              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. AP-76,160



                   EX PARTE DOMINGO CALDERON III, Applicant

              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE NO. 04-11-0244-CRA IN THE 218 TH DISTRICT COURT
                             ATASCOSA COUNTY

           HERVEY , J., delivered the opinion for a unanimous Court.

                                          OPINION

       Applicant pled no contest to indecency with a child. He claims that newly discovered

evidence establishes that he is actually innocent of this offense and that he falsely pled no contest

at the request of his mother.1 We filed and set this case to determine, among other things, whether

applicant has established that he is actually innocent. The State concedes and the convicting court

has consistently made findings that applicant is actually innocent, and this Court has decided to



       1

        In its May 11, 2007, findings, the convicting court found that applicant’s mother testified
“that she pressured [applicant] to plead” because she believed that her husband “would divorce her
and seek custody of [their] children if she continued to persist in claiming [applicant’s] innocence.”
Applicant also claimed in an affidavit that this is why he pled no contest.
                                                                                          Calderon--2

accept these findings.2 It is necessary, however, for us to determine whether we should grant

applicant habeas corpus relief and set aside his conviction because, over the course of four remands

and two live hearings, the convicting court has made supported-by-the-record but contradictory

findings on whether applicant’s actual-innocence claim is based on newly discovered or newly

available evidence. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Cr.App. 2006) (“Not only must

the habeas applicant make a truly persuasive showing of innocence, he must also prove that the

evidence he relies upon is ‘newly discovered’ or ‘newly available.’ The term ‘newly discovered

evidence’ refers to evidence that was not known to the applicant at the time of trial and could not

be known to him even with the exercise of due diligence.”).

       We first set out the facts that are not in dispute. In November 2004, applicant was charged

with aggravated sexual assault of his sister Elaine (born on May 18, 1987) and his other sister Janie

(born on September 1, 1993). On July 5, 2005, pursuant to a plea bargain, applicant pled no contest

to a reduced charge of indecency involving Janie. The convicting court deferred an adjudication of

guilt and placed applicant on community supervision (“probation”) for seven years. On May 31,

2006, applicant was sentenced to ten years in prison after his probation was revoked because, among

other things, he refused to admit in sex-offender therapy that he had molested Janie. On September

29, 2006, applicant filed a habeas corpus application in which he claimed, among other things, that



       2

        See Ex parte Tuley, 109 S.W.3d 388, 395-97 (Tex.Cr.App. 2002) (granting habeas corpus
relief on guilty-pleading applicant’s actual-innocence claim based primarily on complainant’s
recantation and convicting court’s findings that this recantation was credible and that the applicant’s
guilty plea was not “accurate”) and at 393 n.2 (a person could be pressured to plead guilty to
something that he did not do “in order to protect someone else, whom he loves or fears”); Article
27.02(5), TEX . CODE CRIM . PROC. (no-contest plea or plea of nolo contendere has same legal effect
as a guilty plea in a criminal case).
                                                                                        Calderon--3

he is actually innocent of the indecency offense involving Janie. This application was supported by

Janie’s July 8, 2006, affidavit recanting her prior allegations that applicant committed this offense

(“Janie’s July 8, 2006, recantation affidavit”).3

       The undisputed evidence also shows that in April 2005, while the aggravated-sexual-assault

charges involving Elaine and Janie were pending against applicant, Elaine and Janie approached their

mother (“the mother”) and told her that they had falsely accused applicant of molesting them. The

mother informed applicant’s lawyer (Futrell) of this. After interviewing Elaine and Janie and

confirming that they had recanted their allegations that applicant had molested them, Futrell set up

a meeting with the prosecuting attorney (Hudson). When the mother and the girls went to Hudson’s

office, the mother’s husband, who was Janie’s father (“the father”), was also there waiting for them.

       When Hudson interviewed Elaine, she again recanted, which caused Hudson to decide to

dismiss the charges involving Elaine. While Elaine was meeting with Hudson, the father told Janie

not to recant. When Janie met with Hudson, she did not recant, which caused Hudson to decide not

to dismiss the charges involving Janie.4 Evidence was presented at a writ hearing that the then 11-

year-old Janie feared her father and was afraid that he would throw her out of the house, as he did

to Elaine, if she recanted.

       Q. [APPLICANT’S COUNSEL]: Okay. Stop just a minute. So [the father], he was
       outside the D.A.’s office?


       3

       This application was also supported by two affidavits (dated July 8, 2006, and July 11, 2005)
from Elaine, and an affidavit (dated July 8, 2006) from the mother of applicant, Elaine and Janie.
       4

      Futrell testified that he did not speak to Janie after the meeting with Hudson because
“bouncing these kids back and forth between the lawyer and the D.A. and [the father] and the
mother” gets them “so emotionally distraught.”
                                                                                   Calderon--4

A. [THE MOTHER]: Yes, he was.

Q. Did y’all jointly go into the District Attorney’s Office?

A. My daughters and I walked in and he walked in.

Q. Who went in first to meet with [Hudson]?

A. It was Elaine.

Q. And then what happened after Elaine came out?

A. After she came out?

Q. Yes, what was the next thing that happened?

A. Janie went in.

Q. What was [the father’s] demeanor as you were waiting? Was it in a lobby? Were
you in a lobby there?

A. When Elaine was in conferring with [Hudson], Janie, myself, and [the father]
were sitting out in the lobby and she didn’t want to sit next to him. She wanted to
sit next to me because she was afraid and she was shaking because she wanted to tell
the truth and she was reluctant at that point because he was sitting there. He didn’t
want her to change the story. He didn’t want her to. He had told her.

Q. [Applicant] is not the first child [the father] has thrown out of your home, correct?

A. No, sir.

Q. He has thrown other children out of your house?

A. Yes, sir, he threw Gabe out my number three son, and then after Elaine–after he
found out that Elaine had recanted, outside of the office the D.A.’s office he told her
to pack her bags and move out of the house. She was only 17.

Q. How would you describe [the father’s] discipline as a parent?

A. This is my house and if you don’t do what I say you need to leave.
                                      ***
Q. [APPLICANT’S COUNSEL]: So did [the father] actually show up at the District
Attorney’s Office?
                                                                                            Calderon--5

        A. [JANIE]: Yes, sir.

        Q. And how did you feel when he showed up?

        A. I felt nervous and I felt scared that he was going to know that I had made it all up.

        Q. Why were you scared of [the father]?

        A. Because whenever he found out that [Elaine] had changed her story he kicked her
        out of the house and he kicked all my brothers and Elaine out of the house when they
        were young.

        That night Janie wrote a note stating that she had lied to Hudson and that applicant was

innocent.5 That same night Janie gave her mother the note which her mother was supposed to deliver

to Hudson.

        Q. [APPLICANT’S COUNSEL]: Now after you left [Hudson’s] office, did you
        prepare a letter or note some time after that?

        A. [JANIE]: Yes, sir. I felt bad so I went to my room later on that night and then I
        called my mom in there and I said, “Mom, I told [Hudson] that he did touch me.”
        “But I thought you were going to confess [sic].” I go, “I know, I’m sorry but I got
        intimidated because of [the father]. So I wrote a letter to [Hudson] saying I’m sorry
        that I made it up.” And I don’t remember what I said in the letter but I was
        apologizing and I gave it to my mom.

        Q. Who were you writing the letter to?

        A. [Hudson].

        Q. And did you give the letter to your mom with intent to be delivered to [Hudson].?

        A. Yes.
                                                  ***


        5

         Janie testified that the note was not as detailed as her July 8, 2006, recantation affidavit. She
testified that the note was “just a general apology” for having lied to Hudson and that the note stated
that applicant “had never committed any offenses.” In its March 25, 2009, findings, the convicting
court found that there is “no evidence of a material difference” between Janie’s note and Janie’s July
8, 2006, recantation affidavit.
                                                                                           Calderon--6

       Q. [APPLICANT’S COUNSEL]: After you left the meeting there at the District
       Attorney’s Office with [the father], Elaine, and Jane [sic], after that, did Janie
       approach you with this letter?

       A. [THE MOTHER]: Yes, she was crying and she said she didn’t feel–she didn’t feel
       right that she couldn’t tell [Hudson] the truth. She called me to her bedroom and
       that’s when she told me that one night and she had a paper folded up and she said,
       “Could you please give this to [Hudson].” She called me into her room. She locked
       the door. She didn’t want her father to hear it or see what she was going to give me.
       So she said, “You can read it and give it to him, please.” And I opened it up and it
       said, “I’m sorry that I lied. I didn’t tell the truth and I’m sorry.” I don’t remember
       the words. I don’t remember what it said but it said that she was sorry and that she
       lied and that [applicant] was innocent.

       The mother testified that soon after this she gave the note to another lawyer (Porter) to give

to Hudson. The evidence is conflicting on what happened to this note after Janie’s mother gave it

to Porter to deliver to Hudson, and the convicting court has made contradictory findings on whether

applicant, Futrell and Hudson knew about the note before applicant pled no contest in July 2005 and

before his probation was revoked in May 2006.6 The mother provided testimony that would support


       6

         For example, in its May 11, 2007, findings, the convicting court found that Janie’s note was
given to Hudson and that the mother “believed the note was made known” to Futrell and applicant.
         In its January 22, 2008, findings, the convicting court found that when “applicant entered the
plea in July 2005 he was unaware [that Janie] had recanted by writing a note and giving the note to
[the] Mother” and that applicant “was unaware the note had been provided to [Hudson].” The
convicting court also found that Porter testified that she “reviewed the note prior to delivering” it to
Hudson and that Porter “did not advise Applicant or [Futrell] of the nature of the note.” The
convicting court also found that applicant would not have pled “had he known [that Janie] had
completely recanted.”
         In its October 10, 2008, findings, the convicting court found that Janie did not write the note
until after applicant’s adjudication in May 2006 and that this note “did not come to the knowledge
of the attorney for the State or any attorney for Applicant until after the adjudication of guilt.”
         In its March 25, 2009, findings, the convicting court found that “regardless of any
consideration as to whether the State received the [note], it is clear from the testimony that: 1)
[Futrell] knew that [Janie] had made statements that her allegations of sexual misconduct on behalf
of his client were false; and 2) [applicant] was informed by his [and Janie’s mother] that [Janie] had
recanted her testimony. The Court therefore finds that the evidence of the recantation was either
known to [applicant] or discoverable.” We note, however, that these findings seem to be based on
                                                                                           Calderon--7

a finding that applicant and Futrell knew about the note and its contents before applicant pled in July

2005. The mother, however, also provided evidence in an affidavit that she did not know if applicant

and Futrell “ever saw the note from Janie.” Porter testified that she delivered the note to Hudson but

that she was not sure when this occurred (some of her testimony suggested that it may have occurred

after applicant’s probation was revoked in May 2006). Applicant, Futrell and Hudson all claimed

that they did not know about the note and its contents until after applicant’s probation was revoked

in May 2006.7 The whereabouts of the note are unknown, and it is a mystery as to exactly what



Futrell’s testimony that he knew Elaine and Janie had recanted before the April 2005 meeting with
Hudson. This testimony, therefore, would not support a finding that Futrell knew about the note or
Janie’s later recantation.
       7

        Applicant stated in an affidavit that he did not learn that Janie “had signed an affidavit
recanting the allegations” against applicant until July 2006 and that he would not have pled had he
known that Janie “had completely recanted [in the note] in 2005.” Futrell testified that he never saw
the note and that he did not know when he first found “out about the existence of that note that was
given to [Porter]” but that he believed that he found out about the note after applicant had been
sentenced. Futrell testified that he would have urged applicant not to plead had he been aware of the
note.

       Q. [APPLICANT’S COUNSEL]: Had you known the [sic] presence of this note,
       would your advice have been different to [applicant] concerning application for
       deferred?

       A. [FUTRELL]: I’m confident that I would have strongly urged him not to plead. I
       mean, I’m confident that I would have been able to continue the case and get with the
       district attorney and talk and develop this other recantation, which if nothing else
       corroborated the other one. I mean they sort of worked to support each other, the
       other corroborating statement, and in addition to the other things that I had come to
       know and understand about his family, I think it would have been–I think it would
       have been worth trying if we couldn’t have gotten it dismissed, yes, sir.

        Hudson testified that he recalled Porter mentioning something to him about the note but that
he did not recall her physically handing it to him. He also testified that he was “almost positive” that
Porter made him aware of the note “after [applicant’s] deferred was revoked.” Hudson stated in an
affidavit that:
                                                                                          Calderon--8

happened to the note.

       Futrell and Hudson also provided testimony on the circumstances leading up to applicant’s

no-contest plea to the indecency offense involving Janie. Neither one mentioned having any

knowledge of the note and its contents while they were negotiating the plea.

       [FUTRELL]: I had understood that both of the girls were going to recant. When
       [Elaine] did and that was dismissed and okay, fine, but [Janie] didn’t. The facts were
       pretty damming [sic] and from my experience and talking with people and trying to
       figure out what had happened, I thought that the best thing for [applicant] would be
       to be placed on a deferred adjudication probation. My experience in this district has
       been that with sex offenses involving children punishment ranges can get to be pretty
       severe and with the facts that were alleged and in the discovery as I recall, it wasn’t
       pleasant. They weren’t pleasant and so I mean, we decided in the big scheme of
       things, that would be the best thing to do. So we did. Now had I known of the–I
       understand that [Janie] in April gave an affidavit to [Porter] recanting.
                                                 ***
       With the dismissal of [Elaine’s] count, there were some similar language and similar
       alleged conduct in both counts and I think we can–and I’m not sure if [Hudson] will
       agree with this or not, but with the first count dismissed and the affidavit and the
       statement of [Elaine] saying, “that didn’t happen, I was pushed and goated [sic] and
       talked into it,” that could have been some impeaching evidence at the trial on a first
       degree felony on the second count because it was–they were similar enough in the
       factual allegations, that with one of them recanted and the other one still out there but
       sort of equivocating somewhat, I think it gave me some basis to say I think I can
       impeach part of the more critical stuff that you’re talking about or I think I can


       Only after [applicant’s probation was revoked and he] was sentenced did [Janie]
       come forward and advise [Porter] of a recant. I advised [Porter] that information
       needed to be provided to [Futrell], [applicant’s] counsel in the previous case. [Porter]
       stated she had a letter written by the mother of [Janie] outlining a new recant. I
       instructed her this letter needed to be given to [Futrell]. Both [Porter] and [Hudson]
       communicated this information to the District Judge, Donna S. Rayes, and prior
       counsel for the defense, [Futrell].

       The recant by [Janie] was not made prior to the plea of no contest by [applicant].
       [Janie’s] recant was not made prior to his adjudication of guilt and subsequent
       sentencing to TDC. The recant [sic] by [Janie] was only brought to the attention of
       both defense attorney and the State after [applicant] was sentenced to TDC.

(Emphasis in original).
                                                                                            Calderon--9

       impeach this part of the factual allegation with what the sister has recanted about and
       what the sister has said about these things and so we worked. We got in a
       circumstance where both of us had a risk of going to trial, I think, and I didn’t want
       him to go–I mean, this was–I remember having a constructive relationship with
       [applicant] and I didn’t want him to go to prison for a long or big number but here’s
       this little girl that’s going to testify and she had some pretty unpleasant things to say
       and that was a risk if we had gone to trial. At the same time [Hudson’s] already let
       one of them go and there’s some few things in the remaining one that were I think
       would have given him some pause. So it was a compromise between everybody. I
       talked with the mother, I talked with [applicant], [Hudson]. It wasn’t Futrell saying,
       you better do this here, sign, and let’s go. I think it was a combined effort, a
       collaborative effort. Certainly if that’s not the way the rest of them remembering it
       happening, they can say so, but I think it was collaborative. We talked about it. We
       weren’t happy with it. I don’t think anybody was happy with it. But such the [sic]
       feelings of a good settlement sometimes.
                                                    ***
       [HUDSON]: The reason it’s an indecency case is because [Futrell] and I argued
       repeatedly on the registration and we knocked it down to indecency by exposure
       because the registration period for those crimes is less than lifetime registration. I
       think it’s ten years from the date you’re finished with probation or something and
       that’s why it’s an exposure case but I met with Janie all by herself and Janie told me
       what happened, you know. He did touch me here. That’s why I kept the case. If she
       had said no, then I would have–I mean, I’m not going to maintain a case if the girl
       tells me nothing happened and continues to tell me that.

       We further note that applicant argued to the convicting court that it would be “rather

amazing” that “everybody [would be] going forward with the plea” if they knew about Janie’s note

and its contents.

       [APPLICANT’S COUNSEL]: I think the Court is also aware of the great trials that
       this family has gone through today to come and tell the Court what happened, how
       this has gone on for this period of time. With all these, [the father] in the background
       trying to intimidate everyone. Throwing them out of their house. That is why [Janie]
       was afraid to go to the District Attorney that day when he showed up and made his
       presence known. She had already seen [applicant] and other relatives thrown out of
       the house by him. She was terrified of this man. But it was that night when she felt
       those pangs of guilt again and she wrote this letter that was delivered here to the
       District Attorney’s Office and by all count [sic], apparently this is a recantation letter
       and yet, I don’t know if [Futrell] knew that was a complete recantation but if he did,
       it’s rather amazing that the District Attorney and the defense counsel would have a
       letter for them from a complaining witness saying, “I’m recanting, nothing
                                                                                             Calderon--10

        happened,” and then everybody going forward with the plea.

        In deciding whether Janie’s July 8, 2006, recantation affidavit is “newly discovered

evidence,” we believe that the issue is whether applicant knew of or could have discovered, before

his no-contest plea in July 2005 or before his probation was revoked in May 2006, Janie’s April 2005

note since this note and its contents and Janie’s July 8, 2006, recantation affidavit are essentially the

same. See Brown, 205 S.W.3d at 545 (“newly discovered evidence” is “evidence that was not known

to the applicant at the time of trial and could not be known to him even with the exercise of due

diligence,” and an applicant “cannot rely upon evidence or facts that were available at the time of

his trial, plea, or post-trial motions, such as a motion for new trial”). In addition, it is not dispositive

that Futrell and applicant knew that Janie had recanted to her mother and to Futrell before the April

2005 meeting with Hudson, since Janie reaffirmed her accusations against applicant during the April

2005 meeting with Hudson thus putting her in the same position she was in when she first accused

applicant of molesting her.

        On this record, we decide that Janie’s note and its contents were unknown to applicant when

he pled in July 2005 and when his probation was revoked in May 2006. We adopt the convicting

court’s findings that support this decision and disregard those findings that do not support this

decision. See Ex parte Reed, 271 S.W.3d 698, 727-28 (Tex.Cr.App. 2008). In addition, we further

note that, under the specific facts of this case, it seems highly unlikely that applicant and the State

would negotiate a plea with knowledge of Janie’s note and its contents, particularly since the State

had already agreed to dismiss the charges involving Elaine based on her recantation.

        And, even if Janie’s note and its contents were known to Futrell and applicant or could have

been discovered by them through the exercise of due diligence, we would further question whether
                                                                                        Calderon--11

this evidence would have been “available” to applicant to establish a claim of actual innocence when

he pled and when his probation was revoked given the father’s influence over Janie and his

pressuring Janie not to recant.8 See Brown, 205 S.W.3d at 545-47 (an applicant must prove that the

evidence he relies upon is “newly discovered” or “newly available”). We believe that these

circumstances would have made Janie’s note and its contents just as “unavailable” to the applicant

in this case as the daughters’ recantations were “unavailable” to the applicant in Zapata in which the

applicant was unable to produce the testimony of his recanting daughters at his sentencing hearing

because the mother failed to produce these daughters for the hearing. See Ex parte Zapata, 235

S.W.3d 794, 795 (Tex.Cr.App. 2007) (applicant learned of daughters’ recantations “after the entry

of the plea but before sentencing” and he “was unable to produce the recantation testimony of his

daughters [at the sentencing hearing] through no fault of his own”). We decide that Janie’s July 8,

2006, recantation affidavit is “newly discovered” and “newly available” evidence. See Brown, 205

S.W.3d at 545.

       Habeas corpus relief is granted. The judgment in cause number 04-11-0244-CRA in the 218th

District Court of Atascosa County is set aside, and applicant is remanded to the custody of the

Sheriff of Atascosa County to answer the charges against him. Copies of this opinion shall be sent

to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and

Paroles Division.




       8

        In its January 22, 2008, findings, the convicting court found that “[Janie] was not under the
influence of [the father] when she gave the recanting affidavit in July of 2006 nor was she in custody
of [the father] when she willingly testified at the writ hearing on April 9, 2007.”
                                         Calderon--12

                            Hervey, J.



Delivered: April 28, 2010
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