# Ex Parte Elizondo > Court of Criminal Appeals of Texas · June 18, 1997 · 947 S.W.2d 202 URL: https://www.frixlaw.com/law-library/cases/9769808 ## Case - **Full name:** Ex Parte Joe Rene ELIZONDO, Applicant - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 18, 1997 - **Citations:** 947 S.W.2d 202; 1996 WL 724666 - **Precedential status:** Published - **Opinion:** Concurrence by Baird - **Judges:** Meyers, Baird, McCormick, White, Mansfield, Keller, Womack, Motion, Holland - **Cited by:** 84 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9769808 ## How later opinions describe it (automated extraction) - 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 - stating that "it is not reasonable to hold, and we reject the implication . . . that confidence in a verdict is undermined only when newly discovered evidence renders the State's case legally or constitutionally insufficient for conviction" - holding that to gain relief on a bare actual innocence claim, the applicant must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence ## Opinion text BAIRD, Judge, concurring. In State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App.1994), we held habeas corpus is an appropriate vehicle, in capital cases, to assert claims of factual innocence based on newly discovered evidence. Id., 885 S.W.2d at 398 . Today, the majority extends our holding in Holmes to non-capital eases. Additionally, the majority alters the Holmes standard and adopts the standard announced by the Supreme Court in Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Because the standard in Holmes was derived from Herrera v. Collins, 506 U.S. 390, 428-29 , 113 S.Ct. 853, 875 , 122 L.Ed.2d 203 (1993)(White, J., concurring), I have no problem, at this time, altering our standard to follow the Supreme Court’s evolution of “actual innocence” jurisprudence. Consequently, I join the majority opinion. I write separately to explain why I believe applicant has shown “by clear and convincing evidence that no reasonable juror would have convicted him in light oí the new evidence.” Ante, 947 S.W.2d at 209, is entitled to habeas relief. I. A. The Trial Applicant was charged with the aggravated sexual assault of his ten-year-old stepson, Robert. At trial the State presented only four witnesses: Robert, his school teacher, his stepmother and a policeman. The testimony indicated that Robert’s parents were divorced. Both later re-married and Robert lived with his father and stepmother. He visited his mother and applicant on alternating weekends. According to Robert, on these'weekend visits his mother, applicant, Robert and his brother watched “dirty movies” and Robert and his brother engaged in oral sex with their mother and applicant. Robert testified that sometimes friends of his mother and applicant would participate. These matters were discovered after Rob *211 ert’s teacher obtained a sexually explicit note written by Robert as well as a sexually explicit drawing. Based on this testimony applicant was convicted of aggravated sexual assault and sentenced to confinement for life and fined $10,000.00. B.The Habeas Application In his -writ application, applicant contended Robert’s testimony was false and that there exists newly discovered evidence of innocence. The application was supported by affidavits wherein Robert and his brother stated that neither their mother nor applicant ever sexually assaulted them. Rather, their natural father forced them to make the earlier charges against their mother and applicant through threats of physical violence. The brothers stated Robert perjured himself at applicant’s trial and that applicant is innocent. C.The Habeas Hearing At the writ hearing, Robert and his brother testified they never engaged in sexual acts with their mother or applicant. When Robert’s teacher discovered the drawing and note, she notified Robert’s stepmother. After discussing the note and drawing with Robert, Robert’s father notified the police and ordered both boys to state they had engaged in sexual acts with their mother and applicant. Robert’s father threatened to spank the boys every day for the rest of their lives if they did not make these statements. 1 The boys were afraid of their father, who forced them to repeat their statements over and over into a tape recorder until he was satisfied. Robert’s father was angry with his ex-wife and often promised to get back at her “one way or another.” The brothers testified they did not realize their mother and applicant were in prison until Robert was fifteen or sixteen years old and found a letter, written by their mother, addressed to their father. On his seventeenth birthday, Robert left his father’s home. Thereafter, Robert informed the Parole Board that he lied when testifying at his mother’s trial and that his mother was innocent. The brothers have maintained that applicant and their mother are innocent since 1990. D.The Habeas Judge’s Findings After the hearing on this application, the habeas Judge entered, inter alia, the following findings of fact: 3. ... [T]he testimony of [Robert] was a critical and substantial part of the evidence upon which the conviction of applicant rested, since said child witness was the actual complaining witness who related at trial allegations of sexual assault by applicant. 4. The Court finds that newly discovered evidence exists which demonstrates the factual innocence of applicant of the offense of aggravated sexual assault of which he stands convicted in this cause. 5. ... [T]his newly discovered evidence, to-wit: the statements made by [Robert] from 1990 through the time of the evidentiary hearing in this cause creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that verdict would be different in a new trial. 7. ... [T]he testimony by [Robert] ... is uneontroverted. The Court therefore finds by clear and convincing evidence that [Robert] testified falsely in August, 1984, at the time of the trial of this cause, and it was primarily upon the false testimony of [Robert] that applicant was convicted in this cause. 8. The Court finds that if a jury were to consider the entire record of testimony and evidence before the original jury that rendered the verdict in this cause, and the newly discovered evidence ... no rational trier of fact could find proof of guilt beyond a reasonable doubt. 9. The Court further finds that the newly discovered evidence ... was necessarily unknown to applicant at the time of trial ... the “failure” to discover such evidence was not due to a want of *212 diligence on the part of applicant ... and not merely cumulative, corroborative, collateral, or impeaching.... [T]he testimony ... will probably bring about a different result on another trial of this cause. Based upon these findings, the habeas Judge concluded applicant was entitled to relief and recommended that this Court grant the relief requested by applicant. II. Due Deference We are not bound by the “findings, conclusions or recommendations of a trial court in reaching a decision on a postconviction application for writ of habeas corpus.” Ex parte Bates, 640 S.W.2d 894, 898 (Tex.Cr.App. 1982). However, in habeas hearings, the judge is the fact finder who determines the credibility of the witnesses and we defer to those findings if they are supported by the record. Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Cr.App.1977) (If the habeas judge’s findings of fact are supported by the record, “they should be accepted by this Court.”). See also, Ex parte Adams, 768 S.W.2d 281, 288 (Tex.Cr.App.1989). In Ex parte Moore, 136 Tex.Crim. 427 , 126 S.W.2d 27 (1939), we stated: ... Where the ruling of the trial judge depends upon the existence or non-existence of a certain fact and testimony pro and con is introduced thereon and the evidence is conflicting it becomes the duty of the trial judge to determine the issue, and unless it appears to this court that his finding was without support in the evidence, and that he had committed an error in his judgment thereon, we would not interfere with his findings thereon. Glenn v. State, 89 Tex.Crim. 13 , 229 S.W. 521 . [Emphasis added.] Id., 126 S.W.2d at 28 . The habeas judge in the instant case determined the following: 1) the newly discovered evidence, to-wit: the statements made by Robert from 1990 through the writ hearing, created a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that verdict would be different in a new trial; 2) that the newly discovered evidence is uncontroverted and that Robert testified falsely at applicant’s trial and applicant was convicted primarily upon this false testimony; and, 3) the newly discovered evidence was unknown to applicant at the time of his trial and his failure to discover it was not due to a want of due diligence. These factual determinations are supported by the record and, therefore, should be accepted by this Court, Turner, supra, and applicant is entitled to relief. III. The Burden of Proof Even if we refused to accept the habeas Judge’s findings of fact, applicants nevertheless entitled to relief. Under Schlup, supra, applicant must show “by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ante, 947 S.W.2d at 209. Clear and convincing evidence is an intermediate standard of proof which falls between the ordinary civil “preponderance of the evidence” standard and our usual “beyond a reasonable doubt” standard in criminal cases. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). Clear and convincing evidence is defined “as that measure or degree of proof which will produce .in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Ibid. It is in this light that we must review all of the evidence to determine if applicant met his burden. In applicant’s original trial the State presented only four witnesses. Robert’s teacher testified to finding the sexually explicit note and drawing. A police officer and Robert’s stepmother related Robert’s outcry statements concerning the alleged sexual assault. And finally, Robert testified he and his brother were ongoing victims of aggravated sexual assault by their mother and applicant The newly discovered evidence is the recent testimony of Robert and his brother. Both testified that the alleged aggravated sexual assault never occurred and that Robert’s trial testimony was perjured and se *213 cured through the intimidation of Robert and his brother by their father. When considering all of this evidence in light of the new evidence, I agree with the majority that no reasonable juror would have convicted applicant. With these comments, I join the majority opinion. . Robert’s brother testified that their natural father beat them. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769808. Public record. Not legal advice.