Ex Parte Navarijo

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-79,286-01

EX PARTE FRANK NAVARIJO

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 98-CR-4635 IN THE 186 TH DISTRICT COURT

FROM BEXAR COUNTY

Alcala, J., delivered the opinion of the Court in which Keller, P.J., Meyers,

Keasler, Hervey, and Cochran, JJ., joined. Price, J., filed a concurring opinion.

Womack and Johnson, JJ., dissented.

O P I N I O N

To establish that he is actually innocent of an offense of which he has previously been

convicted, an individual seeking post-conviction relief on that basis must demonstrate by

clear and convincing evidence that no reasonable juror would have convicted him in light of

the new evidence. Although Frank Navarijo, applicant, has provided some new evidence in

support of his claim that he is actually innocent of the offense of aggravated sexual assault

of a child, we conclude that he has failed to meet this standard because his new exculpatory

evidence, which comes in the form of a recantation from the complainant some thirteen years

after his conviction, does not unquestionably establish his innocence when that evidence is

considered in light of other incriminating evidence in the record. Furthermore, although the

habeas court in this case determined that the complainant's recantation testimony was more

credible than her trial testimony and recommended granting relief on that basis, we disagree

with the habeas court's assessment that the matter of a recanting witness's credibility is the

sole deciding factor in an actual-innocence case, and we further disagree with its related

determination that applicant has unquestionably established his innocence under Ex parte

Elizondo , 947 S.W.2d 202 , 206, 209 (Tex. Crim. App. 1996). We exercise our authority to

reach the contrary conclusion, and, accordingly, deny relief. See Ex parte Reed , 271 S.W.3d

698, 727-28 (Tex. Crim. App. 2008).

I. Background

A. Trial Proceedings

In 1999, applicant was convicted of aggravated sexual assault of a child and sentenced

to twenty years' imprisonment. The complainant in the case was applicant's daughter, who

was five years old at the time of the outcry and seven years old at the time of applicant's jury

trial. At trial, the State presented evidence consisting of testimony from the complainant, in

which she stated that applicant had "hurt" her and gone "inside" her "private area," and

testimony from a medical expert stating that the complainant's genitals showed signs of

penetration. The defense presented evidence that included a videotape of a prior recantation

by the complainant to CPS several days after the initial outcry, in which she stated that she

"had told a lie" about the allegations because of pressure from her grandmother. The defense

additionally presented the testimony of thirteen witnesses, including the complainant's

mother and grandmother; applicant's medical doctor, who stated that applicant had been

diagnosed with prostate cancer and was likely impotent at the time of the offense; and several

of applicant's family members. The following is a summary of the relevant trial testimony:

• Complainant's testimony : The complainant testified that her father, applicant,

"hurt" her "a lot of times," "too many" times to count, and this occurred when she was

in her bedroom at their house. Applicant would take off her pajamas and "touch" her

"private parts." When asked how it felt when applicant "hurt" her, the complainant

said it felt "bad," "like if I fell down and hurt myself," "like a cut," or "like if I was

bleeding and it would sting." She stated that applicant touched her with his hands and

with a "pico," which she described as "a little sharp knife," but she also said that she

had never seen the "pico." She stated that applicant would go "a little bit in the

inside" of her private parts. She first told her grandmother what happened and later

she told "a lot of people," including social workers and counselors. When asked if

her grandmother or her mother had told her to lie about the allegations, she denied

that and said that her grandmother and mother "always said tell the truth."

On cross-examination, the complainant said she used to stay overnight at her

grandmother's house "a lot" and had been living with her ever since the outcry. She

agreed that her grandmother had never liked applicant and did not spend time with

him. She did not remember the day when she first told her grandmother that the abuse

had occurred. She recalled that the abuse happened "a lot of times" and that it would

occur at night after her mother went to sleep and applicant stayed awake watching

television. She stated that her mother had seen the abuse happening before. When

questioned about a prior recantation that occurred several days after the initial outcry,

she said she did not remember having recanted the allegations to an interviewer with

the Children's Advocacy Center, to whom she had indicated that her grandmother had

told her to lie and that the abuse never happened.

• Expert testimony of Dr. Nancy Kellogg: Dr. Kellogg, a medical doctor and medical

director of the Alamo Children's Advocacy Center, testified that she had examined

the complainant's genitals around three days after the initial outcry and detected signs

of repeated penetration. She stated that the complainant had "very little hymen" and

that the hymen was "worn away" to the point where the vagina had become "fully

visible," all of which was "highly consistent" with "repeated acts of penile vaginal

penetration. To be more specific, blunt penetrating trauma on a hard basis, to the

point where most of the hymen is gone." She stated that both the floor and bottom

of the complainant's vagina were visible. She explained that it was "very unusual"

to see that much vaginal tissue in a child of the complainant's age, and that sexual

abuse was "highly probable." She further stated that contact with a young child's

hymen is "sensitive" in terms of being "painful to touch," and she agreed that young

children often describe a rubbing force against the hymen as causing a "sharp pain."

She presented photographs to the jury comparing a "normal" hymen and the

complainant's hymen, which demonstrated that the complainant had "a lot less"

hymen than a "normal" five-year-old would have. She concluded that the results of

the examination were "abnormal" and stated that this degree of erosion of the hymen

was present in "fewer than ten percent" of the cases she had seen. She explained that

"there are different shapes of hymens" and that the attenuation of a hymen is a "form

of a scar" demonstrating evidence of "trauma." She opined that her findings were

"definitive" that sexual abuse had occurred and stated that, on a scale of one to ten,

"if the highest concern is ten, I felt she [the complainant] was [a] ten. I was very,

extremely concerned."

• Testimony of Paula Garza, complainant's grandmother: Garza was called to

testify by the defense. She identified applicant as her son-in-law, who was at that

time married to her daughter, Delia. She said she had "raised" the complainant in her

home "because her mother was working," and the complainant and her mother would

"come and go" from applicant's home. She reported that the complainant first made

an outcry to her in January 1998. She stated that, prior to that time, she had "noticed

that the child was sad. That she would come in from school and she would just lie on

the bed . . . and she would--she would be aggressive. She would say, 'Leave me

alone.'" Garza stated that she sat the complainant on her lap and asked her to tell her

what had happened so that she could "help" her. The complainant told Garza that

applicant "would put the pico in her private parts," and Garza then "realized that it

was no such pico, that it was the man's penis." The complainant also told Garza that

"when [the complainant] was crying on the bed, her mother would go to the door and

would turn around and would not do anything for her." The complainant also told

Garza that applicant put the "pico" in her rectum.

When asked whether she was motivated to testify because of her dislike of

applicant and her pursuit in civil court of custody of the complainant, Garza denied

that and answered, "I am only interested in . . . defend[ing] the child." She

acknowledged that she had never noticed any injuries on the complainant and that the

complainant never complained of any pain or injury. The complainant told Garza that

she would not cry during the incidents of abuse because applicant would tell her to

shut up. The complainant also told Garza that applicant had said the complainant's

vagina "belonged to him."

• Testimony of Dr. Paul Navar: Dr. Navar, director of the emergency department at

Sierra Medical Center in El Paso, provided expert testimony to rebut the testimony of

Dr. Kellogg. He stated that some children can sustain "straddle injuries," such as

bleeding or a laceration to the genital area, as a result of a playground fall or other

circumstances not involving sexual abuse. He explained that "the appearance of the

female genitalia and the appearance of the hymen, in particular, are just quite varied.

If you take several hundred children . . . you will see a number of different sizes and

shapes of the differing female anatomy." He described a finding of an attenuated

hymen as being a "nonspecific finding," which he described as "something that

happens in cases of sexual abuse, but it's also something that happens in normal

children." After reviewing the slides of the complainant's genital area, Dr. Navar

concluded that the "hymenal rim" was "a little bit thinner, what we call attenuated,

than most hymenal rims that you see. But that is not the definitive finding of sexual

assault, in that a thinning of the hymenal rim like this will occur in a small percentage

of normal children." He opined "that the findings in this case neither confirm nor

deny sexual abuse," but also cautioned that he had not been able to examine the

complainant personally and was limited to the information contained in the slides.

On cross-examination, Dr. Navar agreed with Dr. Kellogg's observation that

it was possible to see into the complainant's vagina and that this view would likely

be obscured by the hymen in a normal child. He conceded that a thin hymen is

present in many children who have been sexually abused. He acknowledged that the

condition of the complainant's hymen was present in more abused children than in

non-abused children, and he also acknowledged that a "straddle injury" cannot cause

thinning of the hymen. He observed that in a study comparing three groups of

children, the particular width of the complainant's hymen was present in around five

percent of "normal," non-abused children.

• Testimony of Amanda Way, CPS investigator : Amanda Way was the investigator

who initiated contact with the complainant following the outcry. Way visited the

complainant at her school on a Friday in 1998. Way spoke separately with the

complainant, her mother, and grandmother, all of whom were present at the school.

The complainant told Way at that time that applicant had hurt her in her private area.

Way set up a follow-up interview with the complainant at the Alamo Children's

Advocacy Center for the following Monday. The jury viewed the videotape of that

interview, during which the complainant told Way that her "grandma told a lie . . .

about my dad." In the video, she stated that she had lied "about my dad always

touching me right here [pointing to the genitals]. But he didn't." She stated that her

grandmother had "told me to say it," but "it was a lie." Way testified that she did not

believe the complainant's recantation because the complainant had been staying with

her mother over the weekend, and it was Way's belief, based on the demeanor of the

complainant during the interview, that the mother had pressured the complainant into

recanting. She stated that during the videotaped interview, the complainant was "very

quiet" and "nonresponsive." She stated that the complainant's mother was "resistant"

and "upset" at the time of the follow-up interview, and that the complainant had

indicated that it was her mother who told her that "grandma told a lie."

In addition to the testimony described above, applicant took the stand in his own

defense. He stated that Garza had always "hated" him and had told the complainant that he

was a "dirty old man." He suggested that Garza was responsible for fabricating the

allegations against him. Applicant further stated that he was diagnosed with prostate cancer

in 1997 and that, after having surgery to remove his prostate, he became impotent. His

medical doctor testified and corroborated applicant's statement that he had had his prostate

removed, but he did not conclusively state that this had resulted in impotence in applicant.

After hearing nearly two weeks of testimony, the jury found applicant guilty and

sentenced him to 20 years' imprisonment. Applicant's conviction was affirmed on direct

appeal. See Navarijo v. State , No. 04-99-00833-CR, 2001 WL 487959 (Tex. App.--San

Antonio May 9, 2001, pet. ref'd).

B. Habeas Proceedings

In July 2012, applicant filed the present application for a post-conviction writ of

habeas corpus, in which he alleges that he has newly available evidence of his innocence in

the form of a 2011 recantation from the complainant, who was by that time nineteen years

old. In support of his application, applicant filed affidavits from the complainant, his then

ex-wife Delia, and psychologist Dr. Joann Murphey, as well as several affidavits from jurors

stating that they would not have convicted him in light of the new evidence. Applicant

contends that the complainant's testimony was the "crucial evidence" against him at his jury

trial and that the new evidence of her recantation conclusively establishes his innocence. In

November 2012, the habeas court conducted a live hearing to receive testimony on

applicant's actual-innocence claim. At the hearing, the court heard testimony from the

complainant and Dr. Murphey, both of whom testified consistently with their affidavits.

The complainant testified that she is now living on her own, attending school, and

working. She told the court that she had not been pressured into recanting her trial testimony

and that her trial testimony was false. She explained that she had been influenced by her

grandmother, who "did not like men" and "hated" applicant. She stated that her grandmother

"essentially told [her] to tell these lies," and indicated that she was afraid her grandmother

would "discipline" her if she did not lie. When asked by applicant's counsel why she had

waited so long to come forward, the complainant stated that she "just wanted to set the record

straight." On cross-examination by the State, the complainant confirmed that she went to live

with her grandmother after the trial and lived with her until she was ten or eleven years old,

when she went to live with her mother. The State asked the complainant how much she

remembered from the relevant time period in the following exchange:

Q: I want to know how much you actually remember from back at that time.

Do you remember the Thursday when you told your grandmother, according

to the testimony at trial, that your father had touched you? Do you recall that

day?

A: No, I do not remember. I do not recall.

Q: Do you recall going to school the next day with your grandmother and then

her telling a school official and that's when counselors and CPS became

involved? Do you recall any of that?

A: No, I do not recall that.

Q: Do you recall going home with your mother for the weekend, right after this

happened, before the investigation started to take place? Do you recall that?

A: No.

Q: Do you recall going to talk to CPS on Monday morning?

A: I remember going to talk to CPS, but I'm not sure if it's that instance.

. . .

Q: Do you remember when you talked to CPS and you--they video recorded

it and that you wouldn't talk to CPS, that that was the time that you recanted

immediately after the weekend with your mother; do you recall that?

A: No, I do not recall.

Q: In fact, at trial, do you recall being questioned about that video?

A: Yes, I recall being in trial.

Q: Do you remember what your responses were at trial?

A: No.

. . .

Q: When your grandmother started this in your head, do you remember when

that was?

A: No, I don't--I don't remember.

Q: So you remember or you're testifying that you were not telling the truth and

that--but you don't remember her actually telling you that or--

A: I don't remember when it started, but it continued throughout me growing

up.

. . .

Q: So really, looking back, there's not a whole lot that you remember about

that incident; is that correct?

A: Yeah, that's correct.

. . .

Q: Do you recall there's some [testimony] that you actually had a discussion

about being sexually assaulted with your aunt even when you were three? Do

you have any memory of that?

A: No, I don't.

Q: So it would be fair to say that when you were five you probably had no

memory of that either?

A: Yeah, I believe I have no memory of that.

On re-direct examination, applicant's attorney asked the complainant if she "remembered

telling CPS that it didn't happen and then you ended up telling CPS that it did happen with

[applicant], right?" The complainant answered, "Yes."

In accordance with her 2012 affidavit, Dr. Murphey testified at the habeas hearing that

she had "a very in-depth" conversation with the complainant and that nothing the

complainant said gave her any concern about the existence of outside pressures to recant.

She further stated that the complainant had described herself as being "easily led" and agreed

that a person who is easily led could be influenced into recanting. She concluded that the

complainant's recantation is credible. Regarding how much of the surrounding events the

complainant remembers, Dr. Murphey stated that the complainant "does not remember much

about her father" and has "no recollection of interactions with CPS interviewers," but that

she does "recall[] clear memories of her grandmother coaching her to lie about her father." (1)

After the hearing, the habeas court adopted applicant's proposed findings of fact and

conclusions of law. In those findings, it found the complainant's recantation credible and

recommended that relief be granted, stating that it was applying this Court's opinion in Ex

parte Elizondo , 947 S.W.2d at 209. The habeas court's relevant fact findings state as

follows:

•In finding number two, the court states that it "observed the demeanor of [the

complainant] at the hearing and found [her] to be credible and believable in her

testimony." It found that the complainant "is now a mature 20-year-old adult (she was

five years old at the time of the outcry) and has been at college or in an apartment on

her own since the Fall of 2010."

•In finding number four, the court found that "over time when [the complainant] was

very young, her grandmother kept telling [her] that her dad touched [her] improperly.

Her grandmother eventually told [her] to tell the authorities that [her] dad had touched

[her] in her privates."

•In finding number five, the trial court found that the complainant "testified at the writ

hearing that these allegations were false and this Court finds that [she] was credible

and believable as a witness at the writ hearing regarding these allegations."

•In finding number seven, the court found that Dr. Murphey was "credible and

believable" and that Dr. Murphey is convinced that the complainant's recantation is

credible.

•The court ultimately found that the complainant's "recantation in this case is more

credible than was her trial testimony."

On the basis of these findings of fact, the habeas court concluded that the

complainant's "recantation is not implausible on its face" and that

another jury hearing the evidence, including the newly discovered mature

recantation of [the complainant's] juvenile testimony, would view the new

evidence as the more credible and would acquit the applicant. This is

especially true since [the complainant, in 1998] recanted her preliminary

allegation against the applicant and claimed that her grandmother forced her

to make the false claim against the applicant.

The habeas court further concluded that the complainant's "recantation not only voids her

trial testimony which implicated the applicant, but constitutes affirmative evidence of

applicant's innocence. . . . This court is convinced by clear and convincing evidence that no

rational jury would convict the applicant in light of the new evidence[.]"

The judge at the habeas hearing was not the same judge who presided over applicant's

trial in 1999. The habeas court did not receive any testimony from the complainant's

grandmother or any new medical evidence. Although the trial record would have been

available, it is unclear whether the habeas court actually reviewed the trial record in this case

because its findings and conclusions do not address, in any detail, the evidence adduced at

trial or the probable impact of the newly discovered evidence upon the State's case as a

whole.

II. Applicant Has Failed to Demonstrate That He Is Actually Innocent

Although applicant has presented some new evidence of his innocence in the form of

a recantation from the complainant, we are not convinced that this evidence unquestionably

establishes his innocence when it is viewed in the broader context of the entire record,

including the evidence of applicant's guilt adduced at trial. After conducting the required

weighing of the new exculpatory evidence against the evidence of guilt adduced at trial, we

conclude that applicant has failed to establish by clear and convincing evidence that he is

actually innocent, that is, that no reasonable juror would have convicted him in light of the

new evidence. See Elizondo , 947 S.W.2d at 209.

A. Applicable Law for Actual-Innocence Claims

In Ex parte Elizondo , this Court held that a convicted individual is entitled to post-conviction relief on the basis of a due process violation if he can establish by "clear and

convincing evidence" that "no reasonable juror would have convicted him in light of the new

evidence." See id. at 209; see also Ex parte Brown , 205 S.W.3d 538, 544 (Tex. Crim. App.

2006) (stating standard for reviewing actual-innocence claims as being proof by "clear and

convincing evidence that, despite the evidence of guilt that supports the conviction, no

reasonable juror could have found the applicant guilty in light of the new evidence") (quoting

Ex parte Tuley , 109 S.W.3d 388, 392 (Tex. Crim. App. 2002)); Ex parte Thompson, 153

S.W.3d 416, 417 (Tex. Crim. App. 2005); Ex parte Harmon , 116 S.W.3d 778, 779 (Tex.

Crim. App. 2002). (2) In Elizondo , we further described a reviewing court's inquiry as

"decid[ing] whether the newly discovered evidence would have convinced the jury of

applicant's innocence." Elizondo , 947 S.W.2d at 207. To determine whether an applicant

has met this standard, the habeas court must "examine the new evidence in light of the

evidence presented at trial." Thompson , 153 S.W.3d at 417 . In Elizondo , this Court further

explained:

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.

Elizondo , 947 S.W.2d at 206; see also Ex parte Franklin , 72 S.W.3d 671, 677-78 (Tex. Crim.

App. 2002) (same). Relief is not warranted without an applicant having made an

"exceedingly persuasive case that he is actually innocent." Elizondo , 947 S.W.2d at 206; see

also id. at 209 (stating that, in case of freestanding claim of innocence, the habeas court

"must be convinced" that the new facts "unquestionably establish" the applicant's innocence;

"unquestionably establish" means same thing as by "clear and convincing" evidence).

On post-conviction review of an application for a writ of habeas corpus, the

convicting court is the original fact-finder, and this Court is the ultimate fact-finder. See Ex

parte Weinstein , 421 S.W.3d 656, 664 (Tex. Crim. App. 2014) (citing Ex parte Chavez , 371

S.W.3d 200, 207 (Tex. Crim. App. 2012)). This Court ordinarily defers to the habeas court's

fact findings, particularly those related to credibility and demeanor, when those findings are

supported by the record. Id . We similarly afford deference to the habeas court's rulings on

mixed questions of law and fact, if the resolution of those questions turns on an evaluation

of credibility and demeanor. Id . (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997)). On the other hand, "[w]hen our independent review of the record reveals that

the trial judge's findings and conclusions are not supported by the record, we may exercise

our authority to make contrary or alternative findings and conclusions." Ex parte Flores , 387

S.W.3d 626, 634-35 (Tex. Crim. App. 2012). We review de novo mixed questions of law

and fact that do not turn on an evaluation of credibility and demeanor. See Weinstein , 421

S.W.3d at 664 (citing Guzman , 955 S.W.2d at 89 ).

B. Complainant's Recantation Fails to Establish that No Reasonable Juror

Would Have Convicted Applicant in Light of Other Evidence

Applying the actual-innocence standard described above to the facts of this case, we

conclude that applicant has failed to meet that standard in light of (1) the lack of detail in the

complainant's recantation testimony at the habeas hearing and the jury's rejection of

evidence of the complainant's pre-trial recantation, and (2) the existence of inculpatory

medical testimony that has not been otherwise explained by the complainant's recantation.

We additionally explain that (3) even if we were to adopt the habeas court's assessment that

the complainant's habeas testimony is more credible than her trial testimony, that fact

finding, standing alone, would not compel granting relief under the applicable legal standard.

1. Lack of Detail in Habeas Recantation Evidence And Jury's Prior

Rejection of Pre-Trial Recantation Lessens Probable Impact Of New

Evidence

The habeas court based its assessment of the complainant's credibility on an

evaluation of her "demeanor" at the habeas hearing, on the fact that she "is now a mature 20-year-old adult" as opposed to a child, and on the fact that she is now "at college . . . [and] in

an apartment on her own" and no longer living with her mother or grandmother. The habeas

court also found that certain circumstances indicated that the complainant's trial testimony

may not have been truthful, including that the complainant's grandmother "manipulated and

threatened her into making the statement against the Applicant," that she had recanted the

allegations against applicant on a prior occasion, and that "suggestive" questioning

techniques may have "contaminated the investigation" in this case. On this basis, the habeas

court found that the complainant was a "credible and believable" witness at the time of her

recantation and that her recantation testimony was "more credible" than her trial testimony.

Given the lack of detail in the complainant's recantation testimony and her inability

to recall basic facts surrounding the sexual-assault allegations against applicant, we conclude

that her testimony fails to unquestionably establish applicant's innocence. See Elizondo , 947

S.W.2d at 206, 209. On the one hand, the complainant's trial testimony in this case was

strikingly detailed given that she was seven years old at the time of trial. She stated where,

when, and how applicant abused her. She said applicant would "hurt" her with a "pico" in

her bedroom at the family home after her mother went to sleep at night. She recalled that

applicant would pull down the bottoms of her "Tweety Bird" pajamas and that, when he

touched her in her "private area," it felt like a knife cutting her. She indicated that she told

her grandmother first, then a counselor at school, and then "a lot" of other people about the

abuse. She said her mother and grandmother always told her to tell the truth about the

allegations and that no one had told her to lie. Her testimony was corroborated by medical

evidence showing a high probability that she had been sexually abused, as well as by the

testimony of her grandmother and a CPS interviewer, both of whom described the

complainant's statements and demeanor at the time of the events.

By contrast, in her recantation testimony at the habeas hearing, which came some

thirteen years after applicant's trial, the complainant generally denied that any abuse

happened but otherwise exhibited a lack of memory or awareness of the circumstances

surrounding the abuse allegations. In response to the State's questioning, the complainant

stated that she "do[es] not recall" many important facts, including initially talking to her

grandmother and CPS about the allegations. In this regard, we find that this case bears some

similarities to Ex parte Brown , in which this Court held that the applicant had failed to satisfy

the actual-innocence standard in Elizondo , in part, because the complainant's recantation

testimony at the habeas hearing was "vague, uncertain, and nonspecific," with the

complainant merely "claim[ing] a lack of memory" while "mak[ing] a global denial of sexual

abuse." Brown , 205 S.W.3d at 547 . (3) Under those circumstances, the Court held that the

complainant's explanation of what had really happened, seven years after the event, was

"dubious at best," and was not, therefore, sufficient to establish the applicant's innocence

under Elizondo . Id . (observing that the habeas court's findings in that case had made "no

explanation of whether or why this evidence is more believable than the evidence supporting

applicant's guilt," and stating that the "actual innocence conclusion does not logically flow

from the record evidence") . The Court in Brown additionally observed that the conclusion

that the complainant in that case was an "accomplished liar" at the age of seven was

"contradicted" by the trial testimony of a police officer who had specialized training in

interviewing child sex-abuse victims, and it further noted that the habeas court "never

mentioned [the officer's] testimony or explained why his expert testimony was not credible

and should be rejected. " Id . at 549. Similarly, here the complainant's global denial of sexual

abuse after a more than ten-year delay does not rise to the level of clear and convincing

evidence to show that no reasonable juror would have convicted applicant in light of that

evidence. See id. at 547; Elizondo , 947 S.W.2d at 209-10. Applicant does not adequately

explain, nor did the habeas court fully address, why the complainant's new recantation

testimony should be deemed more believable than the evidence establishing applicant's guilt,

including the expert medical testimony of Dr. Kellogg and the expert testimony of CPS

investigator Amanda Way. See Brown , 205 S.W.3d at 548 .

We further observe that, at the time that it convicted applicant, the jury was aware that

the complainant had recanted on a prior occasion, having previously indicated to a CPS

interviewer that her grandmother "had told a lie" about the allegations against applicant.

Although the present recantation is new in that it comes from the now-adult complainant, in

terms of its substance, it is largely redundant of the recantation evidence that was presented

to and disregarded by the jury at applicant's trial. (4) Under these circumstances, we will not

circumvent a jury's determination of guilt that was the result of the jury having considered

and rejected the precise defensive theory presented on habeas review merely on the basis that

the evidence is now coming from an adult witness rather than a child. (5)

2. Recantation Evidence Provides No Alternative Explanation for

Medical Evidence

At applicant's trial, the jury received testimony from Dr. Kellogg indicating that the

complainant's genitals showed "definitive" physical signs of sexual penetration. Dr. Kellogg

stated that the complainant, at five years of age, had "very little hymen" and her genital area

showed signs of "trauma" indicative of repeated penetration. Even applicant's own medical

expert at trial, Dr. Navar, who indicated that the medical evidence was not definitive

evidence of sexual abuse, opined that the condition of the complainant's hymen could be

consistent with sexual abuse and suggested that the kind of hymenal attenuation exhibited

by the complainant would be present in a very small percentage of normal, non-abused

children at that age. In sum, the testimony from both the State and the defense medical

experts reflected that the complainant had an attenuated hymen that was highly abnormal for

her age and consistent with, if not determinative of, sexual abuse. The complainant's

recantation does not explain the medical findings by contending that another person sexually

abused her, nor does she specifically recall her interactions with applicant. Because a

reasonable juror might have convicted applicant on the basis of this medical testimony,

notwithstanding the new recantation evidence, we conclude that applicant has failed to

establish actual innocence under the prevailing standard. See Elizondo , 947 S.W.2d at 209.

Furthermore, given the existence of inculpatory medical evidence in this case, it is

distinguishable from other cases in which this Court has granted relief on the basis of actual

innocence under circumstances in which there was no physical or medical evidence to

suggest that the abuse had actually occurred. See, e.g. , Thompson , 153 S.W.3d at 418, 420

(granting relief on basis of recantation from complaining witness, in part, because results of

complaining witness's sexual-assault examination were "completely normal"); Elizondo , 947

S.W.2d at 209-10 (granting relief in actual-innocence case where conviction was based

"solely" upon testimony of recanting witness, and noting that there was a "complete lack"

of any other inculpatory evidence, either "direct or circumstantial"). In Thompson , the expert

medical witness had testified at trial that "the lack of physical evidence of sexual abuse was

. . . consistent with digital penetration," but he did not definitively or affirmatively testify that

sexual abuse had occurred. Thompson , 153 S.W.3d at 418 . And in Elizondo , no medical

testimony or physical evidence was presented to the jury. See Elizondo , 947 S.W.2d at 209-10. Unlike both Thompson and Elizondo , the medical evidence presented at trial in this case

was, at the very least, strongly suggestive of sexual abuse having occurred. Applicant has

neither presented any evidence to show that Dr. Kellogg's and Dr. Navar's testimony was

inaccurate, nor has he provided an alternative explanation for the medical findings. Having

weighed the new recantation evidence against the evidence of guilt adduced at trial, including

the medical evidence, we conclude that it does not rise to the level of clear and convincing

evidence to establish that no reasonable juror would have convicted applicant in light of the

new evidence. See id. at 206 (requiring reviewing court to "weigh" new evidence against old

evidence to assess "probable impact" upon State's case as a whole; applicant entitled to relief

if he demonstrates that no reasonable juror would have convicted him in light of new

evidence); see also Ex parte Robbins , 360 S.W.3d 446, 459 (Tex. Crim. App. 2011) (stating

that, in evaluating actual-innocence claim, reviewing court must view new exculpatory

evidence "in the context of the inculpatory evidence in the record," and denying relief

because a juror could "reasonably conclude" that applicant was guilty even in light of new

evidence).

3. Habeas Court's Credibility Determination Does Not Compel Granting

Relief

Although the matter of a recanting witness's credibility may be highly relevant to

determining whether an applicant has met his burden of proof under Elizondo , it is not

necessarily dispositive of the legal question of whether the newly discovered evidence would

have convinced the jury of applicant's innocence. See Elizondo , 947 S.W.2d at 210 (granting

relief, in part, because "another jury hearing the evidence, including the newly discovered

mature recantation of [the complainant's] juvenile testimony, would view the new evidence

as the more credible and would acquit applicant"); see also Brown , 205 S.W.3d at 547

(describing relevant inquiry as being whether new evidence "is more believable than the

evidence supporting applicant's guilt"). To the extent the habeas court in the present case

concluded that applicant was entitled to relief based solely on its assessment of the

complainant's credibility at the time of her recantation, we reject that conclusion as being

based on an improper legal standard, and we reiterate the correct standard as being the rule

established in Elizondo . See Elizondo , 947 S.W.2d at 209-10.

Relying on the complainant's 2011 recantation, which it found was more "credible

and believable" than her trial testimony, the habeas court concluded that "no rational jury

would convict the Applicant in light of the new evidence." The habeas court's analysis

appears to have been based on an assessment of the complainant's credibility and of whether

her recantation testimony was more credible than her trial testimony, rather than on an

assessment of the probable impact of her new recantation testimony on the State's case as a

whole. See id. at 206. Even if we were to defer to the habeas court's finding that the

complainant's recantation testimony at the habeas hearing appeared more credible than her

trial testimony, that does not necessarily establish that applicant has met the relevant standard

set forth in Elizondo , that is, that he has demonstrated by clear and convincing evidence that

no reasonable juror would have convicted him in light of the new evidence. See id. at 209.

That inquiry requires a reviewing court to take account of the entirety of the trial and habeas

records as a means of determining whether an applicant has met his burden. See id. at 206

(describing role of reviewing court as broadly "weigh[ing] such [new] exculpatory evidence

against the evidence of guilt adduced at trial"). Viewed in that light, applicant has failed to

unquestionably establish his innocence. See id. at 209.

III. Conclusion

Applicant had the burden to demonstrate by clear and convincing evidence that no

reasonable juror would have convicted him in light of the new evidence . See id. H aving

conducted an independent review of both the trial and habeas records in this case, we

conclude that applicant has failed to meet this burden. Relief is denied.

Delivered: June 18, 2014

Publish

1.

Although she did not testify at the habeas hearing, applicant's ex-wife, Delia Rodriguez,

provided a written affidavit in which she averred that she was "told by [the complainant, her

daughter] that these allegations are untrue" as early as 2002. Rodriguez recalled that her daughter

stated that applicant "did not abuse her or hurt her" and that she "felt better" after telling the truth.

Rodriguez stated that the complainant had indicated that her grandmother told her to "make up" the

allegations against applicant. She further stated that her mother, Garza, "never liked" applicant and

would call him a "dirty old man and other derogatory names."

2. There are two types of actual-innocence claims that may be raised on an application for a

post-conviction writ of habeas corpus. A freestanding innocence claim, also known as a Herrera -type claim, involves a substantive claim in which an applicant asserts his bare claim of innocence

based solely on newly discovered evidence. See Ex parte Franklin , 72 S.W.3d 671, 675 (Tex. Crim.

App. 2002); Ex parte Elizondo , 947 S.W.2d 202 , 208 (Tex. Crim. App. 1996). The second type of

claim, a Schlup -type claim, is a "procedural claim in which applicant's claim of innocence does not

provide a basis for relief, but is tied to a showing of constitutional error at trial." Franklin , 72

S.W.3d at 675 . A claim that a witness's recantation unquestionably establishes innocence is properly

understood as a freestanding claim of innocence, or a Herrera -type claim. See id.

3. More recently, in Ex parte Harleston , this Court denied relief on an actual-innocence claim,

in part, because the recanting witness's testimony at the live habeas hearing was "internally

inconsistent and present[ed] implausible explanations" of why the complainant would have

fabricated sexual-assault allegations against the applicant. See Ex parte Harleston , No. WR-79,196-01, ___S.W.3d___, 2014 WL 1923231 , at *11 (Tex. Crim. App. May 14, 2014). The Court

explained,

Significant objective evidence from the habeas record supports a finding that . . . [the

complainant] K.D.'s recantations and stories explaining why she recanted were

internally inconsistent, implausible, and portions of them factually impossible. The

stories that she told in various forms throughout the postconviction proceedings were

also contradicted by the testimony adduced at Applicant's trial. For example, the

genuineness of K.D.'s outcry was supported by a number of witnesses at trial, and

those witnesses'[] testimony was, at best, only implicitly impeached by Applicant's

presentation of K.D.'s several and inconsistent alleged recantations. . . .

Id . at *19. In Harleston , we went on to observe that the State's evidence at trial included " a number

of witnesses who supported the circumstances of K.D.'s sexual-assault outcry as genuine, and some

of those witnesses were experts in the area of child psychology and counseling and were trained to

identify false sexual-assault outcries." Id . We concluded that, in light of the "sheer number of back

and forth, inconsistent stories," applicant had failed to meet his burden under Elizondo . See id. at

*20 (citing Elizondo , 947 S.W.2d at 206).

4. See Ex parte Brown , 205 S.W.3d 538, 545-46 (Tex. Crim. App. 2006) (observing that "newly

discovered" or "newly available" evidence refers to evidence that "was not known to the applicant

at the time of trial and could not be known to him even with the exercise of due diligence").

5. Perhaps this type of situation would be better analyzed within the scope of this Court's false-evidence jurisprudence, but applicant has not raised that claim in this application. See Ex parte

Weinstein , 421 S.W.3d 656, 664-65 (Tex. Crim. App. 2014) (describing standard that applies to

Court's review of false-evidence claims raised on application for writ of habeas corpus).