Ex Parte Franklin

• Decision Date: 10 April 2002
• Docket Number: No. 74041.,74041.
• Citation: 72 S.W.3d 671
• Parties: Ex Parte Brian Edward FRANKLIN, Applicant.
• Court: Texas Court of Criminal Appeals

72 S.W.3d 671

Ex Parte Brian Edward FRANKLIN, Applicant.

No. 74041.

Court of Criminal Appeals of Texas, En Banc.

April 10, 2002.

Neal Davis, Dick Deguerin, Houston, for Appellant.

Charles M. Mallin, Asst. DA, Fort Worth, for State.

Before the court en banc.

OPINION

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

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07, V.A.C.C.P. In 1995 applicant was convicted by a jury of aggravated sexual assault of a child under fourteen years of age. Tex. Penal Code § 22.021(a)(1)(B)(i), (a)(1)(B)(iii), and (a)(2)(B). His punishment was assessed at life imprisonment. The Second Court of Appeals affirmed. Franklin v. State, No. 2-95-084-CR (Tex.App.-Fort Worth Oct. 18, 1996, pet. ref'd) (not designated for publication).

In 1999 applicant filed a post-conviction application for a writ of habeas corpus claiming that newly discovered evidence shows him to be actually innocent of the crime for which he was convicted. The trial court conducted a hearing in which it heard testimony regarding the new evidence presented by applicant. When the transcript of applicant's initial hearing arrived, we determined that while the trial court's findings were based upon the correct level of confidence, clear and convincing, the standard to which this level applied was not correctly evaluated. The habeas judge's conclusion was stated as follows:

[Applicant] has shown, through clear and convincing evidence, that [the newly discovered evidence], superimposed over the weak inculpatory evidence at his trial, create a doubt as to the efficacy in the jury's verdict at his trial and would probably change the verdict on retrial.

District Court's Findings of Fact, Conclusions of Law, and Order of the Court, Conclusions of Law 15 (emphasis added). Instead, we stated, that the proper test is whether applicant has shown "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex.Crim.App.1996) (emphasis added). Accordingly, in an unpublished per curiam opinion on September 12, 2001, we held this writ application in abeyance and ordered the trial court to reconsider applicant's claim in light of the proper test. We also ordered a supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's revised findings of fact and conclusions of law. The transcript directed in the order is before us, together with the trial court's findings of fact and conclusions of law, and we can now proceed to decide the issue with finality.

I.

On April 13, 1994, B.R., the complainant, made a report to a teacher at school that she had been raped by applicant. The teacher called Child Protective Services. Applicant was subsequently charged and indicted for aggravated sexual assault of a child.

The trial commenced in February of 1995. At trial B.R. testified that one evening in March of 1994,¹ applicant raped her in the backyard of her father's house.² At the time, B.R. was thirteen years old. Applicant was a friend of the family and often visited B.R.'s father. B.R. testified that her father and his girlfriend were inside the house during the rape. She did not tell her father and his girlfriend about the experience after she returned to the house. Applicant testified that prior to the time of the sexual assault, she had never had sexual relations with anyone.

B.R.'s mother, G.G., was also called as a state's witness. She testified that the following day after B.R. returned from visiting her father during spring break in March, she found a pair of blood-stained underwear in the laundry that B.R. brought home. She stated that B.R. had her period two weeks prior to the day that she found the stained underwear. She noticed that the stain was a brighter red than that of the color of menstrual blood. The underwear, however, was not produced at trial because G.G. had bleached them and could no longer differentiate that pair from other pairs of B.R.'s underwear.

Dr. Jan Lamb, the doctor who examined B.R. on April 20, 1994, following her outcry, testified that B.R. told her that she had been raped by applicant in March of 1994. In addition, she stated that the examination indicated that there was a rupture in a certain area of the hymen indicative of blunt force trauma and that the injury observed on B.R. would be consistent with her bleeding at the time of the offense. Such blood, she stated, would have been bright red in color from rupturing capillaries as opposed to the darker color of menstrual blood. On cross-examination Lamb admitted that blunt force trauma is not in itself an indication that someone has been raped and that you could find the same thing after a person has engaged in sexual intercourse for the first time. Since the exam was removed from the exact time of the assault, no forensic evidence was collected.

Constance Patton, a forensic serologist with the Tarrant County Medical Examiner's Office was called as a defense witness. She testified that blood on clothing gets darker in color the older the stain is and that if a stain is bright red, it is an indicator that the blood has not been present for a very long period of time. She explained that within six to eight hours, a blood stain on clothing is going to start to turn dark red to a brownish color.

Applicant did not testify at the trial. The jury found applicant guilty of aggravated sexual assault of a child and assessed punishment at life imprisonment.

In May of 1998 the Tarrant County District Attorney's Office notified applicant's trial counsel that it had received an affidavit from the police in which B.R. stated that she had been sexually assaulted by her step-father from the time when she was six years old until the time that her mother moved her away from her step-father.³ After receiving this information, applicant filed the present application for a post-conviction writ of habeas corpus based on newly discovered evidence.

The district court conducted a habeas hearing in which several witnesses were called to testify. Applicant first called Rose Salinas, the lead prosecutor in applicant's trial, to testify.⁴ She stated that at the time she prosecuted applicant, she felt that B.R. was a credible witness. But if she had found out B.R. had lied to her during the trial, she testified that her opinion as to B.R.'s credibility would have changed. Moreover, she never would have been able to offer the medical evidence that was introduced at trial against applicant. On cross-examination she testified that the fact that there was another perpetrator would have not prevented her from trying the case and that she would have still prosecuted the case without the medical testimony. When asked by the trial court judge whether she would have moved to dismiss the case once she found out B.R. had lied to her she stated, "[H]ad we been in trial and this child had committed perjury and I found out about it after the fact, what I am saying is I might have moved to dismiss the case. And I'm very serious about the fact that that's a very strong possibility that it would have happened."

Applicant also called Dr. Jan Lamb as its witness. She testified that if she had known that B.R. was also sexually assaulted by her step-father, she would not have been able to testify at trial as to which incident caused B.R. to have had blunt force trauma to her hymen. On cross-examination when asked if the knowledge that B.R. did not disclose the abuse by her step-father changed her opinion of B.R.'s credibility she stated "no." She explained that it is not unusual for children who are victims of sexual abuse not to discuss their sexual abuse. In addition, she also explained that children who have been sexually victimized are much more easily revictimized due to the fact that they have very poor emotional, psychological and physical boundaries.

Applicant was also called as a witness. He produced various receipts and a phone bill in order to provide an alibi for the time period during which it was believed that the offense occurred. Although available at the time, none of these documents were introduced at applicant's trial.

B.R. was called by the State to testify. She stated that aside from the statement that she had never engaged in sexual intercourse before, everything else to which she testified during applicant's trial was true. She testified that the reason that she did not tell anyone about the sexual abuse she suffered by her step-father, J.G., was that she was afraid of him. She explained that she was unable to tell Ms. Salinas, Dr. Lamb, or counselors that she was being abused by J.G. due to the fact that he would almost always accompany her to the meetings. He was even in the room the day on which Dr. Lamb conducted the sexual assault examination. Moreover, she testified that during the couple of times that J.G. did not accompany her to the appointments, he would insist that she tell him what had happened during the meetings. He was angry when he found out that B.R. had reported the sexual assault by applicant because he was afraid that people would find out about his own actions. On cross-examination, B.R. stated that contact with J.G. had also caused her to bleed on a few occasions, but not as much as she bled following the assault by applicant.

Initially the habeas judge concluded that applicant "has shown, through clear and convincing evidence, that [the newly discovered evidence] superimposed over the weak inculpatory evidence at his trial, create a doubt as to the efficacy in the jury's verdict at his trial and would probably change the verdict on retrial." District Court's Findings of Fact, Conclusions of Law,...