Hervey, J., filed a dissenting opinion in which Keller, PJ., and Keasler, J., joined. Womack, J., joined Part II.

I respectfully dissent. Having failed to establish any error (constitutional or otherwise) in connection with his original guilty plea and conviction at which time he was afforded the awesome constitutional protections guaranteed to those accused of crimes, applicant bears an extremely heavy burden of establishing his right to habeas corpus relief five years after he voluntarily confessed his guilt. I would hold that applicant has not met this burden.

I. Court’s Holding Is Unnecessarily Broad

Applicant presents a free-standing claim of actual innocence under our decision in Ex parte Elizondo, 947 S.W.2d 202, 206-09 (Tex.Cr.App. 1996). In Elizondo, we explained our task in evaluating actual innocence claims:

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, our 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 exculpatory evidence against the evidence of guilt adduced at trial.

See Elizondo, 947 S.W.2d at 206 (emphasis supplied). We reaffirmed this very standard in our more recent decision in Ex parte Franklin, 72 S.W.3d 671, 677 (Tex.Cr.App. 2002).

Applicant contends that newly discovered evidence establishes his innocence, so he should be allowed to take back his admission of guilt. The State argues, among other things, that allowing applicant to do this would disrupt the administration of justice in future habeas corpus cases by encouraging guilty-pleading defendants to collaterally attack their pleas “so long as [they] can provide some evidence to show that [they are] actually innocent and provide an excuse for having pled guilty.” The State claims that, since many convictions result from guilty pleas, this could clog the courts with meritless actual innocence claims from guilty-pleading defendants. The State also claims that Elizondo cannot even apply to guilty-pleading defendants because it would be impossible to fulfill Elizondo’s requirement to weigh an applicant’s newly discovered evidence “against the evidence of guilt adduced at trial” since there was no trial. See Elizondo, 947 S.W.2d at 206.

Applicant responds that this Court can grant habeas corpus relief to him in an opinion limited to the “exceptional set of circumstances” presented by this case. The “exceptional set of circumstances” to which applicant refers is the existence of a record from applicant’s 1997 trial that resulted in a hung jury. Applicant asserts that this distinguishes his case from most other cases involving convictions from guilty pleas. Applicant asserts:

At the outset, counsel for Applicant will acknowledge that he admittedly seeks to confine the parameters of this Court’s inquiry to the unique circumstances of the instant case. The reason for Counsel’s desire to do so is simple–for if the Court’s inquiry is put generally (i.e., Can a habeas applicant who has pled guilty and waived a jury still avail himself of the relief afforded under Elizondo?), the answer to the inquiry must always be “No.” The reason for this answer is most readily apparent from the above cited portions of Franklin and Elizondo. Simply put, the habeas court’s “weighing” of the newly discovered exculpatory evidence against the evidence of guilt adduced at trial is at the very heart of the Elizondo analysis. Absent a record with which to conduct this weighing of exculpatory evidence against the evidence of guilt, a habeas applicant simply cannot provide the very substance which is at the heart of the Elizondo inquiry. Thus, as Applicant previously asserted, it is certain that had there existed only Applicant’s plea colloquy in the instant case, Applicant would not now be before this Court.

* * * * * * * * * * * * * * * * * * *

Applicant recognizes the concerns that the Court might have regarding the ramifications of granting Applicant’s writ on both this court’s past and future habeas jurisprudence. If this writ is granted, will Texas court’s (sic) face the specter of endless writs on grounds of actual innocence from those defendants who chose to enter guilty pleas? The answer to this is necessarily “No.” By its very nature, the instant case presents what can only be characterized as the most exceptional set of circumstances–namely, the existence of a full trial transcript in conjunction with a guilty plea. As Applicant has detailed previously, Applicant’s writ, and the process through which the habeas court analyzed it prior to making its recommendation, simply does not deviate from the standard articulated in Elizondo. Thus, Applicant’s case, as an anomaly, will hold little if any precedential value upon which to support a claim that relief under Elizondo may be maintained on a guilty plea alone.

(Emphasis in Original).

Both parties, therefore, agree that a broad decision, such as the one the Court makes here, that apparently permits a habeas corpus applicant to raise an Elizondo claim “on a guilty plea alone” could adversely impact the administration of justice in future habeas cases. The Court can and should dispose of this particular case by exercising restraint and limiting its decision to the “exceptional set of circumstances” presented by this case “namely, the existence of a full trial transcript in conjunction with [applicant’s] guilty plea.”

II. Applicant’s Remedy Is Executive Clemency

I would decide, however, that Elizondo should not be extended to an applicant whose conviction rests on a legally valid and voluntary guilty plea that years later the applicant claims was a lie and wants to take back. In evaluating applicant’s claim of actual innocence, we have to recognize that applicant freely and voluntarily confessed his guilt to the offense of aggravated sexual assault. The habeas court and the parties also recognize that applicant’s voluntary admission of guilt presents a significant obstacle to obtaining habeas corpus relief and disregarding society’s valid finality concerns. See United States v. Timmreck, 99 S.Ct. 2085, 2087-88 (1979). Applicant claims, however, that it should make no difference whether he “arrived in prison through his own false guilty plea” because the “overriding remedial goal” of the judiciary should now be to release this self-admitted perjurer from prison.

By its very terms, however, Elizondo is limited to cases where an applicant has pled not guilty and is convicted after a trial. Elizondo was an extremely controversial decision and it is still subject to reasonable debate whether an applicant, who pleads not guilty, should be permitted to raise a free-standing claim of actual innocence on habeas corpus. See Franklin, 72 S.W.3d at 678- 79 (Womack, J., concurring); Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting) (Elizondo’s “revolutionary and unwarranted procedure”rests on “mighty thin sand”); cf. Herrera v. Collins, 113 S.Ct. 853, 859-62 (1993) (free-standing claims of actual innocence “have never been held to state a ground for federal habeas corpus relief” in part because “there is no guarantee that the guilt or innocence determination would be any more exact” on habeas corpus than it was at trial).

An applicant who pleads guilty stands on a different plain. A legally valid guilty plea is a significant event in the criminal process. See McGlothlin v. State, 896 S.W.2d 183, 190 (Tex.Cr.App.) (Meyers, J., dissenting), cert. denied, 116 S.Ct. 219 (1995). It “is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” Menna v. New York, 96 S.Ct. 241, 242 n.2 (1975) (emphasis in original); see generally, Tollett v. Henderson, 93 S.Ct. 1602 (1973); Brady v. United States, 90 S.Ct. 1463 (1970); Parker v. North Carolina, 90 S.Ct. 1458 (1970); McMann v. Richardson, 90 S.Ct. 1441 (1970).

Important reasons exist for treating an applicant, who claims to have falsely pled guilty, differently from an applicant who pleads not guilty and then is convicted after a trial. The applicant in this case admits to having made what he characterizes as a “false guilty plea” for which he received a bargained-for benefit of deferred adjudication. Applicant accepted the benefits of this bargain and later violated the law resulting in an adjudication of his guilt for the aggravated sexual assault offense. Applicant now claims that he is innocent and he wishes to take back his “false guilty plea.”

This conduct compromises the integrity of the judicial process. Notwithstanding applicant’s reasons for making what he claims was the difficult decision to falsely plead guilty, the fact remains that, if applicant is now to be believed, he still committed perjury by falsely pleading guilty. See Leday v. State, 983 S.W.2d 713, 732 (Tex.Cr.App. 1998) (McCormick, P.J., dissenting) (Constitution does not guarantee us the freedom from making difficult choices). Under these circumstances, I would hold that applicant has exhausted his remedies through the judicial process and that his remedy is to seek executive clemency. See Texas Administrative Code, Title 37, Section 143.2 (West 2002) (procedures for obtaining pardons for innocence); cf. Herrera, 113 S.Ct. at 866-69 (executive clemency “is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted”).

III. Applicant Not Entitled To Habeas Corpus Relief Under Elizondo

Applicant asserts that even though he has compromised the judicial process with his false guilty plea, the judicial process would be even more compromised by the continued incarceration of an innocent person. Applicant claims that he has “unquestionably establish[ed]” his innocence under Elizondo. See Elizondo, 947 S.W.2d at 209.

The habeas record does not include the reporter’s record from applicant’s 1997 trial even though it appears from our review of the habeas court’s findings that the habeas court reviewed that record in making its recommendations to this Court. Without an adequate record this Court is prevented from weighing applicant’s exculpatory evidence against the evidence of guilt adduced at trial which applicant acknowledges “is at the very heart of the Elizondo analysis.” See Franklin, 73 S.W.3d at 677; Elizondo, 947 S.W.2d at 206.

In Elizondo, we held that a habeas corpus applicant has the burden to “unquestionably establish” factual innocence. See Elizondo, 947 S.W.2d at 209. At this point in the judicial process, it is not enough for an applicant to raise some doubt (or even a reasonable doubt) about his guilt. See id. (an exceedingly high standard applies to the assessment of actual innocence claims on habeas corpus). Applicant’s “new” evidence of innocence essentially boils down to the affidavits (attached to applicant’s habeas corpus application) of three witnesses who, after remaining silent with information of applicant’s “innocence” for five years, have now come forward to say that the complainant falsely accused applicant of raping her.

Applicant was the boyfriend of the complainant’s mother. The complainant asserts in an affidavit that “everything [she] testified to [at applicant’s 1997] trial was false.” The complainant also asserts in the affidavit that in 1996 she made an outcry statement to her mother accusing applicant of raping her. The complainant also asserts in the affidavit that she falsely accused applicant of raping her because applicant was physically abusive to her mother and it “seemed like a good way to get [applicant] out of [their] house.”

Yet we have no evidence from the complainant’s mother confirming the complainant’s stated motive (applicant’s abuse of the mother) for falsely accusing applicant of raping her. It also is significant that the complainant’s 1996 outcry statement to her mother was not overcome. This 1996 unrecanted outcry statement presumably was admitted at applicant’s 1997 trial, and the Legislature has determined that such an outcry statement is reliable evidence of guilt. See Article 38.072, Texas Code of Criminal Procedure. Also, as with any recanting witness, it is impossible to know with any certainty which of the complainant’s statements are true. See Elizondo, 947 S.W.2d at 216 n.1 (Womack, J., dissenting) (pointing out the weakness of the testimony of a recanting witness whose testimony is always the “last time I was on the witness stand I didn’t tell the truth”).

The complainant’s former boyfriend also filed an affidavit in which he asserts that the complainant told him in 1996 that she had falsely accused applicant. The former boyfriend also asserts in the affidavit that he conveyed this information to applicant’s retained lawyer during applicant’s 1997 trial but that “for some reason” applicant’s lawyer did not ask him about it when the former boyfriend testified at applicant’s 1997 trial. This portion of the former boyfriend’s affidavit asserts:

I attended [applicant’s] trial, and continued to try and talk [the complainant] out of going ahead with it. After sitting through some of the trial though, I decided that I should say something. During one of the breaks, I told [applicant’s] attorney what [the complainant] had told me. The attorney told me that he wanted me to testify, and that he would see if I still could. [Applicant’s] attorney put me on the stand, but for some reason he never asked me about what [the complainant] had told me.

Applicant, however, has not produced any evidence from applicant’s trial counsel corroborating any of this or explaining why trial counsel declined to pursue a line of questioning at applicant’s 1997 trial that would have established applicant’s innocence.¹ Moreover, since the habeas record is silent on whether applicant’s trial counsel conveyed this information to applicant, we cannot know whether applicant’s evidence of “innocence” is “new.”

While applicant’s “new” evidence arguably raises some doubt about applicant’s guilt, it does not “unquestionably establish” his innocence. See Elizondo, 947 S.W.2d at 209. Applicant, therefore, is not entitled to habeas corpus relief.

I respectfully dissent.

Hervey, J.

Filed: December 18, 2002
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¹
The habeas record reflects that applicant also raised an ineffective assistance of counsel claim. According to the habeas court’s findings, however, trial counsel’s failure to question the former boyfriend on the subject of applicant’s innocence was not urged as a basis for applicant’s ineffective assistance of counsel claim.