Ex Parte Elizondo

WHITE, Judge,

dissenting.

The majority states they “are convinced by clear and convincing evidence that no rational jury would convict him [applicant] in light of the new evidence.” Because I believe the majority incorrectly evaluates applicant’s post-conviction claim of innocence, I dissent to their decision to grant relief to applicant.

An applicant’s due process right to pursue a freestanding claim of newly discovered evidence of innocence, which meets the threshold standard for a “truly persuasive” demonstration of innocence under the standards set out in State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App.1994), in a non-capital felony case at the post-conviction stage necessarily demands an extraordinarily high showing of innocence. First and most important, the criminal trial is the primary event for determining guilt or innocence. A criminal defendant is given many rights to ensure an innocent person will not be convicted. Many rights and resources have been concentrated at that time to decide guilt or innocence. See Herrera v. Collins, 506 U.S. 390, 401-03 , 113 S.Ct. 853, 861 , 122 L.Ed.2d 203, 217 (1993). A post-conviction habeas applicant has already been accorded the various protections provided by the Constitution which seek to ensure that the innocent will not be convicted. And he has been found guilty beyond a reasonable doubt, in this case, by a jury. Thus, the habeas applicant is a legally guilty person, not an innocent one. See Herrera, 506 U.S. at 419-20 , 113 S.Ct. at 870 , 122 L.Ed.2d at 229 (O’Connor, J., concurring). Second, a state has a strong interest in punishing the guilty and in the finality of its judgments. Therefore, it is only the truly extraordinary case that should merit review on a post-conviction claim of innocence.

Based on these considerations, an applicant seeking relief based on a claim of innocence should have to “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.” State ex rel. Holmes, 885 S.W.2d at 398 . If this showing is made, the habeas court must give the applicant a forum and an opportunity to present evidence. Ibid. Because the district court held a hearing on applicant’s claim of innocence, it needs only to be determined what burden of proof applicant must satisfy to obtain habeas relief.

In the instant case, the majority revisits the discussion of Herrera that took place in Holmes. In doing so, the majority chooses to resuscitate the burden of proof proposed by Justice Blackmun in his dissent in Herrera , which was rejected by a majority of the members of the Court in Herrera and by a majority of the members of this Court in Holmes, and breathe new life into it here. In the instant cause, the majority elevates itself to the position of being the thirteenth juror, overseeing applicant’s post-conviction claim of innocence to determine whether the newly discovered evidence convinces them of an applicant’s innocence. The majority ignores both the precedent of this Court and the principle of stare decisis to achieve the result they desired.

This Court should adhere to the standard set down in State ex rel. Holmes , wherein this Court discussed the need for a very high burden of proof for a claim of factual innocence, relying on Hen'era that such a claim required “ ‘a truly persuasive demonstration of actual innocence.’ ” 885 S.W.2d at 398 . In Holmes, this Court agreed that a high burden of proof was necessary because an otherwise constitutionally valid conviction should not be easily set aside. This Court concluded that an individual “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” for the individual to obtain relief. Id. at 399 . It is only the rare ease which should be able to meet this high burden so as to accord proper *214 respect to our system of justice through which a habeas applicant has already traveled and been granted numerous rights designed to protect the innocent from conviction. We should apply the same burden of proof to non-capital cases as we established for capital cases because the considerations underlying confidence in the criminal trial and the respect due to finality of judgments must also apply in the non-capital setting. Therefore, to obtain post-conviction relief in a non-capital felony an individual should be required to 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 beyond a reasonable doubt. This should have been the standard set for applicant to meet in the instant case. Instead, the majority opts for a lower standard.

The majority then reviews the facts of the instant case in order to determine whether there is “clear and convincing evidence” in the record to “unquestionably establish” for them that applicant is innocent. 1 In doing so, the majority overlooks evidence that was presented at trial. In its opinion, the majority states there was a “complete lack of any other inculpatory evidence in the case, direct or circumstantial.” The majority states, without citation of authority, that “we think” another jury hearing applicant’s new evidence would acquit applicant. Essentially, the majority thinks applicant is innocent, and has chosen to substitute that wholly subjective judgment for the judgment of the jury who convicted applicant. Instead of precedent, authority, and stare decisis, the majority gives us an unsupported judgment call that they think applicant is innocent.

There are two problems with the method by which the majority reaches this judgment. First, the majority’s errs in concluding there was no other inculpatory evidence at trial. *215 At trial, the State introduced an inappropriate note and drawing of a sexual nature done by Robert at school. Robert’s stepmother testified that Robert told her that the sexual information he relied on to write and draw the note came from applicant and his natural mother. The police officer who spoke with Robert about the sexual abuse which he and his brother suffered at the hands of applicant and their natural mother also testified at trial. Robert’s schoolteacher, in addition to his stepmother and the interviewing police officer, also testified at trial. This is definitely more than a complete lack of circumstantial or direct inculpatory evidence.

Second, the majority’s decision to depart from the standard set by the Court in Herrera and adopted by this Court in Holmes for evaluating a claim of innocence casts doubt upon their decision. Under the Holmes standard this Court should determine whether based on the newly discovered evidence and the trial evidence, any rational trier of fact could find guilt beyond a reasonable doubt. See and compare Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App.1991); and Villalon v. State, 791 S.W.2d 130 (Tex.Cr. App.1990). This is a legal determination.

Applicant should have been required to show that based on the newly discovered evidence offered at his writ hearing, Robert’s recantation of his trial testimony and Richard’s testimony at the writ hearing that the offenses did not occur, and based on the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.

Unlike the majority’s conclusion, the evidence at trial was sufficient to support applicant’s conviction and consisted primarily of Robert’s testimony. The newly discovered evidence simply conflicts with that evidence. Since we, as the reviewing court, must presume a hypothetical jury would resolve all conflicts in favor of its verdict, a rational trier of fact could find proof of applicant’s guilt beyond a reasonable doubt based on Robert’s testimony at trial. That another factfinder, the habeas court or the majority in its position as thirteenth juror, believes testimony from Robert almost eleven years after the date of the trial and thinks applicant could be innocent, does not. invalidate the original jury’s verdict.

In Holmes, this Court adopted a burden of proof based on the sufficiency review of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). Therefore, like an appellate court reviewing sufficiency of the evidence, this Court should have reviewed the newly discovered evidence and the evidence presented at trial to decide whether based on all of that evidence no rational trier of fact could find proof beyond a reasonable doubt. In Jackson v. Virginia the Supreme Court emphasized that appellate review of the sufficiency of the evidence does not mean the appellate court should ask itself whether believes the evidence established guilt beyond a reasonable doubt. Unfortunately, today, the majority chooses to cast aside precedent and stare decisis, so that it may undertake the type of review decried in Jackson v. Virginia.

Because a rational trier of fact could choose to believe the testimony presented at trial rather than the testimony presented at the writ hearing, I would have concluded applicant has not met his burden to be entitled to relief on his claim of innocence. Because the majority reaches an opposite conclusion, I dissent.

McCORMICK, P.J., and KELLER, J., join this dissent.

WOMACK, Justice, dissenting on State’s Motion for Rehearing.

In this case a bare majority • extended Holmes v. Third District Court of Appeals, 885 S.W.2d 389 (Tex.Cr.App.1994), to non-capital cases, lowered the burden of proof, and apparently allowed a petitioner to get relief from his sentence if he can get a witness to recant. None of this is required by the precedents cited. These are very bad policies as well.

To begin with, Holmes was decided on very shaky ground. In saying that habeas corpus is available for a claim of newly-discovered evidence of innocence in a capital case, Holmes purported to follow Herrera v. Collins, 506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993). The holdings of that *216 case were: (1) Federal habeas corpus is not available for a claim of newly discovered evidence of innocence in the absence of a violation of constitutionally-required procedures. To require a new trial simply because a jury might acquit in light of the new evidence would not clearly produce a more reliable result, since the passage of time only diminishes the reliability of criminal adjudications. (2) Texas’s 30-day limit to move for new trial on newly discovered evidence does not deny due process. (3) Executive clemency is the traditional “fail safe” remedy for late evidence of innocence. (4) Even if it were assumed for the sake of argument that a truly persuasive demonstration of actual innocence would render an execution unconstitutional so that federal habeas corpus would lie, Herrera’s evidence fell far short of the extraordinarily high threshold showing that would be required. (Herrera’s evidence was two witnesses who said that Herrera’s brother, now dead, had admitted committing the crime.)

This is mighty thin sand on which to erect the holding of Holmes that due process (not the Cruel and Unusual Punishment Clause) would be violated by the execution of an innocent defendant, and that state habeas corpus will he to permit a defendant to present newly discovered evidence of innocence. And it is no support at all for the holdings in this case that due process is violated by the confinement of an innocent defendant, that post-conviction habeas corpus is available to correct errors of fact, that the defendant must prove his claim by no more than clear and convincing evidence, and that the evidence of a recanting witness might be sufficient. 1

If rehearing is denied, a convicted defendant in every criminal case (if it a due process problem, there is no reason to limit it to felonies or to sentences of confinement), will now be allowed and encouraged to pursue the witnesses and get them to recant. If he does so, he can relitigate his ease forever. And all this is supposed to be based on Herrera , where the Court said that habeas corpus was not available because, “‘Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’ Patterson v. New York, 432 U.S. 197, 208 , 97 S.Ct. 2319, 2326 , 53 L.Ed.2d 281 (1977). To conclude otherwise would all but paralyze our system for enforcement of the criminal law.”

I vote to grant rehearing to reconsider the revolutionary and unwarranted procedure that this case has created.

McCORMICK, P.J., and KELLER and HOLLAND, JJ., join this dissent.

. The majority relies extensively on Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), in setting down the threshold standard to review applicant’s claim of newly discovered evidence of his innocence. However, Schlup is distinguishable from the instant cause. In the instant cause, applicant contends that he is innocent because the key witness against him at trial, his son Robert, recanted his trial testimony at the writ hearing. Applicant’s other son Richard also testified at the writ hearing to deny the offenses occurred. Applicant does not claim any constitutional violation aside from his due process rights which have been infringed upon because he has been incarcerated and deprived of his liberty for a crime which he claims that he did not commit. This is a claim of “bare innocence.” Michael J. Muskat, Substantive Justice and State Interests in the Aftermath of Herrera v. Collins: Finding an Adequate Process for the Resolution of Bare Innocence Claims Through State Postconviction Remedies, 75 TEXX.REV. 131, at 133 (1996).

Schlup , on the other hand, involved a claim of “actual innocence,” wherein a showing of innocence is used to bypass a procedural bar preventing consideration of a constitutional claim. Muskat, 75 TEX.L.REV., N.8, at 133. In Schlup , his "claim of innocence, ..., is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that the ineffectiveness of his counsel, ..., and the withholding of evidence by the prosecution, ..., denied him the full panoply of protections offered to criminal defendants by the Constitution.” Schlup, 513 U.S. at 314 , 115 S.Ct. at 860 , 130 L.Ed.2d at 827 . Schlup offered his claim of innocence only to obtain a post-conviction hearing of the merits of his constitutional claims by bringing him within the “narrow class of cases” which implicate a fundamental miscarriage of justice. Schlup, 513 U.S. at 313-16 , 115 S.Ct. at 860-61 , 130 L.Ed 2d at 827-828.

Where an applicant pursuing a claim of "bare innocence" attempts to present newly discovered evidence that he alleges will prove his innocence, but does not attach the evidence to a constitutional violation that occurred at trial, the applicant is seeking "only a review of the new evidence, with the hope that the evidence will warrant post-conviction relief in the form of a vacation of his conviction." Muskat, 75 TEX. L.REV., at 133. This is the position advanced by applicant in the instant cause. The lack of a constitutional violation at trial is what distinguishes applicant’s case from the applicant in Schlup .

The standards of review for evaluation these two distinct claims of innocence are not the same in the federal system. When a convicted person claims that he or she is "actually innocent,” as the applicant did in Schlup , the standard closely approximates that used by most states when hearing a motion for new trial based on newly discovered evidence. Muskat, 75 TEX.L.REV., at 177-178. When a convicted person pursues his or her claim of “bare innocence,” as applicant did in the instant cause, the standard set by the Court in Herrera to hear such claims is higher. Muskat, 75 TEX.L.REV., at 178-179.

The majority’s decision to lower the standard set down by this Court in Holmes will muddle, if not completely obliterate, the substantive distinction between a claim of "bare innocence” and a claim of "actual innocence.”

. What 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”?