Duke v. State

JACK CARTER, Justice,

concurring opinion.

As in many sexual assault cases, no physical evidence supports the conviction. The inculpatory evidence is exclusively the testimony of the child, which makes the credibility of the child the only issue. It is not uncommon for children to give conflicting statements on this subject, given the emotional trauma attached to the charge. But when the child’s testimony is the only evidence of guilt, credibility must be scrutinized. Here, the child told several conflicting accounts: first she told her teacher that no assault occurred; later, she stated the assault did occur. It was certainly within the jury’s discretion to find that her testimony at trial was believable in spite of the conflicting statements. But after the trial this conflict reappeared in another form and the child recanted her trial testimony, but later told an investigator her testimony was truthful. Following that, at the motion for new trial, she again renewed her recantation and testified that Duke had not improperly touched her and that she made the allegations because she thought she needed to do something “dramatic” to gain her father’s attention. Based solely on the child’s testimony, Duke was convicted and sentenced to sixty years’ imprisonment. Of course the jury was not aware of the duo of recantations.

The four-part test set out in the majority opinion for determining when to grant a *732 new trial based on new evidence really comes to one issue — whether the recantation testimony is probably true and will probably bring about a different result. The Texas Court of Criminal Appeals has held that “the general rule is that where a witness has testified to material inculpato-ry facts against an accused and after verdict, and before motion for new trial has been acted upon, such witness makes affidavit that he testified falsely, a new trial should be granted.” Keeter v. State, 74 S.W.3d 31, 37-38 (Tex.Crim.App.2002). That general rule is subject to an exception — the new trial should be granted if there is “no good cause to doubt the credibility of the witness.... ” Id. (citations omitted). Otherwise stated, there must be some basis for disbelieving the recantation in order to deny the motion for new trial. Id. 14

Here, the trial court stated the reasons for its conclusion. The important determination was the trial court’s finding that the recantation was not credible. In discussing how it reached this conclusion, the trial court determined that the testimony of the child at the trial was “sincere,” while her testimony at the motion for new hearing was “one of resignation.” The trial court has a great degree of discretion in making such credibility decisions for reasons that have been enumerated for centuries. Here, the trial court exercised the length and breadth of that discretion in making this decision; it believed the recantation was a result of pressure from family members and therefore was satisfied to allow the judgment to stand. As a reviewing court we have limited authority to review such a broad exercise of discretion. Understanding our limited review of judicial discretion in this instance, I concur in the judgment.

. "Other states' courts have granted a new trial when the recanted testimony comes from the sole prosecuting witness and the remaining evidence, alone, is not adequate to uphold a conviction. Some of these courts have held that it is an abuse of discretion not to grant a new trial in such a situation and that the issue of the witness’ credibility should be left to a jury. Robinett v. State, 494 So.2d 952 (Ala.App.1986); Bussey v. State, 69 Ark. 545 , 64 S.W. 268 (1901); Myers v. State, 111 Ark. 399 , 163 S.W. 1177 (1914); Solis v. State, 262 So.2d 9 (Fla.App.1972); People v. Smallwood, 306 Mich. 49 , 10 N.W.2d 303 (1943); Commonwealth v. Mosteller, 446 Pa. 83 , 284 A.2d 786 (1971); State v. Rolax, 84 Wash.2d 836 , 529 P.2d 1078 (1974); State v. York, 41 Wash.App. 538 , 704 P.2d 1252 (Wash.1985). (All of these cases resulted in a new trial because the recanted testimony was the only evidence of guilt.).” Keeter, 74 S.W.3d at 46 n. 9 (Holcomb, J., dissenting).