Ex Parte Brown

• Citation: 205 S.W.3d 538
• Decision Date: 01 November 2006
• Docket Number: No. AP-75377.,AP-75377.
• Parties: Ex Parte Curtis Eugene BROWN, Applicant.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

205 S.W.3d 538

Ex Parte Curtis Eugene BROWN, Applicant.

No. AP-75377.

Court of Criminal Appeals of Texas.

November 1, 2006.

COPYRIGHT MATERIAL OMITTED

Albert A. Pena, III, Corpus Christi, for Appellant.

Robert C. Lassman, Asst. District atty., Cuero, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY and HOLCOMB, JJ., joined.

Applicant pled guilty to aggravated sexual assault of a child, and the trial court placed him on community supervision. The trial court later adjudicated his guilt and sentenced him to prison. Applicant then filed a motion for new trial claiming that newly discovered evidence proved that he was actually innocent of the original offense because the child, at that time, said that she had lied about the sexual assault. The trial judge interviewed the child in camera, but he denied the motion for new trial because he did not believe her recantation. Applicant filed this writ application two years later and made the same claim—that the child's recantation was newly discovered evidence that proves his innocence. The habeas judge entered findings of fact and recommended that we grant relief. We hold that this evidence is not newly discovered, and, in any event, applicant failed to prove his innocence. We therefore deny relief.

I.

On July 26, 1998, when C.B. was seven or eight years old, she told her mother, Valerie, that applicant, C.B.'s great-uncle, had sexually molested her. C.B. used hand motions to show Valerie what applicant did to her. Jacqueline, Valerie's sister, was present when C.B. described the sexual abuse to her mother. Valerie, who stated that "I believe anything my daughter said," was angry when C.B. told her about the incident. In fact, she testified that she "snapped. I went off. I started cussing. I went looking for him" and did not even "finish listening to the whole story." When both Valerie and Jacqueline confronted him, applicant said "he hadn't done that."

Someone anonymously called Child Protective Services, which investigated the allegation. Valerie said that she did not call the police because "families stick together." She later testified before the grand jury that she believed C.B.'s accusations because, in her mind, no child is going to make up something like that. At the time C.B. told her of the sexual abuse, as well as at the time of her grand jury testimony, Valerie believed her daughter and knew of no reason why C.B. would make up a story. Valerie also told the grand jury that applicant had molested her when she was a child.

On March 21, 2000, applicant pled guilty to aggravated sexual assault of a child and was placed on ten years' community supervision. The State filed a motion to adjudicate guilt in November of 2001, alleging a new DWI offense as well as several technical violations. The trial court adjudicated guilt and sentenced applicant to twelve years' imprisonment on February 27, 2002. Applicant timely filed a motion for new trial based on "newly discovered evidence" that he was not guilty of sexually molesting C.B. He attached a recantation affidavit signed by C.B.¹ and four other affidavits signed by (1) himself, (2) Valerie,² (3) Jacqueline,³ (4) and C.B.'s great-grandmother. C.B.'s and Valerie's affidavits said that C.B. had lied when she stated that applicant had sexually molested her. At the hearing on the motion for new trial, the parties agreed that the trial judge could interview C.B. in chambers about her recantation. After that interview, the trial judge stated, "I do not believe the recantation of the child," and he denied the motion for new trial.

After two more years, applicant filed an application for a writ of habeas corpus, making the same claim of actual innocence and attaching the same affidavits. We remanded the case to the trial court to conduct a live evidentiary hearing.⁴ At the habeas hearing, Valerie testified that C.B. had lied about the sexual assault. She said that C.B. was mad at applicant "because he made her get off the couch and put her on the floor." "She didn't want to get on the floor. She wanted to sleep on the couch." Valerie testified that, about two years after this couch incident, C.B came to her, crying and saying that "she got Uncle Curt in trouble." This recantation happened shortly before the hearing on the motion for new trial.

During the habeas hearing, the State questioned Valerie about two statements she now claimed were lies. The first was her grand jury testimony that applicant had molested Valerie when she was young. Valerie testified that she said this because "I wanted to do anything possible if he had touched my daughter to get him in trouble. I'd say anything." Valerie also told the grand jury that applicant had admitted to his mother (Valerie's grandmother) that he had "a problem with molesting children." Valerie explained that she just made up some of her grand jury testimony:

Q: When you testified to the grand jury—and let's be clear about that—that was, I don't have a date. When you testified to the Refugio County Grand Jury, at that time you did not really want your uncle, Curtis Brown, to be indicted for this offense of sexually assaulting your daughter?

A: That's correct.

Q: You wanted it handled within the family?

A: That's correct.

Q: And, yet, you still told this lie about how he had molested you when you were a child?

A: Yes.

Q: Why? Why did you tell the grand jury a lie like that?

A: Because my daughter—I wanted—if he hurt my daughter, I wanted him to hurt, too.

Q: But you didn't want to get him indicted?

A: I wanted—if it happened, I want him to get help.

Q: But you wanted to hurt him?

A: Yeah, and so—in so many words, yeah.

Q: But you didn't want to get him indicted?

A: I didn't want him to go to prison.

Q: So you wanted to hurt him, but you wanted him to get help. You didn't want him to go to prison and you were willing to lie in order to get all of that, is that correct?

A: Yes.

Q: Now, Curtis Brown has admitted to your grandmother, his mother, that he has a problem about molesting children, hasn't he?

A: If he did, I don't know. You would have to ask my grandmother that.

Q: Well, that's what you told the grand jury?

A: That's what who?

Q: That's what you testified to the grand jury.

A: Like I told you [a]while ago, I said a whole lot of things to the grand jury that was untrue.

Q: Well, was that something you made up out of thin air or had you heard that?

A: It might have been something I've made up, but my grandmother haven't told me anything like that.

Valerie also testified at the habeas hearing that she did not remember when C.B. actually told her that she had lied about applicant sexually assaulting her.⁵

C.B., who was in the ninth grade at the time of the habeas hearing, was equivocal about whether she had testified to the grand jury. She did remember telling her mother that applicant had molested her. She did not know why she would make up a "vicious story" about her uncle. The State asked C.B. about the conversation she had with the trial judge in his chambers almost four years earlier:

Q: Do you remember going into his office and talking to him alone?

A: Oh, yes, sir.

Q: Do you remember what you told him?

A: I told him that he didn't do it and I was lying.

Q: Did you admit that, in fact, you had told the truth?

A: Sir?

Q: Did you also tell him you had originally told the truth? Well, let's back up. Why did you lie, if you lied when you first told your mother? Why did you lie to her?

A: Because he made me mad.

Q: How did he make you mad?

A: Because I was asleep and he made me get off the couch.

Q: That made you mad so you knew he would get in big trouble if you told your mother that he had molested you?

A: Yes, sir.

Q: And you wanted him to get in really big trouble for doing this, is that right? Is that right?

A: Yes, sir.

Q: And, [C.B.], one of your aunts says that you've always been a truthful child, is that true?

A: Yes, sir.

Q: So why would you make up a vicious story like that about your uncle merely for making you get off the couch?

A: I don't know.

C.B. then stated that it was hard for her to remember everything about the alleged offense because it was seven years after that event. "I can't remember. It's been a long time." The State then questioned her about one possible motive for the recantation—pressure from her family. C.B. responded that she did not know if her family talked very much about applicant being in prison. She said that her great-grandmother, applicant's mother, had never told her that applicant was in prison or that he was in prison because of her.

Applicant testified that on the night of the incident he went to the Cowboy Lounge and "had a few beers." He decided to stay at his mother's house to avoid getting on the highway. When he got to his mother's house, applicant noticed that C.B. was sleeping on the love seat, approximately four or five other children were sleeping on pallets on the floor, and two adults were on the couch. Applicant testified that there were about fifteen people in his mother's house that night. Applicant said that he picked C.B. up and put her on the floor. Then he went into his father's room, got a blanket, and slept on the love seat. He didn't know if she ever woke up. Applicant said that he pled guilty to sexually assaulting C.B. because "I have a nephew that's been sent to prison with a similar case, and my dad told me that if I didn't have a decent lawyer, it was probably going to happen to me too."

David Guy, a deputy sheriff with specialized training in interviewing child sex-abuse victims, testified that he interviewed C.B. on August 8, 1998. After establishing rapport, Deputy Guy asked C.B. to describe the incident with applicant. Nothing she said raised a "red flag" in the sense that her statements were not accurate. He testified,...