In re M.P.A.

• Decision Date: 18 May 2012
• Docket Number: No. 10–0859.,10–0859.
• Citation: 364 S.W.3d 277,55 Tex. Sup. Ct. J. 713
• Parties: In the Matter of M.P.A., Petitioner.
• Court: Texas Supreme Court

364 S.W.3d 277

55 Tex. Sup. Ct. J. 713

In the Matter of M.P.A., Petitioner.

No. 10–0859.

Supreme Court of Texas.

May 18, 2012.

F. Clinton Broden, Broden & Mickelson, Dallas, Dustin Mark Howell, Baker Botts, LLP, Austin, Deborah G. Hankinson, Hankinson Levinger LLP, Dallas, James Harold Krelmeyer, Belton, Nancy Elizabeth Kennedy, Law Office of Nancy Kennedy, Dallas, for MPA.

Richard J. Miller, Bell County Attorney's Office, James Vernon Murphy, Assistant Bell County Attorney, John Thomas Gauntt Jr., Bell County Attorney's Office, Belton TX, Deborah G. Hankinson, for State of Texas.

Craig T. Enoch, Enoch Kever PLLC, Austin, for amicus curiae Innocence Project of Texas.

Eric Roehm M.D., Austin, pro se.

Justice GUZMAN delivered the opinion of the Court.

A jury found that M.P.A. committed sexual assault of a child based on the testimony of two witnesses who have now recanted, and sentenced M.P.A. to twenty years' confinement after hearing false testimony by a State's expert. The district court denied habeas relief and the court of appeals affirmed. M.P.A. asks us to reverse and hold that he is actually innocent, that the false testimony contributed to his sentence, and that his trial counsel rendered ineffective assistance.

We conclude M.P.A. is not entitled to relief on his claims of actual innocence or ineffective assistance of counsel. However, we hold false testimony by the State's expert witness contributed to his sentence and he is therefore entitled to a new disposition (sentencing) hearing.

I. Factual and Procedural History

S.A. and A.A. accused their cousins M.P.A. and J.W.A. of sexually assaulting them. At the time of the alleged acts, S.A. was seven, A.A. was five, M.P.A. was fourteen, and J.W.A. was fifteen.¹ M.P.A. and J.W.A. were charged with three counts of aggravated sexual assault of a child. J.W.A. entered a plea bargain and pleaded true to the allegations regarding S.A. M.P.A. pleaded not true and went to trial.

At trial, A.A. did not testify that M.P.A. had sexually assaulted him, but both S.A. and A.A. testified that M.P.A. sexually assaulted S.A. In addition, Alice Linder, a sexual assault nurse examiner who had examined S.A. and A.A. testified that they told her that M.P.A. and J.W.A. had sexually assaulted them. M.P.A. was the only defense witness and he testified that he did not sexually assault S.A. The trial court granted a defense motion for a directed verdict regarding the count that M.P.A. had sexually assaulted A.A. The jury found that M.P.A. had sexually assaulted S.A.

At the disposition phase, the State presented two witnesses: Dr. Frederick Willoughby, a licensed psychologist and registered sex offender treatment provider, and Kathie Lewis, a probation officer. Willoughby testified regarding an “Abel Assessment” that he had administered to M.P.A. Willoughby testified that the Abel Assessment is a test that predicts which people have an interest in particular sexes and age groups. One portion of the test consists of a questionnaire. M.P.A.'s answers to this portion of the test were “socially desirable.” The portion of the Abel Assessment at issue in this case consists of a series of slides that are shown to the subject. The slides depict individuals of various age and gender, and the subject's sexual interest is measured by how long the subject looks at each slide. The results are computerized and sent to Atlanta, where the test is “scored.”

After the trial court overruled M.P.A.'s reliability objection to the Abel Assessment, Willoughby testified that M.P.A. was a “pedophile” who had a “significant sexual interest in eight to ten year-old females and two to four and eight to ten year-old males.” Lewis testified that probation and home supervision would be inappropriate for M.P.A. The only witness for M.P.A. was his mother, who testified that she would supervise M.P.A. if the jury assessed a sentence of probation. The jury sentenced M.P.A. to twenty years' confinement.

A.A. recanted approximately nine months after the trial and S.A. recanted approximately twenty months after the trial. At the habeas court below, both S.A. and A.A. testified that they falsely accused their cousins because their mother, LaVonna, told them to. J.W.A. also recanted his confession and testified at the habeas court that he did not sexually assault A.A. and S.A. In addition, the evidence at the habeas hearing showed that approximately four years after M.P.A.'s original trial, Willoughby entered into an agreed order with the Texas State Board of Examiners of Psychologists stating that he “misstated in his court testimony the research that had been conducted with respect to the Abel Assessment.”

M.P.A. filed the writ of habeas at issue in this case, arguing that he was actually innocent, that Willoughby's false testimony contributed to his sentence, and that his trial counsel rendered ineffective assistance. The habeas court found that the recantations were not credible. In so finding, it relied on J.W.A.'s confession and the testimony from all the witnesses. It also found that Willoughby's “misstatements, if any,” did not contribute to M.P.A.'s sentence, and that M.P.A.'s trial counsel was effective. The court of appeals affirmed and M.P.A. appealed to this Court.²

II. Actual Innocence

M.P.A. argues that he is entitled to relief based on the newly discovered evidence of S.A. and A.A.'s recantations. At the habeas hearing, they testified that LaVonna told them to falsely accuse M.P.A. and J.W.A. S.A. testified that LaVonna told her this was necessary to keep LaVonna out of jail. M.P.A. alleges that LaVonna's motive was that these accusations would reflect badly on S.A. and A.A.'s father, Stephan, in their then-ongoing custody proceeding, and that the recantations are corroborated by the record.³

To prevail on his actual innocence claim, M.P.A. must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the recantations. Ex Parte Elizondo, 947 S.W.2d 202, 209 (Tex.Crim.App.1996).⁴ Almost total deference is accorded to the trial court's factual findings in habeas proceedings. E.g.,Ex Parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006). Here, the habeas court found that the recantation testimony was “not credible.” Because this finding has some support, we cannot grant M.P.A. relief on his actual innocence claim. ⁵

In Keeter v. State, the Court of Criminal Appeals addressed a recantation of a juvenile's sexual assault allegations in the context of a motion for a new trial. 74 S.W.3d 31, 33 (Tex.Crim.App.2002). The Court surveyed its cases and summarized the bases for disbelieving a recanting witness:

Such bases include, but are not limited to: evidence that the recanting witness was subject to pressure by family members or to threats from co-conspirators, evidence showing part of the recantation to be false, circumstances showing that the complainant recanted after moving in with family members of the defendant, and where an accomplice recants after being convicted.

Id. at 38 (citations omitted). The Keeter Court affirmed the trial court's rejection of the recantation because, inter alia, the complainant recanted after moving into the residence of her mother, with whom the defendant had resided, and there was evidence that the defendant's father had pressured the complainant to recant. Id. at 39.

Here, although substantial evidence corroborates the recantations, there is some evidence of pressure to recant by Stephan's family and an investigator hired by Stephan. While we recognize that recantation of sexual assault in the context of custody litigation should be given serious consideration, there is evidence in this record to support the trial court's rejection of the recantation testimony. S.A. first recanted when Stephan's girlfriend told S.A. she did not like her because S.A. was a liar who put people in jail. A.A. and S.A. both testified that the investigator hired by Stephan did not pressure them to recant, but A.A. testified that the investigator gave him “encouragement” to recant and “kept asking” him if the sexual assault allegations were true.

In addition, J.W.A. confessed to the police that he had sexually assaulted S.A. and he subsequently pleaded true to sexually assaulting S.A. We note that J.W.A. recanted his confession and has testified that he did not understand the significance of his confession or plea. We further note that the Court of Criminal Appeals has explained that innocent defendants will sometimes plead guilty. Ex Parte Tuley, 109 S.W.3d 388, 393 n. 2 (Tex.Crim.App.2002) (citing United States v. Timbana, 222 F.3d 688, 718 (9th Cir.2000) (Kleinfeld, J., dissenting)). However, even if we were to accept J.W.A.'s explanations of his confession and plea as conclusive, his statements to M.P.A.'s trial attorney, Bobby Barina, would nevertheless support the rejection of the recantations.

Barina testified J.W.A. told him he and M.P.A. sexually assaulted S.A. Barina explained M.P.A. and J.W.A.'s family informed him J.W.A. would testify M.P.A. did not commit the alleged assault. Therefore, Barina planned to call J.W.A. to the stand at the original trial to testify M.P.A. was innocent. However, when Barina met with J.W.A. to prepare for trial, J.W.A. implicated M.P.A. in the offense. J.W.A. said he himself “had done it and that he saw [M.P.A.] ‘do it.’ ” If J.W.A. testified M.P.A. did not commit the offense, it could amount to perjury. If J.W.A. testified M.P.A. committed the offense, it could damage M.P.A.'s defense. Barina decided not to call J.W.A. as a witness. This statement by J.W.A. is not negated by J.W.A.'s explanation of his confession to the police or his decision to plead true-neither his confession nor plea implicated M.P.A. in a sexual assault on S.A. J.W.A. denies telling Barina he and M.P.A. sexually assaulted S.A. But the habeas court was entitled to believe Barina. Hence, JWA's statement to Barina supports the...