Ex parte Tuley, 109 S.W.3d 388 (Tex.Crim.App. 12/18/2002)

[1] IN THE COURT OF CRIMINAL APPEALS OF TEXAS


[2] NO. 74,364


[3] 109 S.W.3d 388, 2002.TX


[4] December 18, 2002


[5] EX PARTE WESLEY RONALD TULEY, APPLICANT


[6] ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM DALLAS COUNTY


[7] Price, J., delivered the opinion of the Court, in which Meyers, Johnson, Holcomb, and Cochran, J.J., joined. Womack, J., dissented. Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined, and in Part II of which Womack, J., joined.


[8] OPINION


[9] After the applicant's jury was deadlocked on the question of guilt in his trial for aggravated sexual assault, the applicant pleaded guilty to the charge. Years later, the complainant in the case recanted her allegation fully explaining how and why she fabricated the charges against the applicant. The applicant pursued post-conviction relief under article 11.07. After doing an analysis under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), the convicting court recommended granting relief. We filed and set the case to determine whether the applicant's guilty plea precludes his actual innocence claim under Elizondo. We conclude that it does not.


[10] I. Analysis


[11] There are two types of actual innocence claims that may be raised in a collateral attack on a conviction. A bare innocence claim, or Herrera-type *fn1 claim "involves a substantive claim in which applicant asserts his bare claim of innocence based solely on newly discovered evidence." Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 314 (1995); Elizondo, 947 S.W.2d at 208). The other actual innocence claim, a Schlup-type claim, we explained "is a procedural claim in which applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial." Ibid. (citing Schlup, 513 U.S. at 314).


[12] In Elizondo, we held that a bare innocence claim is cognizable in an application for writ of habeas corpus. Elizondo, 947 S.W.2d at 205. Incarceration of an innocent person offends federal due process, therefore a bare innocence claim raises a constitutional challenge to the conviction. Ibid. But we also said that a conviction should not be overturned lightly and that the burden on the applicant who has had error-free proceedings is exceedingly heavy to take into account society's and the State's interest in finality. Elizondo, 947 S.W.2d at 208. To be granted relief on a bare innocence claim, the applicant must show that the new evidence unquestionably establishes his innocence. Id. at 208-09. We interpreted this to mean that the applicant must prove by clear and convincing evidence that no reasonable juror would have convicted the applicant in light of the new evidence. Id. at 209. To determine whether a habeas applicant has reached this level of proof, the convicting court weighs the evidence of the applicant's guilt against the new evidence of innocence. Id. at 207.


[13] We have never discussed what effect, if any, a guilty plea would have on this analysis. This is the question we turn to today.


[14] There is nothing explicit in Elizondo or the cases on which it relies that prohibits or limits the analysis to jury or bench trials. Elizondo instructs the convicting court to "weigh the evidence in favor of the prisoner against the evidence of his guilt." Ibid.


[15] In Elizondo, we said that our job was to "decide whether the newly discovered evidence would have convinced the jury of applicant's innocence." Ibid. That was in the context of that case, in which a jury had decided Elizondo's guilt. But we said a bare innocence claim is not an attack on the jury's verdict. Id. at 209. "What [the applicant] wants is a new trial based on newly discovered evidence which he claims proves his innocence." Ibid. The policy supporting our holding in Elizondo, that the punishment of an innocent person violates federal due process, is the same for an applicant regardless of whether his case was heard by a judge or jury or whether he pleaded guilty or not guilty. See ibid.


[16] Convicting courts reviewing bare innocence claims should give great respect to the jury's verdict of guilt. Convicting courts should also give great respect to knowing, voluntary, and intelligent pleas of guilty. But we should not foreclose relief because a defendant pleaded guilty when the policy behind granting relief on a bare innocence claim is the same.


[17] The legislature has enacted two statutes that contemplate a defendant's being able to seek relief on a claim of actual innocence after a guilty plea: Code of Criminal Procedure article 64.03(b), and Texas Civil Practices and Remedies Code section 103.001.


[18] Newly-enacted Chapter 64 of the Code of Criminal Procedure sets out procedures for convicted defendants to obtain forensic DNA testing. Article 64.03(b) states that:


[19] A convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea. Tex. Code Crim. Proc. art. 64.03(b).


[20] Defendants who pleaded guilty or nolo contendere may obtain forensic DNA testing if they meet the requirements of Chapter 64.


[21] Chapter 64 provides for forensic DNA testing but does not provide a vehicle for obtaining relief if testing reveals affirmative evidence of innocence. The vehicle for relief after obtaining test results that constitute affirmative evidence of innocence is article 11.07 for non-capital felonies and article 11.071 for capital murder. The legislature has not limited actual innocence claims based on forensic DNA testing to defendants who pleaded not guilty and went to trial. Neither should we.


[22] Chapter 103 of the Civil Practices and Remedies Code sets out procedures to compensate persons wrongfully imprisoned. Section 103.001 names claimants who are eligible for compensation. Before 2001, the statute provided compensation only for claimants who had pleaded not guilty to the criminal charge that led to imprisonment. The legislature amended the statute, and it now states:


[23] (a) A person is entitled to compensation if:


[24] (1) the person has served in whole or in part a sentence in prison under the laws of this state;


[25] (2) the person:


[26] (A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or


[27] (B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced. Tex. Civ. Prac. & Rem. Code § 103.001(a).


[28] Compensation is available under this provision for claimants who have been granted relief on the basis of an actual innocence claim, regardless of how the claimant pleaded to the charges.


[29] The State makes three main arguments against our conclusion: (1) the applicant's plea is not subject to collateral review; (2) public policy is served by finality; and (3) granting relief to the applicant would encourage and reward perjury.


[30] The State argues the applicant's plea is not subject to collateral review. Habeas corpus, it argues, is traditionally governed by equitable principles, and the applicant's conduct in this case may preclude his being entitled to relief. Here the State claims the guilty plea and judicial confession prevent collateral review. But we do not make the distinction between those who have pleaded guilty and those who have pleaded not guilty for other claims of relief raised in habeas applications.


[31] We address cognizable claims in habeas proceedings regardless of the plea in the case. We are unpersuaded that equitable principles should prevent an innocent person from obtaining the relief simply because he pleaded guilty. There is nothing equitable about permitting an innocent person to remain in prison when he produces new evidence that unquestionably shows that he did not commit the offense for which he is incarcerated.


[32] The purpose of criminal proceedings is to separate the guilty from the innocent. Herrera, 506 U.S. at 398 (citing United States v. Nobles, 422 U.S. 225, 230 (1975)). From time to time something goes awry in the process by which a defendant is convicted, for example, when a complainant makes false charges. The error occurs within the judicial system though it happened through no fault of the convicting court or the parties. It is appropriate for the judicial system to correct the error through habeas corpus.


[33] The State says that a guilty plea waives any contention regarding the sufficiency of the evidence. This is true, but the State's assertion that a claim of actual innocence is nothing more than a challenge to the sufficiency of the evidence is not true.


[34] An applicant claiming actual innocence is not claiming that the evidence at trial was insufficient to support the conviction. On the contrary, the successful applicant shows by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence. The burden is on the applicant because we presume that the conviction is valid. See Elizondo, 947 S.W.2d at 207.


[35] Moreover, if an actual innocence claim were nothing more than a challenge to the sufficiency of the evidence, then no claim of actual innocence-whether the conviction was based on a jury trial, bench trial, or guilty plea-would be cognizable on a writ of habeas corpus. Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981) (attack on sufficiency of the evidence at trial may not be raised in habeas proceedings).


[36] The State finds it significant that the applicant's trial resulted in a hung jury that never made a finding on the applicant's guilt. According to the State, the crux of the analysis in Elizondo and its progeny is if the new evidence is such that it undermines confidence in the jury's finding of guilt, then the jury's verdict was infirm. Were we to follow the State's argument to its natural conclusion, a defendant could raise a bare innocence claim only if guilt had been determined by a jury. But the policy supporting the relief granted in Elizondo was that federal due process is violated when an innocent person is incarcerated. Elizondo, 947 S.W.2d at 209. That policy applies with no less force when the conviction is obtained by a bench trial or guilty plea.


[37] The existence of a trial record permitting an Elizondo analysis is not sufficient reason to ignore a guilty plea, according to the State. A convicting court is not free to ignore a guilty plea when reviewing a collateral attack. "Rather, the court charged with deciding such a claim should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances." Id. at 207 (quoting Herrera, 506 U.S. at 244 (Blackmun, J., dissenting)). The circumstances may include that an applicant pleaded guilty. A reading of the extensive findings of the convicting court in this case shows that convicting courts are capable of fully considering the significance of a guilty plea and weighing that circumstance against the newly discovered evidence.


[38] The State next argues that the applicant's argument rewards and encourages perjury. The applicant entered a false plea and compounded this with a false judicial confession. The State claims that allowing this applicant to obtain relief will encourage innocent defendants to plead guilty to get a lighter sentence and then collaterally attack the conviction when the sentence becomes too difficult to bear. This ignores the realities of pursuing a bare innocence claim under article 11.07. A defendant would have to assume that new evidence that affirmatively shows his innocence will appear from nowhere. If a habeas application amounts to a challenge to the sufficiency of the evidence, the applicant will not obtain the relief he seeks. See e.g., Easter, 615 S.W.2d at 721.


[39] The guilty plea process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation. The decision to plead guilty, as we have seen in this case, may be influenced by factors that have nothing to do with the defendant's guilt. The inability to disprove the State's case, the inability to afford counsel, the inability to afford bail, family obligations, the need to return to work, and other considerations may influence a defendant's choice to plead guilty or go to trial. *fn2 Being aware of these considerations, we will not preclude actual innocence claims because the conviction was the result of a guilty plea.


[40] Finally, the State argues that public policy is served by finality. We agree. Convictions based on knowing, intelligent, and voluntary pleas of guilty ought to be afforded the highest level of respect. As the Supreme Court quoted in United States v. Timmreck:


[41] Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea. Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-529 (7th Cir. 1971) (Stevens, J., dissenting)).


[42] Though Timmreck was based on an interpretation of the federal rules, the underlying principle is the same in Texas. The Supreme Court noted that a federal rule violation "does not present `exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" The same is true in our habeas proceedings. Cognizable claims on habeas are limited to claims to "jurisdictional or fundamental defects and constitutional claims." Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).


[43] We are not dealing with a statutory or rule violation in this case; here, the applicant presents a valid claim of actual innocence based on evidence that was unavailable at the time he pleaded guilty.


[44] In Brady v. United States, 397 U.S. 742 (1970), the United States Supreme Court noted that a rule that made pleading guilty attractive to defendants because it allowed them to avoid the death penalty did not render the pleas involuntary when the Court later held that the statute was unconstitutional. Id. at 757. The Court found it significant that nothing in the record indicated that the conviction was inaccurate or unreliable. Ibid.


[45] In cases in which the Supreme Court has held there is no collateral review after a guilty plea, it has specifically noted the absence of findings that the plea was inaccurate or unreliable.


[46] This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. . . . But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth. Brady, 397 U.S. at 757-58.


[47] If we have reason to think that an applicant's plea was accurate and reliable, we would conclude that the claim would not support relief for actual innocence. But when a habeas record supports a finding that new evidence unquestionably established an applicant's innocence, it is difficult to conclude that a prior guilty plea was accurate or reliable. The holdings in Brady and Timmreck do not require that we ignore clear and convincing evidence of actual innocence.


[48] The State also cites Schlup v. Delo, 513 U.S. 298, 321 (1995), for the proposition that the interest in releasing innocent defendants does not extend to prisoners whose guilt is conceded or plain. The case cited for this proposition in Schlup discussed finality in relation to claims of error at trial, not actual innocence claims, which the Court explicitly permits in Schlup. See Kuhlman v. Wilson, 477 U.S. 436, 452 (1986). And though an applicant concedes his guilt by pleading guilty, when new evidence unquestionably established innocence, a conclusion that the applicant was guilty of the offense is anything but plain.


[49] The State claims that allowing this applicant to obtain relief would allow any applicant to seek relief if he can show actual innocence and an excuse for the guilty plea. As the cases the State cites show, claims of actual innocence are rare and the cases in which relief is granted are even more rare. See Schlup, 513 U.S. at 321 n.36 (and cases cited therein). We are confident that the convicting courts of Texas can tell the difference between a meritorious claim of actual innocence accompanied by compelling new evidence and a bogus claim accompanied by bare allegations of innocence. Applicants may file applications, but it does not mean that convicting courts will recommend granting relief.


[50] We also do not think that the convicting courts will be flooded with countless applications. Applicants have been permitted to file bare innocence claims in the courts of this State since Elizondo was handed down six years ago. The flood of applications has not materialized. Nor have we seen evidence that Elizondo's holding encouraged inmates or their friends and family to harass victims of crimes to encourage them to recant. Since Elizondo was handed down, in a few cases when applicants have presented credible and compelling new evidence of innocence that met the Elizondo standard, innocent people have been released from punishment. The criminal justice system has done justice.


[51] II. Application


[52] We now review the convicting court's recommendation to grant relief. The facts according to the habeas record show that the applicant was tried on the charge of aggravated sexual assault in July 1997. The jury conveyed that it was hopelessly deadlocked. Ten jurors had voted to acquit, and two to convict the applicant. The applicant pleaded guilty to the charge before the trial court could declare a mistrial.


[53] The convicting court accepted the guilty plea and deferred adjudication, placing the applicant on community supervision for ten years. More than two years later, the convicting court revoked the applicant's community supervision and sentenced him to the remainder of his ten-year term in the institutional division of the Texas Department of Criminal Justice.


[54] Approximately two years later, the applicant filed this application for writ of habeas corpus under article 11.07. The applicant alleged that he learned that the complainant in his case had consistently recanted her allegations since before his trial. To support the recantation, the applicant submitted affidavits from the complainant, from the complainant's best friend at the time the allegations were made, A.S., and the complainant's boyfriend at the time the allegations were made, B.G.


[55] The applicant gave several reasons for pleading guilty to the offense. He was unable to make bail and keep his retained counsel for the first trial. The applicant was unable to afford to continue with retained counsel for a second trial. The applicant had already spent ten months in jail awaiting his first trial and would have had to continue his incarceration during a second trial. The applicant was addicted to drugs at the time he entered his plea.


[56] The convicting judge explained in her findings that her recollection of the trial and plea proceedings support the applicant's claim that his guilty plea was not accurate. The judge remembered being surprised that the applicant pleaded guilty especially in light of the evidence that had been presented during the trial that resulted in a hung jury. After going through the plea proceedings, the judge assumed that there were facts affecting the applicant's decision to plead guilty of which she was unaware.


[57] Taking into consideration the reasons given by the applicant for pleading guilty and her own recollection of the trial and plea proceedings, the convicting judge found the reasons given by the applicant in the habeas proceedings were more credible than the assertions made to the court at the time of the plea.


[58] The convicting judge next considered the new evidence that affirmatively showed the applicant's innocence. The applicant's newly discovered evidence includes affidavits and testimony that the complainant recanted her allegations almost immediately after making the allegation and that during the time between the allegation and the trial, the complainant consistently-to her friends-denied the truth of the allegation. This is corroborated by affidavits from A.S. and B.G.


[59] In her affidavit and testimony at the habeas evidentiary hearing, A.S. explained that two to three days after the complainant made her allegations, the complainant told her that the allegations were not true. Before trial, the complainant confided to A.S. that she was worried that her testimony would not be believed. After testifying, the complainant told A.S. that she thought her testimony had gone well and that she thought she had been convincing.


[60] B.G.'s affidavit notes that he heard about the allegations from the complainant's mother. He said that when he talked to the complainant about the allegations, she told him that they were not true and that she fabricated the charges because she hated the applicant and wanted him to leave. As the trial approached, B.G. tried to convince the complainant that she should stop lying about the charges. The complainant became angry with B.G. and accused him of being disloyal.


[61] In the complainant's affidavits, she explains why she fabricated the charge against the applicant. She explained that the applicant's abuse of her mother, the drug use by the applicant and her mother, her mother's claims that the applicant was unfaithful, and personal disagreements between herself and the applicant, among other reasons led her to fabricate the charges. Her explanations about whom she told about the fabrication and when are consistent with the affidavits of A.S. and B.G.


[62] According to her affidavit, the complainant did not plan the fabrication. Her mother asked her whether the applicant has ever done anything to her. She told her mother that the applicant had sexually assaulted her. At the trial, she explained, she wove the allegations of sexual assault into events that had actually occurred. She said she pretended to cry when she found out the applicant received community supervision. She decided to recant officially several months after she received letters from B.G. explaining that the applicant had gone to prison.


[63] The convicting court recalled the trial, due to "the exceptional nature of the testimony adduced before it during the trial." The court explained, "Rife with material contradictions, this Court observed instance upon instance of testimony that either conflicted with testimony given by other State's witnesses or which was simply implausible." The court gave examples of inconsistent and implausible testimony.


[64] In one example, the complainant testified that she had described in her diary, which she kept at her home, some of the events that formed the accusation against the applicant. Defense counsel requested that the complainant produce the diary, and the convicting court ordered her to do so the following day. The complainant and her mother came to court the next day without the diary stating that their home had been burglarized the night before and that the only thing taken was the diary.


[65] In another instance, there was conflicting testimony about a blood-stained shirt said to have been found by the complainant's aunt. The complainant testified that she had left the shirt at the scene of an attack in Oklahoma. The complainant's aunt testified that she found the shirt under the complainant's bed in Dallas. She also testified that she offered the shirt to an investigator who said he could not accept it.


[66] Also, the doctor who examined the complainant explained that she was unwilling to express a definitive opinion about her findings, but she said there were "[n]o physical findings suggestive of abuse at this time."


[67] The convicting court, after weighing the evidence from the trial, the applicant's guilty plea, the applicant's stated reasons for pleading guilty, and the newly discovered evidence found "the evidence of Applicant's guilt is so far outweighed by the evidence of Applicant's innocence as to be entirely one-sided." Having so found, the convicting court concluded that the new evidence unquestionably established the applicant's actual innocence of the aggravated sexual assault of the complainant. The court recommended granting the relief sought by the applicant.


[68] The record supports a finding that the recantation in this case is more credible than the testimony at trial. The affidavits of the complainant, B.G., and A.S. and the testimony of A.S. at the habeas hearing contradict the complainant's testimony at trial and constitute affirmative evidence of the applicant's innocence. We are convinced by clear and convincing evidence that no rational jury would convict the applicant in light of the new evidence. Relief is granted.


[69] The Director of the Texas Department of Criminal Justice, Institutional Division is ordered to return the applicant to the custody of the convicting court so that he may answer the charges against him.


[70] Publish.


[71] Hervey, J., filed a dissenting opinion in which Keller, PJ., and Keasler, J., joined. Womack, J., joined Part II.


[72] DISSENTING OPINION


[73] I respectfully dissent. Having failed to establish any error (constitutional or otherwise) in connection with his original guilty plea and conviction at which time he was afforded the awesome constitutional protections guaranteed to those accused of crimes, applicant bears an extremely heavy burden of establishing his right to habeas corpus relief five years after he voluntarily confessed his guilt. I would hold that applicant has not met this burden.


[74] I. Court's Holding Is Unnecessarily Broad


[75] Applicant presents a free-standing claim of actual innocence under our decision in Ex parte Elizondo, 947 S.W.2d 202, 206-09 (Tex.Cr.App. 1996). In Elizondo, we explained our task in evaluating actual innocence claims:


[76] Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, our task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole, we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial. See Elizondo, 947 S.W.2d at 206 (emphasis supplied). We reaffirmed this very standard in our more recent decision in Ex parte Franklin, 72 S.W.3d 671, 677 (Tex.Cr.App. 2002).


[77] Applicant contends that newly discovered evidence establishes his innocence, so he should be allowed to take back his admission of guilt. The State argues, among other things, that allowing applicant to do this would disrupt the administration of justice in future habeas corpus cases by encouraging guilty-pleading defendants to collaterally attack their pleas "so long as [they] can provide some evidence to show that [they are] actually innocent and provide an excuse for having pled guilty." The State claims that, since many convictions result from guilty pleas, this could clog the courts with meritless actual innocence claims from guilty-pleading defendants. The State also claims that Elizondo cannot even apply to guilty-pleading defendants because it would be impossible to fulfill Elizondo's requirement to weigh an applicant's newly discovered evidence "against the evidence of guilt adduced at trial" since there was no trial. See Elizondo, 947 S.W.2d at 206.


[78] Applicant responds that this Court can grant habeas corpus relief to him in an opinion limited to the "exceptional set of circumstances" presented by this case. The "exceptional set of circumstances" to which applicant refers is the existence of a record from applicant's 1997 trial that resulted in a hung jury. Applicant asserts that this distinguishes his case from most other cases involving convictions from guilty pleas. Applicant asserts:


[79] At the outset, counsel for Applicant will acknowledge that he admittedly seeks to confine the parameters of this Court's inquiry to the unique circumstances of the instant case. The reason for Counsel's desire to do so is simple-for if the Court's inquiry is put generally (i.e., Can a habeas applicant who has pled guilty and waived a jury still avail himself of the relief afforded under Elizondo?), the answer to the inquiry must always be "No." The reason for this answer is most readily apparent from the above cited portions of Franklin and Elizondo. Simply put, the habeas court's "weighing" of the newly discovered exculpatory evidence against the evidence of guilt adduced at trial is at the very heart of the Elizondo analysis. Absent a record with which to conduct this weighing of exculpatory evidence against the evidence of guilt, a habeas applicant simply cannot provide the very substance which is at the heart of the Elizondo inquiry. Thus, as Applicant previously asserted, it is certain that had there existed only Applicant's plea colloquy in the instant case, Applicant would not now be before this Court.


[80] Applicant recognizes the concerns that the Court might have regarding the ramifications of granting Applicant's writ on both this court's past and future habeas jurisprudence. If this writ is granted, will Texas court's (sic) face the specter of endless writs on grounds of actual innocence from those defendants who chose to enter guilty pleas? The answer to this is necessarily "No." By its very nature, the instant case presents what can only be characterized as the most exceptional set of circumstances-namely, the existence of a full trial transcript in conjunction with a guilty plea. As Applicant has detailed previously, Applicant's writ, and the process through which the habeas court analyzed it prior to making its recommendation, simply does not deviate from the standard articulated in Elizondo. Thus, Applicant's case, as an anomaly, will hold little if any precedential value upon which to support a claim that relief under Elizondo may be maintained on a guilty plea alone. (Emphasis in Original).


[81] Both parties, therefore, agree that a broad decision, such as the one the Court makes here, that apparently permits a habeas corpus applicant to raise an Elizondo claim "on a guilty plea alone" could adversely impact the administration of justice in future habeas cases. The Court can and should dispose of this particular case by exercising restraint and limiting its decision to the "exceptional set of circumstances" presented by this case "namely, the existence of a full trial transcript in conjunction with [applicant's] guilty plea."


[82] II. Applicant's Remedy Is Executive Clemency


[83] I would decide, however, that Elizondo should not be extended to an applicant whose conviction rests on a legally valid and voluntary guilty plea that years later the applicant claims was a lie and wants to take back. In evaluating applicant's claim of actual innocence, we have to recognize that applicant freely and voluntarily confessed his guilt to the offense of aggravated sexual assault. The habeas court and the parties also recognize that applicant's voluntary admission of guilt presents a significant obstacle to obtaining habeas corpus relief and disregarding society's valid finality concerns. See United States v. Timmreck, 99 S.Ct. 2085, 2087-88 (1979). Applicant claims, however, that it should make no difference whether he "arrived in prison through his own false guilty plea" because the "overriding remedial goal" of the judiciary should now be to release this self-admitted perjurer from prison.


[84] By its very terms, however, Elizondo is limited to cases where an applicant has pled not guilty and is convicted after a trial. Elizondo was an extremely controversial decision and it is still subject to reasonable debate whether an applicant, who pleads not guilty, should be permitted to raise a free-standing claim of actual innocence on habeas corpus. See Franklin, 72 S.W.3d at 678-79 (Womack, J., concurring); Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting) (Elizondo's "revolutionary and unwarranted procedure"rests on "mighty thin sand"); cf. Herrera v. Collins, 113 S.Ct. 853, 859-62 (1993) (free-standing claims of actual innocence "have never been held to state a ground for federal habeas corpus relief" in part because "there is no guarantee that the guilt or innocence determination would be any more exact" on habeas corpus than it was at trial).


[85] An applicant who pleads guilty stands on a different plain. A legally valid guilty plea is a significant event in the criminal process. See McGlothlin v. State, 896 S.W.2d 183, 190 (Tex.Cr.App.) (Meyers, J., dissenting), cert. denied, 116 S.Ct. 219 (1995). It "is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case." Menna v. New York, 96 S.Ct. 241, 242 n.2 (1975) (emphasis in original); see generally, Tollett v. Henderson, 93 S.Ct. 1602 (1973); Brady v. United States, 90 S.Ct. 1463 (1970); Parker v. North Carolina, 90 S.Ct. 1458 (1970); McMann v. Richardson, 90 S.Ct. 1441 (1970).


[86] Important reasons exist for treating an applicant, who claims to have falsely pled guilty, differently from an applicant who pleads not guilty and then is convicted after a trial. The applicant in this case admits to having made what he characterizes as a "false guilty plea" for which he received a bargained-for benefit of deferred adjudication. Applicant accepted the benefits of this bargain and later violated the law resulting in an adjudication of his guilt for the aggravated sexual assault offense. Applicant now claims that he is innocent and he wishes to take back his "false guilty plea."


[87] This conduct compromises the integrity of the judicial process. Notwithstanding applicant's reasons for making what he claims was the difficult decision to falsely plead guilty, the fact remains that, if applicant is now to be believed, he still committed perjury by falsely pleading guilty. See Leday v. State, 983 S.W.2d 713, 732 (Tex.Cr.App. 1998) (McCormick, P.J., dissenting) (Constitution does not guarantee us the freedom from making difficult choices). Under these circumstances, I would hold that applicant has exhausted his remedies through the judicial process and that his remedy is to seek executive clemency. See Texas Administrative Code, Title 37, Section 143.2 (West 2002) (procedures for obtaining pardons for innocence); cf. Herrera, 113 S.Ct. at 866-69 (executive clemency "is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted").


[88] III. Applicant Not Entitled To Habeas Corpus Relief Under Elizondo


[89] Applicant asserts that even though he has compromised the judicial process with his false guilty plea, the judicial process would be even more compromised by the continued incarceration of an innocent person. Applicant claims that he has "unquestionably establish[ed]" his innocence under Elizondo. See Elizondo, 947 S.W.2d at 209.


[90] A. Insufficient Record


[91] The habeas record does not include the reporter's record from applicant's 1997 trial even though it appears from our review of the habeas court's findings that the habeas court reviewed that record in making its recommendations to this Court. Without an adequate record this Court is prevented from weighing applicant's exculpatory evidence against the evidence of guilt adduced at trial which applicant acknowledges "is at the very heart of the Elizondo analysis." See Franklin, 73 S.W.3d at 677; Elizondo, 947 S.W.2d at 206.


[92] B. Record Before Court Does Not "Unquestionably Establish" Innocence


[93] In Elizondo, we held that a habeas corpus applicant has the burden to "unquestionably establish" factual innocence. See Elizondo, 947 S.W.2d at 209. At this point in the judicial process, it is not enough for an applicant to raise some doubt (or even a reasonable doubt) about his guilt. See id. (an exceedingly high standard applies to the assessment of actual innocence claims on habeas corpus). Applicant's "new" evidence of innocence essentially boils down to the affidavits (attached to applicant's habeas corpus application) of three witnesses who, after remaining silent with information of applicant's "innocence" for five years, have now come forward to say that the complainant falsely accused applicant of raping her.


[94] Applicant was the boyfriend of the complainant's mother. The complainant asserts in an affidavit that "everything [she] testified to [at applicant's 1997] trial was false." The complainant also asserts in the affidavit that in 1996 she made an outcry statement to her mother accusing applicant of raping her. The complainant also asserts in the affidavit that she falsely accused applicant of raping her because applicant was physically abusive to her mother and it "seemed like a good way to get [applicant] out of [their] house."


[95] Yet we have no evidence from the complainant's mother confirming the complainant's stated motive (applicant's abuse of the mother) for falsely accusing applicant of raping her. It also is significant that the complainant's 1996 outcry statement to her mother was not overcome. This 1996 unrecanted outcry statement presumably was admitted at applicant's 1997 trial, and the Legislature has determined that such an outcry statement is reliable evidence of guilt. See Article 38.072, Texas Code of Criminal Procedure. Also, as with any recanting witness, it is impossible to know with any certainty which of the complainant's statements are true. See Elizondo, 947 S.W.2d at 216 n.1 (Womack, J., dissenting) (pointing out the weakness of the testimony of a recanting witness whose testimony is always the "last time I was on the witness stand I didn't tell the truth").


[96] The complainant's former boyfriend also filed an affidavit in which he asserts that the complainant told him in 1996 that she had falsely accused applicant. The former boyfriend also asserts in the affidavit that he conveyed this information to applicant's retained lawyer during applicant's 1997 trial but that "for some reason" applicant's lawyer did not ask him about it when the former boyfriend testified at applicant's 1997 trial. This portion of the former boyfriend's affidavit asserts:


[97] I attended [applicant's] trial, and continued to try and talk [the complainant] out of going ahead with it. After sitting through some of the trial though, I decided that I should say something. During one of the breaks, I told [applicant's] attorney what [the complainant] had told me. The attorney told me that he wanted me to testify, and that he would see if I still could. [Applicant's] attorney put me on the stand, but for some reason he never asked me about what [the complainant] had told me.


[98] Applicant, however, has not produced any evidence from applicant's trial counsel corroborating any of this or explaining why trial counsel declined to pursue a line of questioning at applicant's 1997 trial that would have established applicant's innocence. *fn3 Moreover, since the habeas record is silent on whether applicant's trial counsel conveyed this information to applicant, we cannot know whether applicant's evidence of "innocence" is "new."


[99] While applicant's "new" evidence arguably raises some doubt about applicant's guilt, it does not "unquestionably establish" his innocence. See Elizondo, 947 S.W.2d at 209. Applicant, therefore, is not entitled to habeas corpus relief.


[100] I respectfully dissent.


[101] Hervey, J.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[102] *fn1 See Herrera v. Collins, 506 U.S. 390 (1993).


[103] *fn2 Innocent people may plead guilty, for various reasons. An innocent person may want to take advantage of a discounted sentence in a plea bargain, rather than gamble on a far greater sentence if a mistaken verdict is returned. Or a person may not know what he is admitting and accept his attorney's advice that a guilty plea is prudent. Or a person may be under some pressure to accept responsibility for something he did not do, in order to protect someone else, whom he loves or fears. United States v. Timbana, 222 F.3d 688, 718 (9th Cir. 2000) (Kleinfeld, J., dissenting)


[104] *fn3 The habeas record reflects that applicant also raised an ineffective assistance of counsel claim. According to the habeas court's findings, however, trial counsel's failure to question the former boyfriend on the subject of applicant's innocence was not urged as a basis for applicant's ineffective assistance of counsel claim.