Opinion
NO. WR-84,091-01
12-19-2018
EX PARTE STEVEN MARK CHANEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W87,95754-K(A) IN CRIMINAL DISTRICT COURT NO. 4 FROM DALLAS COUNTY RICHARDSON, J., filed a concurring opinion in which HERVEY, ALCALA, and NEWELL, JJ., joined. CONCURRING OPINION
Presiding Judge Keller and Judge Yeary urge the Court to adopt a more rigorous test to prove that one is "actually innocent." I do not agree with their position. Rather, I join the majority opinion, which rightly follows the standard for actual innocence based on new evidence that we set out in Ex parte Elizondo —"[A]n applicant must prove by clear and convincing evidence that no reasonable juror would have convicted him based on the newly discovered evidence." I see no reason to change the standard to now require Chaney to prove his innocence beyond a reasonable doubt. He did not have that burden at trial, and he should not have that burden now.
Majority Opinion at 53 (citing Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996).
I am aware that the Supreme Court has held that the presumption of innocence "disappears" after an applicant "has been afforded a fair trial and convicted of the offense for which he was charged." Herrera v. Collins, 506 U.S. 390, 399 (1993). However, that rule of law seems to beg the question when we are dealing with an actual innocence claim based on false evidence. If the State's evidence presented against a defendant was faulty in any way, whether because it was untrue, or secured improperly, or misleading because exculpatory evidence was withheld, then how can we say the defendant was "afforded a fair trial?"
Judge Yeary notes that he is "intrigued" by Presiding Judge Keller's position, but he is more than merely "intrigued." He advocates in this case, and has urged in prior cases, that we should raise the burden of proof on an actual innocence claim higher than the burden we set in Elizondo. In fact, Judge Yeary takes what I find to be the remarkable position that this Court might not even have the power to grant actual innocence relief, even though we have done so for years under clear precedent. Under Texas Civil Practice and Remedies Code, section 103.001, a person who has been imprisoned is entitled to compensation if the person "has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the person is actually innocent of the crime for which the person was sentenced." This Court is the only court with the power to grant such relief under Texas Code of Criminal Procedure articles 11.07 and 11.071. So I would ask, if we do not have the power to grant actual innocence relief, who does?
See Ex parte Cacy, No. WR-85,420-01, 2016 WL 6471975 (Tex. Crim. App. Nov. 2, 2016) (Yeary, J., concurring); Ex parte Wimberly, No. WR-64,017-05, 2017 WL 4946546 (Tex. Crim. App. November 1, 2017) (Yeary, J., concurring).
I cannot think of two more compelling cases where we have granted actual innocence relief than Ex parte Morton and Ex parte Cacy. In Ex parte Morton, new DNA evidence showed that another individual, not Morton, killed Morton's wife. This Court therefore granted relief on Morton's actual innocence claim. In Ex parte Cacy, there were not only significant Brady violations, but there was also new expert testimony and new scientific evidence conclusively showing that an accelerant was not used to start the fire that killed the victim. Yet, despite the overwhelming evidence supporting Cacy's actual innocence claim, Presiding Judge Keller and Judge Yeary still did not agree with the majority of this Court to grant Cacy actual innocence relief.
No. AP-76,663, 2011 WL 4827841 (Tex. Crim. App. Oct. 12, 2011).
No. WR-85,420-01, 2016 WL 6525721 (Tex. Crim. App. Nov. 2, 2016).
Ex parte Cacy, 543 S.W.3d 802 (Tex. Crim. App. 2016) (Yeary, J., concurring, joined by Presiding Judge Keller).
In this case, Chaney presents the following new evidence to support his actual innocence claim: • New scientific evidence to contradict the bitemark-comparison evidence relied on by the State at trial. The expert testimony bitemark evidence presented at trial in 1987, which was central to the State's case, would not be accurate nor admissible under today's scientific guidelines. • False evidence. Expert testimony that there was only a "one to a million" chance that someone other than Chaney was the source of the bitemark was knowingly false at the time it was given. In addition, expert testimony that the bitemark wound occurred at the time of death was false and misleading. • Evidence to show that the State violated Brady. The State failed to disclose that an earlier examination of Chaney's shoes uncovered no blood. The State failed to disclose the fact that the police searched Chaney's home and vehicle and found nothing. The State failed to disclose that Hilton (the anonymous caller pointing to Chaney as the killer) gave numerous inconsistent statements to police. • New evidence to show that Chaney is actually innocent. In addition to the above, there was newly discovered evidence linking another person to the crime, and later DNA testing of all testable evidence excluded Chaney as a contributor. I agree with the majority that the State's case has been significantly undermined by the newly discovered evidence. And, I agree with the habeas court's observation that, "without the bite mark evidence to definitively link [Chaney] to the murders, the jury would likely have viewed both the contradictory report on [Chaney's] shoes and the lack of blood evidence found at his home more favorably." Moreover, I agree that the evidence presented by the State to prove Chaney's motive to kill has no inculpatory value in light of the new evidence, and Chaney's alibi evidence should now be viewed in a different light when added to the newly discovered evidence.
See Ex parte Miles, 359 S.W.3d 647, 673 (Tex. Crim. App. 2012) (holding that, "[w]hen we balance the newly available evidence . . . with other exculpatory evidence and the evidence of guilt presented at trial, we are satisfied that Applicant has shown by clear and convincing evidence that no rational jury would convict him in light of the new evidence").
Nevertheless, Presiding Judge Keller and Judge Yeary urge us to abandon the Elizondo standard and "reformulate the standard" to require an applicant to establish his innocence beyond a reasonable doubt. But if we apply that standard to this case, we would have to say that even though no reasonable juror would have convicted Chaney at trial in light of the new evidence—i.e., the Elizondo standard—he could not be granted actual innocence relief. That is too high a hurdle, particularly under the facts of this case. I agree with the majority that the Elizondo standard makes far more sense, which is why it should remain the standard, and which is why Chaney is entitled to actual innocence relief.
With these comments, I concur and join the majority. FILED: December 19, 2018 PUBLISH