Petition for Writ of Certiorari — Torriano Walpool, Petitioner v. Texas

NO.

IN THE SUPREME COURT OF THE UNITED

STATES

TORRIANO WALPOOL,

Petitioner vs

THE STATE OF TEXAS,

Respondent

On Petition for Writ of Certiorari to the Court of

Criminal Appeals of Texas

PETITION FOR WRIT OF CERTIORARI

John D. Nation

State Bar No. 14819700

4303 N. Central Expwy

Dallas, Texas 75205

nationlawfirm@gmail.com

Counsel for Petitioner

1

QUESTION PRESENTED

In Texas law, the Texas Court of Criminal

Appeals considers the trial court the “eyes and

ears” of the Court in making findings to aid the

Court in deciding whether to grant relief on

postconviction writs of habeas corpus. In this case,

the trial court made extensive findings that

Petitioner was actually innocent. The Court of

Criminal Appeals, without having been present at

the hearing, or even seriously considering the trial

court’s findings, reversed the findings and denied

relief upon the writ application. Did this action by

the Court of Criminal Appeals deny Petitioner’s

Due Process rights?

2

PARTIES TO THE PROCEEDINGS

Petitioner: Torriano Walpool

Respondent: The State of Texas

There are no proceedings directly related to

this case in this Court.

3

CITATIONS TO OFFICIAL REPORTS

The trial court findings are unreported.

The Court of Criminal Appeals opinion is

reported in Ex parte Torriano Walpool, No. WR87,520-03 (Tex. Crim. App. June 28, 2023) (per

curiam-unpublished).

STATEMENT OF JURISDICTION

The date of the Court of Criminal

Appeals’ opinion is June 28, 2023.

Jurisdiction in this Court is sought

under 28 U.S.C. 1257.

CONSTITUTIONAL PROVISIONS

The 14th Amendment, Section 1 to the

United States Constitution provides:

No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

4

STATEMENT OF FACTS

Torriano Walpool was convicted in 2016

of sexual assault of a child under seventeen years

of age and was sentenced to thirty years’

confinement. Walpool filed a subsequent habeas

corpus writ in which he claimed actual innocence.

After a hearing conducted in October 2022, the

trial court agreed and on January 3, 2023, and

entered findings recommending that Walpool’s

writ be granted.

On June 28, 2023, the Court of Criminal

Appeals rejected the findings and denied relief.

REASONS FOR GRANTING THE WRIT

This Court has said that "[v]irtually every fact

finding involves a credibility determination" and has

"repeatedly recognized that the fact finder is the

exclusive judge of the credibility of the witnesses." Ex

parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim.

App. 1996). When the trial court's findings of fact in

a habeas corpus proceeding are supported by

the record, they should be accepted by this Court. Ex

parte Evans, 964 S.W.2d 643, 648 (Tex. Crim. App.

1998); Ex parte Jarrett, 891 S.W.2d 935, 940 (Tex.

Crim. App. 1994). This Court "afford[s] almost total

deference to a trial court's factual findings in habeas

proceedings, especially when those findings are

based upon credibility and demeanor." White, 160

S.W.3d at 50.

Ex Parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim.

App. 2006).

5

Unfortunately, the Court of Criminal Appeals

afforded no deference to the trial court’s findings. The

trial court conducted an extensive evidentiary

hearing and following that hearing, entered detailed

findings wherein the trial court found that the

complainant’s recantation was credible, to the extent

that Petitioner had met his burden of proof of clear

and convincing evidence. The trial court had ample

opportunity to observe the complainant’s demeanor,

which the Court of Criminal Appeals did not.

The Court of Criminal Appeals outright rejected the

careful trial court’s findings. And the Court made

references to the original trial record which allegedly

negated the complainant’s credibility, without

specifying what part of the record was harmful to her.

The Court of Criminal Appeals’ resolution of this

case violated Petitioner’s Due Process rights.

CONCLUSION

Petitioner respectfully requests that the Court

grant his petition for certiorari, and on

submission of the case, order that the ruling of

the Court of Criminal Appeals be reversed and

remanded for further proceedings.

6

Respectfully submitted,

/s/ John D. Nation

John D. Nation

State Bar No. 14819700

4303 N. Central Expwy

Dallas, Texas 75205

214-213-5171

nationlawfirm@gmail.com

Counsel for Petitioner

APPENDIX

1.

Ex parte Walpool, No. W14-76467- J (C)

(Criminal District Court No. 3, Dallas County

January 3, 2023).

2. Ex parte Walpool, WR-87,530-03 (Tex. Crim. App.

June 28, 2023).

8

I.

Trial Court Findings

9

No. W14-76467-J (C)

EX PARTE TORRIANO

WALPOOL

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The instant writ application advances an

actual-innocence claim relative to the trial

court’s judgment of conviction against

Applicant in cause number F14-76467-J. On

October 28, 2022, the Court conducted an

evidentiary hearing (hereinafter referred to as

“writ hearing” or “the writ hearing”) on this

application and now makes the following

findings of fact and conclusions of law.

Findings of Fact

1.

Applicant was convicted on January 27,

2016 of the offense of sexual assault of a child

under seventeen years of age, which such

offense was alleged to have been committed in

2014. The trial court assessed punishment,

assessed, enhanced by two prior felony

convictions, at confinement in the Texas

Department of Criminal Justice-Institutional

Division for a period of thirty (30) years. The

trial court number was F14-76467-J and the

trial judge was the Hon. Gracie Lewis, who has

since retired. The judgment was affirmed on

direct appeal by the Fifth District Court of

10

Appeals via an unpublished opinion. See

Walpool v. State, No. 05-16-00105-CR (Tex.

App.—Dallas February 17, 2017, no pet.) (mem.

Op., not designated for publication).

2.

Applicant’s instant writ application is

the third such application Applicant has filed in

regard to the trial court’s judgment of

conviction in cause number F14-76467-J. The

first such application alleged twelve grounds of

ineffective assistance of counsel and was denied

by the Texas Court of Criminal Appeals on

March 28, 2018 based on the trial court’s

findings of fact and conclusions of law.

3.

P.T. [the complainant] has executed 4

affidavits in regard to the trial court’s judgment

of conviction in cause number F14-76467-J. All

4 affidavits were admitted during the writ

hearing and have been considered by the Court.

In the fourth such affidavit, P.T.

established that she had no knowledge of

Applicant’s first writ application until it had

already been denied. P.T. also established that

she would not have recanted her allegations if

asked to do so prior to the date of March 28,

2018 because she was not mentally ready to do

so.

The first such affidavit P.T. executed

did recant P.T.’s allegations and was not

executed until June 26, 2019, which was after

the date of March 28, 2018 upon which

Applicant’s first writ application was denied.

While there are differences among the content

of the 4 affidavits, P.T. does recant the

allegations against the Applicant in each of the

4 affidavits.

11

4. Applicant’s second writ application

did contain a claim of actual innocence based on

P.T.’s recantation. Applicant’s second writ

application was dismissed by the Texas Court

of Criminal Appeals on May 25, 2022 based on

non-compliance with Tex. R. App. P. 73.1.

5. Applicant was convicted of having

committed sexual assault upon his daughter, P.

T., who was born on May 20, 1998, and who was

17 years old at the time of trial in January

2016. P.T. testified to the cumulative facts that

provided the basis of the criminal offense

alleged in the indictment. Applicant testified

and denied having committed any sexual

assault of P.T., explaining that the allegations

had been made up.

6. Shirley Moore, Applicant’s mother,

testified at the writ hearing that she knows

from P.T.’s mother that P.T. was not believable

and had made false allegations against her

mother’s boyfriend in the past.

7. Moore testified in 2019, P.T. told her

that the allegations she made against

Applicant were fabricated, that she was

remorseful about the allegations, and that she

wanted to come forward and admit how she lied

in her trial testimony and “outcry” statements.

P.T. was about 19 or 20 when she made the

revelation to Moore.

8. P.T. testified at the writ hearing that

she is now 24 years old. P.T. stated that in 2014

she made allegations against Applicant. P. T.

admitted that she made allegations because she

was upset for multiple reasons. P. T. stated that

12

she was upset because Applicant had grounded

her and her stepmother had been making up

stories about her. P.T. explained that Applicant

took stepmother’s side regarding the stories

about P.T. and disciplined P.T. accordingly. P.

T. explained further that Applicant took her

call phone, which prevented her from talking to

her friends and to a boyfriend with whom she

wanted to stay in contact. P.T. admitted that all

of these events made her angry and motivated

her to make the false allegations.

9. P.T. spoke to a school counselor, who

reported her allegations to the police. Since P.T.

was only 16 at the time she spoke to the

counselor, P.T. did not know that the school

authorities would have to inform law

enforcement agents of the allegations.

10. Prior to trial, P. T. never told the

police or any member of the district attorney’s

office that her allegations against Applicant

were lies.

11. P.T. felt guilty about the

allegations. When P.T. eventually had had her

own son, she felt that she would not want

anyone to lie against him as she had lied

against Applicant.

12. When asked why she should be

considered credible now, P.T. stated that she

was trying to correct her wrongdoings.

13. P.T.’s credibility regarding how her

“outcry” against Applicant and her trial

testimony against Applicant were lies was not

impeached. P.T.’s credibility regarding her

13

recantation and her reasons for so recanting

was credible and was not impeached. The Court

is of the opinion, based on the Court’s in-person

assessment of the credibility of P.T. at the writ

hearing, that P.T.’s recantation is wholly and

entirely credible.

14. Moore was recalled to the stand by

the Applicant. Moore stated that she was

present when one of the acts attested to at trial

and by P.T.’s stepmother occurred. While

Applicant was asleep, P.T. went and sat on

Applicant, which caused Applicant to awaken

and become angry. Moore and P.T. established

that the “sitting on” incident was not sexual

assault and that the only person present who

attributed

any

possible

nefarious

characterization of the “sitting on” incident was

P.T.’s stepmother.

15. P.T.’s recantation was eventually

sent to the Conviction Integrity Unit of the

Dallas County District Attorney’s Office, but

was so sent well after the trial proceedings had

concluded. P.T. was given a polygraph

examination, but any results thereof were not

admitted during the writ hearing and were not

considered by the Court.

16. Defense Exhibit 2, the record of the

examining trial in this case, was admitted into

evidence during the writ hearing. In the

examining trial, the investigating officer, Angel

Herring, testified that if P.T. had previously

made a false allegation, this would not affect

her credibility in the opinion of the officer.

Herring further stated that if P.T. had made

false allegations, it would not be relevant in the

14

opinion of the officer.

Conclusions of Law

1. A convicted individual is entitled to

postconviction relief on the basis of a due

process violation if he or she can establish by

“clear and convincing evidence” that “no

reasonable juror would have convicted him in

light of the new evidence.” Ex parte Elizondo,

947 S.W.2d 202, 209 (Tex. Crim. App. 1996); see

also Ex parte Brown, 205 S.W.3d 538, 544 (Tex.

Crim. App. 2006) (stating standard for

reviewing actual innocence claims as being

proof by “clear and convincing evidence that,

despite the evidence of guilt that supports the

conviction, no reasonable juror could have

found the applicating guilty in light of the new

evidence”), quoting Ex part Tuley, 109 S.W.3d

388, 392 (Tex. Crim. App. 2002)); Ex parte

Thomson, 153 S.W.3d 416, 417 (Tex. Crim. App.

2005); Ex parte Harmon, 116 S.W.3d 778, 779

(Tex. Crim. App. 2002).

2. “Clear and convincing evidence” is an

intermediary evidentiary standard that lies

between the preponderance of the evidence

standard and the reasonable doubt standard.

See, e.g., Fuller v. State, 363 S.W.3d 583, 587

(Tex. Crim. App. 2012). “Clear and convincing

evidence” is that level of evidence that leaves

“no substantial doubt” as to the proof of the

proposition to be proved. See Spencer v. State,

466 S.W.2d 749, 752 (Tex. Crim. App. 1971);

Martinez v. State, 437 S.W.2d 842, 849 (Tex.

Crim. App. 1969).

3. A reviewing court’s inquiry in the

15

context of an actual innocence writ claim

requires making a decision as to “whether the

newly discovered evidence would have

convinced the jury of applicant’s innocence.” Ex

parte Elizondo, 947 S.W.2d at 207. To

determine whether an applicant has met this

standard, the habeas court must “examine the

new evidence in light of the evidence presented

at trial.” Ex parte Thompson. 153 S.W.3d at

417.

4. The recommendation of granting

such relief on an actual innocence writ in a

sexual assault case has been approved by the

Texas Court of Criminal Appeals even in the

context involving an applicant’s having

previously entered a guilty plea. See Ex parte

Tuley, 109 S.W.3d 388, 395-397 (Tex. Crim.

App. 2002).

The recommendation of granting such

relief in a sexual assault case has been

approved by the Texas Court of Criminal

Appeals in other similar cases. See, e.g., Ex

parte Thompson, 153 S.W.3d 416, 430-421 (Tex.

Crim. App. 2005); see also, e.g., Ex parte

Harmon, 116 S.W.3d 778 (Tex. Crim. App.

2002); Ex parte Mayhugh, et al., Nos.

WR84,697-84-84,700 (Tex. Crim. App. 2016)

(unpublished); Ex parte Montgomery, No. AP76,146-147

(Tex.

Crim.

App.

2009)

(unpublished); (all granting relief on actual

innocence in child sex abuse cases). 1

1 Section

5 of the Texas Rules of Appellate Procedure pertains to

“Proceedings in the Court of Criminal Appeals” and encompasses

rules 66 through 79 thereof. See Tex. R. .App. P. Section Five. The

mandatory, express and direct dictate of the language of the relevant

sub-rule 77 of the Texas Rules of Appellate Procedure leaves no doubt

that “Unpublished opinions have no precedential value and must not

16

In Ex parte Thompson, Judge Cochran

authored a concurring opinion. See Ex parte

Thompson, 153 S.W.3d at 421-423 (Cochran, J.,

concurring). In that concurring opinion, Judge

Cochran took the time to provide a relevant and

salient description of the basis of the typical

actual innocence scenario in the context of child

sex cases, noting:

Almost all of these cases are convictions for

aggravated sexual assault of a child, and the

factual scenarios are similar. At trial, a young

girl testifies that the defendant, usually a

stepfather or other close relative, sexually

molested her. The child is frequently a

reluctant witness and simply agrees with the

leading questions asked her. There is usually a

divorce or other family dispute involved. There

are generally no medical findings of sexual

abuse and no physical evidence that definitely

points toward molestation. Usually, a child

psychologist or sex abuse therapist testifies

that the child’s behavior is consistent with that

of a sexually molested child. There is frequently

an “outcry witness”, normally the mother or

other female relative, who testifies that the

be cited as authority by counsel or by a court.” Tex. R. App. P. 77.3.

This Court’s inclusion of the unpublished opinions Ex parte Mayhugh,

et al., and Ex parte Montgomery, is in no way, shape or form relying

on those opinions as precedent, but is merely intended to present a

recitation of the jurisprudence regarding actual innocence claims in a

comprehensive manner. This Court’s factual findings that P.T.’s

recantation is wholly and completely credible and is un-impeached in

any way are not based on the unpublished opinions of Ex parte

Mayhugh, et al., and Ex parte Montgomery and this Court’s conclusion

that Applicant is entitled to the relief sought because he has met his

burden by at least clear and convincing evidence is made without any

reliance on the unpublished opinions of Ex parte Mayhugh, et al., and

Ex parte Montgomery.

17

child told her about the abuse. The jury convicts

the defendant, and he is sentenced to a long

prison term. These are “he said, she said” cases

that ultimately rely on the jury’s assessment of

the relative credibility of opposing witnesses. In

such cases, it is virtually impossible for the jury

not to make an occasional credibility mistake.

Any parent who has ever attempted to resolve

a sibling quarrel based on “he said, she said”

versions of a single event knows that even a

parent can, from time to time, make a

credibility mistake and believe a child’s

inaccurate version of the event.

Ex parte Thompson, 153 S.W.3d at 421-423

(Cochran, J., concurring).

6.

Regarding

this

Court’s

aforementioned factual finding that P.T.’s

recantation is credible and was not impeached

during the writ hearing, P.T. admitted in effect

that, as someone who was 16 years old when

she made her untruthful “outcry” to the

counselor, that she did not understand how the

allegations would have to be reported by the

school authorities to other authorities such as

law enforcement and CPS. P.T. additionally

admitted in effect that, as someone who was 17

years old when she provided her untruthful

testimony before the jury at trial accusing

Applicant of the conduct on which the sexual

assault charge was based, that she did not

understand exactly how wrong what she was

doing was. P.T. established that, as someone

who was 24 years old at the time of the writ

hearing and the parent of her own son, that

part of her guilt over her previous lies was

based on how she realized that she would never

18

want anyone to do to her son what she had done

to Applicant. P.T.’s failure to appreciate the

possible consequences of her actions as a 16 or

17 year old and her ability to appreciate as an

adult of 24 years of age the wrong nature of

what she had done to Applicant is entirely

consistent with what the law recognizes as the

inherent characteristics of conduct of someone

who is under 18 years of age versus someone

who has attained the age of majority. See, e.g.,

Roper v. Simmons, 543 U.S. 551, 569-570 (2005)

(discussing how not only common sense of

parental experience but also scientific and

sociological studies demonstrate juveniles

under

18

lack

maturity

and

have

underdeveloped senses of responsibility that

often result in impetuous and ill-considered

actions and decisions and the personal

character of juveniles is not as well-formed as

that of adults); see also e.g., Graham v. Florida,

560 U.S. 48, 68 (2010) (recognizing that

developments in psychology and brain science

continued to show fundamental differences

between juvenile and adult minds and that

parts of the brain involved in behavior control

continued to mature through the stages of late

adolescence).

While there are some differences in

content of the 4 affidavits P.T. executed, each of

the 4 affidavits does assert that P.T. is

recanting her allegations against Applicant.

This Court has concluded based on observing

P.T.’s testimonial demeanor in person during

the writ hearing that any differences in content

among the affidavits and/or between any of the

affidavits P.T.’s testimony at the writ hearing

do not render P.T.’s recantation any less

credible in any way.

19

This Court has also concluded based on

observing P.T.’s testimonial demeanor in

person during the writ hearing that any

differences in content of P.T.’s testimony during

the writ hearing do not render P.T.’s

recantation any less credible. Accordingly,

P.T.’s testimony at the writ hearing has

convinced this Court of the truth and accuracy

of P.T.’s recantation beyond the level of clear

and convincing evidence. P.T.’s testimony at

the writ hearing has convinced the Court of the

falsity of P.T.’s former allegations against

Applicant and this Court is convinced at least

to the level of clear and convincing evidence of

the falsity of P.T.’s former allegations of the

criminal conduct P.T. formerly attributed to

Applicant, which provided the factual basis for

the judgment of conviction.

6. Considering P.T.’s wholly and

completely credible recantation from the writ

hearing (and from the 4 affidavits) and the

evidence presented at trial, this Court

concludes that P.T.’s entirely credible and in no

way impeached recantation itself more than

meets the minimum standard of clear and

convincing evidence that the newly-discovered

evidence would have convinced the jury of

Applicant’s innocence. The evidence at trial and

the evidence at the writ hearing were virtually

the same, especially in the sense that P.T.’s

testimony constituted the only proof of any

alleged sexual assault.

The record in its entirety leaves no

doubt that the conviction of Applicant depended

on P.T.’s credibility, as P.T.’s testimony was the

only affirmative evidence of any sexual assault

20

by the Applicant and Applicant himself

testified before the jurors and totally and

completely denied P.T.’s claims of what P.T.

falsely attributed to him. While the proof of

Applicant’s innocence depends largely on P.T.’s

credibility in her recantation, P.T.’s total,

complete, and absolute recantation at the writ

hearing (and within the 4 affidavits) accrues to

support the credibility and truthfulness of

Applicant’s trial testimony completely denying

having committed any sexual assault of P.T.

Therefore,

having viewed P.T.’s

testimony at the writ hearing in person, and

considering that testimony in light of the

evidence produced at trial, the Court finds and

concludes, by at least the applicable standard of

clear and convincing evidence, that this newly

discovered evidence would have convinced the

jury of Applicant’s innocence. In light of the

newly discovered evidence of P.T.’s express and

unimpeached recantation of her former

allegations against Applicant, this Court

concludes that Applicant has established by at

least clear and convincing evidence that no

reasonable juror could have found Applicant

guilty in light of the recantation testimony P.T.

provided at the writ hearing (as well as in her

affidavits). See Ex parte Brown, 205 S.W.3d at

544; Ex parte Tuley, 109 S.W.3d at 392.

7.

Consequently,

the

Court

recommends that the Court of Criminal

Appeals grant relief upon the application,

vacate the judgment of conviction, and grant

Applicant a new trial.

8. This Court further suspends

Applicant’s duty to register as a sex offender

21

and recommends that such suspension be

approved by the Texas Court of Criminal

Appeals.

Signed and entered this 3rd day of

January 2023.

/s/ Audra Riley

The Hon. Audra Riley,

Judge Presiding

Criminal District Court

No. 3, Dallas, Texas

CONCLUSIONS

1. This Court concludes that Applicant

has been denied rights guaranteed to him by

either the United States Constitution or the

Constitution of the State of Texas.

2. This Court concludes that Applicant

is currently unlawfully restrained and

Applicant’s restraint is unlawful and has not

been shown to be otherwise.

3. This Court concludes that the

conviction of Applicant on the now-shown-tobe-false trial testimony of P.T. violated rights

guaranteed to Applicant by either the United

States Constitution or the Constitution of the

State of Texas.

RECOMMENDATION

It is the considered, final, and ultimate position

of this Court that the actual innocence contention advanced

in Applicant’s Application for a Writ of Habeas Corpus is

22

meritorious as a matter of law. Accordingly, this Court

recommends that Applicant’s Application for a Writ of

Habeas Corpus be GRANTED and that Applicant be

GRANTED the relief he has requested via his instant

Application for a Writ of Habeas Corpus and that Applicant’s

conviction be vacated and that Applicant’s case be remanded

to the trial court for further proceedings.

ORDERS OF THE COURT

By affixing my signature below, this Court not only

reiterates having made and entered the Findings of Fact and

Conclusions of Law set out herein immediately above, but

also recommends that Applicant’s request for relief be

GRANTED.

In implementing the Court’s Findings of Fact and

Conclusions of Law, the Clerk is hereby directed to:

1.

Prepare a transcript of papers in this cause

number and transmit the Court’s Order and Findings of Fact

and Conclusions of Law, including the judgment of

conviction, all filed papers, a copy of the Reporter’s Record

and exhibits from the writ hearing conducted on October 28,

2022, the State’s Writ Response and any attachments

thereto or exhibits filed in connection therewith, and any

proposed findings and conclusions filed by the parties to the

Court of Criminal Appeals of Texas as provided by the terms

of Tex. Code Crim. P. Ann. art. 11.07.

2.

Send a copy of this Order and the Findings of

Fact and Conclusions of Law to Counsel for Applicant,

Torriano Walpool, by sending said copy to Attorney Randall

Isenberg, 4303 N. Central Expressway, Dallas, Texas, 75205

and counsel for the State, Jessie R. Allen, Assistant District

23

Attorney for Dallas County, Texas 133 N. Riverfront Blvd.,

LB-19, Dallas, TX 75207. The Clerk of the Court is hereby

directed to send a copy of this order to the attorney appointed

to serve as writ master in this matter.

Signed this the 3rd day of January 2023.

/s/ Audra Riley

The Hon. Audra Riley

Judge Presiding

Criminal District Court 3

Dallas, Texas

24

I.

TEXAS COURT OF CRIMINAL APPEALS

OPINION

25

[SEAL]

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

________________________________________

NO. WR-87,520-03

_______________________________________

EX PARTE TORRIANO WALPOOL,

Applicant

_______________________________________

ON APPLICATION FOR A WRIT OF

HABEAS CORPUS CAUSE NO.

W14-76467-J (C) IN THE CRIMINAL

DISTRICT COURT NO. 3

FROM DALLAS COUNTY

_______________________________________

Per curiam

ORDER

Applicant was convicted of sexual assault of a child

and sentenced to thirty years’ imprisonment. The Fifth

Court of Appeals affirmed his conviction. Walpool v. State,

No. 05-16-00105-CR (Tex. App.—Dallas del. Feb. 27,

2017). Applicant, through habeas counsel, filed this

application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this

Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that he is actually innocent. In

support, Applicant relies on the victim’s recantation made

five years after Applicant’s conviction. The victim issued

four recantation affidavits in total and testified at the

26

evidentiary hearing. Following the hearing, the trial court

found the victim’s recantation to be credible and

recommended to this Court that this Court grant

Applicant actual-innocence relief from his conviction. Ex

parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

The trial court’s findings and recommendations, however,

are not supported by the habeas and trial records.

First, the victim’s four recantation affidavits are

not credible because they are internally and externally

contradictory to each other, her testimony at trial, and her

testimony at the evidentiary hearing. Second, the

evidentiary hearing testimony of Applicant’s mother is not

credible, contrary to the habeas court’s finding, because,

according to several trial witnesses, the mother was not

present to witness what she now claims to have witnessed.

Third, the trial witnesses who had the most direct

knowledge of the facts (other than the victim), namely, the

victim’s stepsister and stepmother, never changed their

testimony and were not called to testify at the evidentiary

hearing. Fourth, the victim’s testimony at the evidentiary

hearing was far more tentative as compared to her

original trial testimony, such that her trial testimony

appears much more credible and is factually supported by

the other evidence at trial. Thus, after this Court’s

independent review of the habeas and trial records, this

Court disagrees that the victim’s recantation is credible

and that Applicant has satisfied the demanding Elizondo

standard. Habeas relief is denied.

Copies of this opinion shall be sent to the Texas

Department of Criminal Justice-Correctional Institutions

Division and the Board of Pardons and Paroles.

Delivered June 28, 2023.

Do not publish

27