Ex parte Elizondo

Decision Date18 December 1996
Docket NumberNo. 72235,72235
Citation947 S.W.2d 202
PartiesEx parte Joe Rene ELIZONDO, Applicant.
CourtTexas Court of Criminal Appeals
Dissenting Opinion on Denial of

Rehearing of Judge Womack June 18, 1997.

Douglas Barlow, Beaumont, for appellant.

Paul McWilliams, Rodney Conerly, Asst. Dist. Attys., Beaumont, Charles M. Mallin, Asst. Dist. Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MEYERS, Judge.

In State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 397 (Tex.Crim.App.1994), we accepted the proposition that the "execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and announced that this Court would begin to entertain postconviction applications for the writ of habeas corpus alleging actual innocence as an independent ground for relief. The instant cause comes to us on one such application.

In 1984, applicant was convicted in a jury trial of aggravated sexual assault. His punishment was assessed at confinement in the penitentiary for life and a fine of $10,000.00. The Ninth Court of Appeals affirmed. Elizondo v. State, 697 S.W.2d 65 (Tex.App.--Beaumont 1985, PDR ref'd). But last year, the witness whose testimony was mainly responsible for convicting applicant recanted. As a result, applicant has filed the instant petition alleging that newly available evidence shows him to be innocent of the crime for which he was convicted.

I.

At the threshold, we must decide whether the Due Process Clause of the United States Constitution forbids, not just the execution, but the incarceration as well of an innocent person. We need not pause long to answer this question. Although it is sometimes said that Due Process requires an especially high level of reliability in the mechanisms leading to a death sentence, Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 2389-90, 65 L.Ed.2d 392 (1980), it is reasonably clear that the basis for entertaining postconviction habeas claims of actual innocence is not peculiar to capital cases. As the Supreme Court observed in Herrera v. Collins, upon which we based our holding in Holmes:

Petitioner asserts that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent.

506 U.S. 390, 398, 113 S.Ct. 853, 859, 122 L.Ed.2d 203, 215 (1993). Thus Herrera's claim that a more exacting standard should be applied in his case because he was confined under a sentence of death was expressly rejected by the Court.

Petitioner asserts that this case is different because he has been sentenced to death.... [But] petitioner's claim is not that some error was made in imposing a capital sentence upon him, but that a fundamental error was made in finding him guilty of the underlying murder in the first place. It would be a rather strange jurisprudence, in these circumstances, which held that under our Constitution he could not be executed, but that he could spend the rest of his life in prison.

Herrera, 506 U.S. at 405, 113 S.Ct. at 863, 122 L.Ed.2d at 219-20.

These remarks represent the views of at least five justices, including Justice O'Connor who, although she filed a concurring opinion in which she was joined by Justice Kennedy, also joined the opinion of the Court. Likewise, the dissenters seem to recognize no significant difference between cases in which the death penalty has been assessed and cases in which an actually innocent person has been merely incarcerated.

Whether petitioner is viewed as challenging simply his death sentence or also his continued detention, he still is challenging the State's right to punish him.... [T]he legitimacy of punishment is inextricably entwined with guilt.

Herrera, 506 U.S. at 433-34, 113 S.Ct. at 878, 122 L.Ed.2d at 238 (Blackmun, J., dissenting).

We think it clear from these excerpts that the incarceration of an innocent person is as much a violation of the Due Process Clause as is the execution of such a person. It follows that claims of actual innocence are cognizable by this Court in a postconviction habeas corpus proceeding whether the punishment assessed is death or confinement. In either case, such claims raise issues of federal constitutional magnitude. Ex parte Bravo, 702 S.W.2d 189, 193 (Tex.Crim.App.1982)(habeas corpus will lie to review jurisdictional and constitutional defects in a judgment of conviction). To the extent that Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App.1983) and Ex parte May, 717 S.W.2d 84 (Tex.Crim.App.1986) are to the contrary, we expressly overrule them.

II.

In Holmes, we held that "in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond reasonable doubt." 885 S.W.2d at 398. However, no application of the standard was actually made in that case because no petition for the writ of habeas corpus was pending before this Court at that time. In the present context, therefore, a more complete explanation of this Court's role and of the criteria we use to assess the merits of an actual innocence claim is indicated.

At the outset, we perceive an anomaly in our Holmes opinion, which describes the ultimate criterion for relief under the actual innocence test as if our task were to decide whether the evidence of guilt could support a conviction in light of the newly discovered evidence of innocence. Such characterization is misleading because, if habeas corpus relief is to be conditioned upon a finding that no rational juror could convict the applicant after introduction of the newly discovered evidence, it becomes theoretically impossible for any habeas applicant to sustain his burden because exculpatory evidence can never outweigh inculpatory evidence under this standard of sufficiency. See Holmes, 885 S.W.2d at 417-18 (Clinton, J., dissenting).

When we conduct a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence. Nor do we assess the credibility of witnesses on each side. We view the evidence in a manner favorable to the verdict of guilty. In practice, this means we assume that the jury weighed lightly the exculpatory evidence and disbelieved entirely the exculpatory witnesses. We make this assumption no matter how powerful the exculpatory evidence may seem to us or how credible the defense witnesses may appear. If the inculpatory evidence standing alone is enough for rational people to believe in the guilt of the defendant, we simply do not care how much credible evidence is on the other side. 1

Of course, we have lately come to hold that the courts of appeals do have authority to conduct factual sufficiency reviews on direct appeal, and we have indicated that we also have such authority, in capital cases in which exculpatory evidence may be weighed against inculpatory evidence. Clewis v. State, 922 S.W.2d 126, 130 & 136 (Tex.Crim.App.1996). But this kind of evidentiary review is quite different from that in which the evidence is examined to determine whether, viewing it in a light most favorable to the verdict, any rational trier of fact could have found the defendant guilty beyond reasonable doubt. Indeed, one of the most significant differences between the so-called "factual" and the so-called "legal" or "constitutional" sufficiency-of-the-evidence standards is that the latter does not permit a weighing of inculpatory against exculpatory evidence.

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. The Jackson v. Virginia standard of evidentiary sufficiency is simply not appropriate to this purpose.

Of course, any person who has once been finally convicted in a fair trial should not be permitted to wage, and we do not permit him to wage, a collateral attack on that conviction without making an exceedingly persuasive case that he is actually innocent. It is thus entirely reasonable to insist, and we continue to insist, that an applicant for habeas relief based on a claim of actual innocence must "demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different [on retrial]." Holmes, 885 S.W.2d at 398. But it is not reasonable to hold, and we reject the implication of Holmes, that confidence in a verdict is undermined only when newly discovered evidence renders the State's case legally or constitutionally insufficient for conviction.

In Holmes, we took this unusual expression of the standard directly from Justice Byron White's perfunctory concurring opinion in Herrera v. Collins. Holmes, 885 S.W.2d at 398-99. In that case, Herrera sought to reverse his death sentence because some witnesses came forward years later to implicate his brother. Most justices of the Supreme Court, including Justice White, refused to hold that Herrera's claim of actual innocence was independently cognizable in a federal habeas corpus...

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