I respectfully dissent because this Court's evolving "actual innocence" jurisprudence is irreconcilable with and has eviscerated most of this Court's decision in Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App. 1996).

To date, most "actual innocence" cases have involved an inmate, such as the one here, who has been found guilty beyond a reasonable doubt of committing some type of sexual offense against a child. It is undisputed in these cases that this inmate has been convicted according to due process of law and has been afforded the "unparalleled [constitutional] protections against convicting the innocent" at his error-free trial. See Herrera v. Collins, 506 U.S. 390, 398-400 (1993) and at 419-20 (O'Connor, J., concurring). Many years later this presumptively guilty inmate ⁽¹⁾ challenges his conviction on habeas corpus on the basis of newly discovered evidence (usually a recantation by the victim) which the inmate claims establishes his innocence.

Society has legitimate finality interests in this presumptively guilty inmate's error-free conviction, and courts should afford these finality interests great weight and respect in evaluating this inmate's free-standing "actual innocence" claim on habeas corpus many years after the fact. See Elizondo, 947 S.W.2d at 209 (conviction from an error-free trial is entitled to the "greatest respect"); Herrera, 506 U.S. at 400-04 and at 426 (O'Connor, J., concurring). These legitimate finality interests are especially important when one considers that the trial with all of its protections against convicting the innocent is the paramount event for determining, and is the most reliable indicator of, a defendant's guilt/innocence. See Herrera, 506 U.S. at 401 and at 419-20 (O'Connor, J., concurring). The passage of time does not enhance and may even diminish the reliability of criminal adjudications. See Herrera, 506 U.S. at 403. This Court's evolving "actual innocence" jurisprudence has not adequately taken these legitimate considerations into account.

This Court's "actual innocence" jurisprudence begins with the United States Supreme Court's decision in Herrera. Herrera wrestled with the question of whether a free-standing claim of actual innocence based on newly discovered evidence states a basis for federal habeas corpus relief. In an "assuming arguendo" opinion, the Court avoided that question altogether because the applicant in that case failed to make a persuasive showing of innocence. See Herrera, 506 U.S. at 417 and at 419-27 (O'Connor, J., concurring) (Court "assume[s] for the sake of argument" that free-standing claim of actual innocence is cognizable on habeas corpus), and at 427-30 (Scalia, J., concurring) (no legal error "in deciding a case by assuming, arguendo, that an asserted constitutional right exists").

It is very significant that, in deciding whether the applicant made a persuasive showing of innocence, the Supreme Court in Herrera considered it necessary to independently evaluate applicant's new evidence and the evidence at his trial. See Herrera, 506 U.S. at 398 (applicant's actual innocence claim "must be evaluated in the light of the previous proceedings in [the] case, which have stretched over a span of 10 years") and at 418 (considering applicant's new evidence "in light of the proof of [his] guilt at trial") and at 421-24 (O'Connor, J., concurring) (same). The Supreme Court did not leave it solely to the lower courts to perform this task. See Herrera, 506 U.S. at 398, 418 and at 421-24 (O'Connor, J., concurring).

This Court's decision in Holmes v. Court of Appeals is the first of our actual innocence habeas corpus cases to hold that a free-standing claim of actual innocence is cognizable on state habeas corpus in death penalty cases. See Holmes v. Court of Appeals, 885 S.W.2d 389, 397-98 (Tex.Cr.App. 1994). ⁽²⁾ It is significant that Holmes relied heavily on Herrera where the Supreme Court itself independently evaluated the applicant's new evidence and the evidence at his trial. See Herrera, 506 U.S. at 398.

This Court's decision in Ex parte Elizondo (a sexual offense against a child case) extended the holding in Holmes to nondeath penalty cases. See Ex parte Elizondo, 947 S.W.2d 202, 204-05 (Tex.Cr.App. 1996). But, disregarding stare decisis principles, Elizondo rejected the standard that the Court had recently adopted in Holmes, by which courts (including this Court) should evaluate freestanding claims of actual innocence. See Elizondo, 947 S.W.2d at 205-07. The Holmes standard that Elizondo rejected was essentially the Jackson v. Virginia ⁽³⁾ sufficiency standard which Elizondo mistakenly claimed was an impossible standard to meet in cases like this. ⁽⁴⁾ See Elizondo, 947 S.W.2d at 205-06 (rejecting the implication in Holmes that "actual innocence" test is met "only when newly discovered evidence renders the State's case legally or constitutionally insufficient for conviction"), and at 207 (acknowledging upon further reflection that the Jackson v. Virginia standard "is not a suitable standard").

Elizondo's new standard, however, still required a habeas applicant claiming actual innocence to make an exceedingly persuasive showing that unquestionably established his innocence and (consistent with Herrera) Elizondo still recognized society's valid finality interests in a constitutionally error-free conviction (which Elizondo said was "entitled to the greatest respect"). See Elizondo, 947 S.W.2d at 209. The most important thing about Elizondo is that (also consistent with Herrera) it required all courts reviewing actual innocence claims to "assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole" which necessarily involves weighing "such exculpatory evidence against the evidence of guilt adduced at trial." See Elizondo, 947 S.W.2d at 206; see also Herrera, 506 U.S. at 398 (actual innocence claims "must be evaluated in the light of the previous proceedings in the case"). And (also consistent with Herrera), this is exactly what this Court did in Elizondo. See Elizondo, 947 S.W.2d at 209-10 (this Court weighed the newly discovered evidence with the evidence presented at trial); see also Herrera, 506 U.S. at 418-19.

The next significant decision in our actual innocence jurisprudence is this Court's decision in Ex parte Tuley (a sexual offense against a child case). ⁽⁵⁾ In Tuley, the complainant testified at trial that the habeas applicant sexually assaulted her several times. ⁽⁶⁾ The habeas applicant was convicted of the offense beyond a reasonable doubt (based on a guilty plea while his jury was deadlocked on guilt/innocence). ⁽⁷⁾ Many years later, the complainant recanted her trial testimony. ⁽⁸⁾ The applicant filed a habeas corpus application claiming that the complainant's recantation was new evidence that established his innocence. ⁽⁹⁾ The habeas court weighed the habeas applicant's new evidence of innocence against the evidence of his guilt at trial and recommended that this Court grant applicant relief on his actual innocence claim. ⁽¹⁰⁾ This Court granted applicant relief on this claim without independently examining applicant's new evidence and the evidence at his trial, contrary to Elizondo and Herrera. ⁽¹¹⁾

The next significant decision in our actual innocence jurisprudence is this Court's decision in Ex parte Harmon (another sexual offense against a child case). ⁽¹²⁾ That case was like Tuley except that the habeas applicant was convicted by a jury. ⁽¹³⁾ But this time the Court granted applicant relief on his actual innocence claim without a clear indication that any court (this Court or the habeas court) independently examined applicant's new evidence and the evidence at his trial, contrary to Elizondo, Herrera and Tuley.

The Court's current view on its evolutionary continuum of its "actual innocence" jurisprudence seems to be that freestanding actual innocence habeas claims are like other habeas claims (in which this Court defers to the habeas court's findings that the record supports) and that this Court's only role is simply to determine whether the habeas record supports the habeas court's finding that the victim's recantation is credible. This view, however, ignores the jurisprudential foundation of Elizondo (i.e., the Supreme Court's decision in Herrera) and it is plainly inconsistent with what Elizondo, 947 S.W.2d at 206, actually says:

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 [ ⁽¹⁴⁾] task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, we [ ⁽¹⁵⁾] must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial. ...

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. It 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 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 [on retrial]." ...[ ⁽¹⁶⁾]

The Court's current view that its only role in reviewing Elizondo claims is to determine whether the habeas record supports the habeas court's finding that the victim's recantation is credible ignores the fact that the record also supports the other factfinder's (i.e., the jury's) verdict in applicant's error-free trial, usually based on more than the testimony of the complaining witness. ⁽¹⁷⁾ These twelve factfinders heard live all of the evidence presented at the applicant's error-free trial during which they also observed the victim testify. After all of this, these twelve factfinders convicted the applicant beyond a reasonable doubt at this error-free trial which many consider to be the most reliable indicator of the applicant's guilt. See Herrera, 506 U.S. at 403-04 and at 419 (O'Connor, J., concurring). This finding that applicant is guilty is entitled to as much, if not more, deference than that afforded by this Court to the habeas court's findings many years after the fact. In treating Elizondo claims like other habeas claims, the Court shows no respect at all for an error-free conviction and transforms the applicant's error-free trial into an insignificant non-event. But see Herrera, 506 U.S. at 401 (the original trial is "a decisive and portentous event"); Elizondo, 947 S.W.2d at 202. In the final analysis, there really is no guarantee that the habeas determination of the applicant's guilt/innocence many years after the fact is any more reliable than the determination made at his error-free trial, and there is good reason to believe that the former is even less reliable than the latter. See Herrera, 506 U.S. at 401, 403 (passage of time only diminishes the reliability of later criminal adjudications).

No one disputes that our "actual innocence" habeas corpus jurisprudence is well-intended to prevent the imprisonment of innocent people. But good intentions are not enough. ⁽¹⁸⁾ Our current actual innocence habeas corpus jurisprudence is inconsistent with Herrera (which Holmes and Elizondo claimed to follow) as well as our decision in Elizondo requiring that all courts evaluate actual innocence claims by, at the very least, comparing and weighing the new evidence against the evidence at trial. See Herrera, 506 U.S. at 398 (evaluating applicant's actual innocence claim "in the light of the previous proceedings in [the] case, which have stretched over a span of 10 years").

By no longer requiring courts to do this, our current actual innocence habeas corpus jurisprudence ignores the most reliable indicator of guilt (the applicant's trial), affords no consideration whatsoever to society's legitimate finality interests and is contrary to Elizondo's claim that an error-free conviction is entitled to the greatest respect. See Elizondo, 947 S.W.2d at 209. This well-intentioned jurisprudence has evolved into a possible "get out of jail free card" for child molesters who pressure their victims to recant their trial testimony and persuade habeas courts to believe these recantations without any consideration of the evidence at trial. See Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting on reh'g) (an applicant is now "allowed and encouraged to pursue the witnesses and get them to recant" and "[w]hat could be weaker than the evidence of a recanting witness, whose testimony is always, 'The last time I was on the witness stand I didn't tell the truth'"?).

In this case, applying the plain holding of Elizondo by independently weighing the new evidence "against the evidence of guilt adduced at trial," ⁽¹⁹⁾ this Court should conclude that applicant has not met his burden of unquestionably establishing his innocence. ⁽²⁰⁾ The record reflects that applicant was convicted of aggravated sexual assault of a child in 1991 based in part on the complainant's trial testimony that applicant committed this offense during her visitation with applicant. Many years later in this habeas proceeding, the complainant recanted her trial testimony shortly after meeting with members of applicant's family.

The record from applicant's 1991 trial, however, reflects that the complainant's mother testified that, immediately following the visitation with applicant, the complainant complained "all night that night that her genitals were sore and that it hurt when she urinated." The complainant's mother also testified that, when she bathed the complainant, she noticed "her genital area was all irritated, sore-looking." She also testified that the five-year-old complainant exhibited "strange characteristics" such as masturbating and fondling herself:

Q. What was she doing?

A. She would place objects between her legs like toys, blankets, different things and it would appear to me she was masturbating.

Q. She would rub them between her legs?

A. Yes.

Q. Anything else she was doing that was unusual?

A. Fondling herself.

Q. Anything else you recall?

A. She would cry in the middle of the night for no reason, just cry for no reason. And I didn't understand why she was doing it.

Q. This was when visitation was still going on with [applicant]?

A. Yes.

None of this evidence was recanted at the writ hearing.

Applicant testified at the punishment phase of his 1991 trial. He admitted that he had received probation for "exposing his genitals"and that he had told the police that he had exposed himself on numerous occasions. More importantly, applicant admitted his guilt for this offense and specifically stated:

Q. You just told this jury that you were truly sorry for what happened, what you did to [the complainant], didn't you?

A. Yes, that's correct.

Q. And yet you just sat up there and said you have no love in your heart for [the complainant], didn't want to establish any sort of relationship with her and yet you were the one who victimized [the complainant], weren't you?

A. If I did have anything to do with my daughter, they would come back and say -

Q. That's not what I asked you, [applicant]. You were the one who victimized [the complainant], your five-year-old daughter at the time?

A. I want to plead the Fifth on that.

[THE COURT]: Answer the question.

[THE WITNESS]: Could she repeat it, please?

Q. You were the one who victimized your daughter when she was five years old and you just sat here and told the jury that you were truly sorry for what happened?

A. Yes.

An independent examination of applicant's trial record reveals that applicant has not met the Elizondo standard of unquestionably establishing his innocence of the offense for which he has previously been convicted beyond a reasonable doubt. I, therefore, respectfully dissent.

Hervey, J.

Filed: January 12, 2005

Publish

1. See Herrera, 506 U.S. at 399-400 (once "a defendant has been afforded a fair trial and convicted of the offense for which he has been charged, the presumption of innocence disappears," and, on habeas, this defendant "does not come before the Court as one who is 'innocent' but, on the contrary, as one who has been convicted by due process of law").

2. Holmes, however, misread Herrera as actually holding that federal due process required this. See id.; but see Herrera, 506 U.S. at 417 (very carefully pointing out that it was not deciding that question). The "assuming arguendo" opinion in Herrera made no such holding. Our Legislature, therefore, may alter this Court's decisions in Holmes and other "actual innocence" cases since it is clear that the holding in Holmes was by judicial fiat unsupported by any constitutional decision by the United States Supreme Court. See also Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting on reh'g) (holding in Holmes erected on "mighty thin sand").

3. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

4. In his dissenting opinion in Holmes, Judge Clinton claimed that the Jackson v. Virginia standard was an impossible burden for a habeas applicant claiming actual innocence to meet because "any evidence sufficient to support a jury's verdict beyond a reasonable doubt will also be sufficient to support a rational jury's guilty verdict even after adding the most compelling newly discovered evidence to the mix." See Holmes, 885 S.W.2d at 417 (Clinton, J., dissenting). This is incorrect under a proper application of the Jackson v. Virginia standard. See Johnson v. State, 23 S.W.3d 1, 15-16 (Tex.Cr.App. 2000) (McCormick, P.J., dissenting) (describing proper application of Jackson v. Virginia standard); cf. State v. Carmouche, 10 S.W.3d 323, 332-33 (Tex.Cr.App. 2000).

5. See Ex parte Tuley, 109 S.W.3d 388 (Tex.Cr.App. 2002).

6. See Tuley, 109 S.W.3d at 411-12 (Hervey, J., dissenting on reh'g).

7. See Tuley, 109 S.W.3d at 407-08, 410-11 (Hervey, J., dissenting on reh'g).

8. See Tuley, 109 S.W.3d at 419 (Hervey, J., dissenting on reh'g).

9. See Tuley, 109 S.W.3d at 419 (Hervey, J., dissenting on reh'g).

10. See Tuley, 109 S.W.3d at 424-34 (Hervey, J., dissenting on reh'g).

11. See Tuley, 109 S.W.3d at 409-10 (Hervey, J., dissenting on reh'g).

12. See Ex parte Harmon, 116 S.W.3d 778 (Tex.Cr.App. 2002).

13. See Harmon, 116 S.W.3d at 779 (Hervey, J., dissenting on reh'g).

14. Emphasis supplied.

15. Emphasis supplied.

16. This is very different from our usual role in other habeas cases.

17. This is the error-free trial that Elizondo states is entitled to the greatest respect. See Elizondo, 947 S.W.2d at 209.

18. As Winston Churchill said, "the road to hell is paved with good intentions."

19. See Elizondo, 947 S.W.2d at 206.

20. Before a habeas court may grant habeas relief on a freestanding actual innocence claim, Elizondo, 947 S.W.2d at 209, requires that the habeas court must be convinced that the applicant has met his burden to "unquestionably establish" his innocence:

This discussion makes clear that an exceedingly high standard applies to the assessment of claims of actual innocence that are not accompanied by a claim of constitutional error at trial. Where the trial has been constitutionally error-free, a conviction is entitled to the greatest respect. The habeas court must be convinced that the "new facts unquestionably establish [the applicant's] innocence."