recognizing that in a habeas proceeding, “the judge determines the credibility of the witnesses and if the habeas judge’s findings of fact are supported by the record, they should be accepted by this Court”
How later courts described this case
- recognizing that in a habeas proceeding, “the judge determines the credibility of the witnesses and if the habeas judge’s findings of fact are supported by the record, they should be accepted by this Court”
- stating that in habeas hearings, judge determines credibility of 8 witnesses and if habeas judge’s findings of fact are supported by record, they should be accepted by appellate court
- explaining that the fact finder is the exclusive judge of the credibility of the witnesses and that the factfinder resolves conflicts in the evidence
- recognizing there is less potential for disregarding trial court’s 7 findings in article 11.072 appeal than in article 11.07 appeal where Court of Criminal Appeals is sole fact finder
Written by the judges who cited it.
The opinion
McCORMICK, Presiding Judge,
dissenting.
I must respectfully dissent. In this case, the majority grants relief on this eight-year-old conviction by holding applicant’s due process rights under the Fourteenth Amendment to the United States Constitution were violated when the State “suppressed” Mac-Donnell’s report by furnishing it to applicant about two weeks before her 1988 trial began! Just to state the Court’s holding is to refute it. The Court’s holding as to this aspect of the case 1 is absurd and represents another inane exercise in judicial activism — i.e., finding so called “rights” in the United States Constitution that just do not exist.
I cannot add much more to Judge Keller’s dissenting opinion which I also join. Mae-Donnell’s report does not in any way impeach the most important evidence in this case establishing applicant’s guilt — the absence of blood and brain matter on the victim’s right hand, the position of the victim’s body, and the presence of gunshot residue on the right sleeve of applicant’s nightgown all of which were inconsistent with her defensive theory. See Mowbray v. State, 788 S.W.2d 658, 663 (Tex.App.—Corpus Christi 1990, pet ref'd), cert. denied, 498 U.S. 1101 , 111 S.Ct. 999 , 112 L.Ed.2d 1082 (1991). The evidence at applicant’s 1988 trial amply supports a finding that applicant shot and killed the victim while he was asleep in bed, and MacDonnell’s report fails to cast any serious doubt as to the reliability of this finding. I would hold applicant fails to present any cognizable claim for habeas corpus relief. Cf. Herrera v. Collins, 506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993).
In addition, the basis of applicant’s claims for relief in this proceeding has been known to applicant since about two weeks before her 1988 trial. However, she failed to raise these claims at the motion for new trial hearing following her 1988 conviction or during the direct appeal of her 1988 conviction. See Mowbray, 788 S.W.2d at 662-72, 669 (applicant filed motion for new trial claiming the State failed to produce the T-shirt the victim wore when shot). 2 Applicant has de *467 layed approximately seven years before bringing her claims for relief in this proceeding. Under these circumstances, the State’s and society’s legitimate and valid interest in the finality of this obviously guilty applicant’s conviction should outweigh granting applicant relief on any due process violation that allegedly occurred in connection with her 1988 trial. Someone should be asking whether the State can get a fair trial after such a long passage of time, and whether applicant’s delay in asserting her claims for relief in this proceeding constitutes a waiver of those claims.
I respectfully dissent.
MANSFIELD and KELLER, JJ„ join this dissent.
. The Court's opinion fails to address the issues of cognizability and procedural default. Since this proceeding is a collateral attack on applicant's conviction approximately eight years after the fact, these are important issues which deserve serious consideration.
. One need only examine the Court of Appeals opinion affirming applicant’s 1988 conviction to see that her conviction more than satisfies due process principles. See Mowbray, 788 S.W.2d at 662-72 .