Attacking “False Evidence” and “Junk Science” in Wrongful Convictions

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Tuesday, February 6th, 2018
Attacking “False Evidence” and “Junk Science” in Wrongful Convictions

Preliminary Matters

Your convicted defendant may or may not have made an unsuccessful previous attempt to obtain post-conviction relief by way of an article 11.07 T.C.C.P. writ. Whether a previous writ has been filed is an essential, procedural fact to know early in your pursuit of post-conviction relief from a wrongful conviction. If your client has filed a previous article 11.07 writ and lost, for example, any subsequent writ must first hurdle the procedural obstacles, or bars, enumerated in art. 11.07, Sec. 4, T.C.C.P., before the Court of Criminal Appeals will consider the substantive merits of your current claims. This holds true even if the previous writ was pro se garbage filed by your client. The corollary to that unforgiving section of art. 11.07 is that in filing your client’s first 11.07 writ, you are erecting those same obstacles that any subsequent writ must hurdle, if your initial writ is not successful. The hurdles you will create for a subsequent writ application include this: establishing that the factual or legal basis of the subsequent writ claim was not raised in the previous writ (your writ) and was, in fact, “unavailable on the date the applicant filed the previous application.” Article 11.07 Sec. 4(a)(1). So, in filing an initial writ, you will bar your client from subsequently raising claims you never raised, but could have raised because the factual and legal bases were theoretically “available” at the time you filed the initial writ.1

Actual Innocence

The prototypical “actual innocence” case is one in which the defendant has been convicted of a crime, usually a felony, and has exhausted his or her direct appeals. Most often, the defendant was convicted after a trial, but an actual innocence claim can also arise from a guilty plea, plea bargained or otherwise.2

In Texas, article 11.07 T.C.C.P. is the most common vehicle used for seeking post-conviction relief for a wrongful conviction, including claims of “actual innocence” and “false evidence.” Article 11.073 T.C.C.P., which became effective September 1, 2013, and was amended effective September 1, 2015, provides a separate and more specific vehicle for a post-conviction claim—that bad science used by the State at trial substantially contributed to the wrongful conviction, or that good science, unavailable at the time of the trial, can be used to now correct the wrongful conviction.

Existentially, “actual innocence” is a claim that as a matter of historic, objective fact, your client was convicted of a crime that was committed by someone else. Perhaps the crime occurred pretty much as the witnesses, the police, and the prosecutors claim it occurred. But the wrong person (your client) was arrested, charged, and convicted. Mistaken eyewitness identification is one generally recognized, common cause of these wrongful convictions. In general, the “DNA exonerations” typify the “wrong person was convicted” actual innocence claim. Unfortunately, in the vast majority of these cases, there is no preserved DNA to test.

The other type of existential, actual innocence claim is where no crime was ever committed by anyone. The crime has no existence beyond the printed words in the indictment and final judgment. Examples could include an arson/murder where a post-conviction investigation establishes that the fire causing the death or deaths was not the result of arson, or a “shaken baby” case where the alleged cause of the injury is not supported by science. Imagine someone convicted of embezzlement, and it turns out there was a bookkeeping error and no funds were, in fact, misappropriated.3 Possibly the most common scenarios for a “no crime ever occurred” claim are cases of sexual abuse of a child, particularly if there is an alleged recantation by the named injured party claiming that their trial testimony was untrue and that, in fact, there was no sexual assault or other impropriety committed by anyone. Note: These cases are extremely hard to prove as the courts can be highly skeptical of such “recantations.” In Ex parte Navarijo, 433 S.W.3d 558 (Tex.Crim.App. 2014), the habeas court found that the now-adult victim’s exculpatory recantation was more credible and believable than her inculpatory trial testimony as a child, in an aggravated sexual assault of a child case, and that the applicant had, therefore, met his Elizondo burden. The Court of Criminal Appeals disagreed. First, they found fault with the habeas court’s credibility assessment, pointing out the lack of detail in the recantation. Further, Judge Alcala, writing for the majority stated:

The habeas court’s analysis appears to have been based on an assessment of the complainant’s credibility and whether her recantation testimony was more credible than her trial testimony, rather than on an assessment of the probable impact of her new recantation testimony on the State’s case as a whole.

Id. at 572.

The United States Supreme Court has never confirmed that the United States Constitution provides judicial relief from imprisonment or execution merely because a person is, in fact, innocent, as long as there are no identified, significant, procedural errors in the trial record. In essence, the accuracy of the outcome is irrelevant. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); District Attorney’s Office v. Osborne, 557 US 52, 129 S. Ct. 2308, 174 L. Ed. 2d 38 (2009). Notwithstanding the utter failure of Herrera’s innocence claim at the Supreme Court (he was executed), a free-standing claim of actual innocence, is sometimes referred to as a “Herrera claim.”

In Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App. 1996), decided three years after Herrera, the Texas Court of Criminal Appeals first recognized a freestanding claim of actual innocence as a cognizable ground for relief in a post-conviction state writ. The Court based their decision on the due process clause of the Fourteenth Amendment to the United States Constitution. The claimant must establish by “clear and convincing” new evidence that no rational juror who heard the original trial evidence and then heard the new evidence would be able to find guilt beyond a reasonable doubt. Since Elizondo, Texas has established a significant body of “actual innocence” jurisprudence. The Texas Court of Criminal Appeals has repeatedly characterized the claimant’s burden in prevailing on a bare claim of innocence as “herculean.”4

In Ex parte Sonia Cacy, 2016 Tex.Crim.App. Unpub. LEXIS 982, the Texas Court of Criminal Appeals agreed with the court of conviction that Cacy had met her “herculean” burden under Elizondo and vacated her conviction for arson/murder. Judge Yeary, joined by Judge Keller, wrote a concurring opinion noting that meeting the “herculean” burden established by Elizondo does not necessarily mean that person is “manifestly innocent”.

The Elizondo standard, on its face, does not really focus on innocence per se. It is, instead, an exceedingly high burden by which an applicant must show that, if newly available evi­dence were added to the evidentiary mix, no reasonable jury would have found the State’s case to have been com­pelling enough to defeat the systemic presumption of in­nocence . . . This is not the same as establishing that the applicant is manifestly innocent.

Although their ontological reasoning seems sound, it is not entirely clear (yet) why Judges Yeary and Keller are drawing the distinction between Elizondo, “actual innocence,” and “manifest innocence.”

Even more recently, in In Ex parte Wimberly, No. WR-64,017-05 (Tex.Crim.App. Nov. 1, 2017)(unpublished), Judge Yeary agreed with the majority’s decision to deny the applicant’s Elizondo claim, but stated the majority’s opinion “describes this admittedly ‘herculean’ standard as even more ‘herculean’ than it really is.” Judge Yeary accurately points out that there is a difference between establishing that no reasonable juror “would” or “could” have found guilt beyond a reasonable doubt, in light of the new evidence, on the one hand, and “unquestionably establishing innocence, on the other hand. He is satisfied with the lesser Elizondo standard but is bothered with the Court con­flating it with what Judge Yeary terms “manifest innocence.” Id. “Not every successful Elizondo applicant is necessarily literally ‘actually innocent.’” Id. (Judge Yeary quoting his concurring opinion in Cacy.) It is not yet clear whether Judge Yeary is simply bothered by what he perceives as misleading nomenclature and imprecise thinking, or whether he believes the two standards should, in some way, be recognized as separate standards and applied in different ways with different legal consequences.

It is worth noting that jeopardy does not attach to a finding of actual innocence, and that someone granted relief under an Elizondo claim can, legally, be re-tried and convicted of the same offense.

False Evidence

Closely related to post-conviction, actual innocence/Elizondo claims are claims alleging that the state sponsored false, perjured testimony or other false evidence at trial. Like an Elizondo claim, a claim of false state-sponsored evidence is based on the due process clause of the Fourteenth Amendment to the United States Constitution.

As Judge Price wrote in his concurring opinion in Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012):

A bare claim of actual innocence and a claim that false evidence was inadvertently used to obtain a conviction both fall along a continuum of due process violations. At one end of the continuum is a claim that the State has knowingly used false or perjured testimony. Here due process is primarily concerned with the fairness of the trial. Because of the State’s complicity in undermining the integrity of the process, the standard for materiality is relatively low: a reasonable probability that the false or perjured testimony contributed to the conviction. At the other end of the continuum is a bare claim of actual innocence. An actual innocence claim does not depend upon a showing of misconduct of any kind on the part of the state. The due process concern is with the accuracy of the result . . .

Henderson at 835 (footnotes omitted) (citing, inter alia, United States v. Bagley, 473 U.S. 667 (1985)).

Judge Price goes on to agree with and quote Judge Keller in Ex parte Chavez, 371 S.W.3d 200, 216 (Tex.Crim.App. 2012)(Keller, P. J. dissenting):

The unknowing use of perjured or false testimony falls [or at least should fall] between these end-points, with a mid-level standard (or standards) of materiality.


Henderson came three years after Ex parte Chabot, 300 S.W.3d 768 (Tex.Crim.App. 2009), where the Texas Court of Criminal Appeals clearly held, for the first time, that the State’s unknowing or inadvertent use of perjured testimony was a violation of due process.

The knowing use of perjured testimony is a trial error that is subject to a harmless error analysis. Under the applicable standard, “the applicant has the burden to prove by a preponderance of the evidence that the error contributed to his conviction or punishment.” Although the present case involves unknowing, rather than knowing, use of [perjured] testimony, we see no reason for subjecting the two types of errors to different standards of harm.

Chabot at 771 (quoting, Ex parte Fierro, 934 S.W.2d 370 (Tex.Crim.App. 1996) (footnotes omitted). See also Ex parte Carmona, 185 S.W.3d 492 (Tex.Crim.App. 2006).

In Chabot, Gerald Pabst, Clay Chabot’s co-defendant, testified for the State that he tagged along with Chabot, his brother-in-law, to settle a bad drug deal. When they arrived at the target residence, only the drug dealer’s wife was at home. Pabst testified that he stood by in fear as Chabot raped and murdered the victim in retaliation for the bad drugs sold to him by her husband. Chabot was convicted of murder and given a life sentence based largely on Pabst’s testimony. After Chabot’s conviction, Pabst, who “had no deal,” was allowed to plead guilty to misdemeanor theft for some items stolen from the residence.

Twenty years later, DNA testing from the original sexual assault kit established that Pabst directly participated in the sex­ual assault of the victim. However, there was no real evidence that the original trial prosecutors knew that Pabst had perjured himself about not directly participating in the sexual assault. In 2008, Pabst was arrested in a bar in Ohio, brought to Dallas, convicted of capital murder, and given an automatic life sentence.

The Dallas County District’s Attorney’s office did not agree that Chabot was entitled to Elizondo relief, but did agree that Pabst’s perjury was “material,” and that Chabot’s due process rights were violated, notwithstanding that the prosecutor’s use of Pabst’s perjury by the State was unknowing. The Court of Criminal Appeals agreed.

Since Chabot, under Texas law a claimant is no longer required to prove that the state was aware that the testimony or other evidence sponsored by the state at trial was false, although proof that the state did, in fact, know that the evidence was inaccurate or that their witness was committing perjury strengthens the claim. Likewise, after Chabot and the cases following Chabot, the claimant does not need to prove that the sponsoring witness of the false or inaccurate evidence or testimony knew it was false or inaccurate or that the witness actually committed knowing perjury at the time he or she testified inaccurately for the state. It is sufficient to invoke due process protection if the state-sponsored evidence or testimony was inaccurate, or simply left a false impression (for example, by omitting relevant facts), as long as the inaccuracy or false impression is “material.” The inaccuracy or false impression is “material” if there is a “reasonable likelihood that inaccurate testimony or other evidence affected the outcome of the trial.” Ex parte Ghahremani, 332 S.W.3d 470 (Tex.Crim.App. 2011). This “false impression”/due process standard and analysis applies to both guilt/innocence and punishment. Id.

In an unpublished opinion written by Judge Keasler, the State’s expert testified, in an eyewitness identification case, in which the defendant presented an alibi that a hair from the crime scene “was consistent with the known head hair sample of [the defendant].” Ex parte Chavez, 2010 Tex.Crim.App. Unpub. LEXIS 686. The expert went into substantial detail as to similarities between the crime scene hair and the defendant’s known sample, including length, coloring, color pattern, “the way the pigment was distributed down the root to the shaft,” diameter, amount of cuticle, size of cuticle, color of cuticle, and “a patch type coloring distribution and this was similar in [the defendant’s] hair . . .”

On cross-examination, the State’s expert conceded that she could not definitely identify the hair as the defendant’s.

In summation, the prosecutor emphasized the expert’s testimony by saying the hair collected from the crime scene “matched or was consistent with” the defendant’s hair.

Post-conviction DNA testing established that the hair from the crime scene was definitely not the defendant’s hair. However, the defendant’s false evidence claim failed. Judge Keasler, writing for the majority, reasoned that the expert’s testimony was technically “not false just because post-conviction DNA testing later proved the hair did not come from [the defendant]. The similarities between the physical characteristics of the unknown hair and [the defendant’s] hair identified by [the state’s expert] at [the defendant’s] trial have not been refuted.” Id.

In Ex parte Franklin, 72 S.W.3d 671 (Tex.Crim.App. 2002), the defendant was convicted of the aggravated sexual assault of a thirteen-year-old girl. At trial, the alleged victim testified that Franklin, a Fort Worth police officer, “raped her in the backyard of her father’s house.” Id. at 673. At the time, she was thirteen years old. “Applicant testified that prior to the time of the sexual assault, she had never had sexual relations with anyone.” Id.

The alleged victim’s testimony was corroborated by her mother, who testified that a day after the alleged sexual assault, she noticed that the victim had a pair of blood-stained underwear, and that the stain was a different color than menstrual blood. That is, implying that it was consistent with loss of virginity blood and, therefore, consistent with her daughter’s trial testimony. The state also presented the testimony of the doctor, who conducted the sexual assault examination, albeit several weeks after the alleged rape. The doctor testified that her examination of the alleged victim revealed evidence of “blunt force trauma” indicative of past sexual intercourse. Id. at 673.

In May of 1998, over three years after the defendant was convicted, “the Tarrant County District Attorney’s office notified applicant’s trial counsel that it had received an affidavit from the police in which [the alleged victim] stated that she had been sexually assaulted by her step-father from the time she was six years old until the time that her mother moved her away from her stepfather,” which was sometime after Franklin was convicted. Id. at 673. The victim, however, otherwise stood by her testimony of Franklin’s guilt.

Franklin filed art. 11.07 writ claiming that the new evidence entitled him to relief under Elizondo. He lost. Writing for the Court, Judge Myers stated as follows:

In Elizondo we held that an applicant asserting a Herrera-type claim must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the newly discovered evidence . . . [I]t is clear that Elizondo requires that applicant’s presenting Herrera-type claims offer evidence that goes towards affirmatively proving applicant’s innocence.

* * *

Although applicant’s evidence is important, it is limited to the impeachment of [the alleged victim’s] claim that she did not have sexual relations with other men. It certainly calls into question her veracity in general, but only collaterally effects her accusations against applicant . . .

Id. at 677–678.

After Chabot was decided in 2009, Franklin filed a subsequent writ alleging that Chabot was new law and that he should prevail under Chabot. Both the habeas court and the Court of Criminal Appeals agreed and vacated the conviction. Ex parte Franklin, No. WR-44,521-03, 2016 Tex. Crim. App. Unpub. LEXIS 321 (Crim. App. Apr. 6, 2016). In December 2016, Franklin was acquitted in a jury trial.

In Ex parte Weinstein, 421 S.W.3d 656 (Tex.Crim.App. 2014), a murder case, a state’s key witness untruthfully denied that he had suffered delusions and auditory hallucinations. At the time of the testimony, the State was unaware that their witness had lied and that, in fact, he had suffered delusions and hallucinations.

In denying the defendant’s art. 11.07 due process/Chabot claim, the Court found that the false testimony, unlike Pabst’s false testimony in Chabot, was not material in that there was not a reasonable likelihood that the demonstrably false testimony affected the jury’s judgment. Many of the facts that the witness testified to were corroborated, and there was an abundance of evidence supporting the defendant’s guilt unrelated to that witness’ testimony.

Presiding Judge Keller, joined by Judge Price, wrote a concurring opinion asserting the need to assess the materiality of the State’s unknowing presentation of perjury (Chabot), versus the state’s knowing sponsorship of perjury, under different standards:

We filed and set this case to determine whether the state’s unknowing use of false testimony calls for the same standard of materiality as the state’s knowing use of false testimony. The Court appears to sidestep this issue . . .

Id. at 669 (Keller, P. J. concurring).

Judge Keller goes on to name and explain “three good reasons for imposing a higher standard of materiality for unknowing use than for knowing use.” Id. at 670. Those three reasons are: 1) “state action” (“when the witness is a private citizen, [state action] must, then, be supplied by the fact that the false evidence has actually adversely affected state judicial proceedings. A mere possibility that the proceedings have been affected [by the false testimony of a private citizen] is not enough”); 2) “finality” (“[a] prosecutor who knowingly uses false evidence should understand that the case is a ticking time bomb that is likely to explode the moment the defendant discovers what has happened.” Therefore, the State has no good faith interest in “finality”); 3) “the analytical nature of the claims” (“[t]he knowing use of false evidence is prosecutorial misconduct . . .” As such, the analysis can bypass “materiality” and go straight to a constitutional harmless error analysis). Id. at 670–672.

In Ex parte Tiede, 448 S.W.3d 456 (Tex.Crim.App. 2014), the defendant was convicted of murder and sentenced to life. The defendant eventually filed an 11.07 writ and was given a new punishment hearing because of inaccurate testimony from the state’s expert, psychiatrist Dr. Gripon, who described the defendant as having an unremarkable mental-health history. This testimony turned out to be inaccurate. Further, “[t]he habeas evidence supports the conclusion that the jury likely would have sentenced applicant to a period of confinement for less than life in prison in light of the conclusive evidence that now explains his state of mind as experiencing disassociation when he killed the decedent and left her body in the refrigerator for an extended period of time.” Id. at 457 (J. Alcala concurring).5 Note: After a new punishment hearing, the second jury also assessed a life sentence.

Although favorable findings on a post-conviction false evidence claim will vacate the conviction and/or sentence, such a finding is not, in itself, a finding of actual innocence either existentially or legally. In that respect, a successful false evidence claim is similar to a successful Brady claim. Neither are dispositive of guilt. However, both can be important, or even essential, components of a larger actual innocence claim. See, e.g., Ex parte Richard Ray Miles, 359 S.W.3d 647 (Tex.Crim.App. 2012) (the Texas Court of Criminal Appeals granted relief on both the Brady claims and on actual innocence).

Texas Code of Criminal Procedure, Article 11.073

Article 11.073 T.C.C.P. establishes a post-conviction statutory claim for relief that overlaps, to an extent, with constitutional, “false evidence” claims. However, art. 11.073 is limited to “scientific evidence.” Specifically, “scientific evidence” that was “not available to be offered by a convicted person” at their trial; “or (2) contradicts scientific evidence relied on by the state at trial.”

Since art. 11.073 did not become effective until September 1, 2013 (and was amended, effective September 1, 2015), it can provide a new “legal basis” for a previously “unavailable” claim within the meaning of art. 11.07, sec. 4 and 11.071, sec. 5, T.C.C.P., assuming that the previous, unsuccessful writ was filed prior to the effective date of the statute.

The current version of art. 11.073, T.C.C.P. reads as follows:

(a) This article applies to relevant scientific evidence that:

(1) was not available to be offered by a convicted person at the convicted person’s trial; or

(2) contradicts scientific evidence relied on by the state at trial.

(b) A court may grant a convicted person relief on an application for a writ of habeas corpus if:

(1) the convicted person flies an application, in the man­ner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:

(A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

(B) the scientific evidence would be admissible un­der the Texas Rules of Evidence at a trial held on the date of the application; and

(2) the court makes the findings described by Subdivisions (1)(A) and (B) and also finds that, had the scientific evidence been presented at trial, on the pre­ponderance of the evidence the person would not have been convicted.

(c) For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant sci­en­tific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.

(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since:

(1) the applicable trial date or dates, for a determination made with respect to an original application; or

(2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

In a case that can be fairly characterized as having a long and tortured history, the Texas Court of Criminal Appeals ultimately granted Neal Robbins relief from his capital murder conviction and life sentence under the 2013 version of art. 11.073. Ex parte Robbins, 478 S.W.3d 678 (Tex.Crim.App. 2014). The Court had previously denied his pre-article 11.073 actual innocence and false evidence claims. Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App. 2011).

In 1999, a jury found Robbins guilty of capital murder of his girlfriend’s seventeen-month-old daughter. The most pertinent facts in Robbins are as follows:

The child died after having been in the exclusive care of the defendant for several hours. The evidence was in dispute in its characterization of the defendant’s prior relationship with both the child and the child’s mother, as well as the defendant’s behavior after the child died. There was evidence that inept, possibly dangerous efforts were made to revive the child by third persons. At trial, Harris County medical examiner Patricia Moore, who performed the autopsy, opined that the child’s cause of death was “homicide.” The defendant presented expert testimony that the cause of death was more appropriately characterized as “undetermined.” The jury convicted Robbins and he received an automatic life sentence, the death penalty having been waived. After his conviction, the State’s expert, Patricia Moore, changed her opinion and wrote a letter to the District Attorney stating that, since the time of her trial testimony eight years earlier, she had gained more experience and knowledge. She further stated that upon review of the autopsy report and her case file, her new, better-informed opinion was that the cause of death should be classified as “undetermined.” An “undetermined” classification still does not rule out homicide, though.

Robbins filed a post-conviction, art. 11.07 writ based on the State’s testifying expert’s change of opinion, claiming actual innocence under Elizondo and false evidence, under the due process clause of the Fourteenth Amendment. He lost both claims. The Court of Criminal Appeals found that Robbins had not overcome his herculean burden required by Elizondo,6 and that Moore’s change of opinion from “homicide” to “undetermined” did not mean that her original opinion, as testified to at trial, was “false” since, inter alia, it left open the possibility that “homicide” was, in fact, the cause of death.7

After art. 11.073 went into effect in 2013, Robbins filed a subsequent writ under the new statute. On November 26, 2014, a divided Court of Criminal Appeals ruled in Robbins’ favor. Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014). Much of the controversy within the Court centered on whether the testifying expert’s change in scientific knowledge met the requirements of the new statute.

The remaining question before this Court is whether the “scientific knowledge . . . on which the relevant scientific evidence is based has changed” [emphasis added]. Moore’s conclusion certainly has changed, but does “scientific know­ledge” apply to the knowledge of an individual?

Robbins, 478 S.W.3d at 691.

A divided court held that it did.

Moore’s revised opinion on the cause of death satisfies the requirements to be called “scientific knowledge,” and thus falls within the language of article 11.073. Moore’s opinion labeling cause of death as “undetermined” was not available at the time of trial because her scientific knowledge has changed since the applicable trial date.

Robbins, 478 S.W.3d at 692.

The State’s motion for rehearing was granted and oral arguments were set and heard in June 2015. In the meantime, the 2015 Texas Legislature amended art. 11.073 to specifically conform to the Court’s controversial interpretation of the 2013 version of art. 11.073, and the Governor signed the amended, 2015 version into law. Eventually, the Court dismissed the motion for rehearing as improvidently granted.

In Ex parte White, 506 S.W.3d 39 (Tex.Crim.App. 2016), a death penalty case, the Court cited the clear language of the statute and determined that, unlike a false evidence/due process claim, art. 11.073 only applies to guilt/innocence issues and does not apply to the punishment stage of a trial.

In Ex parte Mayhugh, Ramirez, Rivera, and Vasquez, 512 S.W.3d 285 (Tex.Crim.App. 2016), the habeas court granted relief to all four applicants under article 11.073. The habeas court, however, found that the applicants had not met the herculean burden required to prevail on their Elizondo/actual innocence claims. The applicants had submitted new evidence that the pe­dia­trician who conducted the original sexual assault examinations of the two alleged victims had changed her opinion due to changes and advancements in scientific knowledge, and that her trial testimony that there was unmistakable physical evidence of sexual assault was inaccurate. In fact, there was no physical evidence of sexual assault.

Further, one of the two alleged victims had fully recanted and explained in significant detail how the false charges attributed to her sister and her had come about. Applicants also submitted new expert testimony corroborating the reliability of the recantation, as well as other expert testimony that, based on psycho-sexual examinations, none of the applicants were sexual deviants and none were prone to committing any kind of sexual offense. Applicants also submitted evidence, which had been disallowed in one of the original trials, establishing a motive for the father of the alleged victims to encourage and facilitate the fabrication of the charges.

In denying relief under Elizondo, the habeas court specifically referenced that there was no hard science, such as DNA, that unquestionably precluded the applicants’ guilt, and that one of the two alleged victims had not recanted. The Court of Criminal Appeals disagreed and granted the applicants’ Elizondo claim. In doing so, the court distinguished the “clear and convincing” burden established in Elizondo and legal insufficiency of the evidence. Mayhugh at 298. Writing for the Court, Judge Newell noted that, “[t]hough the math may become trickier when, as in this case, there is only one recantation between two accusers, the ultimate calculus should not change.” Mayhugh at 299.

Applicants have presented significant new evidence that unquestionably establishes their innocence. S. L. not only established that the offenses did not occur through her cred­ible recantation testimony; she explained in detail how her father forced her and her sister to make the false allegations to the police in the first place. S. L.’s recantation is corroborated by other documented instances of S. L.’s father fabricating allegations of abuse in order to manipulate his wife in an ongoing custody dispute.

Mayhugh at 303.

Judge Newell’s opinion concludes as follows:

It has been suggested that the term “actual innocence” is inappropriate because applicants who are successful when raising a claim of actual innocence never truly prove that they did not commit the offense. But when the presumptions are reversed, the State does not have to prove that a defendant is definitively guilty. The State does not prove that a person has committed a crime beyond all doubt, or even beyond a shadow of a doubt. By proving its case at trial according to the applicable standard, the State secures the ability to proclaim to the citizens of Texas that the person responsible for a crime has been brought to justice, that the person is guilty. When defendants have accomplished the herculean task of satisfying their burden on a claim of actual innocence, the converse is equally true. Those defendants have won the right to proclaim to the citizens of Texas that they did not commit a crime. That they are innocent. That they deserve to be exonerated. These women have carried that burden. They are innocent. And they are exonerated. This Court grants them the relief they seek.

Ex parte Mayhugh, Ramirez, Rivera, and Vasquez, 512 S.W.3d 285, 307 (Tex.Crim.App. 2016).


Successful post-conviction claims of actual innocence and/or false state-sponsored evidence take years to resolve and can be expensive, particularly if you are dealing with an uncooperative/unethical district attorney’s office. But even if you are not, Jim McCloskey of Centurion Ministries in Princeton, New Jersey, has said their successful exonerations, from all over the country, have taken an average of seven years. That has, likewise, been my experience in Texas. Feel free to contact the Innocence Project of Texas as a resource. You can also follow us on Facebook.


1. This all assumes that your “first or next wrongful conviction case” is not a death penalty case. Death penalty writs are brought under art. 11.071 T.C.C.P., and the analogous procedural barriers for subsequent writs are in section 5 of art. 11.071. Likewise, if your client is seeking relief from a wrongful conviction for which he or she is on community supervision, the writ should be brought under art. 11.072 T.C.C.P.

2. National Registry of Exonerations-2016. 45% of all exonerations in the United States for the year 2016 (74/166) were from guilty plea cases.

3. On August 16, 1660, in a village near Gloucester, England, 70-year-old William Harrison disappeared while on a walk. Some of his blood-soaked clothing was discovered by the side of the road. An investigation yielded a murder confession by his manservant, John Perry, who implicated his brother and his mother as well. He said they dumped the body in a nearby mill pond. The pond was dredged, but no body was found. All three persons were tried. All three denied guilt at their trial. All three were hanged. Two years later, in 1662, William Harrison showed back up in the village unharmed. He had a fantastical story as to where he had been for the previous two years, which no one really believed. Everyone was pretty sure, however, that he had not been murdered by the Perrys. See Wikipedia, the “Campden Wonder.”

4. See, e.g, Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Crim.App. 2006). Synonyms for “herculean” include “arduous,” “grueling,” “laborious,” and “back-breaking.” See online thesaurus.

5. The Tiede case is the subject of the Richard Linklater movie, “Bernie,” starring Jack Black, Matthew McConaughey, and Shirley MacLaine.

6. “Moore’s re-evaluation falls short of the requisite showing for actual innocence because it does not affirmatively disprove that Applicant intentionally asphyxiated Tristen.” Robbins, 360 S.W.3d at 458.

7. “Moore’s testimony is not false just because her re-evaluation of the evidence has resulted in a different, ‘undetermined’ opinion, especially when neither she, nor any other medical expert, can exclude her original opinion as the possible cause and manner of death.” Robbins, 360 S.W.3d at 461.