Ex parte Navarijo

• Citation: 433 S.W.3d 558
• Decision Date: 18 June 2014
• Docket Number: No. WR–79286–01.,WR–79286–01.
• Parties: Ex parte Frank NAVARIJO.
• Court: Texas Court of Criminal Appeals

433 S.W.3d 558

Ex parte Frank NAVARIJO.

No. WR–79286–01.

Court of Criminal Appeals of Texas.

June 18, 2014.

Michael C. Gross, Attorney at Law, San Antonio, TX, for Applicant.

Mary Beth Welsh, Asst. Criminal Dist. Attorney, San Antonio, Lisa C. McMinn, State's Attorney, Austin, TX, for The State.

OPINION

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

To establish that he is actually innocent of an offense of which he has previously been convicted, an individual seeking post-conviction relief on that basis must demonstrate by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Although Frank Navarijo, applicant, has provided some new evidence in support of his claim that he is actually innocent of the offense of aggravated sexual assault of a child, we conclude that he has failed to meet this standard because his new exculpatory evidence, which comes in the form of a recantation from the complainant some thirteen years after his conviction, does not unquestionably establish his innocence when that evidence is considered in light of other incriminating evidence in the record. Furthermore, although the habeas court in this case determined that the complainant's recantation testimony was more credible than her trial testimony and recommended granting relief on that basis, we disagree with the habeas court's assessment that the matter of a recanting witness's credibility is the sole deciding factor in an actual-innocence case, and we further disagree with its related determination that applicant has unquestionably established his innocence under Ex parte Elizondo, 947 S.W.2d 202, 206, 209 (Tex.Crim.App.1996). We exercise our authority to reach the contrary conclusion, and, accordingly, deny relief. See Ex parte Reed, 271 S.W.3d 698, 727–28 (Tex.Crim.App.2008).

I. Background

A. Trial Proceedings

In 1999, applicant was convicted of aggravated sexual assault of a child and sentenced to twenty years' imprisonment. The complainant in the case was applicant's daughter, who was five years old at the time of the outcry and seven years old at the time of applicant's jury trial. At trial, the State presented evidence consisting of testimony from the complainant, in which she stated that applicant had “hurt” her and gone “inside” her “private area,” and testimony from a medical expert stating that the complainant's genitals showed signs of penetration. The defense presented evidence that included a videotape of a prior recantation by the complainant to CPS several days after the initial outcry, in which she stated that she “had told a lie” about the allegations because of pressure from her grandmother. The defense additionally presented the testimony of thirteen witnesses, including the complainant's mother and grandmother; applicant's medical doctor, who stated that applicant had been diagnosed with prostate cancer and was likely impotent at the time of the offense; and several of applicant's family members. The following is a summary of the relevant trial testimony:

• Complainant's testimony: The complainant testified that her father, applicant, “hurt” her “a lot of times,” “too many” times to count, and this occurred when she was in her bedroom at their house. Applicant would take off her pajamas and “touch” her “private parts.” When asked how it felt when applicant “hurt” her, the complainant said it felt “bad,” “like if I fell down and hurt myself,” “like a cut,” or “like if I was bleeding and it would sting.” She stated that applicant touched her with his hands and with a “pico,” which she described as “a little sharp knife,” but she also said that she had never seen the “pico.” She stated that applicant would go “a little bit in the inside” of her private parts. She first told her grandmother what happened and later she told “a lot of people,” including social workers and counselors. When asked if her grandmother or her mother had told her to lie about the allegations, she denied that and said that her grandmother and mother “always said tell the truth.”

On cross-examination, the complainant said she used to stay overnight at her grandmother's house “a lot” and had been living with her ever since the outcry. She agreed that her grandmother had never liked applicant and did not spend time with him. She did not remember the day when she first told her grandmother that the abuse had occurred. She recalled that the abuse happened “a lot of times” and that it would occur at night after her mother went to sleep and applicant stayed awake watching television. She stated that her mother had seen the abuse happening before. When questioned about a prior recantation that occurred several days after the initial outcry, she said she did not remember having recanted the allegations to an interviewer with the Children's Advocacy Center, to whom she had indicated that her grandmother had told her to lie and that the abuse never happened.

• Expert testimony of Dr. Nancy Kellogg: Dr. Kellogg, a medical doctor and medical director of the Alamo Children's Advocacy Center, testified that she had examined the complainant's genitals around three days after the initial outcry and detected signs of repeated penetration. She stated that the complainant had “very little hymen” and that the hymen was “worn away” to the point where the vagina had become “fully visible,” all of which was “highly consistent” with “repeated acts of penile vaginal penetration. To be more specific, blunt penetrating trauma on a hard basis, to the point where most of the hymen is gone.” She stated that both the floor and bottom of the complainant's vagina were visible. She explained that it was “very unusual” to see that much vaginal tissue in a child of the complainant's age, and that sexual abuse was “highly probable.” She further stated that contact with a young child's hymen is “sensitive” in terms of being “painful to touch,” and she agreed that young children often describe a rubbing force against the hymen as causing a “sharp pain.” She presented photographs to the jury comparing a “normal” hymen and the complainant's hymen, which demonstrated that the complainant had “a lot less” hymen than a “normal” five-year-old would have. She concluded that the results of the examination were “abnormal” and stated that this degree of erosion of the hymen was present in “fewer than ten percent” of the cases she had seen. She explained that “there are different shapes of hymens” and that the attenuation of a hymen is a “form of a scar” demonstrating evidence of “trauma.” She opined that her findings were “definitive” that sexual abuse had occurred and stated that, on a scale of one to ten, “if the highest concern is ten, I felt she [the complainant] was [a] ten. I was very, extremely concerned.”

• Testimony of Paula Garza, complainant's grandmother: Garza was called to testify by the defense. She identified applicant as her son-in-law, who was at that time married to her daughter, Delia. She said she had “raised” the complainant in her home “because her mother was working,” and the complainant and her mother would “come and go” from applicant's home. She reported that the complainant first made an outcry to her in January 1998. She stated that, prior to that time, she had “noticed that the child was sad. That she would come in from school and she would just lie on the bed ... and she would—she would be aggressive. She would say, ‘Leave me alone.’ ” Garza stated that she sat the complainant on her lap and asked her to tell her what had happened so that she could “help” her. The complainant told Garza that applicant “would put the pico in her private parts,” and Garza then “realized that it was no such pico, that it was the man's penis.” The complainant also told Garza that “when [the complainant] was crying on the bed, her mother would go to the door and would turn around and would not do anything for her.” The complainant also told Garza that applicant put the “pico” in her rectum.

When asked whether she was motivated to testify because of her dislike of applicant and her pursuit in civil court of custody of the complainant, Garza denied that and answered, “I am only interested in ... defend[ing] the child.” She acknowledged that she had never noticed any injuries on the complainant and that the complainant never complained of any pain or injury. The complainant told Garza that she would not cry during the incidents of abuse because applicant would tell her to shut up. The complainant also told Garza that applicant had said the complainant's vagina “belonged to him.”

• Testimony of Dr. Paul Navar: Dr. Navar, director of the emergency department at Sierra Medical Center in El Paso, provided expert testimony to rebut the testimony of Dr. Kellogg. He stated that some children can sustain “straddle injuries,” such as bleeding or a laceration to the genital area, as a result of a playground fall or other circumstances not involving sexual abuse. He explained that “the appearance of the female genitalia and the appearance of the hymen, in particular, are just quite varied. If you take several hundred children ... you will see a number of different sizes and shapes of the differing female anatomy.” He described a finding of an attenuated hymen as being a “nonspecific finding,” which he described as “something that happens in cases of sexual abuse, but it's also something that happens in normal children.” After reviewing the slides of the complainant's genital area, Dr. Navar concluded that the “hymenal rim” was “a little bit thinner, what we call attenuated, than most hymenal rims that you see. But that is not the definitive finding of sexual assault, in that a thinning of the hymenal rim like this will occur in a small percentage of normal children.” He opined “that the findings in this case neither confirm nor deny sexual abuse,”...