HERVEY, J., filed a dissenting opinion in which KELLER, PJ., and KEASLER, J., joined. WOMACK, J., joined Part II.

I respectfully dissent. Having failed to establish any error (constitutional or otherwise) in connection with his original guilty plea and conviction at which time he was afforded the awesome constitutional protections guaranteed to those accused of crimes, applicant bears an extremely heavy burden of establishing his right to habeas corpus relief five years after he voluntarily confessed his guilt. I would hold that applicant has not met this burden.

I. Court's Holding Is Unnecessarily Broad

Applicant presents a free-standing claim of actual innocence under our decision in Ex parte Elizondo, 947 S.W.2d 202, 206-09 (Tex.Cr.App. 1996). In Elizondo, we explained our task in evaluating actual innocence claims:

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.

See Elizondo, 947 S.W.2d at 206 (emphasis supplied). We reaffirmed this very standard in our more recent decision in Ex parte Franklin, 72 S.W.3d 671, 677 (Tex.Cr.App. 2002).

Applicant contends that newly discovered evidence establishes his innocence, so he should be allowed to take back his admission of guilt. The State argues, among other things, that allowing applicant to do this would disrupt the administration of justice in future habeas corpus cases by encouraging guilty-pleading defendants to collaterally attack their pleas "so long as [they] can provide some evidence to show that [they are] actually innocent and provide an excuse for having pled guilty." The State claims that, since many convictions result from guilty pleas, this could clog the courts with meritless actual innocence claims from guilty-pleading defendants. The State also claims that Elizondo cannot even apply to guilty-pleading defendants because it would be impossible to fulfill Elizondo's requirement to weigh an applicant's newly discovered evidence "against the evidence of guilt adduced at trial" since there was no trial. See Elizondo, 947 S.W.2d at 206.

Applicant responds that this Court can grant habeas corpus relief to him in an opinion limited to the "exceptional set of circumstances" presented by this case. The "exceptional set of circumstances" to which applicant refers is the existence of a record from applicant's 1997 trial that resulted in a hung jury. Applicant asserts that this distinguishes his case from most other cases involving convictions from guilty pleas. Applicant asserts:

At the outset, counsel for Applicant will acknowledge that he admittedly seeks to confine the parameters of this Court's inquiry to the unique circumstances of the instant case. The reason for Counsel's desire to do so is simple-for if the Court's inquiry is put generally (i.e., Can a habeas applicant who has pled guilty and waived a jury still avail himself of the relief afforded under Elizondo?), the answer to the inquiry must always be "No." The reason for this answer is most readily apparent from the above cited portions of Franklin and Elizondo. Simply put, the habeas court's "weighing" of the newly discovered exculpatory evidence against the evidence of guilt adduced at trial is at the very heart of the Elizondo analysis. Absent a record with which to conduct this weighing of exculpatory evidence against the evidence of guilt, a habeas applicant simply cannot provide the very substance which is at the heart of the Elizondo inquiry. Thus, as Applicant previously asserted, it is certain that had there existed only Applicant's plea colloquy in the instant case, Applicant would not now be before this Court.

* * * * * * * * * * * * * * * * * * *

Applicant recognizes the concerns that the Court might have regarding the ramifications of granting Applicant's writ on both this court's past and future habeas jurisprudence. If this writ is granted, will Texas court's (sic) face the specter of endless writs on grounds of actual innocence from those defendants who chose to enter guilty pleas? The answer to this is necessarily "No." By its very nature, the instant case presents what can only be characterized as the most exceptional set of circumstances-namely, the existence of a full trial transcript in conjunction with a guilty plea. As Applicant has detailed previously, Applicant's writ, and the process through which the habeas court analyzed it prior to making its recommendation, simply does not deviate from the standard articulated in Elizondo . Thus, Applicant's case, as an anomaly, will hold little if any precedential value upon which to support a claim that relief under Elizondo may be maintained on a guilty plea alone.

(Emphasis in Original).

Both parties, therefore, agree that a broad decision, such as the one the Court makes here, that apparently permits a habeas corpus applicant to raise an Elizondo claim "on a guilty plea alone" could adversely impact the administration of justice in future habeas cases. The Court can and should dispose of this particular case by exercising restraint and limiting its decision to the "exceptional set of circumstances" presented by this case "namely, the existence of a full trial transcript in conjunction with [applicant's] guilty plea."

II. Applicant's Remedy Is Executive Clemency

I would decide, however, that Elizondo should not be extended to an applicant whose conviction rests on a legally valid and voluntary guilty plea that years later the applicant claims was a lie and wants to take back. In evaluating applicant's claim of actual innocence, we have to recognize that applicant freely and voluntarily confessed his guilt to the offense of aggravated sexual assault. The habeas court and the parties also recognize that applicant's voluntary admission of guilt presents a significant obstacle to obtaining habeas corpus relief and disregarding society's valid finality concerns. See United States v. Timmreck, 99 S.Ct. 2085, 2087-88 (1979). Applicant claims, however, that it should make no difference whether he "arrived in prison through his own false guilty plea" because the "overriding remedial goal" of the judiciary should now be to release this self-admitted perjurer from prison.

By its very terms, however, Elizondo is limited to cases where an applicant has pled not guilty and is convicted after a trial. Elizondo was an extremely controversial decision and it is still subject to reasonable debate whether an applicant, who pleads not guilty, should be permitted to raise a free-standing claim of actual innocence on habeas corpus. See Franklin, 72 S.W.3d at 678-79 (Womack, J., concurring); Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting) ( Elizondo's "revolutionary and unwarranted procedure"rests on "mighty thin sand"); cf. Herrera v. Collins, 113 S.Ct. 853, 859-62 (1993) (free-standing claims of actual innocence "have never been held to state a ground for federal habeas corpus relief" in part because "there is no guarantee that the guilt or innocence determination would be any more exact" on habeas corpus than it was at trial).

An applicant who pleads guilty stands on a different plain. A legally valid guilty plea is a significant event in the criminal process. See McGlothlin v. State, 896 S.W.2d 183, 190 (Tex.Cr.App.) (Meyers, J., dissenting), cert. denied, 116 S.Ct. 219 (1995). It "is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case." Menna v. New York, 96 S.Ct. 241, 242 n. 2 (1975) (emphasis in original); see generally, Tollett v. Henderson, 93 S.Ct. 1602 (1973); Brady v. United States, 90 S.Ct. 1463 (1970); Parker v. North Carolina, 90 S.Ct. 1458 (1970); McMann v. Richardson, 90 S.Ct. 1441 (1970).

Important reasons exist for treating an applicant, who claims to have falsely pled guilty, differently from an applicant who pleads not guilty and then is convicted after a trial. The applicant in this case admits to having made what he characterizes as a "false guilty plea" for which he received a bargained-for benefit of deferred adjudication. Applicant accepted the benefits of this bargain and later violated the law resulting in an adjudication of his guilt for the aggravated sexual assault offense. Applicant now claims that he is innocent and he wishes to take back his "false guilty plea."

This conduct compromises the integrity of the judicial process. Notwithstanding applicant's reasons for making what he claims was the difficult decision to falsely plead guilty, the fact remains that, if applicant is now to be believed, he still committed perjury by falsely pleading guilty. See Leday v. State, 983 S.W.2d 713, 732 (Tex.Cr.App. 1998) (McCormick, P.J., dissenting) (Constitution does not guarantee us the freedom from making difficult choices). Under these circumstances, I would hold that applicant has exhausted his remedies through the judicial process and that his remedy is to seek executive clemency. See Texas Administrative Code, Title 37, Section 143.2 (West 2002) (procedures for obtaining pardons for innocence); cf. Herrera, 113 S.Ct. at 866-69 (executive clemency "is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted").

III. Applicant Not Entitled To Habeas Corpus Relief Under Elizondo

Applicant asserts that even though he has compromised the judicial process with his false guilty plea, the judicial process would be even more compromised by the continued incarceration of an innocent person. Applicant claims that he has "unquestionably establish[ed]" his innocence under Elizondo. See Elizondo, 947 S.W.2d at 209.

A. Insufficient Record

The habeas record does not include the reporter's record from applicant's 1997 trial even though it appears from our review of the habeas court's findings that the habeas court reviewed that record in making its recommendations to this Court. Without an adequate record this Court is prevented from weighing applicant's exculpatory evidence against the evidence of guilt adduced at trial which applicant acknowledges "is at the very heart of the Elizondo analysis." See Franklin, 73 S.W.3d at 677; Elizondo, 947 S.W.2d at 206.

B. Record Before Court Does Not "Unquestionably Establish" Innocence

In Elizondo, we held that a habeas corpus applicant has the burden to "unquestionably establish" factual innocence. See Elizondo, 947 S.W.2d at 209. At this point in the judicial process, it is not enough for an applicant to raise some doubt (or even a reasonable doubt) about his guilt. See id. (an exceedingly high standard applies to the assessment of actual innocence claims on habeas corpus). Applicant's "new" evidence of innocence essentially boils down to the affidavits (attached to applicant's habeas corpus application) of three witnesses who, after remaining silent with information of applicant's "innocence" for five years, have now come forward to say that the complainant falsely accused applicant of raping her.

Applicant was the boyfriend of the complainant's mother. The complainant asserts in an affidavit that "everything [she] testified to [at applicant's 1997] trial was false." The complainant also asserts in the affidavit that in 1996 she made an outcry statement to her mother accusing applicant of raping her. The complainant also asserts in the affidavit that she falsely accused applicant of raping her because applicant was physically abusive to her mother and it "seemed like a good way to get [applicant] out of [their] house."

Yet we have no evidence from the complainant's mother confirming the complainant's stated motive (applicant's abuse of the mother) for falsely accusing applicant of raping her. It also is significant that the complainant's 1996 outcry statement to her mother was not overcome. This 1996 unrecanted outcry statement presumably was admitted at applicant's 1997 trial, and the Legislature has determined that such an outcry statement is reliable evidence of guilt. See Article 38.072, Texas Code of Criminal Procedure. Also, as with any recanting witness, it is impossible to know with any certainty which of the complainant's statements are true. See Elizondo, 947 S.W.2d at 216 n. 1 (Womack, J., dissenting) (pointing out the weakness of the testimony of a recanting witness whose testimony is always the "last time I was on the witness stand I didn't tell the truth").

The complainant's former boyfriend also filed an affidavit in which he asserts that the complainant told him in 1996 that she had falsely accused applicant. The former boyfriend also asserts in the affidavit that he conveyed this information to applicant's retained lawyer during applicant's 1997 trial but that "for some reason" applicant's lawyer did not ask him about it when the former boyfriend testified at applicant's 1997 trial. This portion of the former boyfriend's affidavit asserts:

I attended [applicant's] trial, and continued to try and talk [the complainant] out of going ahead with it. After sitting through some of the trial though, I decided that I should say something. During one of the breaks, I told [applicant's] attorney what [the complainant] had told me. The attorney told me that he wanted me to testify, and that he would see if I still could. [Applicant's] attorney put me on the stand, but for some reason he never asked me about what [the complainant] had told me.

Applicant, however, has not produced any evidence from applicant's trial counsel corroborating any of this or explaining why trial counsel declined to pursue a line of questioning at applicant's 1997 trial that would have established applicant's innocence. Moreover, since the habeas record is silent on whether applicant's trial counsel conveyed this information to applicant, we cannot know whether applicant's evidence of "innocence" is "new."

While applicant's "new" evidence arguably raises some doubt about applicant's guilt, it does not "unquestionably establish" his innocence. See Elizondo, 947 S.W.2d at 209. Applicant, therefore, is not entitled to habeas corpus relief.

I respectfully dissent.

Keller, P.J., filed a dissenting opinion.

DISSENTING OPINION ON MOTION FOR REHEARING

The questions in this case are: (1) on original submission of this case, did this Court follow Elizondo, and (2) should applicant get relief under Elizondo?

The answer to the first question is "no." Elizondo is the law, or at least it was until this case. Elizondo provides the framework for evaluating actual innocence claims on habeas. On original submission, the Court plainly did not follow Elizondo. Elizondo requires this Court to weigh the exculpatory evidence against the evidence of guilt adduced at trial, in order to determine if the record supports the habeas court's recommendation. That is what this Court did in Elizondo itself, and has done since then in Ex parte Franklin, in which, incidentally, we denied relief after the habeas court recommended that relief be granted. The Court's infelicitous desertion of the Elizondo standard in order to grant applicant relief is both inexplicable and unnecessary.

A disturbing aspect of the concurring opinion on rehearing, further signalling the abandonment of Elizondo, is its statement that the trial record is unnecessary to a determination of actual innocence claims. The conclusion that no "policy" reason exists to treat Elizondo claims "differently" flatly contravenes the language of that case, which requires that, in evaluating actual innocence claims (as opposed to other kinds of habeas claims), the trial record be consulted. Contrary to statements in the concurring opinion on rehearing, the burden is always on the habeas petitioner to produce a record sufficient to support his claim. Petitioner did not do so on original submission, and so his application should have been denied. The concurring opinion blames the State for the failure to request that the record be forwarded to this Court. This is an unfounded shifting of the burden on habeas, and violates not only Elizondo, but also traditional habeas corpus principles.

But the record is now before us, and we can now weigh the exculpatory evidence against the evidence at trial in order to determine if the record supports the habeas court's recommendation. Unlike the other dissenting opinion on rehearing, I think that applicant's evidence qualifies as "newly discovered." Moreover, credibility decisions are up to the fact-finder, and in this case the habeas court believed the new evidence. I believe that, if it is assumed that Elizondo can apply to convictions resting upon a guilty plea, the record is sufficient to support the habeas court's recommendation. Under these circumstances, now that the record is before us, I would answer the second question "yes" and grant applicant relief.

I respectfully dissent.

Hervey, J., filed a dissenting opinion to the denial of the State's Motion for Rehearing, in which Keasler, J., joined.

DISSENTING OPINION ON REHEARING

Applicant still stands legally convicted of aggravated sexual assault of a child based on a knowing and voluntary guilty plea. Rather than seeking to set aside this plea under well-developed law that habeas corpus applicants routinely use to set aside guilty pleas, applicant claimed in this habeas proceeding that he is entitled to habeas corpus relief because he is actually "innocent" of this offense.

On original submission this Court granted applicant habeas corpus relief on his "actual innocence" claim without setting aside his voluntary guilty plea. After our opinion on original submission, the habeas court granted applicant a bond that apparently was not authorized by law. Since applicant is back on the streets, then arguably there is no illegal "restraint" and this Court should consider whether to dismiss applicant's habeas corpus application and withdraw its prior opinions. See Ex parte Eureste, 725 S.W.2d 214, 216 (Tex.Cr.App. 1986).

I would, however, reconsider the Court's opinion on rehearing and deny habeas corpus relief. Applicant was tried before a jury for the aggravated sexual assault of a child offense in 1997. While the jury was deadlocked on the issue of applicant's guilt/innocence, applicant pled guilty to the offense and he received a bargained-for benefit of 10-years deferred adjudication. In 1999, after committing another criminal offense, applicant's guilt for the aggravated sexual assault of a child offense was adjudicated and he received a 10-year prison sentence.

In 2002, the imprisoned applicant filed this habeas corpus proceeding to present what he claimed was "new" evidence that establishes his innocence under our decision in Ex parte Elizondo, 947 S.W.2d 202 (Tex.Cr.App. 2002). Elizondo requires applicant to "unquestionably establish" his innocence on habeas corpus. See Elizondo, 947 S.W.2d at 209. This is a heavier burden than the State's burden at trial to prove guilt beyond a reasonable doubt primarily because applicant's error-free conviction "is entitled to the greatest respect" in this habeas corpus proceeding. See id.

The habeas court decided that applicant met this burden. On original submission, this Court agreed and decided that applicant's "new" evidence unquestionably established his innocence. This Court based its decision solely on the habeas court's findings without conducting an independent examination of the record of applicant's 1997 trial and without requiring that this record be made a part of the habeas record.

The habeas record reflects that the habeas judge was the same judge who presided over applicant's 1997 trial. The habeas record also reflects that the habeas court's findings refer to and are based on selected portions of the record from applicant's 1997 trial. The habeas record also reflects that the habeas court's findings are based on its personal "recollection that the evidence of Applicant's guilt [at his 1997 trial] was severely deficient." These findings state:

In determining that Applicant's [new] evidence is of significantly greater credibility than any evidence offered at Applicant's trial, this Court necessarily had to engage in such a "weighing" of exculpatory evidence against evidence of guilt. While the process of recalling two days of testimony provided four-and-a-half years ago would normally require an exhaustive review of the transcripts, such is not the case in the instant proceeding. Despite the passage of time, and cases, the Court finds that its recollection of the proceedings before it on July 1-3, 1997 has not diminished over the interval. The Court attributes this clarity of recollection to the exceptional nature of the testimony adduced before it during the trial.

In reviewing the proceedings of Applicant's trial for purposes of Applicant's hearing, this Court has reaffirmed its recollection that the evidence of Applicant's guilt was severely deficient. Of perhaps greater significance though for the purpose of Applicant's writ, this Court specifically recalls the majority of evidence presented at trial was highly implausible at best. Having reviewed the proceedings at Applicant's trial, this Court finds that Applicant's characterization of the evidence against him at trial is accurate, and fairly characterizes the tenor of this evidence. (Citation To Applicant's Habeas Corpus Application Omitted).

In a motion for rehearing, the State claims, among other things, that this Court should not have granted habeas corpus relief without independently examining the record of applicant's 1997 trial. The State claims that an independent examination of the record from applicant's 1997 trial shows that the "new" evidence applicant presented in this habeas corpus proceeding does not unquestionably establish applicant's innocence of the aggravated sexual assault of a child offense. The State also claims that the evidence applicant presented in this habeas corpus proceeding is not "new." After the Court's decision on original submission, the habeas record was supplemented with the reporter's record of applicant's 1997 trial.

I. INDEPENDENT EXAMINATION OF THE RECORD FROM APPLICANT'S 1997 TRIAL

Our decision in Elizondo clearly requires this Court to independently examine the record from applicant's 1997 trial. See Elizondo, 947 S.W.2d at 206, see also Ex parte Franklin, 72 S.W.3d 671, 677 (Tex.Cr.App. 2002). Elizondo states clearly:

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.

Elizondo, 947 S.W.2d at 206; see also Franklin, 72 S.W.3d at 677.

The Court's opinion on original submission found it unnecessary to independently examine the record of applicant's 1997 trial apparently by shifting this duty exclusively to the habeas court. See Ex parte Tuley, slip op. at 3 ("the convicting court weighs the evidence of the applicant's guilt against the new evidence of innocence"). The Court's opinion on original submission supports this proposition with a citation to page 207 of Elizondo which states that the "habeas court, as factfinder" is to weigh the evidence of guilt at trial against the new evidence of innocence. See Elizondo, 947 S.W.2d at 207.

But this reads Elizondo with blinders on and ignores other significant parts of this decision requiring this Court to compare the evidence of guilt at trial against the new evidence of innocence presented on habeas corpus. See Elizondo, 947 S.W.2d at 206 (this Court must weigh the newly discovered evidence of innocence against the evidence of guilt) and at 207 (this Court's job is to "decide whether the newly discovered evidence would have convinced the jury of applicant's innocence") and at 209 (applicant entitled to habeas corpus relief if "applicant can prove by clear and convincing evidence to this Court, in the exercise of its habeas corpus jurisdiction, that a jury would acquit him based on his newly discovered evidence"). If it was the intent of this Court on original submission to decide that only the convicting court should independently examine the evidence of guilt at trial and compare it against the new evidence of innocence, then this Court overruled sub silentio significant portions of Elizondo.

II. APPLICANT'S CLAIMED PERJURIOUS GUILTY PLEA

The Court's opinion on original submission accepted the habeas court's findings that applicant's voluntary guilty plea (which applicant now claims was a lie) is not "indicative of any credible admission of guilt" because the plea was influenced by various factors many of which face most guilty-pleading defendants. See Tuley, slip op. at 13-14. The habeas court found:

. . . However, notwithstanding the Court's acceptance of Applicant's plea on July 3, 1997, the Court believes Applicant's assertion that his plea was entered solely for the purpose of extricating himself from the situation he found himself in, and as such was not indicative of any credible admission of guilt.

Given Applicant's prolonged incarceration, the specter of further incarceration, the fact that Applicant could no longer retain private counsel, and Applicant's assertion that he was addicted to narcotics during this period, the Court finds that Applicant has made such an affirmative showing as to dispel the presumption of regularity and veracity implied to recitals of guilt in open court. Furthermore, this Court recommends that in light of Applicant's evidence of actual innocence, as this Court will now detail, Applicant's plea should not be dispositive of the determination of Applicant's claim.

These findings, however, are responsive only to the State's claim on original submission that applicant's claimed perjurious guilty plea precludes him from even raising an Elizondo claim. While these findings may permit applicant to raise an Elizondo claim, they do not address how much weight to assign to applicant's judicial admission of guilt in the Elizondo analysis. The Elizondo analysis of determining whether a rational juror would acquit based on a guilty-pleading habeas corpus applicant's new evidence must take into account that this rational juror would also have to consider that this applicant voluntarily admitted his guilt. See Elizondo, 947 S.W.2d at 209. This should be an important part of the Elizondo analysis since an applicant's voluntary admission of guilt normally and " quite validly removes the issue of factual guilt from the case." See Menna v. New York, 96 S.Ct. 241, 242 n. 2 (1975) (emphasis in original); McGlothlin v. State, 896 S.W.2d 183, 190 (Tex.Cr.App.) (Meyers. J., dissenting), cert. denied, 116 S.Ct. 219 (1995). Neither the habeas court nor this Court on original submission weighed applicant's judicial admission of guilt and the other evidence "adduced at trial" against the new evidence as required by Elizondo, 947 S.W.2d at 206.

Assuming, therefore, that Elizondo applies to a guilty-pleading habeas corpus applicant, it is appropriate to note that, in conducting the Elizondo weighing analysis, a reasonable juror would not have to accept applicant's excuses for pleading guilty. A reasonable juror could determine that applicant's guilty plea is a credible admission of guilt since it is not unreasonable to infer that applicant could have decided that 10-years deferred adjudication was a pretty good deal for someone who sexually molested a 12 year-old girl on a regular basis for a year and-a-half. See Elizondo, 947 S.W.2d at 209 (habeas applicant must show by clear and convincing evidence that a reasonable juror would acquit him based on his newly discovered evidence). And, it is also appropriate to note that a reasonable juror could consider that applicant is an admitted liar. See id.

III. RECORD OF APPLICANT'S 1997 TRIAL

The evidence from applicant's 1997 trial showed that applicant and the complainant's mother had a sexual relationship. Applicant moved in with the complainant's family (the complainant, the complainant's mother, and the complainant's younger sister) in March 1995 when the complainant was twelve years-old. The complainant's mother testified that the sexual relationship between her and the applicant "pretty much stopped" within a month after applicant moved in with the complainant's family. The complainant's mother also testified that applicant spent much of his time alone with the complainant and that the complainant's behavior drastically changed for the worse within about a month after applicant moved in with the family.

The complainant testified that applicant began to sexually molest her about a month after applicant moved in with the complainant's family. The complainant also testified that applicant sexually molested her on a regular basis until his arrest in September 1996 when the complainant was 13 years-old. She specifically described three incidents in which applicant molested her, with each incident involving penetration (the abandoned house incident, the incident during a camping trip at a lake in Oklahoma, and the last incident at the complainant's home that occurred shortly before applicant's arrest).

Other than testifying that he was "in fact guilty" when he pled guilty, applicant did not testify at his 1997 trial. He nevertheless presented a defensive theory that the complainant's mother and the complainant's aunt encouraged the complainant to falsely accuse applicant of sexually molesting the complainant because the mother wanted the applicant gone. In support of this theory, applicant relied on evidence that in September 1996 the mother went to a hotel after giving applicant an ultimatum to be out of the house by noon the next day because the mother thought applicant "was seeing a lot of girls." The aunt was unhappy when she spoke with the mother at the hotel and learned that the mother had left the complainant with applicant. The mother and the aunt made arrangements for the grandmother to get the complainant away from applicant.

Q. How were you feeling that night at the hotel?

A. Well, I was upset, because I thought-or I still believed that [applicant] was seeing a lot of girls, so I packed me a bag and I went to the hotel and I called [the aunt] and told her about [the complainant].

Q. Were you upset?

A. Yes.

Q. What was [the aunt's] reaction to your leaving [the complainant] with [applicant]?

A. She said if he —

[APPLICANT]: I'd object to hearsay, Your Honor.

[THE COURT]: Sustained.

Q. Was [the aunt] happy about it? Don't tell me what she said, but was she happy?

A. No.

Q. What did you do next after speaking to [the aunt]?

A. We called my mom, and we told my mom to go knock on [the complainant's] window, because she had a habit of doing that, just go knock on your window, and ask her to go washing with her. So I told mom, "Go knock on the window and ask [the complainant] to go washing with you, and then bring her to the house."

Q. Were you and your sister concerned about [the complainant's] well-being?

A. Yes.

The aunt picked the complainant up from the grandmother's and took her to the hotel. The complainant then told them that applicant had been sexually molesting her. The mother called the police who arrived at the hotel shortly thereafter and began to interview the girl outside the presence of her mother and aunt. The mother testified that the complainant was at the hotel "not even five minutes" before the mother called the police.

Q. How long was [the complainant] at the hotel before you all called the police or anyone?

A. Not even five minutes.

Q. Not even five minutes.

How did [the complainant] get to the hotel?

A. [The aunt] picked her up from [the grandmother's].

The aunt, however, testified that the complainant was at the hotel approximately an hour and-a-half before the mother called the police.

Q. Okay. Prior to you and [the mother] calling [the police], you speak with [the complainant] for approximately an hour and-a-half; is that correct?

A. That's what I would estimate. I couldn't be positive.

Q. You don't-you weren't looking at your watch?

A. No.

Q. But you-you know it was a good bit longer than your phone conversation?

A. Yes.

Q. No question in your mind about that?

A. Yes.

Q. Was there ever a time when [the complainant] was speaking in the hotel room that [the mother] would not have been present?

A. With the police officers when we stepped outside.

Q. That would have been the only time?

A. Uh-huh.

Q. So whatever you hear, she heard, whatever [the complainant] was saying?

A. Yes.

Q. Without saying what [the complainant] said, did you, in your mind, have a good idea of — of — of what went on, if anything, at all?

A. Did I have an — I did before she even told me or —

Q. After she spoke for the hour and-a-half, did you — did you feel like you had a good idea as to what was going on?

A. Yes.

Q. Did you say yes?

A. Yes.

Q. Did you feel like there were details left out?

A. As far as what [the complainant] told us?

Q. Correct.

A. Yes.

Q. Was it — was it sketchy what she said, or was it a complete story from start to finish?

A. No, it was brief stuff.

Q. Brief stuff?

A. Like she was embarrassed to say it in front of [the mother].

The complainant provided no testimony on how long she was at the hotel before the mother called the police.

Q. But [applicant] wasn't okay, was he?

[Complainant], a couple of days after this incident at your house on Prospect, [the mother] went to stay at a hotel. Do you remember that?

A. Yes.

Q. And early that morning you finally told, do you recall?

A. (Nods head.)

Q. Did you tell [the mother] and [the aunt] lots of details?

A. No, I — some of what I told them was that, you know, that he did it. And there was -was no details at all. I —

Q. What did you say to them?

A. Well, I — I talked to my mother from [the grandmother's] house on the phone, and she says — she was telling me all the stuff that she finally figured out about [applicant]. That he was using her for her money and drugs and letting other guys rape her.

[APPLICANT]: Your Honor, I'm going to object to this as non-responsive.

[THE COURT]: Overruled.

Q. Did you tell her that [applicant] was having sex with you?

A. I didn't come out with it. I wasn't planning to. And she says, "Has [applicant] been touching you?"

And I thought about it for a minute thinking, you know, I better not do it, because, you know, he might-he will kill me. And — but then again, at that point in time, I hated myself so much, I — I didn't care.

Q. Did you care if you lived or died anymore?

A. No, and — and at first I said, "No." I said, "No."

And she goes, "Are you sure?"

And I thought about it again. And then I told her, "Yes," because I didn't — I didn't care anymore. I — and the picture of the family was long gone.

Q. Did you want to share with her all the details of — of what he had done to you?

A. No.

Q. Why?

A. I was — I was afraid she was going to be mad at me.

Q. Why would you be afraid that she would be mad at you?

A. I don't know.

Q. Did you think that she loved him more?

A. Yes.

Q. Did someone call [the police] that day?

A. [The mother] did.

Q. And what happened after that?

A. The police came over and talked to me, and to [the mother] and to [the aunt].

Q. Did you get a chance to talk to the police alone —

A. Yes.

Q. — and tell them details of what had-what had happened?

A. (Nods head.)

The first police officer to arrive at the hotel testified that the mother, the aunt, and the complainant were "very upset" and that the complainant was crying. He testified that "they were excited" and that "something had happened."

Q. How about [the complainant]? A. [The complainant] was — she was crying. She had her head lowered. She wasn't saying anything to anyone. Embarrassed. You could tell she was emotionally upset also.

Q. Was she withdrawn?

A. Very much withdrawn.

This officer also testified that the complainant told him "what had happened to her up to a point" but because "of the nature of the situation" he called for a female officer (Waller) who questioned the complainant alone for "quite awhile." The male officer who first arrived at the scene also testified that they went from the hotel to the mother's home where he arrested applicant based on information that the complainant provided to the female officer.

A. . . .

At that point, I asked her, [the complainant], if she would feel more comfortable speaking with a female officer. And she said, yes.

Q. And so what did you do?

A. At that time, I called for Officer Waller, who is a female, to come to the location and assist with the questioning of [the complainant] on what happened.

Q. Why Officer Waller?

A. I — it wasn't actually Officer Waller, I just asked for a female officer, and she is the one that was — that responded.

Q. What happened at that point when she arrived?

A. She came to the location. Once she arrived, I stepped out of the room with [the complainant's mother] and [the aunt] and let Officer Waller talk with [the complainant] alone in the room about what had happened.

Q. Why did you want her to be alone with Officer Waller?

A. Well, obviously, she didn't feel as comfortable with me being around as she would be with — as I felt she would be with another female officer.

And by having her in a room by herself, that would allow her to be more free to discuss things that she did not want her mother to know about.

Q. Is that common practice when dealing with a child that has been sexually abused?

A. Yes, ma'am.

Q. About how long did Officer Waller talk to [the complainant]?

A. Well, I can't give you a time, but it was quite awhile.

Q. When they came out of the room, how was [the complainant]?

A. Well, [the complainant] did not come out of the room. Officer Waller — Waller came out of the room and spoke with me, and it wasn't until we left the motel that [the complainant] left the room.

Q. Did Officer Waller tell you what [the complainant] had told her?

A. Yes, ma'am.

Q. Based on that information, what did you do next?

A. Based on that information, we went over to the offense location, which was [the complainant's] and her mother's home, and — to locate our arrestee. We went to that location and knocked on the door and —

Q. Who went to the location with you?

A. Officer — my cover officer, Officer McClain.

Q. Did [the complainant] go there?

A. I don't believe so. I believe that she was taken with Officer Waller, along with her mother, and I believe [the aunt], to the child — Children's Advocacy Center to be interviewed by them.

Q. And you said that you went — based on the information that you had, you went to the duplex to do what — or the triplex?

A. To try to locate the suspect and to make an arrest.

Q. And what happened when you got to the triplex?

A. I knocked on the front door, and the suspect answered the door. And he was immediately placed under arrest.

The female police officer (Waller) testified that the complainant gave her a statement at the hotel. This female officer described the circumstances under which the complainant provided this statement and the general techniques she uses to insure the reliability of these types of statements.

Q. Why were you dispatched out there [to the hotel]?

A. I wasn't dispatched, another element received a call, but they called for a female element because the complainant was real upset. The officer didn't feel like she would respond to him, so he wanted a female to come and talk to her.

Q. And what did you do when you arrived there?

A. I talked to the officer who originally got the call, and he explained to me the situation. And I talked with her mother first alone in the room, and then I talked to [the complainant] in the room alone.

Q. Why did you speak with her alone?

A. Well, when I got there, I could tell she was upset because she was crying. And a lot of times to me, their mother or, you know, whoever's — whoever they're with, to me that seems to pacify them. They stay in that "I'm a baby state," you know, and I wanted to get her out of there and get her alone and just kind of open up to her and kind of relate to her some of my own life experience and make her feel comfortable with me so she can open up.

Q. And have it be a one-on-one conversation?

A. Yes, because there might be some things that she doesn't want to say around her mother.

Q. What was her demeanor when you went into the room? How did she act?

A. Withdrawn, scared, very upset. She was crying. She did appear to me like she was ready to talk, because she was tired of what was going on.

Q. Tired of keeping it in?

A. Yeah.

Q. When you talk to children or adults who have been sexually abused, what type of questions do you ask of them?

A. I ask them how old they are. And how many — you know, do you have any sisters or brothers, and —

Q. And you try to make them comfortable at first?

A. Yes.

Q. When you actually start to talk about the sexual abuse, how do you approach that?

A. I ask them do they know what sex is, because, I mean, I talk to children as young as five, sometimes, and I want to make sure they know what sex is. And sometimes I might have to tell them, you know.

Q. Did [the complainant] know what sex was?

A. Yes, she did.

Q. Was she able to give you details about what sex was?

A. Yes, she did.

Q. When you spoke with her, was she able to give you details about sex with [applicant], [the mother's] boyfriend?

A. Yes.

Q. Would you ask her open-ended questions such as what happened next? Then what happened? A. Yes.

Q. Versus leading questions?

A. Yes.

Q. And why? Why would you do that?

A. Because it's her story. It happened to her. She needs to tell me what happened. I can't tell her what happened.

Q. And was she able to do that?

A. Yes.

Q. Was she able to tell you about just one incident, or were there more?

A. There were more.

Q. There were more.

A. I asked her — she told me about the initial incident, the one that we were called on. I asked her if it had happened to her before, and she said, yes. And I asked her, when? And she told me —

[APPLICANT]: Objection, hearsay, Your Honor, what [the complainant] told her.

[THE COURT]: Sustained.

Q. Was she able to give you details of other incidents?

A. Yes.

Q. Did she seem frightened?

A. Yes.

Q. Of what?

A. Of [applicant].

An investigator with the City of Dallas Child Abuse Unit testified that he interviewed the complainant at a children's advocacy center later that day and that the complainant provided detailed information that was consistent with the information the complainant provided Waller.

Q. Was [the complainant] eventually able to tell you what had happened to her?

A. Yes, she was.

Q. Was she able to give details?

A. Yes, she was.

Q. After interviewing her — I'm — did you have an opportunity to speak with Officer Waller?

A. Yes, I did.

Q. Do you recall if it was prior to or after you interviewed [the complainant]?

A. It was prior to.

Q. The information that [the complainant] gave you during your interview, was it consistent with what Officer Waller had told you?

A. Yes, it was.

Q. Did you also — when you're interviewing a child, what type of questions do you generally ask?

A. Open-ended questions, where pretty much we'll allow the person to tell me what happened, not —

Q. And why do you do that?

A. Because I — your whole premise is not to lead the person on. Let them tell you in their own words as to what happened.

Q. And did you do that with [the complainant]?

A. Yes, I did.

Applicant's defensive theory that the mother and the aunt encouraged the complainant to falsely accuse applicant because the mother wanted him gone figured prominently in applicant's closing jury arguments.

What does [the mother] do? She leaves [complainant] and [the younger daughter], we're not real clear on whether [the younger daughter] was there or not, in the house with [applicant]. There's no problem until they start talking, and [the aunt] hatches the plan. You want to figure a way to get [applicant] out of this house?

She says they had five phone calls. First one a couple of minutes and the second one's five minutes. The third one's five minutes. The fourth one's five minutes. And the fifth one's five minutes and the sixth one's five minutes. They call a couple of minutes, three minutes, four minutes. They're on the phone. An hour and 15 minutes later, they pick up [the complainant] and they don't tell [the grandmother] why they're picking her up in the middle of the night or anything like that. So where's the hour and 15 minutes? I'll tell you where it is. They're on the phone hatching the plan to —

[THE PROSECUTION]: Your Honor, I'm going to object. That's not in evidence.

[THE COURT]: Overruled.

Now, what else do we know? Pick up [the complainant] 5:15, get to the hotel about 5:30. [The mother] says they talked to [the complainant] for five minutes and they call [the police]. [The aunt] says, "We talked an hour and a half, and then called [the police]."

That hour and a — and-a-half they talked was when [the mother] and [the aunt], it's a reasonable deduction, talked with [the complainant] before they got there, and then [the complainant] gets there and they talk about five minutes. We're not even clear who's there because they can't really remember. Then [the complainant] tells us [the aunt] was there, but [the mother] says, "I borrowed [the aunt's] car and [the aunt] wasn't there."

Who's there? That wasn't that important when they figured that out.

The prosecution responded to the defensive theory that the complainant fabricated the accusations by commenting that [the complainant] told the same basic story each time she gave a statement to the police.

[The complainant] made it up because her mom didn't like [applicant] anymore?

Ladies and gentlemen, to believe that, if you listen to Defense's argument, mom and sister got together for an hour and-a-half and talked about it, and then spent five minutes with [the complainant] to tell her all these details. To be-to plant in her mind an abandoned house, a camping trip, a bike ride and an event that happened in the home while you're doing your homework. That jump over the table. That knocks you down. All those things in five minutes.

And not only are-they are so good at manipulating this child, she's going to do this for them. But that-she's consistent. Her story is basically consistent time and time and time again.

[The complainant] goes alone with Officer Waller and she tells her all these intimate little details. Then she tells Detective Johnson. Then she comes back and talks to the prosecutor. And then she tells you nine to ten months later.

And, ladies and gentlemen, it's the same. It's the same basic story. One detail is who pulled the pants all the way down. A little-little details are a little different, but the basic story is the same. About the house, about the camping. Every time. After five minutes with mom, she-and mom's not in the room to help her. She has to do it on her own at 13 years old.

The record from applicant's 1997 trial further reflects that applicant pled guilty in exchange for 10-years deferred adjudication while the jury was deadlocked on the issue of applicant's guilt/innocence. After determining that applicant freely and voluntarily pled guilty and hearing applicant's assertion that he was "in fact guilty," the trial court accepted applicant's guilty plea, declared a mistrial, and discharged the jury.

IV. THE "NEW" EVIDENCE

After his deferred adjudication had been revoked for committing another criminal offense and applicant went to prison, he filed this habeas corpus application. Applicant claims in this proceeding that he discovered all this "new" evidence establishing his innocence after he went to prison.

A. The Complainant's Affidavit

Applicant submitted an affidavit from the complainant as "new" evidence in support of his habeas application an affidavit from the complainant. The complainant stated in this affidavit that "everything" she testified to at trial was "false" and that applicant "never assaulted [her] in any way whatsoever." The complainant also stated in her affidavit that she wanted applicant gone because he mistreated the mother and that accusing him of molesting her "seemed like a good way to get [applicant] out of [the] house." Among other things, the complainant's affidavit states:

In 1996 I told my mother that [applicant] had sexually assaulted me. I didn't plan to do this, until the moment that she asked me whether he had done anything to me. I did it because I wanted [applicant] out of my life and my mom's life. I blamed him for getting her involved with drugs, and for her then getting fired from her job. I also knew that he was physically abusive to her, as I had seen him slap her a couple of times, and I also saw bruises on her. She had also told me that she believed he had given her a disease. At the time, it just seemed like a good way to get him out of our house.

The complainant did testify at applicant's 1997 trial that applicant mistreated the mother. The complainant also explained why, soon after applicant's arrest, she told her boyfriend (Graham) that applicant did not molest her — because she "was humiliated and couldn't let him know."

Q. Did you tell anybody that — that it didn't happen?

A. Yes.

Q. Who?

A. I told — I told the boy that was my boyfriend at the time.

Q. Why did you tell the boy it didn't happen?

A. Because I was humiliated and couldn't let him know, and —

Q. Did he know your friend also?

A. I mean, he knew Amelia, kind of.

Q. You — did you want everybody to know what had happened to you?

A. I didn't want anybody to know.

Q. Did you want it to just go away?

A. (Nods head.).

B. The Affidavit Of The Complainant's Best Friend (Amelia Starr)

Applicant also submitted as "new" evidence in support of his habeas corpus application an affidavit from the complainant's best friend (Starr) who was the only witness to testify live at the habeas hearing. Starr's affidavit states, among other things, that the complainant told her after applicant's arrest that the complainant had fabricated the charges against applicant because the complainant hated applicant. Starr's affidavit also states that the complainant made the outcry statement to her mother and aunt when "they were all gathered at a hotel."

[The complainant] told me that she made this up because she hated [applicant], as he was physically abusive to [the mother]. [The complainant] stated that she just wanted [applicant] out of the house. [The complainant] stated that she told [the mother and the aunt] of [applicant's] abuse when they were all gathered at a hotel. [The complainant] told me that [the mother] questioned her about whether [applicant] had ever done anything to her, at which time she told them he had.

Starr testified consistently with this portion of her affidavit at the habeas hearing and she also testified that she was surprised to learn that the complainant lied when the complainant accused applicant of molesting her.

Q. What — what — what did [the complainant] tell you?

A. She told me that it didn't happen. Basically she said that — you know, I told her that — that everyone was upset. And she was like, "I know, but I have to tell you the truth."

And I was like, "Well, what do you mean?"

And she told me that it didn't happen. She said that her mom and her aunt had been discussing things as far as, I guess, [applicant] and her mother's relationship, I don't know. And they went to [the complainant] and asked her, you know, if [applicant] had ever bothered her or anything like that. And so, I guess, she took the opportunity because she was unhappy in the house with [applicant] there. To use that I guess. And she said that — so she went ahead and said, yes, that he had raped her and that was basically —

Q. Were you — were you surprised?

A. Yeah — that she was lying?

Q. Yes.

A. Yes.

Starr also stated in her affidavit that in September 1996 the complainant told Starr that applicant had been molesting her.

In September of 1996 [the complainant] told me that [applicant] had been molesting her. [The complainant] did not tell me any details of what occurred. She also told me that she had told her mother this as well a few days earlier.

Starr testified at the habeas hearing, however, that this was not true and that her "mother's the one who told [her]."

Q. Ms. Starr —

A. Yes.

Q. — did [the complainant] ever tell you that [applicant] had in fact raped her?

A. Yes.

Q. When did she do that?

A. I'm sorry, I [sic] didn't — can you repeat the question?

Q. Did [the complainant] ever tell you that she had been raped?

A. Did [the complainant]? No, she didn't.

Q. Okay. Did you come up and make an affidavit in July of this — last year?

A. Yes.

Q. Do you recall signing it?

A. Yes.

[THE PROSECUTION]: Your Honor, may I approach?

[THE COURT]: Yes.

[COURT REPORTER]: I'm sorry, could you repeat what you just said.

[THE PROSECUTION]: I asked her to read paragraph number two [of her affidavit].

A. Okay. In September of 1986 [sic], [the complainant] to me [sic] that [applicant] had been molesting her. [The complainant] did not tell me any details, just that it had occurred. She also told me that she had told her mother this as well.

Q. Did that happen?

A. Actually, no, my — mother's the one who told me.

Q. Did you write this affidavit?

A. Did I write — I read it and signed it, yes.

Q. So you agreed to what it said at the time?

A. Yes.

Q. But it's quite different than what you're saying now?

A. Yeah, I didn't — I don't know if I didn't catch it or what, but, yeah, it's different. It's — my mother told me.

(Emphasis Supplied).

It is also significant that Starr testified at the habeas hearing that she thought she would have told "the truth" at applicant's 1997 trial had applicant's attorneys contacted her during or before trial.

Q. Did anyone contact you from — from — [applicant's] attorneys during the trial or before the trial?

A. No.

Q. Okay. Do you think that if someone had, an investigator, let's say, that you would have told them the truth?

A. I think so, just because of the fact that, you know, I — I was younger. And to have an opportunity come to me around say, look, this — you know, I don't think either of us anticipated it to be such a big deal. And, of course — of course, it was. But it just — I didn't have authorities asking me questions, so all I knew was that, you know, I could — I could keep this promise and, you know, that was that. So had authority come to me, I think it would have been a bit scarier, and so I think it would have probably scared me into telling the truth.

C. The Affidavit Of The Complainant's Former Boyfriend (Graham)

Applicant also submitted as "new" evidence in support of his habeas corpus application an affidavit from the complainant's former boyfriend (Graham). His affidavit states that the complainant told him after applicant's arrest that she had falsely accused applicant of molesting her. Graham's affidavit states:

In September 1996, sometime after [applicant] was arrested. [the mother] told me that [applicant] had been arrested for raping [the complainant]. I was really shocked when she told me this and I called [the complainant] after this, and asked her to tell me what happened. [The complainant] told me that she had lied about it because she hated [applicant] and wanted him to leave. She told me not to tell anyone that was lying [sic], and that I was the only one who knew the truth.

Graham's affidavit also states that he kept this information to himself until he decided to share it with applicant's attorney during a break in applicant's 1997 trial. Graham's affidavit further states that applicant's attorney put him on the stand at applicant's 1997 trial "but for some reason he never asked [Graham] about what [the complainant] had told [Graham]." Graham's affidavit states:

I attended [applicant's] trial, and continued to try and talk [the complainant] out of going ahead with it. After sitting through some of the trial though, I decided that I should say something. During one of the breaks, I told [applicant's] attorney what [the complainant] had told me. The attorney told me that he wanted me to testify, and that he would see if I still could. [Applicant's] attorney put me on the stand, but for some reason he never asked me about what [the complainant] had told me.

The record from applicant's 1997 trial reflects a different scenario. This record reflects that, during a hearing outside the jury's presence, applicant's attorney put Graham on the stand. Graham testified that he approached applicant's attorney during trial and told him that the complainant told Graham two days after applicant's arrest, that she had fabricated the accusations against applicant. The trial court decided that applicant could not present that evidence to the jury without recalling the complainant and setting the "foundational requirements."

Q. And did you have a conversation with [the complainant] on September 16, 1996?

A. Most likely.

Q. Was it a couple of days after some events occurred out there and [applicant] was arrested?

A. Yes.

Q. Two days after — after his arrest; is that your understanding?

A. Yes.

Q. Now, you were in the courtroom yesterday; is that true?

A. Yes.

Q. And did you hear some testimony from [the complainant's] mother?

A. Yes, I did.

Q. Do you know who she is?

A. Yes.

Q. What's her name?

A. [Names the mother].

Q. There was a break yesterday or Monday, I guess — no, it was yesterday — where you and I had a conversation out in the hall; is that right?

A. Yes.

Q. And you told me something about this conversation that you had with [the complainant] on approximately September 16th of 1996; is that right?

A. That's right.

Q. And you and I never had this conversation before; is that right?

A. Right. Q. As a matter of fact, you called my attention to this conversation; is that true?

A. Yes.

* * * * * * * * * * * * * * * * * * * * * * * * *

Q. And what do you understand was the reason that [applicant] had been arrested?

A. [The mother] had — had told me that [applicant] had been arrested for raping [the complainant] for a year and-a-half.

Q. Did you call [the complainant] on the 16th of September and talk to her?

A. Yes, I did.

Q. This is a phone conversation?

A. Correct.

Q. And did you ask [the complainant] about this?

A. Yes, I did.

Q. Exactly what did you ask her?

A. I asked her what was going on, and for her to tell me what had happened.

Q. What was [the complainant's] response to that?

A. She said that she made it up, and the only reason she was doing it, because she hated [applicant] and that she wanted him out of her life.

* * * * * * * * * * * * * * * * * * * * * * * * *

[THE COURT]: All right. Well, I think it's within my discretion to allow him to testify, and I think you can certainly cross-examine him on any anything that's relevant.

[THE PROSECUTION]: Can I make one objection on the record, Your Honor?

[THE COURT]: Yes.

[THE PROSECUTION]: . . .

In addition, they can't be used for impeachment of [the complainant] because when she testified, she admitted on the stand through my questioning that she had — had told him this, it didn't happen because she was humiliated, so there — there's where I'm — therefore, I'm going to object for those reasons.

[THE COURT]: Y'all want to respond?

[APPLICANT]: Your Honor, actually part of what he's saying is consistent with what [the complainant] testified to. There is some inconsistencies that deal with the aspect of don't tell anybody. Be very secretive about this, and I made it up. And that I hate [applicant], that's the reason I made that up.

So, there is part — part of what the State is objecting to is correct, but I don't know how you're going to segregate those parts out of this, overrule the statement and say that the hearsay stuff stays out, but the prior inconsistencies come in.

[THE PROSECUTION]: Your Honor, I don't feel that they've laid the proper predicate for it to be a prior inconsistent statement. They never went over with [the complainant] whether she did or didn't say — she never said, "No, I didn't say any of those things," because they didn't present the proper questions to lay the predicate for her to then be impeached. They never asked her, "Did you tell him not to tell anyone?"

[APPLICANT]: Well, I can — I can call [the complainant] — call her and ask her that. I mean, that's the way to cure that problem, see what she says about it.

[THE PROSECUTION]: At this point, I object, it is still hearsay.

[THE COURT]: Well, if it's offered to impeach the complainant, then it's not offered for the truth, so it's not hearsay.

[THE PROSECUTION]: But she hasn't said anything inconsistent yet to be impeached with. [THE COURT]: All right. Well, at this point set your foundational requirements. I think the State is correct.

[APPLICANT]: We would — well, we're ready.

Applicant did not recall the complainant to set the "foundational requirements" for impeaching her with Graham's testimony. Specifically, he did not recall the complainant and ask her whether she previously told Graham that she fabricated the allegations against applicant because she hated applicant and wanted him gone. See Tex.R.Evid. 613(a) (requirements for impeaching witness with prior inconsistent statement). Instead, the record from applicant's 1997 trial reflects that applicant put Graham on the stand before the jury and unsuccessfully attempted to use Graham's testimony to impeach the complainant without "setting" these "foundational requirements."

D. Applicant Presents No "New" Evidence

Applicant does not have any "new" evidence to present. The substance of applicant's "new" evidence set out in the affidavits of the complainant, Starr and Graham is that the complainant fabricated the molestation charges against applicant because she hated him and wanted him gone. But, the record from the habeas hearing reflects that applicant could have discovered Starr's testimony by the time of his 1997 trial. See Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Cr.App. 2002) (defendant, seeking new trial based on newly discovered evidence, must show, among other things, that the new evidence was unknown or unavailable at the time of trial and that the failure to discover the new evidence was not due to lack of diligence). And, the record from applicant's 1997 trial reflects that Graham's testimony was known to applicant at the time of trial and that applicant had an opportunity to present this evidence to the jury at his 1997 trial by setting the "foundational requirements" which he made no attempt to do. See id. To the extent that the evidence in the complainant's affidavit is "new," it is cumulative of the evidence set out in the affidavits of Starr and Graham which was available to applicant at the time of his 1997 trial. See id. (defendant, seeking new trial based on newly discovered evidence, must show that new evidence is admissible and is not merely cumulative).

V. THE CLAIMED "INCONSISTENT AND IMPLAUSIBLE" TESTIMONY FROM APPLICANT'S 1997 TRIAL

Applicant, the habeas court and this Court on original submission all claim that much of the testimony from applicant's 1997 trial is "inconsistent and implausible." See Tuley, slip op. at 16-17 (agreeing with the habeas court's characterization of the testimony at applicant's 1997 trial as "inconsistent and implausible"). The habeas court made several findings in this regard:

. . . Though this Court could cite to other instances of questionable testimony in the record, it would only serve to catalogue, and not capture, the essentially unreliable nature of the testimony offered for Applicant's guilt. . . .

. . . In recalling this evidence and reviewing the trial record, the Court finds that the evidence of Applicant's guilt is so far outweighed by the evidence of Applicant's innocence as to be almost entirely one-sided. In reaching this conclusion, the Court relies upon the manifestly unreliable and contradictory testimony offered at trial in support of Applicant's guilt.

A. Dr. Persaud's Testimony

Dr. Persaud was a physician who examined the complainant about two weeks after the last claim of molestation at the complainant's home. The habeas court, and this Court on original submission, considered it significant that Dr. Persaud testified at applicant's 1997 trial that there were "[n]o physical findings suggestive of abuse at this time." See Tuley, slip. op. at 17. The habeas court found:

Finally, this Court recalls the testimony of the examining physician, Dr. Persaud. Though unwilling to express a definitive statement as to whether her findings were conclusive either way, Dr. Persaud did testify to the fact that she noted "No physical findings suggestive of abuse at this time." (Citation To Record From Applicant's 1997 Trial Omitted).

An independent examination of the record from applicant's 1997 trial, however, indicates that the habeas court's findings do not mention other significant testimony that Dr. Persaud provided. Dr. Persaud also testified that about 85% of the approximately 1,000 sexual abuse examinations Dr. Persaud performed "came out to be normal." Dr. Persaud testified that it would not have been unusual for someone as young as the complainant, who had been molested numerous times for one and-a-half years, to show no physical evidence of sexual abuse. Dr. Persaud testified that her findings did not mean "that there was not any sexual abuse."

Q. Can you please tell the jury what the history was that was given?

A. There was a disclosure about two weeks ago of alleged sexual abuse. The incident happened many times over the past one and-a-half years. The child has allegedly described the sexual abuse that involved penetration.

Q. Once you received that history concerning [the complainant], did you also determine when she had begun to menstruate, and is that contained in your records?

A. Yes.

Q. And when was that?

A. It says 12 years.

Q. And how old was she at the time of your exam?

A. Thirteen and four months.

Q. Did the — did that have any effect on [the complainant's] hymen?

A. Yes.

Q. Can you describe to the jury what you saw during your exam with [the complainant]?

A. That description I had written is folded redundant estrogenized hymen. No tears or scars are seen. I made a note of some elevated, bumpy tissue, but I didn't give an interpretation of what I thought that was.

Q. Can you describe what you mean by estro — that her hymen was estrogenized?

A. The hymen was thickened and folded. If there's a lot of estrogen, it's thickened and folded.

Q. You stated that you did not see any tears or scars?

A. Yes.

Q. Does that mean to you that there was not any sexual abuse?

A. No.

Q. Can you please explain?

A. Common finding for children who have been sexually abused. It's a normal exam.

Q. What do you mean?

A. They — they are typically normal after sexual abuse. We don't typically see signs of trauma. Mostly because our exams are in part — in part done because our exams are done after the disclosure and after — after the last event, so we don't see blood or fresh tears or anything. Healing typically, so — our exams are done so much later. There — the tissues in that area have distensible, accommodating properties. The amount of penetration is variable. So generally, exams are normal. The child is of menstruating age. She had a year and-a-half before I saw her. So her — her tissues are even more distensible. The hymen in particular at that angle is very difficult to evaluate once there's been trauma and it has healed, because the folding and thickness of the hymen doesn't allow you to separate out what might have been a little bitty tear that healed altogether. Now, it just looks like other folds. Scar tissue is hard to evaluate. Scar tissue is supposed to be thicker, maybe paler. But the estrogenized hymen is thicker and paler so — so trauma becomes hard to distinguish in a patient of this age. Only — only that which is really bad and very deep lacerations are easily seen after a trauma event. Also, the closer you are to the trauma event, the easier it is to see because it just happened or it's taken time to heal, but once it's healed, it's really hard.

Q. So, for example, if there had been a trauma to [the complainant's] hymen when she was 12, would you expect to be able to see it when she was 13 years and four months?

A. May or may not. Could go either way depending on how severe the trauma was and how well she healed as well.

Q. But you can't say, yes, she was, or no, she wasn't?

A. No.

Q. Dr. Persaud, how many sexual abuse exams have you done of children over the last several years?

A. About a thousand.

Q. And of those thousand, what percentage came out to be normal approximately?

A. 85 percent.

Q. Is that why you — you stated earlier that it's more common to have a normal exam?

A. Yes.

On cross-examination, Dr. Persaud testified to the two major findings in her exam. Only one of these was mentioned in the habeas court's findings.

Q. Okay. Now, on page four of the exam, there's a big block and it says "Impression from the exam."

And it says, "No physical findings suggestive of abuse at this time," period. And, " Normal genital exam does not rule out abuse;" is that correct?

A. Yes.

Viewed in its entirety, Dr. Persaud's testimony is not "questionable" or "implausible." On the contrary, Dr. Persaud's testimony demonstrates how the complainant could have been sexually abused as she claimed without showing any physical signs of sexual abuse. See Elizondo, 947 S.W.2d at 209 (habeas corpus applicant must clearly and convincingly show that a jury would acquit him).

B. The Bloody Shirt

The complainant's aunt testified at applicant's 1997 trial that she found a bloody shirt in a box under the complainant's bed after applicant's arrest . . .

Q. What were you searching for?

A. Any clues to what was — anything that would help us find out what was going on — going on or how it could go on.

Q. And did you find anything? A. Yes, a shirt under [the complainant's] bed in a box.

Q. And what was the condition of that shirt?

A. There was — it was under a bunch of clothes, and it was bloody. And it was like, wadded in, like, a ball and it was in a plastic bag and had, like, weeds and stuff like it had been in the bushes or something.

Q. And what did you do with that shirt?

A. We took it and showed it to [the mother] and called the detective and asked him if it could be used in evidence. And we asked [the complainant] about it.

Q. And was she able to — without telling me what she said, was she able to give you an explanation as to why the shirt was bloody?

A. Yes.

The complainant testified at applicant's 1997 trial about an incident during a camping trip at a lake in Oklahoma. The complainant recalled that after the assault she used her shirt to wipe blood off of her legs because she was menstruating. She testified that she left the bloody shirt at the scene of the assault but later saw it in a plastic bag in the trunk of the aunt's car.

Q. Would you go on camping trips together?

A. Yes.

Q. Do you recall a time that you went to Oklahoma?

A. (Nods head.)

Q. — to Turner Falls?

A. (Nods head.)

Q. And you were on your period?

A. (Nods head.)

Q. Can you tell me what happened during that trip?

A. Well, there was — it was like we had to go downhill to the creek with the — where the water was passing through.

Q. Who had to go?

A. Well, we were all going down there.

Q. Your mom, [your younger sister], yourself and applicant?

A. Yes.

Q. Okay.

A. And we all were down there. We stayed there for — down there for about maybe an hour or so, and then we headed back up. I was trying to get my clothes back on. And my mom and my sister were already on their way up. And [applicant] was just sitting there not making any attempt to — to go, and I was trying to avoid every chance possible to where I had to be alone with him.

And I started my way up to — the hill, and I felt this hand on my foot. And he asked me where I was going. And I just looked at him and rolled my eyes and tried to go back up the hill as fast as I could and —

Q. And then what happened?

A. He pulled me down real fast, and he was just wearing swim trunks, and I was just wearing my bathing suit, and — it's like a tank top kind of, and he —

Q. What did he do to you?

A. He started — put his penis in my vagina again, and — but this time it — it wasn't for very long at all that — because I kicked him on the inside of his leg and that's when he let go. And he — as soon as I pushed him off, I was just laying there and he had already made his way back up. And I — and — and I was in my period at that time, and since I had just left from swimming, I wasn't wearing any pads or anything. And I was — I had blood all over my legs, and so I couldn't let my mom see that, so I had to take off my tank top and, like, I cleaned it all up, and I just left it there, and then went back to the car.

Q. Did you ever see that tank top again?

A. Yes.

Q. Where did you see it again?

A. The next time I can remember seeing it was in [the aunt's] car in the trunk.

Q. What was it in?

A. A plastic bag.

The complainant later testified on cross-examination that she left the bloody shirt at the scene of the assault in Oklahoma but that she later saw it in the trunk of the aunt's car and later in the trunk of the mother's car. She testified that she did not move the bloody short to these places and she did not know how it ended up under her bed.

Q. You talked about one incident being at the — the abandoned house, so this other time you testify that applicant] put his penis in your vagina at the lake also?

A. Yes.

Q. Did he just put it in once?

A. Yes.

Q. And took it out?

A. Yes.

Q. That was it?

A. Yes.

Q. Now, you testified you were on your period at this time?

A. Yes.

Q. That means you had your menstruation cycle; is that correct?

A. Yes.

Q. You didn't have a Tampon or Kotex or anything like that?

A. I did before I went there, but I took it off when I got in the water — before I got in the water.

Q. Took the Tampon out before you got in the water?

A. Yes.

Q. Now, on the tank top that you wiped the blood up with, did you have a bathing suit on underneath the tank top?

A. Yes.

Q. What color was the tank top? If you remember.

A. It was white and blue polka dots.

Q. Then after you wiped the blood off your legs, you left the polka dot halter top; is that correct?

A. Yes.

Q. And you've seen it again since you saw it in your aunt's car?

A. Yes — no — well — I saw it again after that.

Q. After what?

A. After I saw it in her trunk.

Q. Oh, you've seen it since you saw it in the trunk?

A. Yes.

Q. Okay. Where did you see it then?

A. I saw it in my mother's trunk.

Q. Okay. And are those the only two times you've seen it since?

A. Yes.

Q. Would it surprise you if that tank top were underneath your bed?

A. Would it surprise me?

Q. Yes.

A. Yes.

Q. You didn't put it under your bed in a box, did you?

A. No, I didn't even pick it up to get moved to the — even to the house.

Q. You left it in Oklahoma?

A. Yes.

This Court's opinion on original submission considered the bloody shirt evidence "questionable" because "there was conflicting testimony about a blood-stained shirt said to have been found by the complainant's aunt." Tuley, slip op. at 16. This Court on original submission stated:

In another instance, there was conflicting testimony about a blood-stained shirt said to have been found by the complainant's aunt. The complainant testified that she had left the shirt at the scene of an attack in Oklahoma. The complainant's aunt testified that she found the shirt under the complainant's bed in Dallas. She also testified that she offered the shirt to an investigator who said he could not accept it.

Id.

The habeas court made findings that the bloody shirt evidence was another example of "implausible" testimony "rife with material contradictions."

Rife with material contradictions, this Court observed instance upon instance of testimony that either conflicted with testimony given by other State's witnesses, or which was simply implausible. By way of example, this Court can recall the vast inconsistencies in the testimony regarding a blood stained shirt alleged to have been found by [the aunt]. As testified to by [the complainant], this shirt was used to wipe a quantity of blood left on her legs after an assault alleged to have occurred at a lake in Oklahoma. (Citation to Reporter's Record Of Applicant's 1997 Trial Omitted). Despite [the complainant's] testimony that she left the tank top at the scene of the assault, [the aunt] testified that she found this blood soaked shirt under [the complainant's] bed in Dallas. (Citation to Reporter's Record Of Applicant's 1997 Trial Omitted). [The mother] then testified that when this evidence was offered to the detective, the detective then declined to accept it, stating "he couldn't."(R.R. IV, 104).

The record from applicant's 1997 trial is not "rife with contradictions" and does not contain "vast inconsistencies in the testimony regarding a blood stained shirt alleged to have been found by [the aunt]." The complainant consistently testified that she left the bloody shirt at the scene of the assault in Oklahoma and that she did not know how the shirt ended up under her bed. The aunt did not contradict the complainant's testimony that she left the bloody shirt at the scene of the assault in Oklahoma and the complainant did not contradict the aunt's testimony that she found the bloody shirt under the complainant's bed. The record from applicant's 1997 trial merely demonstrates a mystery on how the bloody shirt ended up under the complainant's bed. In addition, despite any conflicting evidence on how the bloody shirt ended up under the complainant's bed, a reasonable juror could determine that it is more significant that the complainant truthfully testified that a bloody shirt, in fact, exists. See Elizondo, 947 S.W.2d at 209 (habeas corpus applicant must clearly and convincingly show that a jury would acquit him).

C. The Missing Diary

The record from applicant's 1997 trial reflects that the trial court ordered the complainant to produce her diary. The complainant returned to court the next day and claimed that her house had been burglarized during which the only thing taken was the diary. The trial court decided that this evidence about the missing diary could be presented to the jury.

[THE COURT]: All right. Let's go on the record.

As we began this morning, the State notified the Court that yesterday afternoon, as you will recall, I ordered [the complainant] to produce her diary for the Court today. Sometime during the evening hours of last night, apparently the diary was stolen and a police report was filed by [the mother]. According to the police report, the only thing that was taken from the residence was the diary.

Back in chambers the Defense asked the Court to be able to develop that as testimony in from of the jury, and I'm going to let y'all do that, but with these restrictions: I think you can ask — whichever witness you've got — whoever you want to get it in through, you make up our own minds, but I think your entitled to ask: "Was [the complainant] ordered by the Court to bring the diary?" . . .

Applicant claimed in his habeas corpus application that the missing diary "was perhaps the most egregious incident of the trial." In his opening remarks to the habeas court at the habeas hearing, applicant's lawyer stated that the complainant testified at applicant's 1997 trial that she kept a diary "containing written recordings of the assaults."

[APPLICANT]: Finally we will ask that you recall your Order to [the complainant] after testifying that — she had kept a diary containing her impressions or not — excuse me, not her impressions, but containing written recordings of the assaults. And that the next day [the complainant] and her mother appeared with a story that the diary had been taken —

[THE COURT]: I remember that well.

[APPLICANT]: All right.

— in the burglary, and was the only item taken in the burglary that night.

(Emphasis Supplied).

This Court's opinion on original submission also stated as fact that the complainant testified at applicant's 1997 trial that her diary described "some of the events that formed the accusations against the applicant." See Tuley, slip op. at 16. This Court's opinion on original submission also considered the missing diary evidence as an example of the "inconsistent and implausible testimony" from applicant's 1997 trial. See id.

The habeas court also stated as fact that the complainant testified at applicant's 1997 trial that "she recorded some of the events she testified to in a diary that she kept in her home." The habeas court also considered the missing diary evidence as supportive of its finding "that the evidence of [applicant's] guilt was severely deficient" and as serving "to exemplify the overall mendacity that permeated nearly every witnesses [sic] testimony at trial." The habeas court's findings state:

While Applicant's recitation of the evidence refreshed the Court's recollection in greater detail as to certain pieces of testimony, this Court distinctly recalls some specific aspects of the testimony vividly. In particular, the Court recalls the testimony of [the complainant] that she recorded some of the events she testified to in a diary that she kept in her home. (R.R. IV, 148). Subsequent to [the complainant's] testifying to this, defense counsel requested that the diary be produced. (Citation To Record Of Applicant's 1997 Trial Omitted). After this Court ordered [the complainant] and her mother to bring the diary to court with them the next day, [the complainant] and her mother appeared without the diary, at which time they informed the Court that their home had been burglarized the previous evening, and that the only item taken was the diary. (Citation To Record Of Applicant's 1997 Trial Omitted). While this event is far from determinative of this Court's finding that the evidence of guilt was severely deficient, it does serve to exemplify the overall mendacity that permeated nearly every witnesses [sic] testimony at trial.

(Emphasis Supplied).

It is appropriate to note initially that the record from applicant's 1997 trial indicates that the complainant never testified that her diary described "some of the events that formed the accusations against the applicant." She actually testified before the jury that her diary "just state[d] [her] feelings, nothing specific or anything."

Q. Did you write things about any of the incidents that you've testified to in your diary?

A. Yes, I — I — it — all it said — it just states my feelings, nothing specific or anything.

And, later in the hearing outside the jury's presence resulting in the trial court ordering her to bring her diary to court the next day, the complainant testified that she wrote things in her diary about "everyday life."

Q. [Complainant], earlier today you talked about you had a diary that you have at your grandmother's house.

A. Yes.

Q. Is that diary still at your grandmother's house?

A. I'm not sure if it's actually there right now.

Q. Do you know where it is?

A. No — no, not — not right now, I don't.

Q. You could put your finger right on it; is that right?

A. Yes.

Q. Do you think if you went home and looked for it, you'd find it?

A. Yes.

Q. And you said that you wrote things in there; is that correct?

A. Yes.

Q. About like what happened at school or stuff like that?

A. Everyday life.

Q. Everyday life?

A. Yes.

[APPLICANT]: We'd like to have it, Your Honor.

[THE COURT]: All right.

[Naming the complainant], you need to try to find that diary tonight and bring it to court tomorrow. None of us are interested in reading all the details of your personal life, but anything that related to anything that you testified to, [applicant's] entitled to see.

The complainant's mother later testified before the jury at applicant's 1997 trial that the diary was the only thing taken during a burglary. The habeas court's findings, however, do not mention that the mother also testified that applicant's family knew where she lived and that she and the complainant had planned to spend the night with a friend when they discovered the burglary. The habeas court's findings also do not mention that the mother provided uncontradicted testimony that there was physical evidence of a burglary. The complainant's mother was not permitted to testify about "any concerns" she had about applicant's brother knowing where she lived.

Q. [The mother], does the [applicant's] family know where you live presently?

A. Yes, they do.

Q. Does his younger brother, Chase, know where you live?

A. Yes, he does.

Q. Since [applicant] has been in jail, have you had any concerns about Chase knowing where you lived?

[APPLICANT]: Your Honor, I would object to the relevance.

[THE PROSECUTION]: I withdraw the question, Your Honor.

[APPLICANT]: I'd ask the jury to be instructed to disregard the question and any answer that might have been made.

[THE COURT]: Well, there was no answer. I'll ask y'all to disregard the question.

Q. What time did you get home last evening — last night?

A. 6:30, quarter to seven.

Q. Where did you go when you got home?

A. We went to my mom's.

Q. And your mom lives?

A. Right next door in the same triplex.

Q. And what happened after you left your mom's?

A. We went to the house to get our stuff ready so we could go spend the night with a friend instead of staying there, and my daughter noticed that the chair was away from the window and — it was against the window.

Q. In what room?

A. In [the complainant's] bedroom.

Q. And was anything else messed up in the room?

A. The blinds were all the way up, and the window was cracked about that far (indicating).

Q. Was anything else misplaced?

A. There was a book in — it's a room that we do not use anymore. It's like a storage room now. And there was a book on the floor, because there's a shelf on top, and it was just laying on the floor and it wasn't laying on the floor before.

Q. Were there any other marks on any other windows?

A. Yes, in the kitchen on the outside.

Q. What was there?

A. I'm sorry.

Q. What marks were there on the window?

A. It looked like somebody was trying — trying to pry the window open, and the [police] officer looked at it, too. He said —

[APPLICANT]: I'll object to the hearsay, Your Honor.

[THE COURT]: Sustained.

The totality and not just selected portions of the missing diary evidence from applicant's 1997 trial indicate that this evidence is not "implausible." A reasonable juror could determine that members of applicant's family might have been highly motivated to obtain the diary and that they might have even had something to do with the missing diary. This would explain why only the diary would have been taken during a burglary of the complainant's home.

These inferences are even more reasonable in light of other evidence at applicant's 1997 trial that the trial court found it necessary to admonish some "unidentified individuals," who apparently were on applicant's witness list, not to harass the victim during the trial. The habeas court's findings do not mention this evidence either.

[THE COURT]: All right. It's come to my attention that there's some improper behavior happening out in the hallway there, and this applies to you. It doesn't apply to you. It doesn't apply to you, but I'm going to tell you right now, it's going to stop.

It was reported to me that when [the complainant] in this case was testifying, that some of you were looking in the back window, and I sent my bailiff out there and he admonished you all not to do that anymore.

And then it was reported to me that there was some conversation going on about, "Let's stare at her. Let's make her feel uncomfortable," or things to that effect.

I'm telling you right now, there's a couple of problems that y'all are going to run into.

Let me tell you first of all, this is a first-degree felony trial. This is serious business. [Applicant] is facing life in prison. Do y'all know that? This isn't fun and games time.

Y'all also — I could hold you in contempt. I could put you in jail or I could fine you; do you understand that?

[UNIDENTIFIED INDIVIDUALS]: (Nod heads in unison.)

[THE COURT]: There's also a felony charge called retaliation that you could be charged with or tampering with a witness or trying to intimidate a witness; do you all understand?

[UNIDENTIFIED INDIVIDUALS]: (Nod heads in unison.)

[THE COURT]: And don't think I won't. I don't want to hear about any more of this going on. I don't want y'all to even so much as look at [the complainant]; do you understand me?

[UNIDENTIFIED INDIVIDUALS]: (Nod heads in unison.)

[THE COURT]: All right. Go back out in the hallway.

[APPLICANT]: Your Honor, I don't believe any of these people are going to be used today. Could we release these witnesses to leave the courthouse and leave the building?

[THE COURT]: Fine with me.

[APPLICANT]: One other matter.

What time do they need to be back tomorrow afternoon.

[APPLICANT]: Tomorrow morning.

[THE COURT]: You instructed the other witness not to wear shorts tomorrow; is that correct?

[APPLICANT]: We told him that.

[THE COURT]: All right. Mr. Francis, you are not free to leave Dallas. Where you go in Dallas, I don't care.

Even if the complainant made up the story about the burglary and the missing diary, a reasonable juror could also determine that the complainant did so because she did not want to share the secrets of her diary and not because she was afraid that the contents of her diary would prove her a liar or would somehow show applicant's innocence. Applicant has not clearly and convincingly shown that the missing diary evidence is so implausible or was such an "egregious incident of the trial" that a reasonable juror would acquit applicant based on his "new" evidence. See Elizondo, 947 S.W.2d at 209.

VI. CONCLUSION REGARDING APPLICANT'S "NEW EVIDENCE" AND "ACTUAL INNOCENCE"

In conclusion the evidence that applicant presented in support of his habeas application is not "new" and the evidence from applicant's 1997 trial is not "implausible." Much of applicant's case of innocence boils down to a selective and sometimes less than accurate reading of the testimony from his 1997 trial.

In addition, applicant's habeas corpus application and the habeas court's findings do not mention what perhaps is the most damning and unrecanted evidence of applicant's guilt presented at his 1997 trial. This unrecanted evidence shows that the sexual relationship between applicant and the complainant's mother "pretty much stopped" within a month after applicant moved in. This unrecanted evidence also shows that applicant spent a lot of time alone with the complainant over the next year and-a-half.

It is significant that the complainant stated in her affidavit in support of applicant's habeas corpus application that she did not plan to accuse applicant "until the moment" that the mother asked the complainant whether applicant was abusing her. Since other unrecanted testimony from applicant's 1997 trial is that the mother called the police when the complainant made her outcry statement, then this would have given the complainant less time (than what applicant claimed at trial) to fabricate the details of the molestations before the police began to question the complainant. More unrecanted evidence from applicant's 1997 trial indicates that the complainant told the same basic detailed story to two different police officers who questioned her two different times. It would take somewhat of an accomplished liar to do this. Also, and most important, is the fact that applicant pled guilty. Applicant has not unquestionably established his innocence. At best, he has shown that he is probably guilty.

The concurring opinion to the denial of rehearing ("the concurring opinion") suggests that this Court would have independently examined the record from applicant's 1997 trial as required by Elizondo had the State made this trial record a part of the habeas record. But, as the moving party on habeas corpus challenging his conviction, applicant (and not the State) bears the burden of making this trial record a part of the habeas record. It is applicant's burden to overcome his conviction which Elizondo states "is entitled to the greatest respect." See Elizondo, 947 S.W.2d at 209.

And Elizondo's mandate requiring this Court to weigh the new evidence of innocence against the evidence of guilt does not involve making credibility and weight determinations as suggested by the concurring opinion. And while one might agree that the State could have done a much better job than it did of showing that applicant is probably guilty, this does not relieve the Court of its burden to conduct the Elizondo analysis which this Court assured the bench and bar it would do when it made its controversial decision in Elizondo by a 5-4 vote. See, e.g., Elizondo, 947 S.W.2d at 215-16 (Womack, J., dissenting on rehearing).

The concurring opinion mischaracterizes the dissenting opinions on original submission and on rehearing as stating that applicant "may not be guilty of aggravated sexual assault, but he is guilty of perjury, so keep him in prison for aggravated sexual assault." However, neither of these dissenting opinions state or even suggest this. The dissenting opinion on original submission stated that Elizondo should not apply to a guilty-pleading habeas corpus applicant because a guilty-plea is a highly significant event in the criminal process that quite validly removes the issue of factual guilt from the case. Contrary to the concurring opinion's characterization, this states that the applicant is "guilty of aggravated sexual assault, so keep him in prison for aggravated sexual assault."

By downplaying the significance of applicant's voluntary guilty plea, the Court makes it easy for this guilty-pleading applicant to excuse that voluntary guilty plea (which applicant now claims was not true), granting him habeas corpus relief based upon a presentation of "old" evidence (which applicant discovered only after he went to prison) and a selected, inaccurate and misleading presentation of evidence from his trial. This seriously compromises the integrity of the judicial process. If such a guilty-pleading applicant can make a truly persuasive showing of innocence, then he can either seek executive clemency or he can seek to set aside his guilty plea on habeas corpus in this Court. Thus, an applicant like the one here still has options to obtain justice.

The dissenting opinion on rehearing assumes Elizondo's application to a guilty-pleading applicant, discussing how applicant's guilty plea should be weighed in the Elizondo analysis. In satisfying Elizondo's mandate, we would have to recognize that a rational factfinder could consider applicant's false guilty plea in determining whether he is now telling the truth. In other words, a rational factfinder would have to determine whether applicant is lying now, when he says that he didn't do it, or whether he was lying earlier when he said that he did do it. This dissenting opinion also offers several reasons to explain why applicant's guilty plea might be a reliable indicator of guilt.

The concurring opinion also disagrees with the dissent's recitation of the record facts labeling it as "spin . . . placed on the cold record today." This is an odd statement to make since even now a majority of this Court declines to independently examine this record as required by Elizondo. Also, the record speaks for itself. If comparing the evidence of guilt against the new evidence in determining whether applicant has unquestionably established his innocence equates to placing a "spin" on the record, then Elizondo requires that distinctive point of view. It is clear that applicant's "new" evidence is not new or it is cumulative of the evidence that he had an opportunity to present at trial. It is equally clear from independently examining the trial record that the "implausible" evidence from applicant's 1997 trial was actually not so implausible and the concurring opinion does not show otherwise.

What this case boils down to, and what seems to overpersuade the Court, is that applicant's jury was split 10-2 in favor of acquittal. This together with applicant's "new" evidence apparently is what persuades the Court that applicant has unquestionably established his innocence. By denying rehearing and granting the applicant relief this Court has dictated an unfortunate formula for the future: a guilty plea that is later consigned into oblivion versus a recantation forced, false or questionable, equals freedom. That should not be the burden this Court places on the criminal justice system.

Because the Court does not give applicant's error-free conviction the "greatest respect" which Elizondo states that it is entitled, I respectfully dissent to the denial of rehearing.