holding 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 trier of fact could find proof of guilt beyond a reasonable doubt”
How later courts described this case
- holding 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 trier of fact could find proof of guilt beyond a reasonable doubt”
- holding that the trial court was without jurisdiction to issue an injunction, “[n]otwithstanding that respondent held [it] was necessary to protect its jurisdiction over the appeal of Graham’s civil case”
- holding that any order by another state court purporting to stay an execution unlawfully circumvents the exclusive jurisdiction of the Court of Criminal Appeals in a death-penalty conviction
- stating that actual innocence claims for inmates sentenced to death are cognizable in a habeas corpus application
Written by the judges who cited it.
The opinion
CAMPBELL, Judge,
concurring.
I agree that the Court should grant mandamus relief, see State ex rel. Holmes v. Third Court of Appeals, 860 S.W.2d 873, 879 (Campbell, J., dissenting), and I join the opinion of the Court. I write separately, however, to elaborate upon the necessity to overrule, to the extent in conflict, our holding in Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App.1983).
In Binder we held that “post-conviction habeas corpus ... is not ... the appropriate remedy for an applicant whose claim is based on newly discovered evidence.” Id., at 106 . *400 Two concerns, one constitutional and one prudential, now persuade me that we must modify our holding in Binder to the extent that the post-conviction habeas corpus process should be available to those few applicants who can meet the threshold standard set by a majority of the Court today.
Due Process
Gary Graham does not come before this Court as an innocent man, but rather as one who has been convicted in accordance with due process of law of capital murder. Graham v. State, 671 S.W.2d 529 (Tex.Crim.App.1984). The question before us, then, is not the legal guilt of Graham, but rather whether due process entitles a legally convicted individual to post-conviction judicial review of an “actual innocence” claim.
The due process clause of the Fourteenth Amendment prohibits criminal process that “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 202 , 97 S.Ct. 2319, 2322 , 53 L.Ed.2d 281 (1977). Certainly, the execution of an innocent person would offend the most basic of principles, deeply rooted in our civilization, that the innocent must not be punished. Six members of the Supreme Court, in various combinations and opinions, so stated in Herrera v. Collins, — U.S. —, 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993). Because our present state criminal process presents a substantial risk that that basic principle will be violated, I believe that the process is constitutionally deficient. Given the interests at stake and the relatively slight cost to the government of litigating those few claims that will meet the minimum threshold set by the Court today, due process of law requires that a judicial forum be available for the assertion of such claims.
The Clemency Process
In Herrera v. Collins, — U.S., at— - —, 113 S.Ct., at 868-869 (1993) (some citations omitted), the Court noted the following:
Executive clemency has provided the “fail safe” in our criminal justice system .... Recent authority confirms that over the past century clemency has been exercised frequently in capital eases in which demonstrations of “actual innocence” have been made....
In Texas, the Governor has the power, upon the recommendation of a majority of the Board of Pardons and Paroles, to grant clemency. Tex. Const, art, IV, § 11; [Tex.Code Crim.Proe.] Art. 48.01. (Vernon 1979). The board’s consideration is triggered upon request of the individual sentenced to death, his or her representative, or the Governor herself. In capital cases, a request may be made for- a full pardon, a commutation of death sentence to life imprisonment or appropriate maximum penalty, or a reprieve of execution. The Governor has the sole authority to grant one reprieve in any capital case not exceeding 30 days.
The Texas clemency procedures contain specific guidelines for pardons on the ground of innocence. The board will en-tei’tain applications for a recommendation of full pardon because of innocence upon receipt of the following: “(1) a written unanimous recommendation of the current trial officials of the court of conviction; and/or (2) a certified order or judgment of a court having jurisdiction accompanied by certified copy of the findings of fact (if any); and (3) affidavits of witnesses upon which the finding of innocence is based.” Tex.Admin.Code § 143.2_
What the Supreme Court in Herrera did not realize; though, was that the policy of this Court, as expressed in Binder, rendered subsection (2) of § 143.2 unworkable and useless, for under Binder there is simply no way for a convicted individual to get into “a court having jurisdiction” to get his claim heard under subsection (2). And it is fairly obvious that subsection (1) is unlikely ever to be utilized successfully. Thus, under Binder there is a serious flaw in the Texas clemency process for claims of actual innocence.
Under the Court’s holding today, in contrast, subsection (2) will be rendered meaningful. A convicted individual can file an application for writ of habeas corpus under Article 11.07 and then, if he wishes, use the findings of that court to file an application for *401 a recommendation of full pardon under § 143.2(2).
With these comments, I join the opinion and judgment of the Court.