. B. St. Louis County Sheriff to answer the indictment. Cochran, J. Delivered: March 13, 2002

Postpone

1 Applicant makes the following claims for relief. Applicant was denied his rights to a fair trial, to due process, and to due course of law, as such rights are guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 13 and 19 of the Texas Constitution, by [the State's] intentional elicitation of the perjured testimony of Anita Hanson, without whose testimony there would have been legally insufficient evidence. Applicant was denied his rights to a fair trial, to due process, and to due course of law as such are guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 13 and 19 of the Texas Constitution, by [the State's] suppression of material, excupatory evidence: the police diary of Officer Tenya Goldston. Applicant was denied his rights to a fair trial, to due process, and to due course of law as such are guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 13 and 19 of the Texas Constitution, by [the State's] suppression of material, excupatory evidence: the sworn statements of, Catry Mac Self and Larry Dunal Jones. Applicant was denied his rights to a fair trial, to due process, and to due course of law as such are guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States and Article 1, Sections 13 and 19 of the Texas Constitution, by [the State's] suppression of material, impeachment evidence: the First Amended Information against Charles Johnson for injury to a Child. 2 $373 U . S .83, 10 L . E d .24215, 83 S . C I .1194 (1983)$ . 3 Richardson v. State, 679 S.W.3d 874 (Tes. Chint. 280, 1993). 4 At the time of the offense, Texas Penal Code, 18.02 (e)(1) provided that "(e) person commits $11 C 2023$ © 2015 Matthew Bender &; Company, Inc., a member of the L. B. St. Louis St. Louis, All rights reserved. Use of this product is subject to the restrictions and terms and conditions of the Matthew Bender Nation Agreement.

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